Modernization, Moderation, and Political Minorities: A Response to Professor Strauss

Abstract

The Supreme Court is frequently accused of declaring laws unconstitutional based on little more than the justices' ideological preferences. In "The Modernizing Mission of Judicial Review", 76 U. Chi. L. Rev. (forthcoming 2009), Professor Strauss argues that the Supreme Court's decisions in these areas are efforts to "modernize" the law by facilitating and accommodating developments in popular opinion, rather than actions that merely entrench the justices' ideological viewpoints or personal whims. No one can deny that the justices' beliefs regarding future popular opinion are factors in the Court's decisionmaking. Justices care about their legacies and future reputations; they would prefer to be remembered as a prescient jurist, such as the first Justice Harlan, rather than as Roger Taney. And these forward-looking influences have undoubtedly produced some Supreme Court decisions that fit within the modernizing paradigm that Professor Strauss describes. But it is hard to accept Professor Strauss's descriptive claim that modernization is the Court's "dominant" or "central" approach in its capital-punishment and modern substantive-due-process jurisprudence. His analysis overstates the Supreme Court's willingness and ability to accommodate future public opinion at the expense of judicial preferences; the Supreme Court simply has not displayed the level of modesty, or the respect for popular opinion, that Professor Strauss seeks to attribute to it. Nor can the modernization framework reconcile the Court's capital-punishment and substantive-due-process cases with principles of democratic government. On the normative side, there are reasons to object to modernization as a theory of judicial review in addition to those that Professor Strauss identifies.

Keywords: Article I, Ashcroft, Atkins, countermajoritarian difficulty, death penalty, democracy, Furman, Gallup Poll, Gregg, habeas corpus review, juvenile, Lawrence, rational policymaking

JEL Classification: K10, K30, K40, Z00