RAW JUDICIAL POWER? THE SUPREME COURT AND AMERICAN SOCIETY by Robert J. McKeever. Second Edition. Manchester, England: Manchester University Press, 1995. Distributed by St. Martin's Press, New York. 323 pp. ISBN 0-7190-4873-7.
Reviewed by Thomas R. Hensley, Department of Political Science, Kent State University
"As an act of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgement is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court." This quote from Justice White’s dissenting opinion in ROE V. WADE (1973) begins Robert McKeever’s book RAW JUDICIAL POWER? THE SUPREME COURT IN AMERICAN SOCIETY. McKeever, a lecturer in politics at the University of Reading, England, writes about a familiar theme: has the United States Supreme Court in recent decades substantially exceeded its legitimate authority in American society by issuing major civil rights and liberties decisions lacking in constitutional principles and usurping the proper authority of the elected branches of government? McKeever argues that this exercise of "raw judicial power" did characterize both the Warren and the Burger Court eras, but he suggests that the Rehnquist Court has significantly moderated this pattern and that "...there will be no exercise of ‘raw judicial power’ in the foreseeable future" (p. 309).
The front cover as well as the back cover of the book proclaim that McKeever’s work is "the definitive analysis of the powerful forces shaping the United States Supreme Court today." In his Preface, however, McKeever makes a much less grandiose claim: "This book ... is a modest attempt to analyze the modern Supreme Court, taking full account of both its legal and political aspects." McKeever’s book is certainly not the definitive work on the modern Supreme Court, but his study deserves to be characterized as more than a modest attempt to examine the Court. The book is both interesting and insightful, and it qualifies as highly recommended if not essential reading for persons interested in American constitutional rights and liberties.
Most of the book examines such familiar civil rights/liberties topics as racial equality, gender equality, affirmative action, the death penalty, and abortion, but the first two chapters of the book set forth a conceptual framework for the rest of the book. McKeever presents an elaborate argument that the Court’s use of raw judicial power has been associated with powerful political and legal developments in American society. In Chapter One, he discusses the political context in terms of what he calls the rise in the decades of the sixties and seventies of "the Social Issue." This is not a precisely defined concept. McKeever states that this term refers to lifestyle issues or simply social issues; more specifically, it embodies the deep divisions in American society over such issues as abortion, affirmative action, crime and punishment, drug use, sexual mores, and attitudes toward God and country. McKeever argues that several factors have arisen in American society that have made these prominent political concerns that have affected both the role of the Court in American society and the substance of its decisions. An important source of this tension is seen to be associated with profound educational and technological developments in a post-industrial American society. Combined with the massive social movements of the sixties involving poverty, racism, and Vietnam, these educational and technological developments produced a middle-class and upper-middle class intelligentsia with liberal cultural values in sharp contrast to those of a new working class which had gained new wealth but adhered to the more traditional values of American society. McKeever admits that the precise sources of upper-middle class liberalism and lower-middle class conservatism are difficult to determine, but he argues that whatever the sources, these divisions have been a major part of electoral politics since 1968.
The rise of the Social Issue is only a part of the story according to McKeever, however. Although this development has produced deeply divisive issues in American society which have frequently reached the Supreme Court and which the Warren Court justices decided along strongly liberal lines, the question must be raised of why the more conservative appointees of Richard Nixon continued to exercise raw judicial power. McKeever suggests several reasons for this. First, the Warren Court precedents developed a strong momentum and were difficult to reverse. Second, the general growth of government was paralleled in the growth of power of the Court. Third, public advocacy law centers grew significantly and pressured the Court for activist policies. Fourth, developments in the other branches of government have contributed to judicial activism.
Having discussed the emergence and impact of the Social Issue in Chapter One, McKeever turns in Chapter Two to an analysis of changes within the American legal community that help to explain further the phenomenon of raw judicial power. McKeever argues that the debate over judicial activism vs. judicial restraint that was prominent during the Warren Court era subsequently shifted into a debate over interpretivism vs. noninterpretivism. He argues that the controversy over activism vs. restraint did have a common ground because both approaches involved genuine methods of constitutional interpretation. In contrast, he maintains, the debate over interpretivism and noninterpretivism has focused upon whether the Court should be concerned with interpreting the Constitution. McKeever presents a rather detailed description of both the interpretivist and noninterpretivist positions. He discusses four variations of interpretivism -- textualism, intentionalism, inferentialism, and moderate originalism -- citing such writers as Robert Bork, Raoul Burger, Edwin Meese, and Paul Brest. In discussing noninterpretivists, McKeever emphasizes that many writers not only argue that the modern Supreme Court does not operate on any basis of interpretivism but also approve of noninterpretivism and offer numerous justifications for this practice by the Court. For example, he argues that Jesse Choper and Michael Perry present a functional justification to support the Court’s noninterpretivist approach, and their position is that the Court’s performance and results have been positive.
McKeever thus argues that a vast array of social forces have coalesced to produce an activist Court involved in the exercise of raw judicial power. These forces include the emergence in the sixties of the Social Issue; important changes in the political and judicial processes of American politics; and the emergence of a noninterpretivist judicial philosophy which served to free Supreme Court justices from the limitations of judicial decision making based upon constitutional guidelines.
In examining a wide range of civil rights and liberties issues in the subsequent chapters of his book, McKeever draws heavily from this conceptual framework. The subjects he examines are those most relevant to the Social Issue. He places a great deal of emphasis on the political forces, especially the activities of interest groups, which have influenced Court decisions, and he analyzes the impact and reactions to the Court’s decisions, showing the extent to which conservative counterforces have been somewhat successful in pressuring the Court to become less activist. McKeever also gives a great deal of attention to the noninterpretivist nature of many of the Court’s most important decisions, criticizing both liberal and conservative justices.
In Chapter Three, McKeever presents a detailed analysis of the issue of capital punishment using the conceptual framework developed in the first two chapters. He argues that the death penalty is at the heart of the Social Issue, he illustrates the conflicting political pressures surrounding the issue, he emphasizes the important role played by the NAACP in attacking the constitutionality of the death penalty, he argues persuasively about the noninterpretivist nature of the Court’s ruling in FURMAN V. GEORGIA (1972), and he traces not only the popular and legislative backlash to FURMAN but also the Court’s subsequent decisions. McKeever concludes his examination of capital punishment with a brief look at the Rehnquist Court’s approval of the death penalty in cases involving minors -- STANFORD V. KENTUCKY (1989) -- and the mentally retarded -- PENRY V. LYNAUGH (1989). Here and elsewhere in the book, McKeever does not hide his personal views: "In the debate over traditional versus progressive attitudes toward crime and punishment, the traditionalists have won out on the Court just as surely as they have elsewhere in the American political system" (p. 75).
In subsequent chapters McKeever provides similar analyses of abortion (Chapter Four), race and affirmative action (Chapter Five), gender equality (Chapter Six), and an assortment of issues labeled "Religion, Sex, and Politics" (Chapter Seven). In each chapter McKeever establishes that the topic is an important part of the Social Issue, he provides a rich discussion of the political forces that have surrounded major Supreme Court decisions in each area, he provides a careful analysis of the Court’s noninterpretivist approach, and he examines the frequently successful efforts by conservative forces to alter the Court’s policies or to reverse them in other political arenas.
In the concluding chapter to his first edition, McKeever argues that the record of the late Burger Court and the early Rehnquist Court suggests a less activist Court that has not engaged in a conservative counterrevolution but that has returned substantial decision making authority over public policy to the popularly elected branches, especially state legislatures. The current justices have not embraced a philosophy of interpretivism, however. McKeever is pessimistic that the justices will ever embrace an interpretivist approach to constitutional adjudication; but he is not convinced by the justifications offered by the noninterpretivists, and he is not convinced that the activist, noninterpretivist policies of the Court have been successful in achieving their goals.
In the second edition of the book published in 1995, McKeever offers a 30-page Epilogue covering the Court’s 1993-1994 and 1994-1995 terms. He argues that the trends he identified in his first edition have largely continued, but he also suggests that some important changes have occurred. Most importantly, the election to the presidency of Democrat Bill Clinton has signaled a somewhat more moderate tone in American politics and has resulted in the appointment of two moderate justices, Ruth Bader Ginsburg and Stephen Breyer. McKeever argues that the conservative counterrevolution has thus come to a halt for the foreseeable future. The Court is not going to embark on a more activist agenda, however. Rather, "in the wake of its exercise of ‘raw judicial power’ and the conservative counter-attack, the Court seems determined to re-establish its credentials as a legal body" (p. 282). This means, McKeever argues, that the Court’s decision making is characterized by a relatively low political profile, deference to the elected branches, and substantial compromise. The Court is thus not going to be exercising "raw judicial power" in the foreseeable future, but neither are its decisions going to be characterized by a clear interpretivist philosophy. "[T]he Court is engaged more in improvisation than in meaningful interpretivism. It is simply, then, that the Court in the 1990s improvises with far greater caution, both judicial and political, than at any time since 1954" (p. 309).
This is a book that is well worth reading even if one is familiar with the topics. The book has a clear thesis, the methodology is appropriate, it is copiously documented, and it is a well organized and clearly written. Criticisms can be offered, but they are relatively minor.
McKeever deals with major issues, and he has not succeeded in convincing me that his analyses are fully correct. His class-based analysis of the Social Issue seems to be rather weak neo-Marxism without convincing empirical support. In addition, his rather sharp distinction in Chapter Two between judicial activism and restraint, on the one hand, and interpretivism vs. noninterpretivism, on the other hand, seems overdrawn. These are not issues on which complete agreement is to be expected, however, and McKeever deserves credit for raising them and integrating them in a thoughtful manner.
The book faces the same problem confronting all studies on the contemporary Court -- datedness. This is the second edition of the book, but it is already two years behind the Court because the decisions of the 1996 and 1997 terms are not covered in the book.
The book deals with "the Social Issue," but it is not clear why a variety of social issue topics are omitted. In the area of the guarantees for the criminally accused, for example, McKeever covers only the issue of capital punishment. Numerous issues involving the Fourth, Fifth, and Sixth Amendment guarantees are not discussed at all. These certainly seem to be relevant topics, and the analysis of these areas of constitutional law would probably lend support to the arguments McKeever advances throughout the book. He also gives no attention to important issues involving the free exercise of religion. Freedom of expression issues are given uneven treatment, with only flag burning and obscenity being analyzed. Finally, although affirmative action is discussed at length, the Court’s broader treatment of issues of racial equality is not analyzed.
These omissions raise a closely related question of whether the book
lends itself to classroom adoption. Given the uneven treatment of the broad
range of civil rights and liberties topics, this book cannot be used as
the main text. In addition, many faculty members want students to read
cases, and this is not a case book. It could be used as a supplemental
text in a civil rights/liberties course, however. Most undergraduates would
find the book challenging but not impossible, and it would be an interesting
book to analyze with one’s students.