WHY I LIKE POLITICAL SCIENCE, OR, A CONSTRAINED (AND COOPERATIVE) COURT

It's one of the advantages of being a political scientist studying law that you don't need to exaggerate the significance of the Supreme Court. Stephen Bainbridge, a law professor, reflecting on Justice Breyer's worries about unchecked executive power, writes:

If five of the nine unelected old men and women on that court agree, they can strike down any law or executive action. And our elected representatives have essentially no power to constrain them other than the impractical route of amending the Constitution.

Prof. Bainbridge's complaint about a too-powerful Court is mirrored by William at Southern Appeal as well.

This complaint is not quite on target, and I suspect that the description stems from professional biases that tempt lawyers to take myths of judicial supremacy at face value. I'm generally a critic of judicial supremacy, but sometimes it's worth noting that the actual extent of that supremacy can be overstated.

Here are some familiar ways that the Court is limited:

• It only hears a limited number of cases per year (less than 100 nowadays), and those cases that it does hear are generally related to rather narrow aspects of any particular policy. With respect to yesterday's Gitmo case, for example, the question was whether federal courts even have jurisdiction to hear a habeas petition, not whether prisoners at Gitmo should go free. What happens after the courts get jurisdiction -- if they do -- is still up in the air.


• The overwhelming majority of cases that the Court hears, it hears on appeal. That means that it is emphatically not the case that "any law or executive action" can be struck down by majority vote on the Court. The law or action has to get to the Supreme Court first, and the parties to the suit have to meet all sorts of procedural hurdles to get there.


• Most importantly, perhaps, recent research indicates that the justices do see themselves as constrained by the other branches of government in important ways, beyond the distant threat that their constitutional decisions could be overturned by an constitutional amendment. That's the basic lesson of Epstein and Knight's landmark text, The Choices Justices Make, for example. (And we can leave aside the broad category of non-constitutional or statutory decisions that the Court makes and that Congress can counter with ordinary lawmaking.)


• Consider also the back-and-forth between Congress and the Court on the issue of religious freedom since Smith, or the basic irrelevance of the Court's decision in Chadha, or the complicated ways that Congress, the President and state governmens have responded to Roe, for example. Political actors have a variety of means for responding to Court action, short of the constitutional blunderbusses of the amendment process or impeachment.

Now I don't mean to deny that the Court acts in a heavy-handed fashion at times. In Bush v. Gore, for example, the Court used its power in a way to almost assure that there could be no check from other political actors. That was a shame.

Since we're talking about wartime, though: given the historical willingness of courts to accomodate executive wishes during wartime -- think Quirin and Korematsu -- I'd say that the odds are in favor of a similar Court quiescence here, if one tempered by a sense of duty to do things better, somehow, this time around. Even if the Court rules in favor of Rasul, for example, everything will depend on how narrow the ruling actually is. Even Justice Breyer -- who provoked this outburst from both Professor Bainbridge and William at Southern Appeal -- even Breyer was offering his comments in the context of an explicit willingness to accomodate the executive's wishes during wartime. Breyer said:

[W]e have the possibility of really helping you with what you're really worried about, which is undue court interference, by shaping the substantive right to deal with all those problems of the military that led you to begin your talk by reminding us of those problems. [Solicitor General Olson began his argument by noting that the U.S. is "at war"] So if it's that choice, why not say, sure, you get your foot in the door, prisoners in Guantanamo, and we'll work out the substantive rights to work out something that's protective but practical. (My transcript from around 48:00 in the C-span oral argument file)

Breyer was clearly offering Court cooperation with the executive, just not cooperation of the Colonel Schultz kind: "I see nothing, I know nothing." The real message of Breyer's remarks was, "we'll work with you," not "you'll do what we say."