Judcal Actvsm and the Concept of Rghts When Presdent Clnton made hs frst Suprelne Court appontment last summer, he chose someone wth a decdedly centrst vew of the judcary's role n Anercan socety. Nonetheless, on the frst day of Ruth Bader Gnsburg'S confrmaton hearngs, a number of Senate Republcans expressed concern that her nomnaton nght sgnal a return to the "judcal actvsm" of the recent past. Senator Orrn Hatch took up the theme wth these cautonary words: Under our system, a Supreme Court justce should nterpret the law, and not legslate hs or her own polcy preference from the bench. The role of the judcll br(lnch s to enforcc the provsons of the Consttuton and laws we enact n Congress as ther lllclnng WlS orgnally ntended by the framers. Any other phlosophy of judgng requres unelected Federal judges to mpose ther own persollll vews on the Amercan people n the guse of construng the Consttuton "nd Fcdcml statutcs. There s no way around ths ~onduson. Such an approach s judcal actvsm, plan and smple, lnd t s wrong, whether t comes from the poltcal left, or whether t comes from the poltcal rght. Now the socal ssues nvoked by ths lst - desegregaton, the rghts of crmnals, school prayer, and aborton - have sharply dvded lberals and conservatves for nearly three decades. And for much of ths tme, conservatve theorsts have crtczed the key judcal decsons n these areas by accusng the Warren Court and subsequent Jberal judges of readng ther own vews nto the Consttuton and usurpng the powers of the executve and legslatve branches. For polemcal purposes, the phrase "judcal actvsm" has thus become a cod e word for judcal protecton and pro lloton of socal engneerng, left-wng protest, crme on the streets,' athesm, and sexual promscuty. Conservatve theorsts have accused the Warren Court and subseque11t lberal judges of readng ther own vews nto tlte Consttuton and usurpng the powers of the executve and legslatve branches.,... 1 : ' :.~' 1' t does not seem to me, as t does to Senator Hatch, that there are only two phlosophes of judgng - that one must be ether a strct constructonst or, by default a freewheelng judcal actvst. That dchotomy by no neans exhausts the possble strateges and shadngs of consttutonal nterpretaton. For the molnent, however, there s a second feature of hs argument that nterests me more. Although he condemned judcal actvsm per se, the Senator's account of ts consequences focused chefly on the rulngs of lberal jursts over the past thrty years. "Snce the advent of the Warren Court," he declared, "judcal actvsm has resulted n the elevaton of the rghts of crtnnals ajld crmnal suspects, and the conconltant strengthenng of the crmnal forces aganst the polce forces of our country." t has also led, he argued, to reverse dscrmnaton, "prayer beng chased out of the schools, and the courts creatng out of thn ar a consttutonal rght to aborton on demand." Ths characterzaton of the Warren Court and ts legacy, however, s deeply mstaken. The Court's lastng sgnfcance does not le n ts supposed expanson of the judcal role, or even ll the specfc decsons to whch Senator Hatch objects. Rather, ts sgnfcance les n a seemngly abstract ssue of jursprudence: the nature of a legal rght. Each of the Warren Court's controversal decsons proceeded fron a self-conscous and sophstcated understandng of the manner and scope of rghts protecton. My purpose here s to explan and defend that understandng. Two Concepts of Rghts Protecton Phlosophers and legal scholars have offered varous defntons of a rght, but all agree that rghts are values of partcular nportancc and that ther protecton s a central an of publc nsttutons. For ths reason, the queston of what t takes to secure rghts s a cen- 12
"Can You See Me Now?" 1.. J -.". j 6/18/51.. j j tral queston facng any poltcal and legal theory that ncludes the concept of rghts n ts vocabulary. Accordng to one common understandng, rghts are protected reactvely: an ndvdual whose rghts have been nfrnged may seek satsfacton of some sort after the fact, ether n the form of compensaton or fro punshment of the nfrnger. For example, pror to the Warren Court's decson n Mal'l' v. Oho (1961), an ndvdual's rght to be free from llegal searches by polce was protected only reactvely; the vctm of an llegal search could seek monetary damages or nternal polce dscplnary acton, but the llegally sezed evdence could stll be used at tral. The Warren Court crtczed ths entre approach to rghts protecton on the grounds that reactve remedes, such as "aroused publc opnon and nternal polce dscplne," had proved to be "wthout deterrent value." n ther place, the Court adopted the exclusonary rule, whch forbds ntroducng llegally sezed evdence at tral, as a morc effectve way of deterrng. polce mscond lct. The exclusonary rule dffers from the remed es avalable before Mapp n that t protects rghts prospec- From Herblock's Specal for Today (Smon and Schuster, 1958). Reprl1ted wth permsson. tvely, not reactvely. That s to say, by preventng the state from ntroducng llega lly sezed evdence at tral, t removes n advance much of the ncent ve for the Nasty Boys to batter down one's door at 5 o'clock n the mornng. Analogously, by rulng that suspects' statements to polce arc nadmssble n court unless those suspects have been advsed of ther rght to counsel and ther rght to reman slent, the Warren Court n the Mrnlldn case mnm zed n advance the possblty of gruellng nterrogatons and coerced confessons. Wthout such protectons, the Court beleved, vctms of polce overreachng are gven over to the tender merces of the tort system or the polce dscplne system for redress of the volaton of ther rghts. t s too easly forgotten that before the Warren Court crnnal procedure cases, polce departments (partcularly n rural areas) often conssted of poorly traned, poorly screened goons. n the early 1960s, as R chard Neely observes, suspects were "routnely pcked up off the street wthout a warrant" and subjected to nterrogatons that frequently nvolved "humlatng nsults and a good d ea l of slappng 13
. ~..,.;. ~ - around." Nor were local offcals lkely to provde redress - not when poltcans were eager to lnpress the electorate wth ther detennnaton to "crack down on crme," and when judges were often the alles and personal frends of sherffs and polce chefs. After the crmnal procedure cases, however, muncpaltes suddenly dscovered that the badly traned muscleheads n ther polce deparhnents were brngng cases that would be thrown out of court. The prospect of crmnals walkng out the door because "the constable had blundered" by jammng hs nghtstck nto the suspect's kdneys brought consderable poltcal heat down on prosecutors and polce chefs. The result was a transformaton of polce deparhnents nto better-traned, better-educated, nlore professonal organzatons that reled lnore on fnesse and less on force n conductng nvestgatons. The prospectve protectons of rghts establshed by the Warren Court created rpple effects leadng to further and better prospectve protectons. n the aftermath of the Rodney Kng beatng case, as well as thousands of less publczed nstances of polce brutalty, t s obvous that polce departments stll nclude a nmnber of sadsts, racsts, and fa scsts who have nothng but contempt for procedural ncetes and even for basc human rghts. Yet ths fact, w hch mght appear to cast doubt on the effectveness of the Warren Court's prospectve approach n crmnal procedure cases, demonstrates only that the Court's successors erred n declnng to extend ts approach from the context of nvestgaton to those of arrest and ordnary patrollng. When the ordnanj workng of nsttutons creates typcal, persstent, and chronc threats to Ollr rghts, we have a dervatve consttutonal rght to have tte tlrcats dssolved. n 1983, for example, n Cty of Los Angeles v. Lyons, the Supreme Court heard the case of a 24-year-old black man who had been stopped by Los Angeles polce because of a burned-out tallght on hs car. Mr. Lyons was searched, beaten on the head, and choked untl he blacked out. n subsequent legal acton, he asked not only for damages - a reactve remedy - but also for an njuncton forbddng the polce from usng choke holds n the future aganst suspects not threatenng volence - a prospectve relnedy. Although the Court agreed that Mr. Lyons could sue for damages, t dened hm standng n seekng the njuncton. f the Court had adopted a prospectve rather than a reactve concepton of rghts, t would have decded the case dfferently, wth practcal consequences for the preventon of polce brutalty about whch one can only speculate. Safeguards aganst a "Standard Threat" As a general prncple, the Warren Court nssted that to enjoy meanngful protecton, and thus to count as rghts at all, prlnary consttutonal rghts must often be hedged about wth dervatve, prophylactc rghts desgned to forestall nfrngements before they happen. Ths s not to say that every rght must be protected by ths strategy; ll many cases, reactve remedes wll suffce. Prospectve protecton s requred prncpally when a rghts volaton s part of an nsttutonal pattern. To understand why, let me ntroduce a concept from Henry Shue's analyss of rghts - the concept of a "standard threa t." The ordnary workng of nsttutons often creates typcal, persstent, and chronc threats to our rghts, When offcers from a poorly dscplned polce force brutally nterrogate a suspect, or when segregatonst nsttutons volate the rghts of blacks, t s clear that we are not confrontng solated ncdents or the actons of a sngle msguded offcal. Rather, we are confrontng the predctable effect of an nsttutonal cause - a standard threat. And t s prncpally n cases of standard threats that we have a der vat ve consttutonal rght to have the threat dssolved. There s a smple reason why ths rght to prospectve protecton s lmted to forms of standard threat: the world s so chock-full of non-standard threats that t would be vrtually mpossble to protect us aganst them prospectvely. To antcpate and guard aganst the full range of non-standard thr~at s would requre an omnpresent, omnpotent, omn-ntrusve, and omn-expensve government that had abandoned all actvtes except one: the spnnng out of mprobable rght-threatenng scenaros that must be warded off. Tt makes more sense, therefore, to leave the unusual rghts volatons to a system of purely reactve remedes. Only the standard threats need be guarded aganst n advance. And thus both prospectve and reactve approaches to rghts protecton have a place n a system of rghts. t s lllportant to see, however, that the two strateges dffer markedly n ther understandng of the manner and scope of rghts protecton. Reactvsts deny that rghts by ther nature demand protecton from merely potental nfrngements. Such a premse, they argue, amounts to a presumpton that publc offcals, gven half a chance, wll volate the Consttuton. nstead, reactvst opponents nsst, we should presume - pendng decsve evdence to the contrary - that offcals wll respect consttuhonal rghts, and that those who fal to do so are ma vercks, sngle "rotten 14
-'. 1 apples," rather than typcal members of an untrustworthy system. Prospect.vsts, n contrast, tend to entertan suspcons about the government and the authortes. They are w llng to scrutnze powerful nsttutons n order to see whether a rghts volaton was merely an solated ncdent or, on the contrary, the consequence of the nsttuton's standard operatng procedure. Thus, bult nto the prospectvst outlook s an ant-authortaran tlt coupled wth a penchant for consderng socal and structural explanatons for rghts volatons. t s, beleve, ths double tendency of the Warren Court's prospect vst account of rghts protecton - toward ant-authortaransm and toward structural explanatons - that draws down the wrath of conservatve theorsts, just as the partcular results the Court acheved draw down the wrath of conserva tve pol tcans. f ths s true, then the fundamental dvde between the Warren Court and ts crtcs has to do not wth the clash between judcal actvsm and judcal Legal Modernsm Davd Luban Mod ernsm n legal theory s no dfferent from modernsm n the arts: each responds to cultural crss, a sense that nsttutons and tradtons have lost ther veldty. n hs new book, legal phlosopher Davd Luban argues that pragmatsm, tradtonalsm, and nhlsm are each a flawed response to the modernst predcament. nvokng Walter Benjamn's reflectons on narratve and hstorcal conscollsness, he explores the nature of justce by analyzng Martn Luther Kng, 1r.'5 "Letter from the Brmngham Jal," the Nuremberg trals, and tral scenes n Homer, Hesod, and Aeschylus. Wth these examples, Professor Luban artculates several of the tensons that mot va te con temporary legal theory - tensons between order and justce, obedence and resstance, statsm and communtaransm. Add ressed to lterary and socal theorsts as well as lawyers and phlosophers, Legal ModemsJ1/ provdes mportant dscussons of Crtcal Legal Studes and of wrters as dverse as Hannah Arendt, Olver Wendell Holmes, Anthony Kronman, Rchard Posner, Rchard Rorty, and Roberto Unger. Publcaton date: June 1994 400 pages, $47.50 Unversty of Mchgan Press P. O. Box 11 04 Ann Arbor, MT 48106 Tel: 313-764-4392 Fax for orders only: 800-876-1922 Credt cards accepted res trant, but rather w th th e dfference be tween prospectvst and reactlvst approaches to the securng o f rghts. When Senator Hatch argues otherwse, he msconstrues the Warren Court decsons and actons that he opposes. The restructurng of nsttutons n order to abolsh racal segregaton "root and branch," the Court-approved judca l takeover of prsons and mental hosptals that abused and tormented ther nn1ates, the rgd separaton of church and state that the Warren Court beleved essental to prevent belevers from pressurng relgous mnortes to pray to an alen god - all these may be best understood not as nstances of judcal actvsm, but as prospectve protectons of consttutonal rghts. They grew out of the Court's belef that prmary consttutonal rghts create dervatve, or secondary, rghts whose purpose s to forestall standard threats to those prmary rghts. The Example of Prvacy Havng presented the Warren Court's prospectvst credentels, can now offer two qualfcatons of my argument. Frst, not all conservatve theorsts reject the prospectvst approacl1 to rghts protecton, nor do all crtcs of the Warren Court fal to acknowledge ts commtment to that approach as the bass for ts controversal decsons. Second, and perhaps more mportant, not all of the Warren Court's expansons of rghts can be explaned as prospectvst protectons of prmary rghts. Take the Court's famous fndng of a general rght to prvacy, n the 1965 case Grswold v. Connectcut. The Grswold decson struck down a Connectcut statute forbddng the sale and use of contraceptves; t held that the statute volated a rght to prvacy mplct n the Frst, Thrd, Fourth, Ffth, end N nth Amendments. Now, none of these amendments n fact mentons prvacy, and none has anythng to do wth contracepton - let alone cohabtaton or copulaton. Nevertheless, n the key passage of the Grswold opnon, Justce W llam O. Douglas argued that these amendments provde grounds for belevng that the Consttuton guarantees a general rght of prvacy. Hs metaphorcal language has snce become a source of bewlderment for law students and an object of rdcule n law school faculty lounges: Slpccfc g uarantees n the Bll of Rghts have penumbras, formed by emanatons from those guarnntccs that help g ve them l fe and su bstance. Varous guaran tees crea te zones of prvacy.... The present case... concerns a relatonsh p ly ng w thn the zone of prvacy crecltcd by several fundamental consttu tonal guarantees. There are at least two ways of understandng ths passage. The frst s to read t as a restatement of the prospectvst vew, assertng that the specfc guarantees n the Consttuton crea te dervatve, secondary, 15
.- 1 1.. :. :... ~ or what Douglas here calls "penulnbral" rg hts. Comn1entators who adopt ths readng assull1e that wherever Justce Douglas lnentons "guarantees," he s referrng (as he does n the openng phrase) to specfc guaran tees explctly stated n the Consttllton as the source of these penumbral rg hts. Ths s Robert Bork's assulnpton, for example, when he observes, Courts often gve protecton to ( consttutoll(l freedom by creatng a buffer zone, by prohbtng a government from dong somethng not n tself forbdden but lkely to lead to an nvason of a rght specfed n the Consttuton. DOllg](lS named the buffer zone or "penumbra" of the frst amendment a protecton of prv(lcy.. [(lndl then asserted that other amendments cre<l te "zones of pr v(lcy." Perhaps surprsngly, Judge Bark has no objecton to the dea of penumbral rghts; though he fnd s Justce Douglas'S termnology "exceptonal," he accepts the theory tself. He's a prospectvst. However, Judge Bark does not accept the dea, whch he also fnds n Grswold, that the specfc prvacy rghts emanatng froln varous amendments can somehow fuse and create a general, freestandng prvacy rght - one that exsts on an equal footng wth the explct guarantees of the Bll of Rghts and s capable of ndependent growth and development. Accordng to hs account of Grswold, the Warren Court calne to assert the exstence of such a prvacy rght n two steps. Frst, t nferred penumbral rghts of prvacy from explct consttutonal guarantees. Then t fused these varous penumbral rghts nto a general rght of prvacy. The frst step, Judge Bark argues, s sound; but the second s not. Rghts of specfc and lmted scope do not magcally "fu se" nto general, lulmted rghts. As lucd as t s, ths account of the Warren Court's logc n Grswold seems to me dead wrong. To see why, we need only examne one of the alnendments that Justce Douglas nvokes n assertng the rght to prvacy. suggest the Thrd: "No Solder shall, n tme of peace, be quartered n any house, wthout the consent of the Owner, nor n tme of w<:tr, but n a manner to be prescrbed by law." f the Warren Court had ndeed taken the prospectvst approach n assertng the rght to prvacy, t would have sad that ths rght derves (or emanates) from the Thrd Amendment - that the rght to prvacy s a secondary rght protectng our prmary consttutonal rght to exclude solders from our homes. Yet a moment's thought tells us that the relatonshp between the two rghts only makes sense the other way around. A rght to p rvacy, after ~11, cannot afford any greater protecton - cannot excluae solders from our homes any more effectvely - than does the Thrd Amendment tself. On the other hand, the Thrd Amendlnent con help protect the relevant rght to prvacy - that s, prvacy n our own home. Obvously, havng a platoon of solders blleted n the basement would put a damper on the ntmate actvtes of the household. By forbddng the government from nstallng nfantry n the house, the Thrd Amendment prospectvely wards off what mght otherwse become a standard threat to prvacy. The Thrd Amendment thlls belongs to the penllmbra of the rght to prvacy, not the other way arollnd. Smlarly wth the Fourth Amendment rght aganst llegal searches and the Ffth Amendment rght aganst comp elled self-ncrmnaton: all of these rghts are penumbral rghts, derved from our rght to prvacy understood as a prospectve protecton aganst standard threats from the government. Tn each nstance, t s by examnng the specfc guarantees n the Consttuton that we dscover and artculate the general guarantees (such as the rght to prvacy) they are establshed n order to defend. At ths pont, let us return to the key passage from Grswold. Our frst readng of the passage assumed that all the "guarantees" mentoned n t are specfc and explct gllarantees understood as the source of penumbral rghts. But a second, more plausble readng, proposed by Rchard Mohr, argues that the opnon also nvokes geneml and mplct g,wrnntees. n the crucal sentence froln Grswold, t s precsely these general guarantees that help gve the specfc guarantees "lfe and substance," provdng the motve and justfcaton for those rghts enumerated n the Consttuton. n Justce Douglas's vew, the specfc textual rghts are best nterpreted as protectons of an unenumerated general rght of prvacy aganst a handful of standard threats antcpated by the framers. And once we come to recognze the rght to prvacy as a prncple gvng specfc textual rghts "lfe and substance," we may proceed to consder whether contracepton, for example, s protected by that rght of prvacy wthout attachng the queston to any specfc enumerated rght. The Human Goods that Rghts Secure There s more to say about the process by whch we reason about and dentfy general guarantees. For ths purpose, we may fnd an llumnatng analogy n another area of the law of prvacy - the testmonal prvleges. These are. rghts to prevent persons n whom we confde from testfyng aganst us n court, or to refuse to testfy aganst persons who have confded n us. The comlnon law recognzed such prvleges protectng comn1uncaton between attorney and clent, physcan and patent, prest and pentent, and husband and wfe. (The prvlege aganst self-ncrmnaton s also a testtnonal prvlege; whle the others protect COll11nuncaton between two partes, the prvlege aganst self-ncrmnaton preserves the sanctty of one's own thoughts, one's relaton to oneself n nner dalogue.) 16
1. 1 The testmonal p r v leges are best thought of as prospectve protectons of our rght to enjoy confdental relatonshps wth our attorneys, our doctors, our clergymen, our spouses, and even ourselves. The queston then arses: "Why just these?" And n turn, how ths queston s answered determnes whether courts and legslatures should extend the pr vleges to other relatonshps. The physcan-patent prvlege, for example, has been ex tended to psychologsts and counselors; the spousal prvlege has been extended n three states to parents and chldren; and severa] jursd ctons have estabhshed accountant-clent pr vleges. What prncple s nvolved? Should the testmonal prvlege be extended to fnancal planners? nsurance salesmen, who often receve senst ve fnancal nformaton from th er cus tomers? G ra ndparents? Unmarred lovers? Best frends? Our Hqury nto tle 171rd Amendment drects Ollr v son to the mportance of prvate actvtes to a decellt lfe. Tle allalyss leads ls fro m the postve law to the basc valles t embodes. To answer these and smlar questons, one needs some sense of what makes the f ve orgnal relatonshps especally mportant. suggest that these relatonshps correspond to fve fundamental aspects of the human personalty. an, frst of all, a self engaged n my own nner dalogue - a dalogue essental to my ntegrty. Hence tbe rght aganst self-ncrmnaton. Second, am a physcal body subject to all the nfrmtes and corruptons of the fl esh. Hence, the rght to speak conf dentally wth my doctors. Thrd, am a socal and lovng beng who may fnd a lfe's companon to share that love - a love that demands opelu1ess. Hence, the spousal prvlege. Fourth, T am a moral and sprtual beng, wth a soul to tend and a burden of gult that must be gven voce. Hence, the prest-pentent prvlege. Ffth, am a ctzen, a jurdcal person lvng n a network of publc rghts and relatonshps that are fragle and shftng and hard to understand. Hence, the attorney-clent prvl ege. Thus, we fnd that the testmonal prvleges are shaped to ft the contours of an entre phlosophca anthropology - an answer to Kant's queston, 'What s man?" To make sense of the laws grantng testmonal prvleges, then, we must vew these prvleges as penulllbral protectons of the f ve prvleged relatonshps; and these, n tun~, we best regard as thelnselves penumbral protectons of fve fundamental aspects of human exstence. The relatonshps "emanate" from these basc aspects of exstence, and the pr vleges "emanate" from the relatonshps. Such an analyss a ll ows us to understand what t means to regard a pece of postve law n such a way as to glmpse a more general prncple that helps gve t "l fe and substance." n much the sa me way, we would begn an analyss of the Thrd Amend ment by askng what s so burdensome about quarterng solders n one's home. Ths queston drects us to what s valuable about a home. The answer s that a home s a protecton of the lfe that goes on wthn t, fosterng t by sheld ng t from the outsde world. (Of all the horrors of homelessness, the permanent lack of prvacy s surely among the worst.) Our nqury nto the Thrd Amendment d rects our vson to the mportance of prvate actvt es to a decent lfe. The analyss leads us from the postve law to the basc values t embodes. The Warren Court's Legacy When we jon ths way of vewng legal rghts wth the prospectvst approach, we can apprecate the full magntude of the Warren Court's contrbuton to the theory of rghts, partcularly consttutonal rghts. The Court began wth specfc textual rghts, and then proceeded to elaborate them Smultaneously n opposte d rectons: frst, reasonng from these rghts "down the lne" to the secondary rghts that must be put n place n order to secure them from stand ard threats; second, reasonng from these rghts "up the lne" to the values that the textual rghts were themselves put n place to protect aga nst standard threats. n dong so, the Warren Court gave meanng to the noton of a rght as the moral and legal embodment of a va lue that stands n need of strngent p rotecton. At ths moment n our legal hstory, when the Supreme Court has convened for the frst tme n forty yea rs wthout a member of the Warren Court sea ted a m ong the Justces, ths s a legacy worth recallng accurately. - Davd Luban Sources: The New York Tmes (July 20, 1993); MallJ' v. Oho, 367 U.S. 643 0 96'1); Mrmufn f. Arzoll(1, 384 U.s. 436 (1966); Rchard Neely, -low COllrls Govall Al1crm (Ya le Un versty Press, 1981); Cty of Los Allgrll's "'. LyOlls, 461 U.s. 95 (1983); Henry Shue, Bn::;c Rghts: SlllsMl'ce, Affllll'el', nlld u.s. Foregll Polcy (Prnceton Unversty Press, 1980); Grswold ('. COllllt'cl(lft, 38 1 U.s. 479 (1 965); Robert H. Bork. Tlt' Temptllg of Amercn (The Free Press, 1990); R cha rd D. Mohr, Gnys/Jlslcl' (Columb<l Unversty Press, 1988). 17