Or Bassok

The Supreme Court at the Bar of Public Opinion Polls

The idea that the American Supreme Court requires public support to function properly is not an inherent timeless truth. It has history. Currently, those who view it as a timeless truth use the famous dictum from The Federalist No. 78 to argue that without the power of the sword or the purse, the Court has merely public confidence. By tracking the way in which the Supreme Court and the American legal community have over the years changed their reading of The Federalist No. 78, I show how this understanding of the Court’s source of legitimacy has risen. I identify the invention of public opinion polling as the key event which is responsible for this shift in understanding judicial legitimacy in the US. Public opinion polls introduced for the first time in history an independent source of evidence, considered reliable by all relevant players, of public support for the Court. Only after this invention was the monopoly of the elected institutions over the claim of holding public support broken. With available measurement of public support for the Court, it was possible to understand judicial legitimacy in terms of public support rather than in terms of legal expertise. The change in how The Federalist No. 78 is read is one manifestation of this development. I also expose that a sentence written by Justice Felix Frankfurter paraphrasing The Federalist No. 78 — commonly used by political scientists to equate judicial legitimacy with public support — was written with a different understanding of judicial legitimacy in mind. By analyzing changes Frankfurter made to this sentence in the drafts leading to his dissenting opinion in Baker v. Carr, I show that Frankfurter was closer to Hamilton’s original intent in The Federalist No. 78 than to the revisionist current reading.

Interpretative Theories as Roadmaps to Constitutional Identity: The Case of the United States

As long as the American Constitution serves as the focal point of American identity, many constitutional interpretative theories also serve as roadmaps to various visions of American constitutional identity. Using the debate over the constitutionality of the Patient Protection and Affordable Care Act, I expose the identity dimension of various interpretative theories and analyze the differences between the roadmaps offered by them. I argue that according to each of these roadmaps, courts’ authority to review legislation is required in order to protect a certain vision of American constitutional identity even at the price of thwarting Americans’ freedom to pursue their current desires. The conventional framing of interpretative theories as merely techniques to decipher the constitutional text or justifications for the Supreme Court’s countermajoritarian authority to review legislation and the disregard of their identity function is perplexing in view of the centrality of the Constitution to American national identity. I argue that this conventional framing is a result of the current understanding of American constitutional identity in terms of neutrality toward the question of the good. This reading of the Constitution as lacking any form of ideology at its core makes majority preferences the best take of current American identity, leaving constitutional theorists with the mission to justify the Court’s authority to diverge from majority preferences.

The changing understanding of judicial legitimacy

The decades since the end of the Cold War have seen a remarkable convergence of global thinking about the role of law in development and during post-conflict transition. There now exists a surprising lack of fundamental disagreement on the desirability of the rule of law and the particular set of institutions deemed necessary for its maintenance, not the least of which are independent judiciaries. Indeed, the importance of the rule of law and of effective governance institutions as the preconditions for economic prosperity and political stability have become so universally accepted that at times they are presented as received wisdom no longer needing approbatory argument. The resulting academic discourse conceives of judiciaries primarily as guardians of an existing constitutional order, their task being to define and develop this order and use it to protect individual rights by measuring state action against it. In a transitional process, however, the very creation of a new constitutional order will be necessary, with diverse political actors severely contesting its most elementary parts, and often against a background of exceedingly weak governmental ability.Under these conditions, the judiciary, especially at the highest level, cannot content itself to measure state action against an abstract yardstick. Instead, judiciaries must also assume the role of guides offering direction and reassurance to hostile societal actors about the transition process as such.The decades since the end of the Cold War have seen a remarkable convergence of global thinking about the role of law in development and during post-conflict transition. There now exists a surprising lack of fundamental disagreement on the desirability of the rule of law and the particular set of institutions deemed necessary for its maintenance, not the least of which are independent judiciaries. Indeed, the importance of the rule of law and of effective governance institutions as the preconditions for economic prosperity and political stability have become so universally accepted that at times they are presented as received wisdom no longer needing approbatory argument. The resulting academic discourse conceives of judiciaries primarily as guardians of an existing constitutional order, their task being to define and develop this order and use it to protect individual rights by measuring state action against it. In a transitional process, however, the very creation of a new constitutional order will be necessary, with diverse political actors severely contesting its most elementary parts, and often against a background of exceedingly weak governmental ability.Under these conditions, the judiciary, especially at the highest level, cannot content itself to measure state action against an abstract yardstick. Instead, judiciaries must also assume the role of guides offering direction and reassurance to hostile societal actors about the transition process as such.