Interview with Dean Kramer

Larry D. Kramer, Dean of the prestigious Stanford School of Law, graciously agreed to talk recently with People Not Judges and to offer his thoughts on the problem of the activist courts. A self described “liberal” and a staunch opponent of judicial supremacy, Dean Kramer talked about a number of topics including: why this problem ought to be opposed by both conservatives and liberals, how the American system of government demands a healthy balance between judicial independence and judicial accountability, and the best ways to end judicial supremacy which included the effectiveness of impeachment, jurisdiction stripping, budget accountability, and ignoring overreaching court mandates. In addition, Dean Kramer had some surprising comments about House Majority Leader Tom DeLay's recent criticism of the courts.

Dean Kramer is a native of Chicago. He now lives in sunny California with his wife Sarah Delson and their daughter Kiki. He received his undergraduate degree from Brown University and his juris doctorate degree from the University of Chicago's Law School. When asked why he became a law professor instead of practicing law, he said, “I went to public schools that weren't academically challenging.” When he got to college he loved the academic environment and decided he wanted to spend his life “reading and talking about ideas.”

Dean Kramer wrote The People Themselves, which is a book about judicial supremacy. His book makes a very bold yet growing assessment of the problem of the courts: that they have left their constitutional role of deciding cases and have taken to legislating from the bench. He believes the constitution was written for the People - not judges - to interpret. Dean Kramer did not set out on an academic journey of solving the problems in our judicial system. Rather, he diagnosed the problem during his study of the historical roots of federalism. What he found was a constitution that was intended to be read and understood by the People.

So how did we get to where we are today? Dean Kramer says the courts have always made attempts to engage in activism. However, what has changed in the last few decades, according to Kramer, is the lack of resistance to the court's claims of supremacy. “The courts' rule has extended because the public has allowed it.”

According to Dean Kramer, one reason the public has allowed the problem to continue to grow is because they have been kept in the dark. He explained that the public is “treated with contempt” by those that are close to the problem, probably because Washington thinks the public is “too stupid to understand.” But if Kramer has his way, that will change. He believes that “the public needs the choice of ideas.” And because both conservatives and liberals offer this choice of ideas, Dean Kramer believes that both conservatives and liberals should oppose the problem of the judiciary preempting the choice because it threatens the very idea of American self-government by the People.

So what can the People do to “reclaim America?” In the early days of the Republic if a judge issued decisions contrary to the law he was impeached because it is a crime. In his book, Dean Kramer discusses the fact that the Constitution “leaves room for countless political responses to an overly assertive Court: Justices can be impeached, the Court's budget can be slashed, the President can ignore its mandates, Congress can strip it of jurisdiction or shrink its size or pack it with new members or give it burdensome new responsibilities or revise its procedures.”

When asked what measure he thought was most effective for dealing with today's activist court, Kramer named several: first public pressure and condemnation, then threats of jurisdiction stripping and court packing, and finally resistance to complying with court mandates by other branches of government. The final measure he mentioned - resistance from other branches to complying with mandates - was perhaps his boldest comment during the interview because it is a call to the other branches of government to simply not follow the judiciary when it acts unconstitutionally. He explains in his book: “Just mentioning such devices send a chill down the spines of most lawyers and legal scholars (not to mention judges).” One reason Kramer is not afraid to advance such positions is that once the possibility of such means is made clear they will virtually never need to be used, because courts are very protective of their authority. This, Kramer explains, is how things worked historically in the American system.

Kramer recognizes that most criticism of the courts today comes from conservatives. He mentioned House Majority Leader Tom DeLay and his highly publicized criticism of activist judges. Kramer said that while he disagrees with DeLay's positions and criticisms, it is “not illegitimate” to raise the issue. “We should be challenging the court,” Kramer said. “Though what courts have to say is and should be entitled to much respect, that the court has spoken cannot end debate on important matters of constitutional law.” If Kramer has his way we will see more honest criticism of judicial supremacy.

Dean Kramer believes in the need for judicial independence, but said that while he respects judicial independence; such independence must be balanced with “accountability.” He is comfortable with letting the People interpret the Constitution. Anticipating the question as to what happens if the People mis-interpret the Constitution, he explained that he “would rather take a chance with the People getting it wrong than with the judges getting it wrong.”

In conclusion, he commented on the politics of this issue. He said that judicial supremacy is not a right versus left issue but rather one of populists versus anti-populists. In terms of personal politics, he explanation: “I'm a liberal, and I want to have a public debate, a public argument on the issues of policy. I want to win that debate but I want to win it honestly. I would rather win honestly with a majority of two hundred and fifty million Americans, than with a majority of nine Supreme Court justices.”

Dean Kramer's honesty is refreshing. He is not afraid of debate and of letting the political system work as intended by the Founding Fathers. If liberals win the public debate and get their laws passed then so be it. However, if conservatives win and get their laws passed then so be it. Let's hope all sides in the political debate will share this same type of honesty and courage. And let's hope that after the debate, the laws of the People are respected rather than nullified by as few as five robed lawyers in Washington D.C. Then, as Lincoln said, “this nation, under God, shall have a new birth of freedom - and that government of the people, by the people, for the people, shall not perish from the earth.”

In The People Themselves, Larry Kramer argues that Americans have come to treat the Constitution as something beyond their competence, something whose meaning should be decided by judges, assisted by a cadre of lawyers and academics. Yet this submission to a lawyerly elite is a radical and troublesome departure from what was originally the case. In the early years, ordinary Americans exercised active control and sovereignty over their Constitution. The constitutionality of governmental action met with vigorous public debate in struggles whose outcomes might be greeted with celebratory feasts and bonfires, or with belligerent resistance. The Constitution remained, fundamentally, an act of popular will: the people's charter, made by the people.

Editor: How did you become interested in this subject?

Kramer: Early in my career I studied conflict of laws. After a while I felt I had said what I had to say about state-state conflicts, which is what conflict of laws is mostly about, and I got interested in federal-state conflicts, which is federalism. But I soon realized I couldn't make sense of it ahistorically. So I started to look at the history of federalism, and I noticed something surprising in reading the sources, which was that courts were never mentioned. You read the constitutional debates and the discussion about how the Constitution was going to be enforced, and no one said "courts," which of course is what we think of first today. I thought that was curious. So I started looking deeper to understand why. This book is what emerged.

Why do you focus so much on the early history of the nation?
The first eight chapters of the book tell the history of constitutionalism in great detail from about 1760 to the election of 1840. That history was designed to show how the idea of popular constitutionalism was preserved under changing political, social, cultural, and economic circumstances. In each stage there were institutional adaptations to make popular constitutionalism workable in a more complicated world. This was enough to make my basic point while still keeping the book to a readable length. I hope others will be interested enough in the idea to do further work in the later periods.

Why should one believe that the average citizen is going to be a better interpreter of the Constitution than someone who has spent years studying it?
Do I really have a reason to think that Dick Posner or Nino Scalia is going to make a better judgment about whether women should be allowed to get an abortion than my mother? The answer, I believe, is "no." There are a whole slew of legal questions, which are highly technical, which the population at large is never going to care about or pay attention to. With respect to all those questions, the Court will hand down its ruling and that's going to stick because nobody's going to care. But to use that as a lever to say that the Court should have final say over nontechnical questions of basic principle and commitment makes no sense.

Isn't there a danger that the general population can be more reactionary than the judiciary, particularly during times of crisis?
For what it is worth, historically, the Court has generally been far more reactionary. But that doesn't seem to me to be the right question. These are hard questions to which there is seldom a clearly right answer. They are questions about which both elites and nonelites are divided. Look at all the important Supreme Court cases. The votes are invariably 5-4 or 6-3. The question is, do we trust the majority of nine more than the majority of 250 million on questions over which we are going to inevitably be divided?

What is the alternative to judicial supremacy?
The problem is to find a proper balance between independence and accountability. The Europeans who wrote constitutions after World War II did a better job in finding this balance for their courts, because they had our experience upon which to build. So they separated constitutional adjudication from ordinary law and delegated it to a specialized court; they gave the justices on these constitutional courts limited terms; they staggered the terms; they required supermajorities to get judges appointed, which forces moderation; and they made their constitutions easier to amend. Taken together, these sorts of institutional structures produce a different balance and a different kind of court. Ideally we would think about adopting some of the European innovations. But if that's not going to happen—and it's not going to happen, because our Constitution is so hard to amend—then at the very least we should restore and preserve the system that we did develop in the first 150 years for controlling our Court, rather than just letting the justices run wild.

http://www.law.stanford.edu/faculty/kramer/

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