Ultimacy Key.

maxims of political morality, which derive whatever strength they possess from being formally inscribed in the constitution, and from the resulting support of public opinion.”3 Even if courts are not empowered to protect them (and, indeed, even if courts are so empowered), constitutionally entrenched human rights – qua “maxims of political morality” – can serve as shared, fundamental grounds of political-moral judgment in a political community.4 Nonetheless, contemporary liberal democracies typically empower their courts to protect constitutionally entrenched human rights.5 Is it appropriate – is it a good idea, all things considered – for liberal democracies to do so?6 I have argued elsewhere that the answer is yes; there is no need to rehearse my argument here.7 The more serious – and more difficult – question is this: How great should the courts’ power to protect constitutionally entrenched human rights be; in particular, should it be the power to have the last word when the courts conclude that the law in question violates an entrenched human right (the last word, that is, short of an extremely improbable event: a successful, supermajoritarian effort to amend or repeal the entrenched provision on which the court based its decision)? I have argued elsewhere that the courts’ power should not be so great; the judicial power to protect constitutionally entrenched human rights should be the power of judicial “penultimacy,” not the power of judicial “ultimacy”: the power to have, not the last word, but only the penultimate word – for example, a word that may be overruled by ordinary legislation.8 Canada, in 1982, and the United Kingdom, in 1998, each opted for a system (each for a different system) of judicial penultimacy.9 In the United States, however, the Supreme Court exercises the power of judicial ultimacy: No state legislature, nor even Congress, may overrule by ordinary legislation a decision by the Court that a law is unconstitutional; such a decision may be overruled only (later) by the Court itself or by extraordinary, supermajoritarian lawmaking, in the form of constitutional amendment.10 This important question therefore arises: Given that the Supreme Court of the United States exercises the power of judicial ultimacy, should the Court, in protecting constitutionally entrenched human rights, exercise the power deferentially? That is, in a case in which it is claimed that a law violates a constitutionally entrenched human right, should the Supreme Court inquire merely whether the counterclaim that the law does not violate the right is reasonable – and if the Court answers yes, uphold the law? Or, instead, should the Court exercise its power nondeferentially; should it determine for itself whether the law violates the right – and if it answers yes, strike down the law? A claim that a law does not violate a right is reasonable if rational, well-informed, and thoughtful persons could affirm the claim. As James Bradley Thayer put it: “The reasonable doubt... of which our judges speak is that reasonable doubt which lingers in the mind of a competent and duly instructed person who has carefully applied his faculties to the question. The rationally permissible opinion of which we have been talking is the opinion reasonably allowable to such a person as this.”11 The choice here is best understood as a choice between two different judicial attitudes or orientations. For a judge to adopt a deferential attitude – for her to be oriented deferentially – is for her to be prepared to rule that a challenged law does not violate a constitutionally entrenched human right if the claim that the law does not violate the right is reasonable.12 By contrast, for a judge to adopt a nondeferential attitude is for her to be prepared to rule that a challenged law violates a human right if in the judge’s own view the law violates the right – even if the claim that the law does not violate the right is reasonable. The most famous and influential argument for the sort of judicial deference I have in mind was made by James Bradley Thayer in the final decade of the nineteenth century, in an essay in the Harvard Law Review: “The Origin and Scope of the American Doctrine of Constitutional Law.”13 Even now, in the first decade of the twenty-first century, Thayer’s essay remains the locus classicus of the argument that in the exercise of their great power to protect constitutional norms, the courts – including the Supreme Court – should proceed deferentially: [The court] can only disregard the [challenged] Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one – so clear that it is not open to rational question. That is the standard of duty to which the courts bring legislative Acts; that is the test which they apply – not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the constitution has charged with the duty of making it. This rule recognizes that, having regard to the great, complex, ever unfolding exigencies of government, much which will seem unconstitutional to one man, or body of men, may reasonably not seem so to another; that the constitution often admits of different interpretations; that there is often a range of choice and judgment; that in such cases the constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional.14