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British Association for American Studies


Issue 8, Spring 2006: Article 3


Issue 8, Spring 2006: Article 3

U.S. Studies Online: The BAAS Postgraduate Journal

Issue 8, Spring 2006

Tyranny of the Majority and Judicial Power: Using Tocqueville to Evaluate the Activism of Justice William Brennan

John McKiernan
© John McKiernan. All Rights Reserved

I. Introduction

Both Alexis de Tocqueville and former Supreme Court Justice William Brennan, Jr. feared the marginalization of the individual at the rise of the tyrannical majority and believed that the judiciary, when rightfully discharging its power, combats such tyranny. Yet, while they shared the same philosophical views on the nature of tyranny, they nonetheless disagreed over how the judiciary rightfully discharges its power in the struggle against the tyranny of the majority. For Tocqueville the judiciary acts according to both power and right only when it rules on questions of law raised in cases invoking the court’s role as arbiter; for him, a pro-active court which seeks out laws in order to invalidate them acts without right, enjoying a political power that makes the court an attractive ally for a tyrannical majority seeking to establish its rule. On the other hand, Justice Brennan, who sat on the Supreme Court from 1956 to 1990, envisioned a court that acts, foremost, in response to the human concerns that arise in a case brought before the court; in the Justice’s opinion, judicial activism combats the tyranny of the majority by providing justice to the individual litigant suffering under the laws and influence of the majority.

Tocqueville wrote of tyranny in the language of consolidated power. He believed that a majority that consolidates governmental power may control the collective legislative will and use such influence to smother opposing, minority interests. Should this majority come to control the judiciary, the majority could also insulate itself from reproach by the minority. Yet Tocqueville also believed that the American judiciary, by virtue of its procedural requirements, naturally combated such tyranny. Where the court acts within its proper sphere of power and right, deciding questions of law only as accidents necessary to the resolution of a case properly before the tribunal, the court combats tyranny by limiting the court’s political power. Without such political power, the political majority cannot insulate itself and its policies from minority reproach. In Tocqueville’s view the judiciary should not use its power to generally reshape law; rather it should change law only as necessary to resolve the particular case before the court. A Tocquevillian judiciary, therefore, rules passively, not actively.

Despite sharing Tocqueville’s fear about the nature of tyranny, Justice Brennan reached the opposite conclusion about how judicial power combats such tyranny. He believed that judicial activism allows the court to overcome stifling precedent and administer justice by addressing the needs of the individual litigant. Justice Brennan’s humanistic jurisprudence led him to believe that the judiciary best protected the rights of the individual against the tyranny of the majority through rulings that, while sometimes contrary to established precedent, dispensed justice and ministered to the human litigant.

Contrasting their peculiar coincidence of thought on the nature of tyranny with their divergent views on how the judiciary combats such tyranny raises questions about why and how Justice Brennan came to think that the judiciary could fight the tyranny of the majority through the judicial methods that Tocqueville believed would only promote such tyranny. The answer ultimately rests in their divergent jurisprudences regarding the nature of the judiciary.

II. The Thoughts of Tocqueville and Justice Brennan

Whatever similarities might exist between the jurisprudences of Tocqueville and Justice Brennan, one should not consider the views of the latter as the natural products of studying the former. As Evan Caminker, a former Brennan clerk and now dean of the University of Michigan Law School, has noted, despite the philosophical and structural similarities of their legal thought, Justice Brennan never read Tocqueville:

I recall that sometime during the Term, a nationally respected scholar sent the Justice a law review article analyzing in fine detail how Justice Brennan’s first amendment jurisprudence was best explained as an outgrowth of his commitment to Alexis de Tocqueville’s vision of American democracy. Justice Brennan read the article carefully, and praised it highly for its insight and craft. But, he noted to me with a wry smile, there was an obvious difficulty with the thesis: he had never read de Tocqueville! [1]

Tocqueville and Justice Brennan did share the same fundamental insights with respect to the tyranny of the majority. The possibility of a despotism implemented by a political majority via control of one or more branches of the government was, for Tocqueville, one of the major potential shortcomings of the democratic social state. While the principle of popular sovereignty, properly tempered by outside forces such as the judiciary, enjoyed favorable treatment in Tocqueville’s political thought for, among other reasons, promoting intellectual equality amongst the electorate [2], he saw that it also, when unrestrained, posed a significant threat to liberty by making the political minority helpless against an omnipotent majority. [3] In Democracy in America he wrote:

What therefore is a majority taken collectively, if not an individual who has opinions and most often interests contrary to another individual that one names the minority? Now, if you accept that one man vested with omnipotence can abuse it against his adversaries, why not accept the same thing for a majority? [4]

Justice Brennan adopted a similar view of the tyranny of the majority. This similarity, perhaps attributable to both Brennan’s and Tocqueville’s reverence for the jurisprudence regarding the dangers of tyranny espoused in the Federalist Papers, envisions a political majority gaining control over one or more branches of the federal government and using such control to implement a tyranny. [5] Writing for the plurality of the Court in Northern Pipeline, Justice Brennan appealed to Federalist Paper author James Madison’s thoughts on the nature of tyranny: ‘[the] accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny’. [6] Thus, both Tocqueville and Justice Brennan defined tyranny as the consolidation of power in a particular group. Yet that similar opinion stands in stark contrast to their divergent views on judicial activism.

Modern legal scholarship views judicial activism in different lights; in one view it consists of rulings on Constitutional law facially contrary to the plain language of the Constitution, while in another it includes judicial expansion of the limited and enumerated powers of the federal government. [7] For Tocqueville, but not Justice Brennan, judicial activism fundamentally consists of, the judge acting ‘outside the circle in which all peoples have agreed to enclose him’. [8] Such judicial activism involves judges ‘making rather than following the law’. [9]

One and one half centuries removed from the language of judicial activism, Tocqueville considered the possibility in Democracy in America that judges might make, rather than follow, the law. He wrote of a judiciary that makes a preemptive strike against the laws, finding an excuse to do so through an appeal to the political passions of the country. Tocqueville writes, ‘If the judge had been able to attack laws in a theoretical and general manner […] having become the champion or adversary of one party, he would have appealed to all the passions that divide the country to take part in the conflict’. [10] As I will discuss later in more detail, this position included for Tocqueville the belief that judges might use their power to shape law according to a specific political ideology, even when they enjoyed no such right to pronounce upon the law. [11]

Justice Brennan did not share Tocqueville’s understanding of judicial activism. His activism, described by Judge Gerald Lynch as a conflation of the Justice’s personal values and the values embodied by the Constitution, reveals an understanding of judicial activism contrary to the one espoused by Tocqueville. [12] Activism for Justice Brennan did not consist of judges making, as opposed to following, the law. Rather, for him, activism could include rulings that used Constitutional norms to promote his preferred policy goals. In his eulogy of the late Justice, Lynch speaks of Justice Brennan as absolutely committed to his understanding of the principles embodied by the Constitution:

The charge that Justice Brennan confused his own values with those of the Constitution does capture one piece of the truth. As far as I could see, the Justice was totally, absolutely, fervently devoted to the ideals that America and the Constitution, as he understood them, represented. He did not have the slightest doubt that America is the greatest country in the world, and that its greatness resided in institutions that were committed to freedom and equality, to human dignity, and to openness to all who chose to commit themselves to those ideals. He believed that his ideals were the ideals of the American polity, not because he thought that his beliefs ought to be imposed on the nation, but because he had been taught from an early age, in the best American immigrant tradition, to commit himself to the values that the nation professed. [13]

In this light, the Justice never issued a ruling he believed contrary to or beyond the scope of the Constitution because he believed that his values were coextensive with those protected by the Constitution. Lynch’s observation requires one caveat, however: Justice Brennan intentionally rendered his activist decisions with an eye towards reshaping policy. As Judge Richard Posner observed in his eulogy for Brennan:

The justification for Brennan’s jurisprudence, as of any activist jurisprudence Left or Right (and Brennan was more honest about his activism than most judges), must be sought in its results – in whether it has made, or is likely to make, the country better off or worse off, in the long run as well as the short run, in either a material or a spiritual sense. [14]

Yet, as Lynch makes clear, judicial rulings pronounced with an eye towards public policy and respect for Constitutional norms need not be mutually exclusive. Justice Brennan considered them completely compatible. [15]

With a foundation in both Tocqueville and Justice Brennan’s thinking on the tyranny of the majority and judicial activism, a more expansive explanation of Tocqueville’s thoughts on the issues will now facilitate framing a Tocquevillian analysis of Justice Brennan’s activism.

III. The Tyranny of the Majority

The tyranny of the majority proceeds from an enlightened democratic social state which has been corrupted by the efforts of a powerful majority. Tocqueville believed that popular sovereignty, an exercise of collective reasoning, by its nature resulted in greater enlightenment and wisdom than individual acts of deliberation; a greater number of people involved in a particular decision-making process better guarantees a wise and just decision than a judgment made by a few. [16] Popular sovereignty gives the majority great influence and power, for while the minority may abhor the policies of the majority, they nonetheless abide by the majority will because they seek, one day, to claim the majority status and enforce their own interests. [17] Self-evidently ripe for abuse, this situation presents, for Tocqueville, a ‘dire and dangerous’ future for the American democratic social state. [18] This ‘dire and disastrous’ future follows naturally from the Constitutional structure of the Congress; infatuated with the notion of majority rule, America permits a majority of its legislature to whimsically and capriciously change law. The legislative body experiences a constant state of flux, its membership changing with every election cycle. This constant shuffling of representatives creates in the legislative body a tendency to act quickly upon the goals of passing legislators. [19] This method of law-making provides the American democracy with ‘the means to follow the natural instability of its penchants in the forming of laws’. [20] In Tocqueville’s analysis, the American legislative system potentially poses two threats to a government of separated powers. First, it provides the majority with the opportunity to gain its ‘omnipotence’ by controlling the collective will of the legislature. Secondly, the majority could then insulate itself against threats to its power by bringing a powerful judiciary into line with its agenda. The journey towards this tyranny begins, in Tocqueville’s view, with a legislature governed by the passions of the moment. Such a legislature lends itself to constantly altering and overturning its own laws. In exercising its power to shape and reshape laws according to the whim of its constituency, the legislature falls into a pattern of blind obedience to the majority. This obedience, coupled with the legislative power, drives the legislature towards a dangerous omnipotence – which Tocqueville called ‘an evil and dangerous thing in itself’ [21] – under which the minority must either suffer the tyranny of the majority or physically remove itself from the majority’s jurisdiction. Further, such omnipotence naturally lends itself to tyrannical rule and drives away those who oppose such domination. Wrote Tocqueville, ‘Therefore, when I see the right and the ability to do everything granted to any power whatsoever […] there is the seed of tyranny, and I seek to go live under other laws’. [22]

Yet securing legislative power marks just the beginning in Tocqueville’s view, for in addition to controlling legislative power, the tyrannical majority also consolidates judicial power. Tyranny imposed by a majority exercising control over the legislature also corrupts the judiciary, encouraging judges to make arbitrary decisions that advance the platform of the majority. [23] The bench becomes a forum through which the majority insulates itself from reproach at the hands of an injured minority. Judges serve as pawns, exercising their judicial power without any concern for the right to pronounce judgment and becoming powerful and prominent servants to the tyrannical majority. [24] Posits Tocqueville:

In the United States, at the same time that the omnipotence of the majority favors the legal despotism of the legislator, it favors the arbitrariness of the magistrate as well. The majority, being an absolute master in making the law and in overseeing its execution, having equal control over those who govern and over those who are governed, regards public officials as its passive agents and willingly deposits in them the care of serving its designs. It therefore does not enter in advance into the details of their duties and hardly takes the trouble to define their rights. It treats them as a master could do to his servants if, always seeing them act under his eye, he could direct or correct their conduct at each instant. [25]

Indeed, an unrestrained judiciary does pose a great threat to the healthy democratic social state, for, given the structure of the American judiciary and the powers granted to it, the American court does enjoy extraordinary political power. This political power, were the courts to exercise their judicial powers without regard to right, could insulate the majority from the repudiation of the harmed minority and would make the judiciary a potent ally of the tyrannical majority. Yet Tocqueville did not despair at this realization for he believed that the characteristics and procedural foundations of the American court system combat the corruption of the judiciary by restricting the right of the courts to exercise their judicial powers.

IV. The Three Characteristics of the Judiciary in the United States

Describing how the Americans had preserved within the judiciary all of the characteristics normally ascribed to the bench, Tocqueville wrote of a judiciary acting within a sphere of power and right. This sphere of judicial movement encompasses three distinct principles of judicial action: arbitration, judgment of particular questions, and action only in accord with a proper complaint or appeal made to the court. [26] Action outside this sphere constitutes an improper application of judicial power, as it invades the province of the legislature and assaults the court’s inherent passivity. [27] Collectively, these characteristics establish a judiciary which is resilient to alignment with a popular political ethos and, ostensibly, make the courts combatants against the tyranny of the majority.

Arbitration, the first characteristic of the American court, refers to the authority of the court to hear parties to a dispute for which the law provides a remedy. A dispute by itself does not invoke the judicial power of the court, for it does not automatically provide the court with a question of law that demands resolution. Tocqueville seemingly adopted a principle of adjudication similar to the one embodied in art. III, § 2 of the United States Constitution, which requires a case recognized under the ‘Laws of the United States’. [28] Tocqueville explained the principle in the following way: ‘As long as a law does not give rise to a dispute, therefore, the judicial power has no occasion to occupy itself with it. The law exists, but the judicial power does not see it’. [29]

Tocqueville’s case and controversy requirement speaks only to the right, not the power, of the courts to make rulings on the laws. The court enjoys the power to pronounce upon the merits of a particular law in two ways; it may do so as a necessary consequence of deciding a certain question raised in a case, or it may do so of its own initiative, without any question of the law’s propriety being presented before the court in a case. When sitting in judgment over a case, the judge may rule, as a matter of right, upon the meaning or constitutionality of a law implicated in the dispute. In such a case, resolving the dispute necessarily requires interpretation and application of the law. Tocqueville considered such revision of the laws a proper extension of the judicial authority because the attack upon the law stems from a dispute before the court. The alteration of the law occurs accidentally, as a consequence of ruling on the merits of the case. The judge enjoys not only the power, but also the right, to attack and interpret the laws. Hence, Tocqueville argues,

When a judge, in connection with a case, attacks a law relative to that case, he extends the circle of his prerogatives, but he does not go outside it, since it was necessary in some way for him to judge the law in order to come to judge the case. [30]

More troublesome in Tocqueville’s opinion was that a judge might exercise the judicial power to attack the laws without simultaneously enjoying such a right should he decide to pronounce on the meaning or constitutionality of a law without starting from a case properly before him. In such an instance the judge would be stepping outside his sphere of action and, while ostensibly still enjoying the power to attack the laws, nonetheless lacks the right to mount such an attack because no case raised a question requiring his role as arbiter. According to Tocqueville, ‘When [a judge] pronounces on a law without starting from a case, he goes outside his sphere completely and enters that of the legislative power’. [31] Rulings of this sort constitute, in accord with the definition postulated above, Tocqueville’s notion of judicial activism. Judges here intentionally make law rather than accidentally change law by pronouncing upon a particular case.

The second Tocquevillian characteristic of the judicial power, pronouncing judgment on particular questions as opposed to general principles of law, again speaks to a judge acting within a sphere of power and right. A judge properly renders decisions on questions of law as applied to a case before the court, but abuses his authority when he pronounces upon the law as generally applied. His decision provides relief for the individual litigant appearing before his bench, not for the masses burdened under the law. A judge enjoys the power of invalidating laws generally, but only enjoys the right of invalidating laws as applied to particular circumstances of fact as argued and found in a case before the court. [32]

This does not mean that a judicial decision may not, ipso facto, properly and unequivocally invalidate a law, only that such invalidation must follow from the application of judicial precedent to future cases rather than from universal apodictic abrogation of the law. A judge’s decision invalidating a law in one case may bind tribunals to render consistent decisions in future cases. This may, in due course, properly achieve the complete impotence of the law in question. In such a case, the judge remains within his sphere of power and right. However, when the judge nullifies a law generally and without concern for the application of the law to a particular case, the hallmark of Tocqueville’s conception of judicial activism, he leaves his sphere of power and right and becomes something more than just a judge. Writes Tocqueville:

Should a judge, in deciding a particular question, destroy a general principle by the certitude people have that, each of the consequences of this same principle being struck down in the same manner, the principle becomes sterile, he remains in the natural circle of his action; but should the judge attack the general principle directly and destroy it without having a particular case in view, he goes outside the circle in which all people have agreed to enclose him: he becomes something more important, more useful perhaps than a magistrate, but he ceases to represent judicial power. [33]

The third characteristic of the judiciary, action only upon a proper invocation of the judicial power, imbues the judiciary with an inherent passivity. The court neither solicits causes of action, nor initiates proceedings on its own caprice; rather it must await complainants who call upon its authority to arbitrate a dispute recognized in law. Judicial power, for Tocqueville, ‘is without action; for it to move one must put it in motion’; a pro-active tribunal acts contrary to a structural passivity natural to the judicial power. [34] Tocqueville worried that, ‘The judicial power would in a way do violence to this passive nature if it took the initiative by itself and established itself as censor of the laws’. [35] In his view, a court that takes an active role in soliciting cases for the purpose of reshaping law abuses the power of the judicial office.

As discussed in the subsequent section, these characteristics impose structural and procedural requirements upon the judiciary which impede judicial activism, hence making the judiciary hostile to the efforts of a tyrannical majority. While the possibility exists that an activist judge could employ his judicial power in furtherance of a political agenda without regard to his right to invoke such power, the case and controversy requirement and the passive nature of the courts make this, in Tocqueville’s view, difficult to do. He believed that the structures and procedures of the judiciary make it a natural combatant to the tyranny of the majority.

V. The Judiciary as Combatants to the Tyranny of the Majority

Tocqueville finds in the American judiciary the peculiar opportunity to base decisions on the Constitution rather than just upon statute. Such convention provides the judiciary extraordinary political power, for it allows courts to contravene the legislative will by ignoring laws that seem to the court unconstitutional. Yet Tocqueville does not despair at such a system, for he also finds, in the essential characteristics of the judiciary discussed earlier, a system that diminishes the dangers that an unrestrained judiciary might pose to the healthy democratic social state by making the judiciary a combatant to the tyranny of the majority.

Armed with the right to render decisions based upon the Constitution as opposed to just statute, Tocqueville finds the court wielding extraordinary political influence and power. Such authority allows the judge to abrogate a particular application of a law and provide those whom the judge finds wronged by the law in question relief from the burdens imposed by statute. Through the doctrine of precedence, the American court could, through one ruling on the unconstitutionality of a law as applied to a particular case, initiate a tide of rulings, ‘the repeated blows of jurisprudence’, which would completely nullify the effect of the law. [36] For Tocqueville, the full effect of the judicial political power would now become evident. Such a wave of decisions would either force the legislature to rescind the law or would compel the people to alter the Constitution so as to permit the law. [37]

This system is capable of creating a judiciary complicit in the tyranny of the majority, but for the internal safeguards against such a tendency built into the judiciary by the characteristics discussed earlier. The first characteristic discussed above, the right of the judge to pronounce judgment upon a law only when a question concerning that law presents in a case, is of particular importance for Tocqueville’s analysis of how the American judiciary contributes to the tyranny of the majority. A judge who renders pro-active strikes against the actions of the legislature by nullifying laws before they present in a case forcefully establishes himself upon the political scene and aligns himself with a particular political party. [38] The champion of a specific political cause, the judge now finds himself using his authority to attack only laws hostile to his party. Such a judge will only attack the law when the power from which the law emanates abates; he will remain silent when the power supporting the law waxes. [39] This creates, for Tocqueville, an imbalance of power that renders the democratic social state particularly susceptible to a tyranny of the majority. By attacking the laws when the supporting party wanes, the judge attempts to upset the law when the law deserves the most respect. When he remains silent on a law supported by the powerful, he implicitly suffers the law. [40] In Tocqueville’s view a judge should challenge this law because the law could further the tyranny of the majority:

If the judge could only attack legislators head on, there are some times when he would fear to do it; there are others when the spirit of party would push him every day to dare it. Thus it would happen that the laws would be attacked when the power from which they emanate was weak, and that one would submit to them without murmuring when it was strong; that is to say, one would often attack the laws when it was most useful to respect them and one would respect them when it became easy to oppress in their name. [41]

However, despite the threat of a powerful judiciary becoming complicit in the tyranny of the majority, Tocqueville finds the structure of the American judiciary reassuring because it minimizes the opportunity for judges to render decisions capriciously. He takes solace in his case and controversy requirement because it permits judges to render decisions on the constitutionality of laws only when those laws implicate a question presented in the case. [42] This procedural safeguard provides theoretical relief because it makes any decisions on the constitutionality of a law an accident of the case, not a self-contained ruling capable of exploitation for political gain. A law nullified on constitutional grounds during the prosecution of a case does not enjoy the same political significance as a law nullified outside of a particular case. [43] The judge, as arbiter, must pursue a resolution of the case presented before him. If, in ruling on the merits of the case, he also finds it necessary to rule on a particular law, then the ruling on the law ‘by chance’ becomes a necessary accident to the judge fulfilling his proper role as arbiter. [44] Such a ruling enjoys limited political import because it does not intend to universally contravene the legislative will; it does so only as required to render justice in the particular case. While valuable for Tocqueville’s treatment of judicial activism, this analysis of judicial procedure as a technical safeguard against activism does not surface in Justice Brennan’s thought; in fact Justice Brennan believed that judges properly exercised their power through activist rulings in cases and controversies properly before their courts. The two men did share the same concerns about the tyranny of the majority, that it may rule without concern for the views of the minority and may employ the tools of government to insulate itself from reproach. Further, both believed that an independent judiciary may effectively combat the tyranny of the majority. Yet Justice Brennan’s jurisprudence takes on a decidedly anti-Tocquevillian flavor when it comes to his ideas about how the judiciary combats tyranny for, unlike Tocqueville, Justice Brennan believed that the judiciary best combats tyranny through activism.

VI. A Tocquevillian Analysis of Justice Brennan’s Activism

Both Tocqueville and Brennan feared a tyrannical majority, believing that an independent judiciary must prevent the majority from enjoying complete control over the government of a democratic social state. Yet despite their corresponding beliefs on this matter, the two had different understandings of both why and how the judiciary and judicial activism either promoted or hindered the tyrannical majority. Judicial activism, for Tocqueville, constituted a failure of the judiciary and facilitated the rise of the tyrannical majority. Justice Brennan, however, thought activism properly invoked the judicial power to reshape public policy in accord with values already promoted by the Constitution; he believed activism protected the individual suffering under the tyranny of the majority. Tocqueville considered judicial activism a cause of the tyranny of the majority while Justice Brennan considered it at least part of the cure.

Paul O. Carrese, a political scientist at the United States Air Force Academy, presents this philosophical conflict well when he describes Justice Brennan’s expansion of privacy rights in Eisenstadt v. Baird. Carrese writes of Justice Brennan introducing a jurisprudence that makes novel use of the Equal Protection clause and brushes over precedent to promote policy goals under the aegis of Constitutional principles. Couching Justice Brennan’s decision, and its legal progeny, in Tocquevillian language, Carrese writes that Justice Brennan’s activism employed:

…a rationalism that ignores the moral requirements and complex realities of the political communities, and a distorting abstraction from legal and moral precedent in the name of progress. The Court now mandates the moral result Tocqueville thought it would counteract, by the jurisprudential means he thought it would reject. [45]

Carrese argues that Justice Brennan’s activism combats the tyranny of the majority, a proper function of the court in Tocqueville’s view, by exercising the judicial power that Tocqueville believed would make the courts an instrument of the tyrannical majority.

So the first question becomes, why did Justice Brennan, who feared the tyranny of the majority for the same reasons Tocqueville did, come to believe that he could fight the tyranny of the majority through the very methods Tocqueville believed only promoted such tyranny? The answer to this question might lie in Justice Brennan’s humanistic jurisprudence. His theory of law embodied more than just a system of particular commands founded upon some top-down deductive schema. Rather, Justice Brennan understood that law served the human condition by responding to the needs of the people. As such, he viewed his decisions as more than just rulings based upon statute and precedent; rather the rulings were decisions ordered towards ‘the real plight of real people touched by the law’. [46] His concern for people and their condition provided Justice Brennan with a paradigm of how to rightfully use his judicial power to respond to the plight of the people.

In the Justice’s mind, one of the plights faced by the common American was the trivialization of a minority view in the face of a government dominated by a particular interest. Dissenting in Commodity Futures Trading Com. v. Schor, Justice Brennan identified this threat and spoke of how the judiciary should respond: ‘The Framers also understood that a principal benefit of the separation of the judicial power from the legislative and executive powers would be the protection of individual litigants from decision makers susceptible to majoritarian pressures’. [47] For Justice Brennan, the individual enjoys the benefits of an independent judiciary devoted to combating the influence, the tyranny, which a majority might exert over those charged with making law.

Here Justice Brennan coincidentally, as opposed to intentionally, embraced Tocqueville’s basic idea that the judiciary fights for the individual in the struggle against the tyranny of the majority. [48] The divergence between the two thinkers occurs in their thoughts on how the judicial power might combat the tyranny of the majority. Both agreed that the judicial power may defend the rights of the individual against the majority, but where Tocqueville sees judicial activism supporting the rise of tyranny, Justice Brennan sees such activism as the way that the judiciary combats such tyranny.

The explanation for this divergence is centered around two distinct understandings of the spirit of the American judiciary. For Tocqueville, the judiciary enjoyed the cloak of the American aristocracy and its love of form and precedent; its rulings were static and in accord with established law. Justice Brennan’s view of the judiciary, while giving form and precedent their proper due, nonetheless focused upon the power and, in the Justice’s view, the right to shape law in such a way that it both respected Constitutional norms and attended to the perceived needs of the human beings subject to the law.

Tocqueville’s writings on lawyers, including members of the judiciary trained as lawyers, describe a bench focused on the orderly arbitration of conflict in accord with established norms. Stare decisis provides the judge with a certain guide, a deductive schema, to employ when evaluating the questions of law raised in a particular case. [49] The judge does not advance novel interpretations of the law to achieve his desired purpose; indeed, he abhors even the thought of it. [50] For Tocqueville, the judge, by virtue of his training as a lawyer, occupies part of a ‘privileged class among persons of intelligence’ which enjoys a taste for form and order at the expense of the will of the majority and the notion of popular sovereignty. [51] Such tastes imbue judges with a spirit that ‘will be eminently conservative and will show itself as antidemocratic’. [52] This antidemocratic spirit, an aristocratic tendency towards order and tradition, stems from the elevated position that judges enjoy in society as a result of their work and training. Once in office, the judge becomes the enemy of an unbridled democracy and its dangerous tendencies towards tyranny and ultimately anarchy. [53] Tocqueville explained:

The more one reflects on what takes place in the United States, the more one feels convinced that the body of lawyers forms the most powerful and so to speak the lone counterweight to democracy in this country. In the United States one discovers without difficulty how much the spirit of the lawyer, by its qualities and, I shall say, even by its defects, is appropriate for neutralizing the vices inherent in popular government. [54]

Thus, through the court the judge covertly advances his aristocratic tastes against the unbridled and fleeting passions of the populace. [55] This tempering of the popular will, whether by advancing respect for precedent over the desire for novel change or by encouraging formal treatment of the issue instead of impulsive action, prevents the populace from using the legislature to rapidly indulge its irresistible desires. [56] Derived from an unrestrained majority, such untempered legislation is inherently unstable and lends itself to tyranny. Writes Tocqueville:

Legislative instability is an evil inherent in democratic government because it is of the nature of democracies to bring new men to power. But this evil is more or less great according to the power and the means of action granted to the legislator. In America they hand over sovereign power to the authority that makes the laws. It can indulge each of its desires rapidly and irresistibly, and every year it is given other representatives. That is to say, they have adopted precisely the combination that most favors democratic instability and that permits democracy to apply its changing will to the most important objects. [57]

This respect for precedent in Tocqueville’s analysis of the spirit of the judiciary enjoys much less weight in Justice Brennan’s jurisprudence. Justice Brennan believed that a judge should use the bench to respond to the public need. Statutory text and legal precedent deserve respect, but ultimately the judicial power exists to better the human condition. The judge and the litigant shared the same humanity and, as such, any decision rendered by the judge ultimately needs to attend to the plight of the human litigant. In Brennan’s opinion, therefore, the bench, while owing proper respect to precedent, nonetheless served a higher good by making its ultimate end the improvement of human society.

Frank Michelman, professor of law at the Harvard Law School, eloquently described Justice Brennan’s commitment to the human ends of the law in the following way:

A special strength in Justice Brennan’s thought is the resonance between his conception of his own role as judge and his dialogic theory of constitutional ends. For the Justice, the logic of democratic self-government by the people implies that every law-dispensing office is a site of critically interactive encounter. If it is the people who govern, he reasons, the relationship between official and citizen can only be ‘the relationship between one human being and another’. Accordingly, due process means to him that ‘the rulers and the ruled acknowledge their common humanity, and that official judgment always remain[s] human judgment’ informed by a reach of ‘passion’ towards a true grasp of others’ experiences of the matters at issue. [58]

In Justice Brennan’s view the bench enjoys both the power and the right to shape law in an effort to ensure justice for the individual, particularly when that individual is suffering at the hands of a tyrannical majority. Concluding his dissent in Commodity Futures Trading Com., Justice Brennan wrote of the bench as being constitutionally ordained to defend the rights of the individual against the majority:

Our Constitution unambiguously enunciates a fundamental principle — that the ‘judicial Power of the United States’ be reposed in an independent Judiciary. It is our obligation zealously to guard that independence so that […] individuals continue to be protected against decisionmakers subject to majoritarian pressures. [59]

This fundamental difference in accounts of the spirit of the American judiciary offers a satisfactory explanation for why, given their coinciding beliefs on the role of the judiciary as a combatant to the tyranny of the majority, Tocqueville and Justice Brennan adopted opposite views on how the judiciary achieves that end. For Tocqueville, the judiciary participates in the aristocratic tendencies of the American lawyer and collectively, as lawyers, exercises restraint and respect for form and tradition in order to stifle the fleeting passions of the majoritarian mob. Activism, in Tocqueville’s account, amounts to nothing more than the capricious use of judicial power, without right, to abrogate or expand upon laws in accord with whatever political pressures hold sway over the judge. Judicial activism therefore attacks the health of the democratic social state by giving the majority a powerful tool through which to shape law to fits its own agenda. Justice Brennan, however, found in the bench an opportunity to combat the tyranny of the majority by actively ministering to the human being. Activism, he believed, thwarts the tyranny of the majority; it utilizes a separate judiciary to protect the individual from the other branches of government, which could suffer under the influence of the majority of their constituency. Decisions should not just rest upon precedent, for precedent is static and cannot attend to the needs of the individual human litigant who is seeking relief from the bench.

VII. Conclusion

Tocqueville spoke of the judiciary acting within a sphere of power and right, altering laws only as accidents in the process of resolving individual cases on their merits. Procedural norms limited the political import of the judiciary by requiring passive decision-making; the non-active court could not abrogate the laws generally and therefore could not insulate the majority from reproach by the minority. Justice Brennan, however, viewed the judiciary as an instrument of government that must actively defend the rights of the individual who is harmed by the legislation enacted and the political influence of the majority. Procedure and precedent guided the judiciary, but ultimately judges must actively use their powers to respond to the needs of human beings touched by the law. Judicial activism permits the judiciary to overcome precedent and achieve the primary end of the judicial power: dispensing justice to the individual litigant.

Justice Brennan’s decidedly anti-Tocquevillian view on how the judiciary exercised its power to combat tyranny reflects the divergent views of the two thinkers on the nature of the judiciary. Tocqueville’s passive judiciary loved rules and precedent; it sought rulings consistent with prior decisions, not judicial innovation. Justice Brennan’s judiciary, while giving proper deference to precedent, responded instead to the needs of the human being presenting himself before the bench.

Harris Manchester College, Oxford



[1] Evan Caminker, ‘Profile: Morning Coffee with Justice Brennan’, Boston University Public Interest Law Journal, 7 (Winter 1998), 3-7 (p. 4).

[2] Alexis de Tocqueville, Democracy in America, trans. by Harvey C. Mansfield and Delba Winthrop (Chicago: University of Chicago Press, 2002), p. 236.

[3] Tocqueville, p. 241.

[4] Tocqueville, p. 240.

[5] For Justice Brennan’s invocation of The Federalist No. 47 (James Madison) see N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58 (1982). For Tocqueville’s use of The Federalist No. 51 (Alexander Hamilton or James Madison) see Tocqueville, p. 249.

[6] N. Pipeline, 458 U.S. at 58.

[7] Lino A. Graglia, ‘The Myth of a Conservative Supreme Court: The October 2000 Term’, Harvard Journal of Law and Public Policy, 26 (Winter 2003), 281-313 (p. 281).

[8] Tocqueville, p. 94.

[9] Graglia, p. 281.

[10] Tocqueville, pp. 96-97.

[11] One might also consider the similar definition of judicial activism offered by Chief Justice John Roberts in his response to a Senate Judiciary Committee questionnaire following his nomination to serve as an Associate Justice on the Supreme Court: ‘In our democratic system, responsibility for policy making properly rests with those branches that are responsible and responsive to the people. It was precisely because the Framers intended the judiciary to be insulated from popular political pressures that the Constitution accords judges tenure during good behavior and protection against diminution of salary. To the extent the term “judicial activism” is used to describe unjustified intrusions by the judiciary into the realm of policy making, the criticism is well- founded’. Judge John G. Roberts, Jr., ‘Questionnaire Submitted To The Senate Judiciary Committee’, 8 November 2005 <> [accessed 8 November 2005] (pp. 65-66)

[12] Gerard E. Lynch, ‘In Memoriam, William J. Brennan Jr., American’, Columbia Law Review, 97 (October 1997), 1603-1608 (pp. 1604-1605).

[13] Lynch, p. 1605.

[14] Richard A. Posner, ‘In Memoriam: William J. Brennan, Jr.’, Harvard Law Review, 111 (November 1997), 9-14 (p. 12).

[15] Lynch, p. 1606.

[16] Tocqueville, p. 236.

[17] Tocqueville, p. 237.

[18] Tocqueville, p. 237.

[19] Tocqueville, p. 238.

[20] Ibid.

[21] Tocqueville, p. 241.

[22] Ibid.

[23] Tocqueville, p. 243.

[24] Ibid.

[25] Tocqueville, pp. 242-243.

[26] Tocqueville, p. 94.

[27] Ibid.

[28] The ‘case and controversy’ requirement. U.S. Const. art. III, § 2.

[29] Tocqueville, p. 94.

[30] Ibid.

[31] Ibid.

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] Ibid.

[36] Tocqueville, p. 97.

[37] Tocqueville, p. 96.

[38] Tocqueville, p. 97.

[39] Ibid.

[40] Ibid.

[41] Ibid.

[42] Tocqueville, p. 98.

[43] Tocqueville, p. 97.

[44] Ibid.

[45] Paul O. Carrese, The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (Chicago: The University of Chicago Press, 2003), p. 251.

[46] Caminker, p. 5.

[47] Commodity Futures Trading Com. v. Schor, 478 U.S. 833, 860 (1986). My emphasis.

[48] Recall Tocqueville viewed the judiciary as a resource available to the individual litigant suffering under a burden imposed by the law. Tocqueville, p. 94.

[49] Stare Decisis is ‘the doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation’. Black’s Law Dictionary, 2nd Pocket ed. (St. Paul, MN: West Publishing Co., 2001)

[50] Tocqueville, pp. 255-256.

[51] Tocqueville, p. 252.

[52] Tocqueville, p. 253

[53] Tocqueville, pp. 248-249.

[54] Tocqueville, p. 256.

[55] Tocqueville, pp. 256-257.

[56] Tocqueville, p. 238.

[57] Tocqueville, p. 238.

[58] Frank Michelman, ‘A Tribute to Justice William J. Brennan, Jr.’, Harvard Law Review, 104 (November 1990), 22-33 (p. 27).

[59] Commodity Futures Trading Com. 478 U.S. at 867.