JB

In my previous post on Larry Solum's theory of good judging, I pointed out that although Larry can justify following previous precedents that are inconsistent with his theory, he can't justify courts deciding those cases in the first place. The example I gave was the Burger Court's sex equality cases of the 1970s, which, I argued, were good decisions that Americans should, on the whole, be proud of. If Larry's theory can't account for the legitimacy of such decisions, I suggested, it is probably too narrow a conception of the judicial role.

In response, Larry adopts a strategy of confession and avoidance:

So I really have to bite the bullet. As Balkin recognizes, I am forced into the following position. Although the Supreme Court's gender equality jurisprudence is binding precedent and should continue to be followed by both the Supreme Court and the lower courts, those decisions were badly reasoned and gave insufficient weight to contrary precedent. Now, Balkin is right when he assumes that I "would agree that women should not be subjected to discrimination by the states or the federal government." So how can I possible think that decisions which lead to a result of which I approve are incorrect as a matter of law? Haven't I contradicted myself? Well, no. In fact, obviously not. Why not? Because judicial fiat is not the only way to change the law. Law can be changed by amending statutes, promulgating regulations, and even in some cases, by amending the constitution. If the Supreme Court had taken the steam out of the political movement, the Equal Rights Amendment might now be law. Even with the Supreme Court's gender equality jurisprudence, both Congress and state legislatures have enacted a wide variety of important gender equality legislation. And it is not clear the polities without our institution of judicial review (the United Kingdom, Denmark, etc.) have lagged behind the United States in achieving gender equality.

It follows from this that Larry does not, in fact, think that the states and the federal government should be *constitutionally* prohibited from discriminating on the basis of sex. He believes that sex inequality is wrong, but that it should be up to individual states, and to the U.S. Congress to pass laws and issue regulations prohibiting sex discrimination. But I think this misses the point at issue: Should the principle of sex equality be part of our basic law, our fundamental rights, so that one does not have to get legislation passed in order to secure basic rights for women? One might well have said the same thing in Brown v. Board of Education: let each state decide whether it wants to keep Jim Crow or abolish it; let Congress decide whether it wants to ban segregation in the D.C. schools, or not, and so on. I guess one could take that position with respect to almost every important civil right that doesn't fall within Larry's neoformalist vision of judging. But my point is that if so, this seems to me at least, to be a serious criticism of his position. I don't think it would be sufficient to leave the question of sex equality, or race equality, for that matter, to the tender mercies of indvidual states.

Larry notes in passing that "If the Supreme Court had taken the steam out of the political movement, the Equal Rights Amendment might now be law." Well, I think there is much to be said for that view, although there is some evidence going in the other direction. But I assume that Larry would agree that this does not justify the Court's 1970's sex equality jurisprudence, at least for a formalist. It might for someone like me, or like Justice White (both of us are strongly legal realist in our orientation, as you may have guessed) but the point of being a formalist is that if you don't play by the rules, you don't get the result you are seeking. Article V of the Cconstitution says that it takes three quarters of the states to change the Constitution, not three quarters less three.

But I digress. Larry may well think that he can bite the bullet on the sex equality question. But the sex equality example was only one example. What Larry does not sufficiently recognize, I think, is that the number of Supreme Court decisions that are not consistent with his model of neoformalist judging are plentiful. Indeed, I would venture to say that there is hardly an area of contemporary civil rights law in which the key precedents protecting civil rights and civil liberties were originally developed consistent with Larry's formula for good judging. Rather, the history of progress in civil rights in this country is the history of courts artfully dodging and sometimes overruling previous precedents, and creatively crafting new doctrinal structures in their stead, often with nary a concern for "plain meaning," structure, or original understanding. The list of cases that were decided in ways inconsistent with Larry's rather narrow conception of good judging is so long that I can't even begin to list them all, but here's a partial sample: the basic doctrines of the scope of free expression, the rule of strict scrutiny for content based regulations, the rule of Brandenburg v. Ohio protecting seditious libel, the contemporary protection of blasphemy and indecency, the public forum doctrine, the rule of New York Times v. Sullivan, the doctrine of freedom of association, the doctrines prohibiting unconstitutional conditions on speech, the constitutional recognition of picketing as a form of protected expression, and that's just the first amendment doctrines that come readily to mind.

But let's move on: We would also have to include almost all of the Supreme Court's criminal procedure jurisprudence and its application to the state governments, the rule of Gideon v. Wainwright, the rule of Shapiro v. Thompson, the fundamental right to marry recognized in Zablocki v. Redhail and Loving v. Virginia, the right to procreation recognized in Skinner v. Oklahoma, Griswold v. Connecticut and Eisenstadt v. Baird, the requirement of a hearing in adminstrative decisionmaking in Roth and its progeny, the application of equal protection clause to aliens, to illegimate children, to the mentally retarded, not to mention women, the application of the Equal Protection clause to voting in Baker v. Carr and its progeny, (including the equal protection holding in Bush v. Gore, don't forget!), the discovery of an "equal protection component" in the Fifth Amendment's Due Process clause so that the Federal Government could not discriminate on the basis of race in Bolling v. Sharpe, or on the basis of sex in Frontiero v. Richardson.

But wait, there's more: Quite apart from the ways courts have innovated in the area of civil rights and civil liberties, they have also innovated consistently in the scope of national powers. So to the list we must add the current constitutional powers of Congress to pass regulatory legislation under the commerce clause beginning with Darby and Wickard and their progeny, which include, by the way, the power of Congress to pass the Civil Rights Act of 1964 and much other subsequent civil rights legislation. to This we must add the doctrines authorizing the administratiive state, the power of Congress to delegate legislative and judicial authority to administrative agencies, and the power of Congress to create independent federal agencies like the FCC or, more importantly, the Federal Reserve, which keeps the money supply out of everyday political contestation. (Can you say "Cross of Gold speech?" I knew you could.) Oh, and by the way, The Legal Tender Cases, which authorized Congress to print paper money as legal tender? Not a particularly good example of neoformalist judging. I'm afraid those greenbacks will have to go.

My point is that cases like the sex equality decisions of the 1970s are not the exception. They are the rule. If we took seriously Larry's view that he would have to bite the bullet in all cases where the Supreme Court's decisions were inconsistent with his vision of neoformalist judging, then I'm afraid that he would have delegitimated a very sizeable chunk of the corpus of contemporary constitutional law, or at least the portions that I regularly teach in my courses and discuss in my casebook. All of this stuff should never have been decided. In other words, if Larry is willing to bite the bullet on cases that are inconsistent with his narrow conception of appropriate judging, he will be biting bullets for a very, very long time.

But it gets even worse. For Larry's response to the sex equality cases is that Congress and the states could just pass legislation protecting women's civil rights. But my point is that the Supreme Court has not simply engaged in what Larry would regard as creative legal interpretation in cases limiting government power. It has also creatively interpreted and expanded the scope of Congressional power as well. That is what the New Deal Revolution was all about. And indeed, it is quite likely that if the Court had just followed his neoformalist formula for good judging, Congress would be constitutionally prohibited from passing much of the very civil rights and civil liberties protections that he wishes to fall back on, and administrative agencies would not be able to pass all those regulations that Larry argued would pick up the slack in enforcing equality norms. Certainly the Civil Rights Act of 1964 is not consistent with 19th century precedents or 19th century understandings of federal power. I'm afraid that what Larry is committing us to is a Constitution without a very large proportion of the features that we today take for granted as its greatest strengths and its greatest achievements.

If I am correct about all this, then there is an enormous irony to Larry's theory. For despite all of these criticisms, Larry can in fact have his cake and eat it too. He can point out that judges should follow the sex equality cases, the cases broadening the scope of Congressional power, the cases legitimating the administrative state indeed, the whole panoply of cases that I have just pointed to, because they are *already decided,* and judges must follow stare decisis. But here is the irony: The only reason that these things are law now, and that judges must follow them, is because other judges in the past who Larry thinks didn't know how to do their jobs properly violated their oaths of office and inserted these travesties into constitutional law. So Larry's theory commits him to the following paradoxical position: He doesn't have to defend a deeply unjust and unworkable constitutional scheme because other judges in the past didn't follow his advice about what constitutes good judging and inappropriately mixed law and politics in the very ways he accuses me of. And that paradox, I think, suggests that there is something deeply wrong about his theory of judging. He is like a man who is living off the proceeds of stolen goods.

Now, there's another very important side to Larry's post, and it has to do with he thinks are my own views about judging in constitutional cases. Larry thinks that what I am advocating is simple lawlessness, that I am saying that ultimately it's all politics. He is mistaken about this, and he misreads me in large part because he has too narrow a view of what *legal* argument is. I must confess I don't recognize his theory of neoformalist judging in the actual practices of lawyers and judges in America. My view of legal argument is simply more flexible than his, that's why he jumps incorrectly to the conclusion that I think it's all just politics. But I think that history of the practice one is arguing about counts for something. And the more one studies the actual history of the practices of legal argument about the U.S. Constitution, and the ways in which our Constitutional law has actually developed, the more one discovers that these practices are much much more flexible that Larry's model of good judging permits. A theory of judging that renders so much of the history of the practice it is trying to account for as illegitimate just can't be correct. But that discussion will have to wait for another post.