JB

Larry Solum rejects my distinction between high and low politics:

[T]he distinction between high politics and low politics .... [is a] conjuring trick. If the universe consists of decisions that are either high politics or low politics, then it's all politics. But it isn't all politics. The crucial distinction is not between political decisions that favor your ideology and those that favor your party. It isn't even between political decisions that are based on general principles you believe in and those which adopt principles you abhor to get to the results that you like. The crucial distinction is between decisions that are based on the law--on things like texts, history, and precedent--and decisions that are based on politics.

I think Larry has misunderstood the distinction I am making, which arises out of a larger theory of constitutional change that is intended as an alternative to my colleague Bruce Ackerman's. I am certainly not claiming that there is only politics in legal decisionmaking. Plenty of legal decisiomaking could not be so understood. Rather, I am trying to give an account of how opposed political visions legitimately operate in the context of *legal* decisionmaking, and what sort of political motivations should be viewed as inappropriate. The notion of “high politics” helps us understand how constitutional doctrine changes over time in relatively predictable ways given the appointments process and the changing personnel of the courts.

It’s very hard for me to separate *in practice* lots of Supreme Court decisions that are “based on the law” from those that are “based on high politics,” where by “high politics” I mean the invocation of larger visions about the key values that should underlie our understanding of the Constitution. This is not a claim that there is no difference between law and politics. That is certainly not my view. Rather it is a claim about how we characterize legal decisionmaking in the sorts of complicated and controversial cases that appear before the courts, and particularly the Supreme Court of the United States.

Decisions come before the Supreme Court because, for the most part, the Court is being asked to decide difficult legal questions for which there are a number of plausible legal solutions that make use of the familiar modalities of text, history, structure, doctrine, non-judicial precedents, consequences, and appeals to the ethos of the nation. Not every solution is equally plausible, but in most cases that come before the Supreme Court there is usually more than one way to decide the case consistent with the existing norms of legal argument. You and I might think that one solution is clearly better than all of the others, but very often (especially if you have views about the Constitution like mine) that solution is not the one chosen by the Court, and the solution the Court does choose becomes law nevertheless, and you have to deal with it in succeeding cases.

Now which solution seems to you or me to be most persuasive as a *legal* matter may have something to do with our constitutional politics– our views about the political principles and values that we think the Constitution read in its best light espouses– and our views about how those principles and values should be applied to the facts of the case as we understand those facts. As Justice Frankfurter once put it, a lot depends on the pictures of the world inside a judge’s head when a judge makes a decision. We can call those pictures ideology, or political or moral beliefs, or whatever you like. But the point is that people have them, and they influence how they see the world, and what is good and bad in it, and what could be improved in it, and also the best way to read and interpret the basic law of our nation, our Constitution.

When these pictures inside our heads, our ideology, our constitutional vision, frame what we think is the best understanding of our Constitution, which they inevitably do, should we regard this decisionmaking as not really “based on law” but instead secretly “based on politics?” It is very hard for me to accept that duality. Rather, I think that if you put someone on the bench, and ask them to take an oath to uphold the Constitution of the United States, and find the best *legal* solutions to questions of law, using the traditional modalities of text, history, structure, etc., you will simply get different answers to lots of important constitutional questions (but hardly all or hardly even the majority of such potential questions) depending on what Frankfurter called the pictures inside their heads. I don’t think this is a radical view about the relationship between politics and law. Indeed, I think it is just common sense.

Now the point of the distinction between high and low politics is that we *expect* that judges will promote their visions of what the Constitution means and should mean as they wrestle with the legal issues before them, and that it is not surprising that if you appoint nine conservative jurists to the Supreme Court of the United States that the constitutional law they produce will, in time, look significantly different than the constitutional law that would be produced by a Court staffed with nine liberals. But this does not mean that either of these hypothetical benches is necessarily deciding according to politics but not according to law. It just means that people disagree about what the best meaning of the Constitution is, and they tend to promote their favored view in *legal* argument, and, if they are Justices, write those views into law, where they become the doctrinal substrate for future decisions.

It is important to recognize that this is not a claim that the law is radically indeterminate. Quite the contrary: It assumes that the law (even Constitutional law) has pervasive elements of relative determinacy to it. Why is that? Because if the law were so indeterminate, there would be no point in fighting to put liberals or conservatives on the bench in order to move the law in a particular direction that would bind future jurists. The reason why it matters who sits on the bench, paradoxically, is that the law is only partially, or modestly underdetermined from the standpoint of existing legal norms of practice. The content of a case like Roe or Miranda, or Croson, or Alden v. Maine actually matters. It matters a lot.

Furthermore, it is important to recognize that a lot of what judges do is not simply following the rules laid down, in Mark Tushnet’s phrase, but rather involves doctrinal innovation. Courts make up new distinctions and doctrines to solve problems. These distinctions and doctrines are genuinely new in the sense that you couldn’t have easily derived them from previous doctrinal structures, much less from history, structure, text, and original understandings. Examples are the direct/indirect distinction in early 20th century commerce clause cases, the rejection of this distinction and the creation of the substantial effects test and the cumulative effects test in Darby and Wickard, the “congruence and propotionality” test in Boerne, the actual malice rule in New York Times v. Sullivan, the “public figure” doctrine as developed in later cases, the public forum doctrine, and so on. Indeed most of constitutional law is made up in this way at one point in time or another. It does not come from the text, history, and structure, but is creatively produced and inserted into doctrine in order to articulate and realize deeper constitutional values. These innovations are crucial in shaping the later development of constitutional law. And it is simply the case that people with different pictures in their heads, different ideologies, different visions of constitutional politics, will innovate in different ways. Justice Sutherland, for example, would not have come up with the “substantial effects” test; Justice Scalia, one suspects, would not have come up with the “endorsement” test in Establishment Clause cases, much less the three pronged test of Lemon v. Kurtzman.

To make a distinction between high and low politics, then, is to make a distinction about the relationship of ideology to the work of legal decisiomaking. It is ok for a judge to say, “I decided this case this way because I believe in decentralization as a principle that underlies our Constitution,” or “I am deeply suspicious of the ability of schoolboards to keep religious practice out of the public schools if they are given this degree of discretion,” or even “I think that gay people have a right to form intimate relations with those they love just like everybody else.” If one reads the conference notes of members of the Surpreme Court in decisions, this is precisely how they talk amongst themselves in explaining how they decide cases. It is ok for judges and Justices to have constitutional politics, to have larger visions of what the Constitution means or should mean and what rights Americans have or should have. That is what I mean by “high politics,” and there’s nothing wrong with judges having such views.

If what I have said is correct, then it is very difficult for Larry to insist, as he appears to do that Court’s shouldn’t be making decisions based on high politics, but just ones “based in law.” I don’t know how to parse that distinction. And anybody who pays careful attention to how Constitutional law actually changes over history, in countless doctrinal areas, can’t make sense of it either. Constitutional law changes over time because of the influence of high politics, which is worked out through legal argument, not outside of it. And we should just get used to that fact. Like the old joke about baptism, I not only believe in it, I’ve seen it done.

The description of Bush v. Gore as “low politics” is a claim that the decision cannot be understood as the fulfilment or promotion of a larger constitutional vision, but rather is a fairly transparent attempt (in the stay and remedy portions of the two Bush v. Gore opinions) to manipulate doctrine in order to place George W. Bush in office. I will repeat what I said before: By now most people understand that judges pursue “high politics” through their legal arguments. What they are not supposed to do is pursue is “low politics” in the sense of manipulating doctrine to secure advantages for their favorite political party. That is not simply because “low politics” is bad politics. It is because it is also bad legal decisionmaking. It is inappropriate to the judicial role in the way that the pursuit of “high politics” is not.

Larry seems to think that my use of the “high politics/low politics” distinction means that there is only politics and no law. I take issue with that characterization. I think that the distinction captures what we mean by decisions according to law where people disagree about constitutional values and doctrine is moderately underdetermined. High politics is the great engine of constitutional change. It is inextricable from the life of our Constitution. It is the explanation of the great doctrinal transformations that we see in history of constitutional doctrine, and, I would submit, the explanation of the conservative constitutional revolution we are living through now. I disagree with that constitutional vision. I think that the doctrinal innovations of the conservative five are ill-considered and false to the best interpretations of our Constitution. But I don’t think that judges should refrain from pursuing deeply held constitutional visions in the development of constitutional doctrine through legal arguments. Quite the contrary: that is their job.