JB

I've been meaning for some time to comment on Larry Solum's interesting theory of formalist judging which he offers as a corrective to what he regards as the downward spiral of politicized judging. Matthew Yglesias's recent posting on the subject offers a useful entry point. Larry argues that the politicization of constitutional law, which he believes has had terrible consequences for the Rule of Law, can be avoided if judges commit themselves to a certain kind of formalism, by which he means super-strong respect for precedent.

I've never thought that respect for precedent is at all inconsistent with my (and Sandy Levinson's) view that constitutional judging reflects differences of constitutional vision that get worked out in constitutional doctrine-- what we have called "high politics"-- and that constitutional change often occurs through doctrinal developments that further those constitutional visions. The reason is simple: There's usually more than one way to argue from existing precedents in most important and controversial cases in constitutional law. "More than one," by the way, doesn't mean an infinite number. It means, simply, more than one. There are many arguments that are completely off the wall given existing precedents, and the existing configuration of legal doctrine, but the fact that many answers are off the wall doesn't mean that only one answer is not. (Nor do I assume that Larry would ever suggest such a thing). Rather, existing precedents usually underdetermine the results of the sorts of cases that tend to come before the Supreme Court. On this I assume both Larry and I are in full agreement.

Moreover, as Karl Llewellyn pointed out many years ago, lawyers have a wide variety of techniques for reading precedents broadly and narrowly, drawing analogies from existing precedents, and formulating new principles from older precedents. All of these techniques are generally called "following precedent." But they sometimes lead to very different results. Indeed, much of constitutional adjudication involves dueling examples of Llewellyn's catalogue of precedental techniques, so that it is very often the case that both sides of a dispute can plausibly claim that they are following precedent, (while insisting that the other side is not, because they are using those techniques quite differently and with a different result).

Now it is not clear to me whether Larry wants to contend that some subset of Llewellyn's catalogue of common law practices of precedental argument is illegitimate for formalist judges. If he does not, and if he accepts the common law tradition as part of what he means by formalist judging, then it's not clear how much he and I disagree, and I'm proud to sign on as a formalist at least to that extent. However, if he thinks that substantial parts of this catalogue of precedental techniques are illegitimate, then he has a lot of explaining to do in showing how his theory of judging fits the actual practices of judges over the last several centuries. Put another way, my claim is that the actual practices of what lawyers call "following precedent" are quite flexible. The politicization of the judiciary that Larry decries has not occurred outside of those practices. To the contrary, it has occurred largely within them. And the reason why the work of precedental argument is so flexible is that over the years it has served a variety of different functions. One of those functions is allowing strong conflicts of political principle to be mediated by and worked out through professional discourses of law.

Please note the claim being made here: It is not that anything goes in legal adjudication generally. The claim is only that in the sort of high profile constitutional cases that come before the Supreme Court, precedents usually underdetermine the result, so that people with very different visions of the Constitution, and different varieties of what Levinson and I have called "high politics," can argue for somewhat different results given the existing body of materials and the various techniques of precedental argument. Over time, that doctrinal development can lead to very significant change. That is, following precedents does not simply prevent change, it is also how judges effect change.

Judges cannot come to just any result through precedent-- for precedent and the techniques of precedental argument really do impose constraints on professionally socialized lawyers. But there is enough play in the joints that people with different constitutional visions can often believe in good faith that very different results are the best ones and the best way of following previous precedents.

What this means is that disputes about constitutional high politics get worked out *through* precedental arguments, not outside of them.

Here's a simple example. In the 2000 case of United States v. Morrison, the Supreme Court considered whether the Violence Against Women Act (VAWA) was within Congress's powers to regulate interstate commerce. The dissenters argued that violence against women had cumulative effects that affected interstate commerce, and therefore, under the reasoning of Wickard v. Filburn, VAWA was within Congress's power. They read Wickard and earlier cases broadly to mean that if Congress could reasonably conclude that a particular activity affected interstate commerce, that activity could be regulated under the Commerce Clause. They read the Supreme Court's 1995 decision in Lopez narrowly to hold that in close cases, when Congress had not produced sufficient findings of fact of the effects on interstate commerce, the Court did not have to pretend that these cumulative effects existed. The majority opinion written by Chief Justice Rehnquist, by contrast, read Lopez broadly and Wickard and older cases narrowly. Rehnquist created a new doctrinal distinction that he claimed explained all of the Court's previous cases. That distinction was between economic activities and non-economic activities. In his view, Wickard and earlier cases stood for the proposition that Congress could regulate economic activities that had a cumulative effect on interstate commerce, but this reasoning did not apply to non-economic activities like violence against women. The New Deal was about economic regulation, and nothing more. Hence VAWA was unconstitutional.

Both the majority and the dissent claimed that they were following existing precedents. The dissent argued that Rehnquist was making his new economic/non-economic distinction out of whole cloth. Rehnquist argued that the distinction was implicit in the logic of the previous cases.

The majority and the dissent offered contrasting techniques for reading existing precedents. Undergirding those contrasting techniques were opposed visions about the role of the Federal government, the meaning of the New Deal and the Civil Rights Movement, and the meaning of VAWA. The dissenters saw VAWA as ordinary social and economic legislation, (consistent with the New Deal settlement), and, moreover, as a federal civil rights provision. Since the 1964 Civil Rights Act, protecting civil rights through regulations of interstate commerce had been part of the Federal government's job. This was the larger constitutional meaning of the New Deal and the Civil Rights Movement. The majority, by contrast, read the meaning of the New Deal and the Civil Rights Movement more narrowly. They did not see VAWA as a civil rights law. Rather, they regarded it as nothing more than Congressional grandstanding that intruded on traditional state subjects like family law and criminal law. (Yes, I know it sounds odd given the current debates over the Federal Marriage Amendment, but back in 2000, conservatives insisted that family law was a traditional subject of local regulation that the federal government should stay out of.).

Thus, immanent within the precedental arguments in Morrison were opposed constitutional visions, opposed versions of "high politics." The clash of high politics was not inconsistent with precedental arguments and with following existing precedents; rather it was worked out through those arguments and through different techniques for following precedent. Put another way, existing precedents shape, mediate between, and articulate competing constitutional visions. In this way precedents constrain the boundaries of constitutional adjudication and help transform what might otherwise be political disagreements into legal disputes. High politics and the clash of opposed constitutional visions is not foreign to precedental argument; rather it is immanent in disputes about the meaning of past precedents. Precedents, and indeed all of the modalities of constitutional argument, are the vehicles through which highly politicized disputes can be debated through the professional discourse of law. That is how precedents serve the function of channeling political disputes into a professional discourse that subjects those disputes to values associated with the Rule of Law. The system of precedental argument hardly perfect or foolproof, but it has a point to it. It serves, however, imperfectly, important Rule of Law values. But at the same time it also serves as the vehicle for constitutional development, mediating the struggle between opposed constitutional visions. It does both of these things at one and the same time. Indeed, I would suggest that if it did one of these tasks without doing the other, it would not be doing its job.