an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Fellow Liberals: Be a "Legal Formalist," Join the Recovering Realists Club (Small Meetings Likely)
Anyone who boldly proclaims to be a “legal formalist” today can be dismissed as naïve or deluded, or as an old fogey who slept through the last century of jurisprudence. Right? We are all Legal Realists now, and the Realists buried legal formalism.
Hold on a minute. A notable contemporary legal theorist who cannot be dismissed as naïve or deluded recently declared his allegiance to legal formalism. His coming out announcement bears quoting:
I was having a lunchtime conversation with distinguished colleagues and we were discussing the topic du jour—the Alito hearings. One of my colleagues, whom I consider to be one of the greatest legal philosophers of the post-war period, was discussing Justice Roberts’s analogy between judging and umpiring. You may remember the following testimony:
“Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role…”
My colleague then proceeded to ridicule Roberts’s view. I can’t remember the exact words, but they amounted to something like the following: No one (serious) could possibly think that judges are like umpires. Of course, judges make the law—they have to. Who could (seriously) think otherwise?
I bravely raised my right hand, branding myself as beyond the jurisprudential pale—as someone who takes seriously the idea that judges should apply the law rather than make it. I felt like I should go to a peculiar sort of twelve-step meeting, where I would be required to say, “My name is Lawrence Solum and I am a legal formalist.”
For anyone not familiar with jurisprudence, this passage might seem overwrought. But Solum is right that Roberts’s comments elicited snickering from within the legal academy, especially among jurisprudes. Alito’s comments, below, also prompted a few guffaws:
When I became a judge, I stopped being a practicing attorney. And that was a big change in role. The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way. A judge can’t have any agenda. A judge can’t have any preferred outcome in any particular case, and a judge certainly doesn’t have a client. The judge’s only obligation, and it’s a solemn obligation, is to the rule of law. And what that means is that in every single case the judge has to do what the law requires.
These respective statements by Roberts and Alito were dismissed by many jurisprudential sophisticates, many legal academics, and many (many!) liberals, as pablum for public consumption, not to be taken seriously by anyone in the know. The Supreme Court deals with complex, open, disputed legal issues, many of which appear impossible to resolve by legal analysis alone. Judge Richard Posner’s recent review of the Supreme Court in the Harvard Law Review was entitled “A Political Court.” He wrote: “The evidence of the influence of policy judgments, and hence of politics, on constitutional adjudication on the Supreme Court is everywhere at hand.”
In the face of this widely held view, Solum’s declaration of allegiance to legal formalism seems foolishly quixotic. But Solum is too smart to be put away so easily. Here is what he means by “legal formalism:” “The core idea of formalism is that the law (constitutions, statutes, regulations, and precedent) provides rules and that these rules can, do, and should provide a public standard for what is lawful (or not).”
Few people would dispute that as a general proposition. The problem arises owing to legal indeterminacy. Most people in the legal academy accept that there is a measurable degree of indeterminacy in law, particularly in the winnowed cases taken up by the Supreme Court. Given this indeterminacy, it seems that the only realistic path is to embrace the irreducibly political nature of judging, at least for the Supreme Court—hence skepticism about the formalistic statements by Roberts and Alito.
Among liberals, there are additional reasons for such skepticism. As a historical matter, the so-called “legal formalists” were the bad conservative judges who rendered laissez faire decisions, issued labor injunctions, and invalidated social welfare legislation, all in the name of strict fidelity to law. Today, the most noted legal formalists on the Supreme Court, Justices Scalia and Thomas (and now Roberts and Alito) are politically conservative. Liberals suspect that formalistic talk by these conservatives is merely cover for rendering decisions that conform to their political views. Moreover, Scalia’s formalistic original meaning theory of constitutional interpretation has a built in conservative bent, grounding the meaning of constitutional provisions in views that prevailed more than a century ago.
The problem with such objections by liberals (and their insistence that constitutional judging is inevitably political) is that it cedes the high ground to conservatives. Formalistic assertions--that judges are supposed to “apply the law, not make law;” that judges “rule according to the law, not their political views”--resonate because, well, that is what judges are supposed to do! Yes, the Legal Realists taught us that the reality of judging is more complicated than that, but their work did not alter the ideal of judging, nor did it change general expectations about the proper role and orientation of judges. After all, as is taught in civics classes from the fourth grade through high school, in a democracy the legislature makes the law and judges apply it.
Against the weight of this prevailing view, liberals who insist that constitutional judging is politics will lose to an avowed legal formalist every time. Imagine the uproar that would ensue if a liberal appointee for the Supreme Court were to testify before the Senate that her political views will determine her interpretation of the Constitution. Jurisprudes and liberal legal academics might celebrate her candor (while questioning her strategic savvy), but will they offer her a position on their law faculties after she is voted down as unqualified to be a Justice?
After decades of ideological screening of judicial candidates, the bulk of judges on the Supreme Court and on lower federal courts are political conservatives. Liberals have responded to this by proposing ways to limit judicial power (abolish judicial review, establish age or term limits for judges, etc.), by lobbying against far right appointees during the confirmation process, and by hoping for electoral victories and a liberal President who will achieve a liberal makeover of the bench. Good luck!
Liberals should consider a different approach: retake the high road and insist that judges should rule according to the law. Rather than ridicule formalistic statements by conservative judges, let’s applaud them, then hold the judges to their avowed legal formalism, vociferously criticizing decisions that appear to be politically driven (remember Bush v Gore!), condemning violators as hypocrites and offenders of the rule of law. I fervently hope that Justices Scalia, Thomas, Roberts and Alito do not decide cases based upon their political views. Legal formalism stands against this as well.
For these reasons (which are not my reasons, as I will indicate momentarily), liberals should give legal formalism a serious second look. Were it not for the long association of formalism with conservatism, the influence of Legal Realism (ramped up by CLS) (supplemented by social scientific studies of ideology in judging), and the conservative bent of original meaning theory, the benefits of a rapprochement with legal formalism would be obvious to liberals. But few liberals have dedicated sustained efforts to developing a sound understanding of legal formalism, and the subject has not drawn much attention in jurisprudence (with the notable exception of old work by Frederick Schauer).
This brings me back to Solum’s declaration that he is a legal formalist. [I should add that I don’t know what his politics are, which does not seem directly relevant to his theory anyway.] He rejects the view that political judging is inevitable on the Supreme Court (with certain caveats). His article lays out concrete guidelines for a formalistic (rule-based) approach to constitutional analysis. His formalism incorporates but does not center upon Scalia’s “original meaning” theory. Solum instead begins with precedent, plain meaning, and constitutional text and structure (then factors in originalism, and additional considerations).
Solum’s formalism avoids the obvious flaws of original meaning theory (specifically: its dependence upon historical questions that cannot be conclusively resolved by historians (much less judges), problems with applying centuries-old meanings to present situations, and the fact that a great deal of modern legislation and precedent would be hard to square with old understandings), and avoids its built-in conservative bent. Scalia has correctly responded to critics that one cannot win the day with criticism alone, but must present a superior alternative. Solum’s article elaborates an avowedly formalistic alternative to Scalia’s. Solum’s argument is realistic, and fits easily with our current understandings of constitutional law. Whether or not one agrees with all of its details, his proposal merits serious consideration.
A central theme of Solum’s piece is what he labels our predicament of “the antinomy of realism and formalism,” in which our legal culture, in an almost schizophrenic fashion, is both formalistic and instrumental in its understandings of and approaches to law. My recent book, Law as a Means to an End, presents an intellectual history that describes how this uneasy antinomy came about, and elaborates on its corrosive consequences for the rule of law.
If my argument in the book is correct, the development of a plausible (realistic) legal formalism for the contemporary age, through the efforts of Solum and others, will be essential if we are to avoid inflicting damage upon our rule of law tradition.
Finally, I must preempt a misimpression that might be created by the tenor of this post, which has articulated reasons why liberals should take legal formalism seriously. Although I am a liberal, those are not my reasons for doing so. I genuinely believe that the rule of law is essential to our society. Liberals and conservatives disagree about much, but on recognizing the signal importance of the rule of law we should be united. At the core of the rule of law is legal formalism, especially legal formalism by judges. For this reason:
“My name is Brian Tamanaha and I am a legal formalist.”
somehow i imagine judges are trapped in a game with their colleagues. to get appointed and confirmed they must salute legal formalism and they would be fine restricting their decisions to simply applying the law. however, the 'other guy' might be able to squeeze in a conservative decision under the guise of legal formalism. then the liberal judge has three options: she can call the 'other guy' out and thus engage in a war of (nuh-uh, yeah-huh, nuh-uh); she can meet the 'other guy' at the nash equilibrium by saying that she's a legal formalist and then trying to squeeze out her own liberal opinion, but that is admittedly more difficult for a liberal to do given the current political climate in the States; or she can claim the game is up by saying that we are all legal realists now.
when you consider a judge's actions in light of her environment jurisprudential allegiance seems more like a strategy than a work ethic.
Professor Solum does not appear to be a true legal formalist. Rather, by promoting stare decisis over the original meaning of the Constitution, Solum is arguing to make permanent past Court decisions rewriting the Constitution in a most non-formalistic and political manner. This is the Sandra Day O'Connor approach. A true formalist would say that the original meaning of the Constitution trumps all other law, even that created by a prior Court.
I do not know Solum's political beliefs, but his suggested neo-formalism would have the effects of erecting a firewall to preserve past liberal political decisions against erosion by today's far more conservative courts and perhaps also to allow liberals to dress themselves in the zebra clothing of umpires so that the "pablum" consuming public will accept them as qualified judges.
Solum’s formalism avoids the obvious flaws of original meaning theory (specifically: its dependence upon historical questions that cannot be conclusively resolved by historians (much less judges), problems with applying centuries-old meanings to present situations, and the fact that a great deal of modern legislation and precedent would be hard to square with old understandings), and avoids its built-in conservative bent.
Are these flaws truly present in original meaning jurisprudence?
Historical research should be generally limited to determining the commonly held meanings of the words and phrases used in the text of the Constitution and related law at the time of the ratification of the governing document. This approach is hardly alien to courts which determine the meaning of contracts. The diverging historical viewpoint problems generally arise when attempting to determine the original intent of the drafters or ratifiers of the Constitution.
In cases where the Constitution is silent about a novel modern issue, then the proper course should be to defer to the political branches. Those who wish to rewrite the Constitution to compel a desired outcome on a novel issue should use the amendment process and not a politicized judiciary.
Finally, if the Constitution is to have any real meaning, it must take precedence over past Court decisions which either erroneously or intentionally misinterpreted the original meaning of the document.
The alternative is the O'Connor approach, which essentially admits that a past political decision like Roe was wrong as a matter of constitutional law, but then proceeds to uphold the political decision to avoid upsetting the status quo.
The Constitution is a contract between the government and the people setting forth the limited powers of the former and the rights of the latter. As with any other contract, if the courts can rewrite the terms of the document at will and be upheld in that effort, then the contract becomes a nullity.
The hermeneutical circle can be quite dizzying as one evaluates arguments and at the same time addresses one's own "pre-judgments" (i.e., prejudices, in a purer sense) in an effort to render a proper decision based upon the law, as the law is interpreted (in varying manners) and applied.
By the way, is original intent, meaning, understanding, whatever, easier to determine closer in time to adoption/ratification than a century or more later in time?
A true formalist would say that the original meaning of the Constitution trumps all other law, even that created by a prior Court.
"Bart" makes an assumption here. "Begging the question. "Bart" assumes that there is a definite, unambiguous "original meaning" of the Constitution. The idea of discarding stare decisis as a tool is an unworkable one, with pragmatic reasons arguing against doing so as well as theoretical ones (it was hardly an unknown practise at the time of the writing of the Constitution, and common law was adopted explicitly by many states at the time). But "Bart" wants to chuck the baby out with the bathwater because he doesn't like the way certain courts have ruled.
Of course, "Bart" is a fan of Antonin Scalia, who is of the considered opinion that the Eleventh Amendment says precisely what it explicitly does not say ... so I doubt we can assume that "Bart" is arguing from any principles whatsoever.
"Anyone who boldly proclaims to be a “legal formalist” today can be dismissed as naïve or deluded, or as an old fogey who slept through the last century of jurisprudence. Right? We are all Legal Realists now, and the Realists buried legal formalism. "
In what circles must one be embarrassed to be a legal formalist? Practicing lawyers and judges tend to be formalists. The only place where "realists" abound is in ivory towers, as I understand it. Perhaps one must tread carefully when talking in those circles, but I don't think there is any need to embarrased by espousing the same view that the people who actually practice and make law espouse. If anything, I'd be embarrased to be a Realist.
"These respective statements by Roberts and Alito were dismissed by many jurisprudential sophisticates, many legal academics, and many (many!) liberals, as pablum for public consumption, not to be taken seriously by anyone in the know."
I can't help but think that such skepticism is simply a product of externalizing one's own views onto others. People who ignore precedents/text/etc. will be skeptical that anyone else actually pays attention to the law.
Of course, this will never convince the Realists, but I actually do think that there are some out there (including me) who are so completely geeky that we care more about legal process & procedure than about substantive results. The integrity of the legal system is more important to me than a ruling in any single case. Admittedly, I'd abandon formalism in truly exceptional cases, but i think that 99.9% of the time-- and even in the "hard" cases that are decided in the appellate courts and the supreme court -- i would tend to find an answer that is compelled by a "formal" reading of the law.
The law is of course, at times, indeterminate, but it becomes less so when one adopts a consistent interpretive approach.
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