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
Today is December 7. This is a special day in our history, a definitional day, a day to pause and remember. On this day - "a day that will live in infamy" - the Empire of Japan attacked the United States armed forces gathered at Pearl Harbor. And on the other side of the world, December 7 was also a momentous day. The German drive on Moscow stalled - it happened at a place not far from the airport at Sheremetyevo that I drive past a couple of times each year, marked by a memorial composed of over-sized tank barriers. And in Berlin, faced with concern about the stalling effort and the approaching, life threatening Russian winter, Field Marshal Keitel issued the "Night and Fog Decree," one of the bloodiest and most disgusting documents of a war that challenged the conscience of the world. All of this occurred on a single day sixty-five years ago: December 7, 1941. For a generation of Americans, their lives changed, suddenly and dramatically. National security had been a lingering worry. Suddenly it became a matter that dominated and redirected their lives. Americans handled this challenge with a nobility and clarity of purpose that are worth thinking about today. I propose to do just that, for a simple reason: America needs to remember its history, its values and its legacy. In a world of 24/7 cable pseudo news channels, they have gone missing. And that loss cheapens the lives of every one of us.
In his first inaugural, Franklin Delano Roosevelt told us that "the only thing we have to fear… is fear itself." The Roosevelt presidency, and especially the conduct of the Second World War is the first proof of this statement. And in the last five years, Americans have lived through a second proof of it - if they only will open their eyes and see it. Those words sound simple to us today, and we need to remember the context in which they were uttered. As Roosevelt spoke, a shadow of totalitarianism had fallen across much of the world - fascism dominated the European continent and the rising Empire of Japan and communism covered the great Eurasian landmass that stretched in between them. These totalitarian regimes shared many common traits, and chief among them was the use of fear as a political tool. Fear was used to render the domestic populace silent and stupid. Fear was used to threaten and win concessions from the surviving democratic states on the periphery of the totalitarian swamp. Roosevelt understood the threat perfectly, and he understood that fear and the use of fear was the essential dividing line between the Western democracies and the totalitarian states. But somewhere along the line, this fundamental truth was forgotten in America.
In one of his earliest works, Edmund Burke tells us that fear is the hallmark of a despotic society. Fear is used to make a population stupid and subservient; it is used to chill the natural demand for the most basic of freedoms and liberties. A ruler who uses fear in this way deserves contempt, Burke wrote. One of the essential tools of fear is torture. Historical studies of the use of torture inevitably find that torture exists not as a device to gather intelligence, but as a tool to instill fear - to petrify, to silence. The Catechism of the Catholic Church understands this. It contains a single section addressing torture, and it is the same section which addresses terror used as a political tool. The Catechism teaches, and correctly understands, that torture is in its essence a tool for terrorizing a population.
This is why Roosevelt was explicit about fear as a tool, why Allied propaganda made clear that torture marked our adversaries, but not us. The Greatest Generation upheld our nation's ideals when it went to war. It understood the value of those ideals as weapons. It won the war. And then it did some real magic. By treating our adversaries as human beings, by showing them dignity and respect, our grandfathers' generation created a new world in the rubble of the Second World War. The nations which were our bitterest adversaries - Germany, Italy and Japan - emerged in the briefest time as our committed friends and allies. A world was born in which America was the dynamic center. And the foundation was laid to win the Cold War as well, after which America would emerge as the world's sole superpower, its direction-giving force.
Now I'd like you to use your imagination for a second. Let's assume the unthinkable: that America had embraced Mr. Bush's "Program" in the Second World War; that German, Italian and Japanese fighters had been waterboarded, subjected to the cold cell and techniques like "long time standing." Do any of you think for even a second that these nations would have been our allies and friends in the following generations? Think of how much darker, colder and more hate-filled our world would be than it is today.
I ask this question because this issue - the use of "coercive intelligence gathering techniques" - should be a matter of grave concern to everyone of us. But it has taken time for the question to be asked and discussed. And for that, I have a bone to pick with our media. By mid-2002, evidence began to collect that highly coercive techniques were being used in Guantanamo and in Afghanistan. A few brave souls reported on this - Dana Priest and a couple of her colleagues at the Washington Post were among the first, and there were stories in a handful of other newspapers. I have spent some time talking with print media reporters and editors about this process. What I learned was not encouraging. There was strong pushback from the beginning. Editors did not want to run these stories. Many stories were spiked. And when they ran, they were cut back and appeared buried deep inside the paper. Why? Journalists were under immense pressure at this point, from the Pentagon, the Administration and from the rightwing chorus that dominates much of the cable news world. Threats were raised: papers that report such matters are slandering our troops, it was said. They are undermining our combat morale. They are weakening our war effort. But my recapitulation here hardly does justice to the ferocity of some of these attacks. In sum what happened? The press was intimidated into a process of self-censorship.
I don't believe this process continued indefinitely, but some disturbing traces continue. In April 2004, the photographs that Joseph Darby circulated out of Abu Ghraib broke in The New Yorker and CBS's 60 Minutes, and a thaw began. The media discovered the issue, and quickly discovered that it had links with important policy decisions taken at the top of the Administration. Curiously, the media long gave equal billing to increasingly absurd explanations offered by Administration apologists. But with time they faded.
When we talk about torture today, Abu Ghraib seems a synonym. But this is deceptive. In fact all those wretched photos show is humiliation tactics. They are grim and disturbing. They make a mockery of standards laid down by George Washington and Abraham Lincoln. But they're hardly the worst of the tactics employed. Ninety-eight deaths occurred in detention in circumstances suggesting foul play. Perhaps two dozen of them can be linked pretty directly to torture. This includes severe beatings, waterboarding, and severe stress positions - curiously, all tactics that we associate with torture from the middle ages, definitional torture - as well as alternating extremes of heat and cold, long-term sleep deprivation. We can talk about these techniques in a clinical sort of way, but in the end it is a question of mixing and alternating, a question of destroying the human material in captivity, of destroying humanity.
The media had a role in this process - it was to keep us informed about what is being done in our name. For two years, the media failed us miserably. More recently it has started to make up for its failings. But the process by which the media was silenced is troubling, and it, too, is something we should think about. The key tool used to silence the media was simple: the patriotism of journalists who wrote critical articles was systematically challenged. There is an irony about this that I find remarkably unsubtle. There is nothing unpatriotic about criticizing the use of highly coercive techniques. They have put Americans in uniform in grave risk - and they will continue to do so for a generation at least. They have done incalculable damage to our nation's honor and reputation. They have dramatically undermined our ability to be a moral leader in the world, to forge and sustain alliances - alliances which could save the lives of thousands of Americans in future conflicts. Our Founding Fathers understood these principles perfectly, which is why the notion of humane warfare were an essential part of the beacon they fashioned. So I ask you: who demonstrates patriotism today - the critics who stand fast by our foundational values? Or those who would ignore our traditions by reaching quickly for the base and the brutal? No real patriot today, no citizen who is concerned about the fate of our fellow citizens in uniform, can be silent on this issue.
A short time ago, in Germany, I spoke with one of the senior advisors of Chancellor Angela Merkel. I noted that a criminal complaint had been filed against Donald Rumsfeld and a number of others invoking universal jurisdiction for war crimes offenses. How would the chancellor see this, I asked? There was a long pause, and I fully expected to get a brush-off response. But what came was very surprising. "You must remember," said the advisor, "that my chancellor was born and raised in a totalitarian state. She cannot be indifferent to questions of this sort. In fact, she views them as matters of the utmost gravity and they will be treated that way. The Nuremberg process happened in my country. It was painful for us. But we absorbed it. It became a part of our legacy. An important part of our legacy. We will not forget it. But I have to ask you: why has your country forgotten?"
That is a question to reflect upon on this day, on December 7. The time has come to remember.
Presidential Caesarism: the Executive versus the Bureaucracy
Last night inaugurated a new lecture series at Yale, the Kronman-Postol lecture. The speaker was Gerhard Casper, President Emeritus of Stanford University, who spoke on Caesarism in Democratic Politics: Reflections on Max Weber.
Following the thesis of Weber's 1917 essay on German parliamentarianism, Casper argued that democratic politics, including American politics, has a tendency toward Caesarism. Caesarism involves the concentration of power in a charismatic executive, who is chosen by popular acclamation, and who serves until he is replaced by a new leader. As the executive's power increases, the power of the legislature, who would otherwise act as a check on the President or Prime Minister, decreases, so that it ultimately becomes supine and pliant in the hands of the leader, and fails to serve as an adequate counterweight. Casper did not describe this as an inevitability but only a tendency, if other forces did not check it.
The argument was fascinating, particularly when Casper applied it to current events and offered his assessment of the current Bush Administration. Bush's high handed policies in the War on Terror, Casper argued, were the result of a long tendency toward Presidential empowerment characteristic of democratic societies.
It was a superb lecture, but I would add a supplement. A good Weberian, I think, should also be interested in the role that the bureaucracy plays in democratic politics. It is probable, if not likely, that as the charismatic executive becomes ever stronger, he is checked not by the legislature-- which becomes increasingly incompetent to resist-- but by the bureaucracy, which grows steadily and seeks ever to maintain and extend its own power.
In the American system the bureaucracy, including the civil service, is nominally part of the Executive branch, and so the President formally controls it. (This is the claim of the "unitary Executive.") But in fact, as we have seen in the Bush Administration, much of the resistance to the president's more outrageous policies-- particularly on the environment, the war on Iraq, and torture and executive detention, has come from career civil servants in the bureaucracy. They have opposed the ideas and policies pushed forward by the President's political appointees, like David Addington and John Yoo in the context of interrogation and detention. Various military officials and state department civil servants tried unsuccessfully to resist Donald Rumsfeld's misadventures in Iraq. Similarly, career officials have opposed the Administration's views on the environment and its casual attitudes or outright disregard for scientific evidence.
This does not make the bureaucracy a hero, even though in this particular context it is performing a valuable function. It merely means that the bureaucracy offers an increasingly important countervailing force that may limit the ambitions of a Caesarist leader and his loyal minions. This countervailing force crosscuts the formal model of separation of powers in which the President controls the entire executive branch. Moreover, this countervailing tendency applies both when the leader/President is doing bad things and when he is doing good things that actually serve the public interest.
As the bureaucracy grows in power and influence, it becomes both the President's instrument for wielding his increasing power and a source of resistance to the President's Caesarist aspirations. The inevitable result is an attempt by the President to purge the bureaucracy of opponents and install more and more political appointees who are loyal to the current President and can be counted upon to restrain any future President with different political views. We have already seen this strategy in personnel decisions by the Justice Department under Attorney General Ashcroft.
In this story, the Congress plays a relatively limited role. Given its natural inefficiencies, and its potential co-optation by the President when his party controls one or both houses, Congress is easily outpaced by both the President and the bureaucracy. Hence the Congress's most important role may be acting as a limited check on both the bureaucracy and the Presidency through Congress's powers to investigate and embarrass, and its power of appropriations, which can be fine tuned to punish or regulate particular elements of the bureaucracy. In some circumstances, in fact, the Congress has far more leverage against parts of the bureaucracy than it does against the President.
This picture is quite different from the usual separation of powers that we learn in civics classes. It is not James Madison's Constitution. But it does serve to constrain power; it does harness ambition to check ambition. What remains unclear-- given the increasing Caesarism of the executive and the increasing powers of the bureaucracy-- is whether this evolving model of checks and balances will do constrain power in ways that genuinely serve the public interest.
A Vote of No Confidence for Presidents in the American System
After hearing Gerhard Casper deliver a fascinating lecture on Caesarism in American politics, my colleague Bob Gordon asked me if there were any way for America to introduce a vote of no confidence to get rid of incompetent presidents without amending the Constitution.
I replied that we could interpret the impeachment test of "high crimes and misdemeanors" as referring to mere incompetence. I noted that this was not the original intention; indeed, the convention rejected a test of maladministration. However, I pointed out, we almost approached that result (for judges) early in the Jefferson Administration, when the convention debates were still secret. If the precedent had been set that high crimes and misdemeanors meant mere incompetence, the precedent might have stuck. In any case, it wouldn't be the first time that constitutional practice deviated from the original understanding.
If it had, if would radically change American politics. The President would be much more at the mercy of Congress. If the opposition party were in power, they would try to remove him. If the President's party were in power, they might try a intra-party coup, in the way that the Tories got rid of Margaret Thatcher and Laborites are now trying to get rid of Tony Blair.
Although the President would be in a better position than his British counterpart because of strong bicameralism and the requirement of a two thirds vote in the Senate to oust him, he would also be in a weaker position in comparison to his British counterpart. The British Prime Minister can always call for a new election to rally the public behind him; the American President faces a fixed constitutional calendar. Moreover, members of Congress might try to depose a President near the end of his term in order to take control and have the advantage of incumbency going into the new election cycle.
I noted that despite these disadvantages, we might move toward such a system if we had a President who was truly despised by most of the American people, creating a new precedent that read "high crimes and misdemeanors" to mean incompetence, or simply by creating trumped up charges. That would serve as a precedent for future deposings. But an equally likely scenario would be an attempt to bend the language of the Twenty Fifth Amendment, by which the Vice President and the cabinet would engage in what would effectively be a coup d'etat by asserting that the President was no longer fit to serve and then using Congress to confirm the legitimacy of their actions.
Today's New York Times has an interesting analysis of the response to the Baker-Hamilton report titled "Will It Work in the White House?" I excerpt key parts:
In 142 stark pages, the Iraq Study Group report makes an impassioned plea for bipartisan consensus on the most divisive foreign policy issue of this generation. Without President Bush, that cannot happen....
Assuming he is not ready to go that far, despite some recent signals of flexibility, he faces the more general question of whether he is ready to embrace the spirit of the report — not to mention the drubbing his party took in the midterm elections a month ago — and produce a new approach of his own that amounts to more than a repackaging of his current worldview.
The study group, for instance, calls for direct engagement with Iran and Syria; so far, Mr. Bush has refused. While Mr. Bush has steadfastly resisted a timetable for withdrawal, the report says all combat brigades “not necessary for force protection could be out of Iraq” — note the careful use of the conditional — by the first quarter of 2008.
But the real target of the Iraq Study Group was Mr. Bush. ...
Members of the president’s party seemed to be adopting a kind of wait-and-see posture, praising the report for its seriousness and depth as they searched for clues about what Mr. Bush would do.
“I was impressed by the seriousness with which this group reached its conclusions and its plea that the level of partisanship we’ve seen in Iraq be toned down,” said Senator Mitch Mcconnell of Kentucky, who will soon be the Republican leader. But Mr. McConnell cut short any conversation of what Mr. Bush should do. “I’m not going to give the president advice,” he said.
The president spent weeks trying to shape the political climate in which he would receive the report....
Those moves have been aimed at giving Mr. Bush the flexibility he needs to do pretty much whatever he wants. But, meeting with him in the Oval Office on Wednesday morning, the commissioners made a pointed appeal for him to give their study greater weight than his own, if only because it has the backing of both parties....
The real question now is whether the report can generate what the panel’s Republican co-chairman, James A. Baker III, called the “tremendous amount of political will” necessary to prod Democrats and Republicans into genuine cooperation — and Mr. Bush into embracing policy prescriptions he thus far has shunned.
As he stood before the press corps Wednesday to unveil the long-awaited report, Mr. Baker, a longtime confidant of the Bush family, was asked if Mr. Bush had the capacity to “pull a 180,” as the report would seem to require. He ducked the question then, but later answered it in an interview with Brian Williams of NBC News.
“I don’t know what the president will do,” Mr. Baker said. “But I do know this. I know the president is conflicted by the situation there. I know the president would like to approach this in a bipartisan way and in a manner that would have the support of the American people. Here’s a vehicle to do that.”
I suggest that this is a description more suitable to a dictatorship (even if we call it a "constitutional dictatorship" than to a genuinely democratic government. Save for supporters of the Bush policy and his vision (such as Bill Kristol or Bart de Palma, who offered an eloquent defense on an earlier thread, whether I agree with it or not), most of the country presumably agrees that the policy is awful unto catastrophic. But we all wait, like supplicants outside the despot's chambers, for word as to, quite literally, who shall live and who shall die. (My particular favorite is the comment by the new Senate minority leader that he's "not going to give the President advice.") I didn't know that Mictch McConnell was so reticent. Perhaps the fact that his wife is held hostage as Secretary of Labor has something to do with it.
Part II of my post takes up the idea of "policy catastrophes":
To get a grip on the idea of a policy catastrophe, consider these examples:
1) Collapse and government bailout of savings and loan institutions in the 1980s. 2) Destruction of the space shuttles Challenger (1986) and Columbia (2003). 3) 9/11 terrorist attacks. 4) Inundation of New Orleans in 2005 after Hurricane Katrina due to failure of levees and subsequent inadequate government response.
Note: I invite you to come up with other examples. The Iraq War? The policy response to global warming? But remember: there must be a defensible link to the structure of our constitutional order.
These catastrophes share some characteristics. First, they are all policy outcomes in the sense that they are linked to the pursuit of certain policies by government. Second, no one defends these policy outcomes. While some might question the underlying programs, such as the regulation of banks or the building of space shuttles, no one contests that once government regulates an industry or builds a complex space transportation vehicle, the regulation should be effective and the vehicle should not fail. The savings and loan debacle, for example, cost taxpayers around $150 billion, a gigantic sum that could have been employed for many other useful purposes. If the debacle could have been avoided through some sort of reform, everyone would presumably be interested in at least investigating that possibility.
You may be waiting for me to link these disasters to some constitutional structure. Before I provide some suggestive leads, let’s reflect on the often-presumed pervasive background role that the Constitution plays in our government. My observation is that when policies go well, when government succeeds, the strength and stability of our constitutional system is usually celebrated. Matters seem to be quite different when policies go poorly. In that situation, the somewhat god-like role usually attributed to the Constitution suddenly disappears, replaced by incompetent administrators and feckless politicians. If, however, the Constitution is successful in structuring government action, then we are bound to investigate whether that structure is at fault when policies fail, especially when they fail spectacularly.
Experienced students of government policy know that when policies and program administration goes wrong, there is usually a trail (often long) leading back to Congress. Especially with respect to policies pursued over decades, Congress is still “keystone of the Washington establishment.” (Morris Fiorina’s phrase and see his book of the same name) If our “homeland security” and intelligence agency structure is fragmented, if key regulations governing the savings and loan industry are loosened, if NASA builds a space shuttle scientists scorned (whose components come from congressional districts scattered across the country), and the Army Corps of Engineers had to stretch a Louisiana flood control project designed to be completed in ten years over decades, it is usually because members of Congress wanted it that way.
The tendency of members of Congress to think about their own districts and states rather than the national interest is not new. But the advent of the administrative-welfare-spending state made an extraordinary difference to the impact members of Congress could have on national policy. At Time 1, the federal government assumed no responsibility for preventing or alleviating the consequences of natural disasters such as floods or earthquakes. Once the government did assume this responsibility at Time 2, it became accountable for its policy decisions. If, however, the structure of Congress involves making public policy “almost as an afterthought,” (Fiorina) then it is difficult to see how future policy disasters might be prevented. To be a bit more precise, if making national policy is a byproduct of what Congress is really doing – funneling money and serving as ombudsman to individual districts and states – we might consider a different structure that would encourage policymaking as such.
Critical analysis of our political system often amounts to high-minded hand-wringing over how the national interest is ignored. But the terrorist attacks of 9/11 and the aftermath of Hurricane Katrina should have demonstrated that this sort of analysis is a practical necessity. When poor policy choices or, more likely, the failure to choose results in the deaths of thousands of citizens and the loss of hundreds of billions of dollars (as has actually happened), the inquiry into the consequences of constitutional structure should not be regarded as theoretical or a parlor game about a constitutional convention most people think we are not going to have.
Presumably there is no such thing as a constitutional structure that will allow us to avoid all policy catastrophes. We are still not the angels that Madison invoked in his famous argument and our knowledge of the future is limited. But understanding that there might be a link between such catastrophes and constitutional structure might make us more likely to acknowledge that the Constitution is not exogenous to the problems and faults in our political system. The Constitution is not an impartial spectator, so to speak, but a participant with a set of biases, just like everyone else.
Sandy closes his book by lamenting the inflexibility of Article V. (159-66) He generously cites my work for the proposition that if constitutional change is not allowed because of the difficulty of amendment, then it may occur through other means, such as informal constitutional change through the political system and judicial interpretation. (22) Sandy makes the sound argument that there are limits to this sort of informal adaptation. If we want to adopt a parliamentary form of government in which executive officials serve in the legislature, formal change through Article V is the only way to get there. (163-65) This point applies to nearly all the changes Sandy advocates and explains his interest in making change through Article V easier.
An issue related to Sandy’s point is whether the inflexibility of Article V has had adverse consequences. Here scholars disagree. It is conceded by many that the U.S. Constitution is one of the more difficult constitutions in the world to amend. But Chris Eisgruber has defended the position (in his book Constitutional Self-Government) that having a relatively inflexible constitution increases the truly democratic character of a political order. I wish Sandy had said something about Eisgruber’s argument, but I will take a stab myself.
Any argument about the costs and benefits of the supermajority barriers to constitutional change in Article V necessarily involves some counterfactual speculation about what our constitutional history would have looked like had the framers not built the “iron cage” of Article V, as Sandy puts it. (165) But the question is not entirely about the effects of certain procedural changes. Several generations of Americans have absorbed not only the reality that formal constitutional change is quite difficult, but the normative view that it should be difficult, that we should not “tinker” with the Constitution. The proposal to make formal change through Article V easier thus concerns our “constitutional culture,” a set of views and understandings about how constitutional change should be made, just as much as it concerns alterations to the text of Article V. (as Sandy notes – see 163)
In today’s world, Americans associate prospective constitutional amendments with efforts to alter rights, such as abortion, gay marriage, and flag burning. Scholars interested in constitutional change believe the main issue lies elsewhere – with the still uncertain constitutional status of the New Deal, the administrative state, and the greatly changed role of the presidency after World War II, the Cold War, and now the “war on terror.” Certainly this issue is compatible with Sandy’s focus on the structural aspects of the Constitution, as opposed to its provisions concerning rights. In my experience, however, the existence of a continuing issue with respect to the constitutional legitimacy of the New Deal (as well as the other items mentioned) has proven hard for most legal scholars to grasp. There is a tendency to see these problems as involving questions of constitutional interpretation, not amendment or legitimacy.
Undermining this common view would require a very long detour into the byways of American political history. But in brief, important elements in American conservative thought never accepted the legitimacy of the New Deal. One of the main reasons, a concern which remains alive today, was that conservatives believed it was a change of constitutional dimensions that did not take place through formal amendment. President Roosevelt’s deliberate decision to treat the changes of the New Deal as matters for the Supreme Court and constitutional interpretation had important consequences that were not foreseen at the time. I should say immediately that it is far from clear that it would have been better, all things considered, for FDR to press a set of amendments on the country. There were many difficult issues involved and the right course of action was not obvious. The point I would stress is that there were costs, no matter what choice FDR made.
Many Americans believe that the Constitution does not cover every contingency and that it does impose meaningful limits on government action. It follows that there may be moments in history in which the only legitimate way to obtain constitutional power is through formal amendment. The failure to ratify the New Deal, as well as other important aspects of the contemporary constitutional system, through amendments has created an ongoing issue within American constitutionalism. Of course, some believe such views are the hobbyhorses of repudiated cranks like Barry Goldwater, but that was before the conservatives who supported Goldwater in 1964 came to power with Ronald Reagan in 1980. Nevertheless, the widespread view that amendments are dangerous has operated to suppress the kind of politics and political discussion that may be necessary to provide a full measure of legitimacy for government action in the post-New Deal state. For me, the democratic cost of an inflexible amendment process is the fundamental issue posed by the infrequency of amendment through Article V. Posted
by Stephen Griffin [link]
More on Our Undemocratic Constitution
The first issue of the online journal Harvard Law & Policy Review, the "official journal of the American Constitution Society," is now available, and it includes a mini-symposium on my central arguments, with contributions by Frank Michelman, Mark Tushnet, Adrian Vermeule, and Robin West, all of which are very interesting even (or especially when) they are critical of one or another of my own arguments. In any event, even if you're tired of hearing my views, you will, I am confident, find the responses worth reading.
Distinguishing Law From Ideology in Judicial Decisions
In response to my recent post warning against Judge Posner’s pragmatic adjudication, a number of readers defended Posner as merely being honest about the reality that judging is substantially political. This assertion is supported by personal testimony and reference to various studies of judicial decision-making. Given this reality, Posner’s urging that judges should strive to achieve the most reasonable result (all things considered) merely brings into the open what judges are already doing.
The previous discussion focused on appellate judging below the Supreme Court (a special case). Once one accepts that politics has some play in these decisions, as few people would deny, the crucial question is how much play. Posner emphasizes the political factors in judges’ decisions, whereas I emphasize the overarching influence of legal rules and judges’ commitment to decide cases in a rule bound fashion.
Wherever one stands on these issues, there is no question that it is devilishly difficult to pin down. The evidence can be read both ways. Consider an often cited study of federal appellate judging by Sunstein, Schkade, and Ellman (recently published as a book). The authors declare that “No reasonable person seriously doubts that ideology, understood as normative commitments of various sorts, helps to explain judicial votes.” Their study found statistically significant differences in the votes of Republican and Democratic judges (though not in all categories of cases), and they found panel effects from mixed panels. Politics clearly matters, but, again, how much? The fact remains that the overwhelming proportion of appellate decisions are unanimous (usually around 90%). Accordingly, while the thrust of their article emphasizes political factors, the authors acknowledge that “It would be possible to see our data as suggesting that most of the time, the law is what matters, not ideology.” A “statistically significant” finding means that the differences and correlations found are not due to random variations; nonetheless, in proportion to the total the differences that show up can still be marginal.
To shed some light on this puzzle, try the following simple thought experiment.
Imagine two judges, both with politically conservative personal views: One decides cases with a conscious orientation that strives to abide by the binding dictates of applicable legal rules to come up with the most correct legal interpretation in each case (the Consciously Bound judge, CB); a second judge decides cases with a conscious orientation that strives to achieve ideologically preferred ends in each case, and interprets and manipulates the legal rules to the extent necessary to achieve the ends desired (the Consciously End-Oriented judge, CEO).
Add four realistic conditions to this scenario. First, notwithstanding having a legally bound conscious orientation, CB is subconsciously influenced by and sees the law through background personal views; the legal interpretations of CB are thus not completely free of political influences in this subconscious sense. Second, CEO is not able to achieve ends with total disregard for conventional legal understandings because the decisions must be legally plausible and have the external appearance of being rule bound. Third, in a large (but not total) subset of cases the law does not clearly point to a single outcome, though usually one outcome can be ranked as more legally compelling or defensible than others. Finally, in a subset of cases, the legal rules are open (no particular outcome can be ranked above any other) or they invite the judge to render a judgment based upon non-legal factors.
Now, imagine that, in a given case, both judges arrive at precisely the same (politically conservative) outcome, supported by identical written decisions; they would have joined opinions had they served on the same panel. They are led to the same result and use the same reasoning because they adopt the same theory of constitutional interpretation. The difference is that CB settles upon the theory as the correct way to interpret the Constitution following a sincere and exhaustive study of constitutional law, whereas CEO settles upon the theory because it tends to support the outcomes the judge personally prefers, and CEO is willing to depart from or “adjust” the theory when necessary to achieve a desired end in particular cases.
Interestingly, a behaviorist study would code these two cases in exactly the same way: as a legal decision that aligns with (and hence can be explained by) their conservative political ideologies. Indeed, by all external appearances the decisions are exactly the same. Yet this misses fundamental differences in their reasoning processes and in the contrasting way they would be normatively judged by others. CB is acting in a rule bound fashion, consistent with the duty of judges within our system, while CEO is abusing his power as a judge by engaging in a manipulative (insincere) interpretation of the law to advance a desired political end.
When we move away from this single case to examine the run of cases, and other judges, the significant differences between these judges and their respective orientations will be evident. While both judges are politically conservative, their decisions will not completely overlap. The conservative CEO will have a higher proportion of decisions that achieve politically conservative ends, because that is his overarching orientation, whereas the conservative CB will rule for the strongest legal answer even when that does not comport with her conservative political views.
The largest disparity will show up when comparing the decisions of conservative CEOs and liberal CEOs, because both are consistently reasoning toward opposite outcomes. Nonetheless, there will be some overlap in their decisions, in those cases when the applicable legal rules cannot plausibly be interpreted to achieve contrary politically desired outcomes—the politically oriented judge of one persuasion is happy to rule this way, while the judge with the opposing persuasion cannot avoid it (for the sake of simplicity, I am ignoring potential panel effects).
Note also that a conservative CB judge and a liberal CB judge will show a substantial agreement in their decisions—all those cases in which conventional legal understandings point to a strongest or most correct or most defensible legal answer.
Critically, the level of agreement in decisions that conservative and liberal CEOs share will be lower than the level of agreement in decisions that conservative and liberal CBs share. This is because, owing to the indeterminacy of law, the frequency of situations in which the conventions of the legal tradition prohibit a particular outcome will be lower that then frequency of situations in which one legal outcome can be ranked as stronger than any other—the former is a more stringent requirement that is harder to meet when indeterminacy exists.
With this scenario in mind—which is admittedly grossly oversimplified and filled with speculative assertions—we can perhaps interpret the findings of social scientific studies of judicial decision-making in a more refined manner. The high degree of unanimity of appellate decisions suggests that most judges, whether liberal or conservative, are CBs consciously striving to find the strongest legal answer (if they were CEOs, agreement would be lower). Nevertheless, their agreement is not total, in part because even when conscientiously engaging in this task they will subconsciously interpret the law through the lens of their background views (leading to some divergence in interpretations), and furthermore because sometimes the law runs out or calls for a political decision to be made. The correlations that show up between legal decisions and background attitudinal profiles can be attributed to these factors (in addition to the fact that the law itself is sometimes substantively conservative in thrust or liberal in thrust).
The significant point is that CB judges are rule bound in the only way humanly possible—that is, by consciously striving to decide according to the strongest legal answer. Even though politics still has some play (subconsciously at least), to condemn this as inappropriately “political” is to demand the impossible. Little can be done about subconscious influences on thought (although we can arguably be on guard and strive to be aware of them, there are limits to this).
Equally important, by contrast, CEO judges can be condemned as being inappropriately political, because they are not committed to and are not in fact striving to decide according to the strongest legal answer. Realism notwithstanding, every judge takes an oath to faithfully apply the law, which is the role they play in the overall legal system. Thus it is proper to condemn them for failing to consciously strive to live up to the duty they have undertaken (just as social scientist who look only for confirming evidence for their pet theory and ignore or conceal disconfirming evidence can be condemned for failing to live up to the ideals of science).
Now imagine a legal system with a judiciary filled with CEO’s. Although it might look the same from the outside (the decisions in both would be supported by legal reasoning), it would be a very different legal system from one filled with CBs, exhibiting a lower level of agreement and greater variation. Judge Posner’s pragmatic adjudicators, to return to the previous post, reason more like CEOs (though with greater candor) than like CBs.
For some time now there has been a back and forth debate over the extent to which politics matters in judicial decision-making. Most law professors and political scientists think it matters a great deal; many judges say it matters less than is widely assumed by skeptics; but no one denies that it comes into play.
This thought experiment suggests that the issue can be framed in a more refined way that distinguishes those judges who strive to come to the strongest legal answer from those judges who are more result oriented. Although politics will have an effect on both groups of judges, it will be limited in the former to the level of politics that is unavoidable. They are doing the best they can, which cannot be said about the judges who are consciously striving to achieve particular ends. In reality, judges likely fall on a spectrum, and individual judges may well shift from one orientation to another depending upon the subject matter or situation.
Again, this is a realistic view of judging, but one that appreciates the fundamental importance of the fact that judges must decide cases with a conscious commitment to follow the law. The design and operation of our system depends upon this commitment. Posted
by Brian Tamanaha [link]
What if we had a good Constitution?
Today's lead story, of course, is on the long-awaited report of the Baker-Hamilton Commission, which describes the situation in Iraq in quite dire terms and calls for significant changes. I quote only Maine Senator Susan M. Collines, a Republican it should be emphasized, who told CNN that “it is clear that the current strategy in Iraq has failed and we need a new approach.” Isn't it close to a self-evident truth that the architects of such a catastrophic failure should be fired and be replaced with leadership in whom the country might have some trust? Isn't it close to a self-evident truth that our own Constitution instead foists upon us a quasi-dictatorial Chief Executive/Commander-in-Chief who can, should his "gut" tell him to, simply continue with his failed strategy? My friend Jack Balkin says that he relies on the Republican Party in effect to tame the Bush Beast. But I don't understand the source of his optimism. Were we the UK, then the Republican Party could indeed tell George Bush to get the hell out of the White House, as the Tories told Margaret Thatcher (and Labor is trying to tell Tony Blair). But what actual hold does the Republican Party have on Bush? He's never going to run for another public office. And he continues, I am afraid, to view himself as the modern version of Winston Churchill, not noted for his party loyalty. There are certainly ways that the Republican Party can nip at the President's ankles and make life a little more unpleasant for him. Perhaps they will refuse to confirm some of his egregious nominations for the federal judiciary and the like. But this is small comfort when we're talking about getting a grip on a catastrophic policy that puts over a 100,000 American troops in harms way and threatens the lives of many more Iraqis and others in the region.
I received a fascinating post suggesting that if things get sufficiently dire, Congress should simply impeach Bush and Chaney, secure in the knowledge that impeachment is not subject to judicial review re grounds, and collaborate with House Democrats in securing the Speakership of the House for, say, George H. W. Bush or Robert Dole. I can't say that I advocate this, since it would be a quasi-revolutionary moment in our constitutional culture. The very fact that it is suggested by someone I know to be a sober and thoughtful analyst is, however, indicative of the possibility of what I earlier called a "looming constitutional crisis," thanks to our remarkably dysfunctional Constitution, drafted for an entirely different era and an entirely different conception of the presidency (and the individuals who would be chosen for that office).
I continue to await anyone on this list offering an affirmative defense of George W. Bush's leadership re the War, instead of a defense of the current Constitution.
Master of the Blog Balkin has encouraged me to post some comments I prepared for the "schmooze" on Sandy Levinson's book. So herewith Part I:
Sandy Levinson’s book Our Undemocratic Constitution raises difficult questions about American constitutionalism that deserve to be taken seriously (references below in parens are to pages in the book). I hope it will be read and discussed in the patriotic and critical spirit in which it was written. Sandy may have difficulty, however, winning over his audience. In my experience, most people are unwilling to entertain the idea that the Constitution may have fundamental flaws (although they might concede a few “stupidities” or mistakes). This fall, I had students in my Constitutional Theory seminar read some selections from the book. They tended to view it as a series of complaints about the Constitution, not as a fundamental critique that would move them to advocate reform.
Perhaps the reaction of my students is due to the contrast between the breadth of Sandy’s initial claim – “that it is increasingly difficult to construct a theory of democratic constitutionalism, applying our own twenty-first-century norms, that vindicates the Constitution under which we are governed today.” (6) – and the specific undemocratic features of the Constitution he critiques. For despite events such as the 2000 presidential election crisis, the American public and my students do not appear dissatisfied with the specific points Sandy raises about unequal popular representation in the Senate, the operation of the Electoral College, excessive presidential power, life tenure for justices, and the high barrier to constitutional change posed by Article V. (6-7)
Sandy provides some evidence that the public is dissatisfied with American politics. (7-9) But this dissatisfaction might well be related to policy outcomes or the actions of politicians rather than going to questions of constitutional structure. Nevertheless, Sandy concludes his introduction by saying: “We must recognize that a substantial responsibility for the defects of our polity lies in the Constitution itself.” (9, emphasis in original) So he identifies two problems: the Constitution is undemocratic and dysfunctional. (9) Not an attractive picture.
Unlike my students, I am quite sympathetic to the project of constitutional reform. I am under no illusions about whether we are going to hold a new constitutional convention. However, thinking about the Constitution from what I call a “design perspective” can be useful as a heuristic device. It can provide new angles for understanding American constitutionalism. And it is in keeping with the founding generation’s belief that governing orders can be critiqued and reformed in a rational way.
To be clearer, a design perspective involves asking whether each significant element in our contemporary constitutional system could be justified if we were holding a constitutional convention. If you like, we can imagine that the constitutional convention is an ideal one, with unlimited time for discussion, access to all relevant information, its members perfectly representative of the American public, and so on. But the point is that features of our constitutional order that are normally accepted simply because they are endorsed by the document are put under critical scrutiny when we adopt a design perspective.
Assuming a design perspective does not necessarily avoid some paradoxes that have plagued various attempts over the years to advocate comprehensive constitutional reform. I think they also affect Sandy’s project despite the efforts he makes to mitigate or avoid them.
Consider first what normative lever we would employ were we suddenly cast into the role of a reform-minded delegate at a constitutional convention. Surely we would appeal to some attractive set of normative principles to ground our critique. Thus at the beginning of Sandy’s book, he appeals to democratic principles, counting on our allegiance to democracy as a form of government. Given the respect and veneration in which the Constitution is held, however, we can reasonably expect to be challenged no matter how attractive our principles. Are these principles external or internal to our political and constitutional traditions? If external, they are not likely to be persuasive as a basis for critique. If internal, then they are already endorsed and at least fulfilled in part by our founding document. To the extent already accepted constitutional principles can be used to critique our constitutional order, that cuts against any argument that our order stands in need of fundamental reform, at least through a convention or an amendment. It is more likely the principles can be fulfilled through changing the way the document is interpreted.
This is very schematic, so by way of illustration consider the reaction to Sandy’s proposal to eliminate the presidential veto. This proposal carries forward one of his themes, that the Constitution is undemocratic in some respects and puts too many obstacles in the way of needed legislation. Readers of a New Republic article in which Sandy summarized this proposal responded by reminding him that we live in a republic. Where does the force of this response come from if Sandy is assuming accurately, as I think he should, that we are all democrats? The ready answer is that democracy is only one theme among many in our constitutional order, although perhaps a predominant one. When Sandy’s readers cry “republic,” everyone conversant with the American constitutional tradition knows what they are talking about. They are invoking ideas such as separation of powers, checks and balances and warning against the dangers of unbridled majority rule.
Our constitutional tradition contains an element of skepticism toward the claims of democratic power. As long as these views persist, constitutional reform founded on democratic claims must first clear some ground. The idea that our constitutional order is a mix of democratic and republican principles must either be debunked (possibly through an analysis of how much that order has changed since the eighteenth century) or, if the view is that republican principles persist in a meaningful way, then those principles must be attacked through a normative critique. Doing so, however, will pose difficult questions about whether it is wise to abandon (or at least substantially modify) the separation of power/checks and balances system and, in addition, will place advocates of a reform in a difficult rhetorical position (as enemies of the republican founding generation).
A second paradox of constitutional reform relates to the need to provide a practical or policy justification. (37) As Sandy argues, surely one reason to consider constitutional reform seriously has to do with the apparent inability of the current political system to act on a range of important policy problems. (38) But presumably solutions to these problems are deeply controversial. Would they not have to be justified seriatim? Perhaps the political system has not acted because the problems are not as serious as the public supposes or there is no agreement on solutions. Further, if you advocate constitutional reform on the basis that it would make certain policy changes easier, then the desirability of reform becomes hostage to the desirability of those policies. Those who benefit from the status quo now have a wonderful incentive to oppose the reforms.
Ideally, structural or constitutional reforms should be justified by the changes they make to the policy system as a whole. At that point, however, it becomes more difficult to obtain agreement on reforms because of the likelihood of unknown side effects on policy. In other words, if we cannot know in advance what would happen to the policy system once we make structural reforms, then this would count against making reforms. If we know what would happen at the level of policy, then the paradox just described takes hold.
These paradoxes exist because constitutional reform in the contemporary world must address a complex governmental system (imperfectly described by the Constitution itself) that is an ongoing, self-sustaining enterprise. The framers did not have this problem. In the circumstances of the 1780s, there was a credible argument that the government under the Articles of Confederation was literally incompetent to perform essential governmental tasks. It could not levy taxes on its own, for example. It required the unanimous consent of the states to do anything. It appears that the only time we have extensively revised the Constitution is after a revolution (the American Revolution of 1776), or, at least, a quasi-revolution (the Civil War). It seems that absent such order-shattering circumstances, we may be incapable of taking on the task the framers assumed. Reasonable constitutional revision at regular intervals as Jefferson suggested (and Sandy endorses) may well be impossible.
Despite the second paradox, I think Sandy is right to pitch many of his arguments for constitutional reform at the level of policy. A justification founded on basic principles can too easily become mired in a debate over abstractions. But how are we to evade the policy paradox? One strategy that Sandy tries is to highlight the pervasive role that interest group deals play in our current constitutional structure. (25-26, 54-62) This is an important point. The framers certainly could not have foreseen the development of a state so well funded (through the income tax) that representatives could try to ensure their reelection through the earmarking of millions of dollars to their districts. It is the marrying of the interest group state to the structure of representation that is especially troubling from a design perspective. If we were redesigning the Constitution, we would probably try to arrange the appropriations process to minimize this sort of activity.
This argument goes in the right direction because it identifies policies that are in the interest of relatively few people (Sandy cites the Alaskan “bridge to nowhere”) yet impose a cost on everyone. This does not mean the argument would be persuasive. As arguments fly in our hypothetical constitutional convention concerning the undue influence of interest groups, some might remind themselves that they have benefited from legislation that others see as purely interest-based. Suppose, however, there is a class of policies that are literally in no one’s interest. Call these “policy catastrophes.” If there were such a class and we could link them to problems in our constitutional structure, we might have the kind of argument that truly gets to constitutional fundamentals. More on such catastrophes in my next post. Posted
by Stephen Griffin [link]
The Median Justice, Again.
Here is the opening sentence in Linda Greenhouse's article on the most recent Supreme Court arguments: "By the time the Supreme Court finished hearing arguments on Monday on the student-assignment plans that two urban school systems use to maintain racial integration, the only question was how far the court would go in ruling such plans unconstitutional."
There is nothing surprising in this outcome; indeed, the real surprise would be if the oral argument suggested a contrary outcome.
When a new Justice is appointed, the most important effect is usually not that Justice's positions on various issues, but rather whether the appointment changes the median Justice on the Court. In a multimember court, the Justice or Justices in the middle determine most of the hotly contested outcomes. Before this year, the median Justice was Sandra Day O'Connor. It is now Anthony Kennedy. Anthony Kennedy has opposed race-based policies in virtually every case since he became a Justice. Hence, unless a case before the Court is directly on point with cases in which the Court has upheld race-based policies (which is not very likely given the reason why the Court takes cases for review), it is very likely that Kennedy will vote to strike them down.
We are now seeing these effects in various cases before the Court. But the likely results could have been predicted long before. Anthony Kennedy may surprise everyone and vote to uphold one or more of these voluntary integration plans. But given his previous voting record on affirmative action and majority-minority voting districts, I wouldn't count on it.
Judge Posner's Seductive Realism and Pragmatic Adjudication--Beware the Pied Piper
Judge Richard Posner is the intellectual phenom of this era in law. There is no doubt about it. The author of about two thousand written decisions, over thirty books, and several hundred articles, no one comes close to his productivity. His influence is also unmatched. Posner’s judicial opinions are cited by other judges more often than the opinions of any other judge, and his decisions and scholarly works are cited by academics more often than the work of any other jurist. He is a leading light of two influential contemporary academic movements: the economic analysis of law, and legal pragmatism.
Beyond these stellar achievements, however, Posner’s most enduring legacy may well be to severely undermine the rule of law within the judiciary. Judge Posner is especially dangerous because he clothes his radicalism in seductively realistic and reasonable-sounding words—as if he’s just being a straight-talker, nothing new, nothing shocking.
Given his stature, his high judicial position, his compelling intellectual style, and the content of his ideas, it is hard to imagine that anyone could be more subversive to the rule of law than Judge Posner.
Ample evidence for these strong assertions can be found in this recording of a recent dialogue between Judge Posner and Professor Brian Leiter at the University of Chicago Law School. The interview nicely encapsulates his core views about the nature of judging and about what he calls pragmatic adjudication (which he has elaborated in many books and articles).
His views on these two topics can be summarized as follows: Posner believes that judging on the Supreme Court is almost entirely political, and he believes that judging on the Court of Appeals (his court), and judging generally, is substantially political. This view of the political nature of judging is widely shared among legal academics and political scientists, although many judges disagree. Posner, furthermore, advocates that judges should decide cases in a pragmatic fashion, oriented toward rendering the most reasonable decision in a given case (all things considered).
To obtain a sense of Posner’s view of these matters, consider his comments (paraphrased):
When asked by Leiter whether he thinks that judges have a duty or obligation to apply the law, Posner pointedly does not accept the terms of the question. Rather than characterize it as a duty, he said that there are basic “rules of the game” that judges must conform to (violators risk effort-wasting and embarrassing reversals), to wit: judges must follow any statute or precedent that clearly resolves an issue. Judges are constrained by rules in this sense.
However, according to Posner, these constraints are almost never at play at the level of the Supreme Court (cases that make it to that level are seldom clear in legal terms, and the Court can repudiate its own precedent), and “very often not in play” at the Court of Appeals. “A significant fraction” of the cases heard by the Court of Appeals is not clearly determined by statutes or precedent. Moreover, Posner says, the ordinary canons of statutory interpretation and reasoning by analogy do not help produce a legal answer.
Hence, in that situation, a judge must render a decision about the most reasonable result for the present and future. There is nothing particularly legal about this decision. Judges simply make policy judgments based upon their life experiences, temperament, and ideological views. [Notice how much Posner agrees, at least on these points, with the old “Crits”—Critical Legal Studies folks who were highly skeptical of the role of law in judicial decision making.]
Posner fully embraces the implications of his views of judging. He recognizes that judges may have different opinions about what is a reasonable result in a given case—that’s just the way it is. Whichever view happens to have the most votes on a judicial panel wins. Outcomes in given cases are therefore a function of the vagaries of who happens to be assigned to a given panel. Tempering this implication, Posner also points out that appellate judges agree a great deal of the time, but he insists that this agreement is not so much attributable to shared interpretations of the law, but rather to similar outlooks, experiences, and values held by judges, which produce shared judgments about what is reasonable. Since decisions in these cases rest upon political views, Posner accepts that the political views of individual judges should be considered in the appointments process (and he adds that, rhetoric notwithstanding, the Senators already know this).
Posner’s description of what judging is and should be seems refreshingly realistic and candid. Many law professors and most political scientists—who are well versed on the indeterminacy of law and the influence of politics on legal decisions—already hold these views, which makes his observations all the more attractive to these audiences. Coming from a judge—indeed from the most influential contemporary jurist—his pronouncements about the nature of judging carry added weight.
But is Posner correct?
To answer this we must separate two different types of claims: His descriptive claims are that the law often does not provide a clear answer, and in these cases judges largely render their decisions on political grounds (whether consciously or not); his prescriptive assertion is that judges should decide cases in a pragmatic manner. (The discussion below only addresses lower court judges, not the Supreme Court, for which the situation is more complicated).
Let’s take up the descriptive claims first.
Contrary to Posner, many judges adamantly insist that most of the time the law determines their decisions. Although the law will not always dictate a single right answer, even in situations of legal uncertainty usually one outcome can be ranked as more legally defensible or persuasive than other outcomes. Judges admit that sometimes the law runs out—no outcome is legally stronger than any other—so a decision must be made on other grounds, but they insist that this not a frequent occurrence.
Posner accounts for these denials by asserting that many judges are self-deluded or being deceptive (“inauthentic”) about their actual decision-making process, and that their written decisions are after-the-fact rationalizations which conceal the actual (political) basis for the decision. Here his descriptive and prescriptive claims merge: He thinks that many judges in fact already render decisions in the pragmatic manner he advocates, but he wants this to be done consciously and openly, which would produce better results.
For their part, the judges who insist that most of their decisions are determined by the law, not their policy preferences, can respond that Posner is projecting his own decision-making process onto other judges. It is Judge Posner who tends to decide a disproportionate number of cases on political grounds. [On this point: As indicated here, 1994 report by the Chicago Council of Lawyers concluded: “A very substantial number of lawyers believe that Chief Judge Posner routinely does not pay sufficient attention to the facts, or leaves out crucial facts, in order to reach desired conclusions….Chief Judge Posner feels less constrained by precedent, history, and the proper limits on appellate judging than, in the Council’s view, he should…”].
These judges can agree with Posner’s assertion that published decisions are rationalizations constructed after-the-fact—rather than accounts of how the decision was actually made—because written opinions are meant to articulate the strongest legal argument that justifies the decision. There is nothing dishonest about this practice.
It appears that we have a standoff on the descriptive claims. Many law professors and political scientists side with Posner, in part because that is what they already believe. In support of this belief they point to multiple studies that show correlations between judges’ decisions and their personal attitudes.
But the judges who insist that law decides cases can point to the very same studies, which acknowledge that an overwhelming proportion of appellate decisions are unanimous (often in the 90% range), notwithstanding ideological differences among judges. Posner, moreover, has offered no evidence to support his assertion that this high proportion of agreement is largely the product of the shared social values of the judges rather than the more immediate and obvious explanation that it is the product of shared interpretations of the applicable law (as determined by the conventions of the legal tradition).
Although it looks like a tie, a compelling argument can be made that Posner (and like-minded law professors and political scientists) has not made his case, for this reason: Posner’s descriptive assertions rest on the claims that the bulk of judges are either self-deluded or perpetrating a deception. These uncharitable claims require support, especially in an era in which the entire legal culture—including judges—has been thoroughly influenced by Legal Realism. No judge today believes in the old formalist bromides about mechanistic reasoning. Therefore, we must recognize that, based upon their own realistic understanding of law, judges still insist that most of their decisions are determined by the law. The burden, it seems fair to say, remains on Posner.
Now let’s take up his prescriptive claim about the attractiveness of pragmatic adjudication.
The best way to evaluate the implications of his proposed approach to judging is to see how it works out in a specific context. Here is Posner’s description of the process by which he would render a decision about the legality of President Bush’s highly controversial warrant-less wire tapping program, which raises complex legal questions. “The way I approach a case as a judge,” Posner wrote, “is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion.”
Note, first, that Posner’s primary orientation in this description is not rule-oriented or legal. It is, rather, outcome-oriented and based on non-legal (“lay”) considerations. One should also recognize how extremely ambitious this task is. Security experts as well as lay people sharply disagree about what is a “reasonable result” in this situation. Decisions of this type rest upon many imponderables of both value (the importance of civil liberties) and fact (the usefulness of this program as compared to alternatives). The problem is not just that there will be great disagreement over what is a reasonable result, but that there is no demonstrably correct or best answer to this question. In effect, under Posner’s approach, we have traded an open and complicated legal question for an even more open and complicated policy/value-based/empirically-contingent question. And why we should think that judges are qualified to make such decisions? [A brief digression: In his interview with Leiter, Posner criticizes Dworkin’s theory of judicial decision-making as too ambitious because it requires judges to rationalize large areas of law and to render difficult and contestable decisions about moral principles for which judges are unqualified. Posner is right about his criticisms of Dworkin, but, as this example shows, the very same charge of impracticable ambitiousness can be leveled against his own more “modest” pragmatic approach.].
There is another serious problem with his approach. After coming up with the most sensible result, Posner will then consult the applicable legal rules to check whether that result is clearly prohibited. But an outcome that can pass this test—one that is not clearly prohibited by the law—is not necessarily the strongest or most correct legal outcome. Owing to the indeterminacy of law, the “not clearly ruled out” standard proposed by Posner means that judges will have substantial leeway to implement whatever result an individual judge considers sensible.
Now we can pin down the concrete difference between Posner’s pragmatic adjudicator and judges who are committed to following the law. Posner has in effect given us two tests to be used together: if the law is clear, the judge must follow it, but if the law is unclear (which he says happens a lot), then the judge can rule in favor of what the judge deems reasonable, unless that particular outcome is clearly prohibited by the law. Sandwiched between these two tests is the large body of cases in which the law is less than clear, but one result is more legally compelling or defensible than any alternative interpretation. Unlike pragmatic adjudicators, who in these cases will decide for the reasonable result (as determined by their own lights) unless it is clearly ruled out, judges committed to following the law will feel duty-bound to render the most legally compelling decision.
I began this post by stating that Posner’s ideas—in particular his pragmatic adjudication—pose a grave threat to the rule of law. The reasons for this should now be manifest. Under his proposed approach, judicial decisions will often be driven by policy decisions about outcomes rather than by the applicable rules. Outcomes will turn on the views of individual judges, but judges have different views on these matters. Certainty of application, predictability, and equality of application will diminish. It is true that politics already (and inevitably) has some play in judicial decisions, but the immediate effect of Posner’s pragmatic adjudication will be to further loosen legal constraints by encouraging judges to shift more quickly (when the legal result is not clearly dictated) to making result oriented non-legal decisions. This will alter the proportion in judging away from legal toward more political decision-making. It will more often be the rule of the individual who happens to be the judge, rather than the rule of law.
Posner’s response to these objections is that he is merely describing the reality of the situation, so denying it or decrying its harmful consequences to the rule of law is pointless. The rule of law still exists, according to Posner, as long as the judge remains “impartial” (in the sense of not favoring a litigant).
My argument is that Posner’s descriptive claim is wrong: most judges strive to come up with the best—the strongest—legal outcome as dictated by the applicable rules. They do this whether the legal rules are clear or complicated and uncertain. When no strongest legal answer exists, which does happen, they may well try to figure out the most reasonable result in the manner that Posner suggests (what else can they do?). Of course, rule-bound judges still pay attention to results and consequences. When the outcome dictated by the rules is extremely unpalatable, they will struggle with the law to avoid this result. This does not change the fact that their overarching orientation is to try to figure out what the law requires, and to duly comply. This orientation is essential to a rule of law system.
This, too, is a realistic view of judging. Like Posner, I am a pragmatist. And my argument is that, for pragmatic reasons, owing to the harmful consequences to the rule of law that will follow from adopting Posner’s approach, judges should reject his pragmatic adjudication. Judge Posner acknowledges that a pragmatist need not think that pragmatic adjudication is wise. He wrote: “[A] pragmatist committed to judging a legal system by the results the system produced might think that the best results would be produced if the judges did not make pragmatic judgments but simply applied the rules.” Indeed.
The danger is this: if people within and outside the legal culture succumb to his view that judges already in fact decide cases in this manner, and should decide cases in this manner, more and more judges will begin to reason in this fashion. Then his descriptive claim will be correct, and, I fear, we will discover the untoward consequences of his prescriptive claim.
On this final point, the dialogue between Judge Posner and Professor Leiter was worrisome for another reason. It was an event sponsored by the Federalist Society at the University of Chicago Law School. Yet this group, explicitly dedicated to promoting the appointment of judges who commit themselves to follow the law, hardly challenged his ideas, which are fundamentally antithetical to this objective.
In fairness to the students present, Judge Posner is an intellectual giant with immense stature. His partner on the panel, Professor Leiter, indicated that he agrees with much of Posner’s position (though his questions raised some of the above objections), and he is a formidable legal theorist in his own right. It would require unusual courage under these circumstances to press the Judge (and he adroitly side-stepped the few students who made the attempt).
This parlor game emerged from dinner table discussions at the Schmooze. Match Supreme Court Justices with the Rock/Pop/Country artist who has the same basic "style" in their opinion writing, and give your reasons. But always remember, we're focusing on the style, not the politics.
Some of my favorites:
Sandra Day O'Connor-- Britney Spears. (The early Britney, pre-K-Fed, not the later, trashy Britney.) Artistically incoherent but enormously successful attempts to appeal to the exact center of popular taste.
William Rehnquist-- David Byrne of Talking Heads, Blondie, Devo. Unsentimental, terse, and cleverly ironic 80's New Wave post-punk. (Psycho-Killer could easily be a Rehnquist opinion except, of course, for the use of French. No foreign sources in our Constitution, thank you.).
Anthony Kennedy-- Lionel Richie, Barry Manilow. Overly earnest ballads that set your teeth on edge.
Clarence Thomas-- Prince, Lou Reed. Key aesthetic ideal: I don't give a **** what *you* think. The Justice Formerly Known as Clarence.
Ruth Bader Ginsberg-- Alanis Morissette. A Jagged Little Constitution.
Antonin Scalia-- Meat Loaf. Histrionic Opera Rock.
David Souter-- Paul Simon. Bookish, a little too insular and self-contained. Still crazy after all these years.
John Paul Stevens-- Willie Nelson. Crusty, independent, been around forever. (But what about his vote in the marijuana case?)
Stephen Breyer-- Nobody. Stephen Breyer doesn't rock and roll.
We didn't know enough about Sam Alito and John Roberts to match them to anyone yet. But in the fullness of time we will know if they are the Clash or just Richard Marx.
Feel free to offer your own nominations-- and your reasons-- in the comments.