"The Seach for Objectivity in Constitutional Law"

Brian Tamanaha

This is an era of avowed sophistication in the Supreme Court. To talk, as Justice Roberts did, of simply [calling balls and strikes like an umpire], now seems almost like dredging up an antiquity. Justices may always have been sufficiently sophisticated to know that the judicial process is not that simple, that in the constitutional field the process is primarily political, not judicial; but it is only recently that they have admitted as much and have begun to discuss publicly their methods of deciding cases.

One can hardly blame the current bench for indulging in this sort of self-analysis, so obviously designed to minimize the significance of ‘personal predilections.”…

Thus, the Supreme Court goes galloping off in search of objectivity. This approach is admittedly a far cry from the deceptiveness, self-induced or not, of the mechanistic approach. But will it produce anything more satisfactory either to the justices themselves or to the public?

So began George Braden’s 1948 essay in the Yale Law Journal, “The Search for Objectivity in Constitutional Law” [although I have injected a paraphrase of the current Justice Roberts to replace Braden’s paraphrase of the earlier Justice Roberts: “laying a statute alongside an article of the Constitution to see if the former squares with the latter”].

Braden proceeded to articulate and take apart the three main theories of objectivity in constitutional interpretation circulating at the time: Stone’s “reason” based approach that focuses on the protection of “discrete and insular minorities”; Frankfurter’s “consensus of the community” approach; and Black’s “specific words” and “original purpose” approach.

In response to Stone, Braden pointed out that choices must be made as to which minorities qualify for protection, and how much protection they will get. “Chief Justice Stone’s philosophy is so abstract that it contains virtually nothing to show how it works in individual cases.”

In response to Frankfurter, Braden had a long list of questions: “What is the consensus? Is it qualitative or quantitative? Is it nationwide or broken into statewide segments?....What is it a consensus of? Abstract notions of fair play and justice?....And how does a justice, who knows what he is looking for, find it? By a Gallup Poll? By editorials in leading papers?....”

In response to Black, Braden articulated the “many technical difficulties”, including issues about the accuracy of historical accounts, how to deal with social change or with application to situations not originally anticipated, and more.

Braden concluded his exploration:

Here is a great quantity of sound and fury signifying what? Two present members of the Court produce theories of constitutional interpretation of government limitations designed to control themselves and their brethren. Each theory collapses, on analysis, into little more than a front for policy making….

There is no objectivity in constitutional law because there are no absolutes. Every constitutional question involves a weighing of competing values. Some of these values are held by virtually everyone, others by fewer people. Supreme Court justices likewise hold values. The more widely held are the values in society, the more likely the Supreme Court will hold them; the more controversial the values, the more likely the Supreme Court is to divide over them….

Hence the justice who wants to tell the world how he decides cases must….say: “This is what I believe is important in our civilization and I shall do all I can to preserve it.” And forthwith set forth his creed. If this is too shocking to society or if the many [structural and sociological] limitations on the Court’s power are not in themselves believed to be sufficient to restrain the imposition of “idiosyncratic” values, then society must take away the Court’s power. There is no middle ground.

Braden’s essay was written before the Warren Court, before Brown and Roe and Bakke, before Bush v. Gore. The quest for objectivity and judicial restraint in Constitutional interpretation has gained urgency in the six decades since he wrote the essay. Thousands of pages of law review articles and books have been dedicated to the subject. Beneath the avalanche of words, however, the basic alternatives have not changed much (although the pragmatic/purposive approach has taken a seat at the table to supplement the social consensus approach).

We must answer Braden’s starting question about the production of a satisfactory theory of objectivity with a resounding: “No.”

Are we fated to remain stuck in place on this issue?
Posted 1:14 PM by Brian Tamanaha [link]