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
Abbe Gluck abbe.gluck 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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Supreme Court justices are expected to justify constitutional decisions, no matter what the outcome. We commonly refer to arguments about what counts as a justification for a judicial decision as theories of judicial review or theories of constitutional interpretation. For this reason, J. Harvie Wilkinson is wrong when in Cosmic Constitutional Theory he asserts that he has no theory. If he is making an argument about how justices should decide constitutional cases, he is advancing a theory of the judicial function. His theory may better, more rudimentary, or less cosmic than other theories of the judicial function in constitutional cases, but his claims are nonetheless a theory.
Consider in this vein the difficulty of determining the language that should be spoken in a particular international tribunal. Critics could raise problems with English, Hindi, Chinese or French. Not enough litigants speak any of those languages or those languages fail to capture adequately certain legal concepts. Similar problems plague the practice of inventing a new language or having everyone speak in their native tongue. Faced with the problems with any language, however, Judge Wilkinson would not suggest that the tribunal do without language. All they can do is decide which language or language policy has the fewest warts. The same is true for justifications or theories about judicial decision making. As long as we have judges and we insist judges justify their decisions, all we can do is choose the theory of the judicial function that we think better than others or the one with the fewest warts. We can no more do without a theory of the judicial function than we can do without language.
What may be confusing Wilkinson is the common tendency to conflate theories about constitutional interpretation and theories of the judicial function in constitutional cases. The two are different. A theory of constitutional interpretation is a theory about what the constitution means. A theory of the judicial function is a theory about judicial power. One can coherently assert that the First Amendment prohibits government from passing laws that restrict flag burning, but that justices ought not have the power to declare such laws unconstitutional. At times, Judge Wilkinson seems to be making that claim. Judges, he seems to argue in places, ought to defer to constitutional interpretations made by other governing officials rather than always engage in independent constitutional interpretation. This is a theory, but a theory of the judicial function.
Moving to a theory of the judicial function from a theory of constitutional interpretation creates problems that Judge Wilkinson does not discuss. Constitutions are normally thought to constrain elected officials as well as justices. So even if judges are restrained and only declare unconstitutional obvious constitutional violations, we still need a theory of constitutional interpretation that will help guide citizens and elected officials. Indeed, once judges are out of the picture, we probably need a really robust theory of constitutional interpretation to constrain other officials. So cosmic constitutional theory still seems a valuable enterprise, even when unmoored from a theory of the judicial function.
Moreover, theories of the judicial function, even of judicial restraint, are more "cosmic' than Judge Wilkinson suggests. Consider Judge Wilkinson’s claim that judicial self-restraint is a democratic theory. To begin with, Judge Wilkinson seems to deny the people the power to vest constitutional authority in judges. Every candidate for the President is free to campaign on a platform to end judicial review. None does. If the president is elected on a platform promising to appoint justices who will recognize same-sex marriage or outlaw affirmative action, arguments from democracy at the very least cut in both directions. Indeed, as a good deal of political science and some law literature recognizes, judicial review is politically constructed, a consequence of choices made by elected officials rather than judicial usurpations. So Judge Wilkinson turns out to be the authoritarian who is thwarting the will of the majority of elected representatives. Moreover, lots of theories of democracy are out there. Judicial review is more consistent with some, less consistent with others. Many of these theories are rooted in contested empirical claims. The literature on judicial review tends to ignore these theories altogether, assuming that whatever values democracy serves, those values are always in practice best served by judicial restraint. Maybe so, maybe not. But a long argument is needed.
Arguments for judicial restraint are no more based on timeless truths or long-tested ideas than any other claim in American constitutional politics. Judicial restraint at the beginning was not a democratic theory. Blackstone opposed judicial power to declare laws unconstitutional, but he was no democrat. Thayer did not rely on a theory of democracy when he urged judicial restraint in the 1890s. The identification of judicial restraint with democracy begins in the progressive era. At the same time, other progressives insisted that democracy justified a different kind of judicial activism. As attitudes towards democracy changed, so do theories of judicial activism and restraint.
What Judge Wilkinson calls cosmic constitutional theory is the near inevitable consequence of political and constitutional change. Theories of constitutional interpretation and the judicial function are rooted in broader political theories and sociological phenomenon. When the dominant understandings of democracy, liberty, equality, justice and the like change, so will the dominant theories of judicial review, whether those theories champion activism or restraint. The theory of judicial review today must be different than 75 years ago, because any contemporary theory must justify Brown v. Board of Education and at least explain whether Roe v. Wade was rightly decided. No one had to do that in 1935. What Judge Wilkinson calls cosmic constitutional theory is simply the ongoing effort to make constitutional interpretation and judicial practice consistent with the norms and values of the present time. We can no more avoid the project of constitutional theory than we can avoid language as a tool of communication. Posted
by Mark Graber [link]