Sunday, March 30, 2008

Let Felix be Felix


I'm not quite sure how Orin Kerr got the impression that my account of living constitutionalism is designed to give advice to judges, since I point out in these two posts that that's really not the goal of the theory. In any case, he wants to know what advice I would give Justice Frankfurter:

Frankfurter [was] put on the Court by Roosevelt in 1939 back when judicial restraint was considered a liberal position. By the time Frankfurter left the Court in 1962, the Supreme Court's changing caseload had reversed the political valence of Frankfurter's model of the judicial role. Deference to the elected branches had become a conservative position rather than a liberal one. Would Jack have instructed Frankfurter that "times have changed," and that he needed to abandon his deferential approach? If so, why -- because Frankfurter was put on the bench to be a liberal, because new social movements were afoot, or both?

If you read the posts, you can see why I think Orin is asking the wrong question. First, judges have no obligation to decide cases because they were put on the bench to be a liberal, or a conservative, or a New Dealer, or an opponent of the New Deal. Now Presidents may nominate people to the bench because they expect or hope that they will decide cases one way rather than another, but that doesn't mean that the judges themselves have any obligation to do what Presidents tell them to do. There are certainly good reasons why we might predict that Antonin Scalia would vote in favor of restrictions on abortion, but he doesn't have an obligation to do so because he was appointed by Ronald Reagan or because pro-life forces pressed for someone like him to be appointed. This confuses a structural account of change with an individual's normative obligation.

Second, as I have tried to explain in agonizing detail, living constitutionalism is probably not best understood as a theory advising judges to "keep up with the times" or "adjust to changing conditions." There are usually many ways to do that, and they point in opposite directions. Nor is it best understood as a theory directed to judges and demanding that judges pay attention to or follow the demands of social movements or political mobilizations because there are usually multiple mobilizations often pushing on different sides of a question. Rather, living constitutionalism is primarily a theory about the legitimacy of the constitutional system taken as a whole: how and why constitutional doctrine changes in a way that preserves its legitimacy over time. Of course, judges may agree with particular political or social movements because of who they are-- which is why they may have been appointed in the first place-- and because they live in the same society as everyone else and therefore respond to changes in constitutional culture like everyone else. But that's not the same thing as saying that they should agree with one social movement or another. Again, this confuses a causal account of and a normative justification of systemic change with a normative obligation of a particular individual to behave in a particular way within the system.

So I don't see how my account of constitutional change gives Justice Frankfurter much advice at all other than to decide the cases consistent with the available tools of legal culture. I could certainly offer Justice Frankfurter substantive legal advice about how to decide particular individual cases. For example, I could explain why I think that the majority view in West Virginia State Board of Education v. Barnette is a better account of the purposes behind the First Amendment than the account he gives in the dissent. But I wouldn't tell him that he had to decide Barnette a particular way because he was required to decide the liberal way or the conservative way, or the way that Franklin Roosevelt who appointed him would have wanted him to decide it.


Did Thomas Reed Powell consider giving advice to his former Harvard Law faculty member Justice Frankfurter on how to decide cases? What influence do Constitutional scholars have on the Justices, if any? Take a look at Prof. Melvin I Urofsky's article titled "'DearTeacher':The Correspondence of William O. Douglas and Thomas Reed Powell" in Law and History Review, Fall 1989, Vol. 7, No.3. Perhaps someone out there could explore the contacts that such scholars have with Justices, whether or not former students

By the way, does Kerr think the Justices have the time to explore Jack's, or his, commentaries what with their need to read and understand the 69 briefs on the Heller case? And how often are either of them cited by the Court?

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