Balkinization  

Thursday, September 02, 2010

A Public Reason Defense of Judicial Review

Guest Blogger

Ronald C. Den Otter

Americans have always had, and probably always will have, ambivalent feelings toward judicial review; they cannot live with it but they cannot live without it. Indeed, there used to be something characteristically American about turning the most divisive political questions --abortion, affirmative action, same-sex marriage, freedom of speech, separation between church and state, and capital punishment-- into legal questions with the hope that courts could answer them. The primary question that I address in my recent book, Judicial Review in an Age of Moral Pluralism, is whether judicial review can be justified in a country like our own that is committed to democratic self-rule. In the past, scholars have tried to defend judicial review by arguing that it makes our political system more democratic. By contrast, I defend judicial review because it ensures that the reasons that the state offers on behalf of its most important laws are consistent with the freedom and equality of all persons. I tie this defense to a theory of constitutional adjudication based on John Rawls's idea of public reason and describe how judges should decide the most difficult constitutional cases.

The constitutional text and the case law that has supplemented its meaning over time are underdetermined with respect to the most important constitutional questions. In many constitutional cases, at the point of application, judges must move from abstract constitutional provisions to the particular facts of the case by offering their own reasons to support their decision to uphold or strike down the law in question. Those who care about the quality of judicial decision making, then, must pay close attention to what it means to offer acceptable reasons on behalf of a particular result.

In the past, conservative critics of judicial activism have accused liberal judges of abusing their power by bridging the gap between the abstract and the particular illegitimately. Today, liberal critics of the Roberts Court also allege that its conservative justices have inserted their own partisan preferences into the law. These accusations presuppose that only certain reasons count as legitimate reasons in judicial decision making.

It has been said that “The trouble with constitutional law is that no one knows what counts as an argument.” In fact, the trouble seems to be that no one knows what counts as a good argument. That is another way of saying that two people, who are knowledgeable about constitutional law, may sincerely disagree over what legal reasons are most compelling in a particular case but have no rational way to resolve their disagreement.

I distinguish between good and bad reasons in the context of constitutional adjudication, thereby offering an account of when a judicial decision is good enough to be legitimate. The standard for legitimization of judicial decisions is public justification. A legitimate decision is one that passes the test of public justification and the best decision is the one that is most publicly justified, that is, based on the strongest public reasons. These reasons are those that an ideal reasonable person would accept as good enough because they are as uncontroversial as possible.

Judges must only accept certain sorts of reasons as justification for legislation and thus, must render a law unconstitutional when voters or legislators have failed to limit themselves to those reasons. When a judge is trying to decide a case on the basis of public reasons, she must write her opinion with a particular audience in mind, namely the person who is likely to disagree with her decision, and try to convince that person by giving her reasons that she should accept. In doing so, judges must not do what ordinary citizens and legislators are inclined to do in answering constitutional questions: appeal to the “truth” of their conceptions of the good life or of their visions of a good society. In the realm of constitutional adjudication, reasons derived from such convictions are inappropriate because reasonable people are likely to be justified in not accepting such reasons.

Different reasonable people may sincerely disagree about which reasons are good enough, and my standard of public justification is designed to provide guidance in such situations. My aim is not to settle such cases definitively but to illustrate how certain arguments are sufficiently publicly justified to legitimize a judicial decision. Although people cannot wish away reasonable disagreement in constitutional controversies, recognition of what makes reasonable disagreement reasonable may lead dissenters to willingly accept judicial decisions that they disagree with. Moderate indeterminacy in hard constitutional cases is a blessing in disguise. People who exchange reasons with one another may acknowledge that a position is respectable even when they believe it to be mistaken, and that is the kind of legitimacy that my standard of public justification makes possible.

Apply this theory to same-sex marriage. There is no shortage of academic literature on the topic of same-sex marriage and most of it vociferously supports including same-sex couples in the definition of marriage even when some of these same people express understandable reservations about timing and whether such change should be brought about by the judiciary. None of the legal arguments employed in Perry v. Schwarzenegger are new. Many of those who support the right to same-sex marriage confine themselves to legal premises, insisting that there is a fundamental right to marriage for everyone, irrespective of sexual orientation, or that denial of marriage licenses to same-sex couples violates equal protection of the laws. Others rely on predictions about the social benefits that would result if states were to recognize legally same-sex marriage. Some commentators maintain that the denial of equal rights to same-sex couples constitutes gender discrimination. Others try to dispel the conservative fear of social change by explaining why equal rights for same-sex couples would not require the complete rejection of traditional morality. Others have compared sexual identity to religious identity to equate unjustified discrimination on the basis of sexual orientation with that of religious belief. Others have tried to show that civil unions, symbolically if not materially, establish a new "separate but equal" doctrine with respect to legislative classifications based on sexual orientation.

None of these arguments are obviously bad arguments. In fact, some of them are probably as sound as any constitutional argument can be. However, my book takes a different tack, contending that even the best reasons of those who oppose same-sex marriage are too controversial to be shared by everyone in the political community and therefore, for constitutional purposes, are unreasonable. The problem with the typical argument that opponents of same-sex marriage advance is that it relies on premises that could not possibly be accepted by those who do not already share their particular deeper convictions. I argue that this kind of constitutional argumentation, which is based on appeals to perfectionist ideals of human flourishing, is not suited to the task at hand: to find reasons for public laws that all fair-minded citizens can accept or at least not reasonably reject. Only certain reasons are the kinds of reasons that would justify the unequal treatment of same-sex couples with respect to civil marriage and these reasons do not exist.

There is likely to be reasonable disagreement, of course, about the fairness of specific laws in any constitutional democracy. Nevertheless, not every case is bound to be so hard that the balance of reasons does not support one conclusion over the other alternatives. Furthermore, if those reasons that attempt to publicly justify unequal treatment are unreasonable, then that law is insufficiently publicly justified. From the standpoint of public justification, not every argument is sufficiently reasonable, despite the intensity of the feelings of those who find themselves on different sides of a particular political controversy. The difficulty lies in distinguishing a reasonable from an unreasonable argument that purports to justify unequal treatment. My concern is not only to say something about the right way to approach the specific question of whether same-sex couples should be allowed to marry. Instead, I also would like to say something more generally about how we should try to decide the constitutional controversies that divide us by explaining what public justification is, why it is important, and how it can help us to make difficult constitutional choices as fairly as possible.

In the end, the most plausible of the arguments against same-sex marriage is that a society may legitimately enact public laws that are based on the moral convictions of the majority. The baseline question, then, is whether moral disapproval is a good enough reason to justify laws that treat same-sex couples unequally. I argue that both Romer and Lawrence answer this question in the negative. Those who oppose same-sex marriage make little effort to explain why gay and lesbian citizens, who are adversely affected in so many ways by laws that define marriage so narrowly, could accept the reasons that they typically offer against legal recognition of same-sex marriage. Presumably, to some opponents, it does not matter what they, or more generally, those who disagree with them, think about the strength of their reasons. Surely, this is problematic. For gay and lesbian persons, especially in states that have no domestic partnership laws for same-sex couples, what is at stake is more than symbolic: all of the material benefits associated with the legal status of marriage. The absence of these rights, which put gays and lesbians at a distinct legal disadvantage, would make it more difficult for them to live a good life and sends a strong message that their lives are inferior.

From the standpoint of public justification of public laws, the right question is not about whether same-sex intimacy is immoral. This question would be appropriate in personal matters or when a voluntary association, such as the Roman Catholic Church, formulates the rules that govern its inner life and the conduct of its members. No one is arguing that by law, the Catholic Church should be forced to ordain women as priests, or to accept abortion, stem cell research, birth control, or euthanasia. From the standpoint of public reason, those matters are properly left to Catholics. After all, the idea behind public justification is that there are reasons and there are reasons. Some reasons are simply not appropriate in the name of public justification due to the existence of moral pluralism, whereas those same reasons would be perfectly appropriate in other contexts. In the language of public reason, the issue of same-sex marriage boils down to a question of whether sectarian moral or religious convictions can legitimize the unequal legal treatment of gays and lesbians who would like to marry.

The key issue is what kinds of reasons that the state puts forth are adequate to justify unequal treatment not only in the context of same-sex marriage but elsewhere as well. I do not see how we can make any progress unless we can become clearer on what counts as a good constitutional argument. Otherwise, we will just talk past one another.

Ronald C. Den Otter is Associate Professor, Political Science, California Polytechnic State University San Luis Obispo. You can reach him by e-mail at rdenotte at calpoly.edu

Comments:

Doesn't the Catholic Church, at least, avoid your argument by relying on "natural law" arguments? After all, those are a form of public justification which people should self-evidently accept.

I certainly agree that SCOTUS opinions ought to offer reasoning which applies something beyond private morality. I'm a little skeptical that we can rule out arguments ab initio. If the public at large accepts the reasoning, it becomes hard to argue that it wasn't a "public justification" in some sense.

Personally, I'm mostly a Carolene Products fn. 4 advocate. Under that theory, "public justification" becomes equivalent to "democracy enhancing". While I like that rule, I'm not sure that I can rule out others a priori.
 

Hey Mark, it's nice to hear from you. To give you a short answer to your excellent question, there is a part in my book where I explain why the kinds of natural law arguments that, say Robert George and John Finnis make against legal recognition of same-sex marriage don't meet the standard of public justification that I develop and defend in the book. In short, those kinds of arguments are based on a particualr thick conception of the good. That they claim that such arguments should reasonate w/ all rational people doesn't make it so.

I'm not a big fan of Ely's famous (and interesting) theory of representation reinforcement (or democracy enhancing). Part of that stems from the fact that I believe that judicial review has, can, and should do a lot more than making the democractic process more demorcatic. I base my normative theory of judicial review on a view of political liberalism/public reason found in some of the recent political theory literature.
 

I guess I'll have to read the book then. :)

I didn't mean to limit my view to that of Ely; I think there are good reasons for courts to go beyond that at times, and I have a somewhat broader conception of it than he did. I just think that enhancing democracy is the most important role for the courts.
 

Oh, I meant to add that I assume "democracy enhancing" would be at least a subset of your own theory.
 

It's true, Mark, that a lot of constitutional scholars, over the years, have used various theories of democracy enhancement to justify judicial review. Ely is the most famous but there are many others. The appeal of such an approach is that it reduces, if not eliminates, the tension between democratic self-rule and judicial review. By contrast, I draw on a particular understanding of liberalism as a political theory to do the justificatory work. Am I right? I hope so :) But seriously, I hope that the book contributes something to a vast, vast literature on judicial review.
 

There is an argument that something like same sex marriage is best introduced slowly over time and even if a law is unjust on the matter, it remains a type of "political question." George Will appears to promote this view at times, including as to Prop 8.

Prof. Jack Balkin also seems to have been not supportive of marriage rulings such as the one in MA. He clearly isn't supportive of discrimination generally. But, thinks constitutional rights develop over time as society does, and if society isn't ready, the courts shouldn't go too far.

[I don't agree with his analysis on certain cases and have said so at the time when he allowed comments.]

Where would your argument fit in that respect?
 

Joe, another really good comment/question. It's funny. I've been around blogging for quite a while, including law professors' blogs, and didn't expect much of quality in the comments. I'm pleasantly surprised so far! Perhaps because it's a longer blog and takes some time to read carefully or read at all :)

Back to your question. Generally speaking, I don't think that judges should take into account, in their decision making, such strategic or tactical decisions. There are exceptions, of course. Why? Because even the near future is so hard to predict in the midst of so many variables and judges aren't trained as social scientists who actually know something about casual inference. More importantly, my theory of judicial review is anti-consequentialist. Will's view, as you've portrayed it, parallels Sunstein's on ssm (and when he reviwed my book pre-publication he said something about why ssm is a hard case, but not as a mattter of constitutional principle). Will I swallow my words words if the Court decides that there is a constitutional right to ssm and then the 28th Amendment of the U.S. Constiution limits the definition of marriage to opposite-sex couples? Yes, I will :)

I should add that comapatively, the judiciary is the weakest of the branches. There's plenty of social science and hsitorical research that supoorts this view. In short, in constitutional cases, I believe that the Court should do its duty, namely invalidating unconstitutional laws and upholding constitutional ones w/out much concern for how the other branches of government will respond. There are, of course, exceptions to this general rule, but I don't think that it applies to ssm. If I had to make a prediction, and I'm as poorly qualified as the next guy to do so,I believe that there will be a 5-4 SCOTUS decision in favor of a constitutional right to ssm, w/ Kennedy writing the majority opinion. Sure there's some risk, but a lot of reward. Many people will bitch and moan but there won't be a constititional amendment to overturn the decision. And it the Court rules otherwise, then states will proceed on their own. I'm probably more optimistic than most people who favor ssm and I put my faith in Kennedy :) Here in CA, if we vote again on a Prop. 8-like initiative in a few years, I would anticipate a different result.
 

Joe, another really good comment/question. It's funny. I've been around blogging for quite a while, including law professors' blogs, and didn't expect much of quality in the comments. I'm pleasantly surprised so far! Perhaps because it's a longer blog and takes some time to read carefully or read at all :)

Back to your question. Generally speaking, I don't think that judges should take into account, in their decision making, such strategic or tactical decisions. There are exceptions, of course. Why? Because even the near future is so hard to predict in the midst of so many variables and judges aren't trained as social scientists who actually know something about casual inference. More importantly, my theory of judicial review is anti-consequentialist. Will's view, as you've portrayed it, parallels Sunstein's on ssm (and when he reviwed my book pre-publication he said something about why ssm is a hard case, but not as a mattter of constitutional principle). Will I swallow my words words if the Court decides that there is a constitutional right to ssm and then the 28th Amendment of the U.S. Constiution limits the definition of marriage to opposite-sex couples? Yes, I will :)

I should add that comapatively, the judiciary is the weakest of the branches. There's plenty of social science and hsitorical research that supoorts this view. In short, in constitutional cases, I believe that the Court should do its duty, namely invalidating unconstitutional laws and upholding constitutional ones w/out much concern for how the other branches of government will respond. There are, of course, exceptions to this general rule, but I don't think that it applies to ssm. If I had to make a prediction, and I'm as poorly qualified as the next guy to do so,I believe that there will be a 5-4 SCOTUS decision in favor of a constitutional right to ssm, w/ Kennedy writing the majority opinion. Sure there's some risk, but a lot of reward. Many people will bitch and moan but there won't be a constititional amendment to overturn the decision. And it the Court rules otherwise, then states will proceed on their own. I'm probably more optimistic than most people who favor ssm and I put my faith in Kennedy :) Here in CA, if we vote again on a Prop. 8-like initiative in a few years, I would anticipate a different result.
 

Thanks for the response.

To clarify, I'm not only concerned with "how the other branches of government will respond," though as you note Prof. Sunstein and others are partially concerned about that.

Lawrence v. Texas cited an "emerging awareness" that was more clearly apparent and advanced in the context of same sex relationships than SSM. I think the case can be made, but it's harder. It's somewhat akin to use of acceptance of a certain punishment for 8A purposes -- the case is easier to make in some cases as compared to others.

[Justice Scalia made such a comparison during the oral argument of that case.]

It is unclear to me if that would be relevant under your analysis, since if the practice is not otherwise defensible by the neutral criteria you set forth, it would be indefensible. This would be so even if no state recognized SSM at the moment.

But, for some theorists, putting aside fears of backlash, emerging consensus (including in respect to laws, judicial rulings and so forth) would be a relevant factor in constitutional analysis. They would not merely determine if such and such practice was on principle unjust, that is, in a vacuum w/o taking that into consideration.

Again, I'm unsure if they do this merely for basically prudential reasons. Partially, it might be a basic matter of their interpretative vision that the courts would act in a somewhat minimalist fashion.
 

Again, Joe, nice point. As you know, I'm not a big fan of judicial minimalism, which is, too often as I see it, an excuse to avoid doing what's right, constitutionally speaking. I do take issue w/ Sunstein and others who subscribe to different versions of judicial minimalism.

So do I think such considerations are largely irrelevant in constitutional analysis? Yes, although I'm sure that it wouldn't take anyone too long to come up w/ some exceptions. I just don't see that being a (large) part of the judge's role when he or she exercises the power of judicial review, and this view, of course, is premised on the role that I believe that courts should play in our political system.
 

Here's a comment of mine to Brian Tamamaha's 1/10/08 post at this Blog on limiting SCOTUS's power of judicial review of legislation:

"Let's now hear from the originalists and the strict constructionists about the validity of judicial review.

The late Thomas Reed Powell's James S. Carpentier Lectures at Columbia in 1955 starts with the following:

'Those of you who recall how Topsy characterized her own genetic process may not be offended if I find a similarity between her origin and that of what we know as "judical review." Such review of acts of a coordinate legislative body or executive authority was not conceived in terms in any of the early, post-1776 state constitutions, in the Articles of Confederation, or in the Constitution of the United States. Like Topsy, it just "growed"'

Perhaps over the years 'judicial review' has overgrown into legal kudzu and needs to be controlled lest it ends up controlling the other co-equal branches of government.

(Note: Powell went on to discuss how "judicial review" came about in the first chapter (Establishment of Judicial Review) of his lectures.)
# posted by Shag from Brookline : 6:59 AM"

I don't know if there is an appropriate alternative to judicial review but it must be kept in mind that judicial review is not the same as judicial supremacy when it comes to interpreting/construing the Constitution.
 

I've heard Larry Kramer say the same thing in person and in his book _The People Themselves_--that there can be judicial review w/out judicial supremacy-- and I'm still not clear on how that can be so in practice. Robert Bork has proposed that a majority in both houses of Congress should be able to override any SCOTUS decision. That strikes me as a horrible idea. That may be an extreme example, but what kind of bite could judicial review posibly have w/out judicial supremacy (in the sense that the Court has the final word on constitutional controversies absent a constitutional amendment to the contrary)?
 

I'm not sure what "conceived in terms" means -- there were some examples of judicial review in the 1780s and various framers/ratifiers of the USC (I think Charles Beard makes a good early case) thought it appropriate.

I don't think they only were thinking in terms of state action here; the state examples of judicial review of the 1780s showed it would also include "acts of a coordinate legislative body or executive authority." It is clear that it did grow, but so did the state itself.

As to "judicial supremacy," much of what the Supreme Court deals with is either statutory or relatively minor. This includes various cases such as U.S. v. Lopez which is of the "when God closes a door, he leaves open a window" variety.

Even heinous rulings such as Bush v. Gore rarely can be solely laid on the doors of the justices. Congress still had the power to challenge the count but not even one senator agreed even to do so pro forma in the face of members of the black House caucus asking them to do so.

Judicial review and "supremacy" is important but its legitimacy is in part a reflection on certain checks and balances too.
 

We're on the same page, Joe. Let's face it, a lot of the criticism of judicial review that we hear from the left is driven by the fact that the Court has handed down decisions like Heller and Citizens United, among others. There also seems to be a libertarian effort to resurrect Lochner, a decision that I had thought would never return to the world of the living. When I was in law school in 1990, not a single student in my first-year con. law class would defend it.
 

How does the idea of judicial review square with the proposal in the "Contract from America" to have a "Blue-Ribbon taskforce" assess the constitutionality of federal agencies and programs? It seems to me it would constitute a new source of judicial review and adjudication; would such a Blue Ribbon taskforce necessarily offer reasons that are "consistent with the freedom and equality of all persons?"

Side note: It's great to see someone else from the Central Coast here, and I look forward to reading your book.
 

PMS, I live in North County and teach at Cal Poly. I cannot imagine a nicer place to live. Not too crowded, relatively affordable homes, nice scenery...

In the book, I argue that the idea of public justification is implicit in our constitutional tradition, especially in the case law involving equal protection and fundamental rights. That's my normative interpretation at least, but I don't think that it's really a new source of judicial review or an entirely new standard to deciding whether a law in unconstitutional.

You're right that, on a case-by-case basis, a lot will come down to how one understands freedom and equality. Obviously, my understanding of freedom as a constitutional value or principle would differ from that of a libertarian like Randy Barnett. I have a lot to say about how I think public justification should work in the book. Hopefully, some of it is convincing :)
 

My reading pile has been getting higher of late as my octogenarian eyes and brain keep pace with my aging process. I got to page 20 of Louis Michael Seidman's "Acontextual Judicial Review" about a month ago but it's been so long since I put it back in the pile, I'll probably have to start it from scratch. Also on the pile as yet unread is Corinna Barrett Lain's "The Countermajoritarian Classics (And An Upside-Down Theory of Judicial Review)".

My comment at Brian's earlier post on this Blog was teased at originalists and strict constructionists but no one took the bait. I don't think that Prof. Den Otter fits these categories, but I can't be sure. (I think he'll let us know.) While judicial review was around at the time of the founders' Constitution, Article III is quite sparse and it contains no specific provision for judicial review. Also, while the Constitution provides for its supremacy, it does not specify judicial supremacy. The oath requirement of the Constitution binds all three branches, suggesting that neither branch has supremacy over the others. Perhaps Prof. Powell's (my conlaw professor back in the fall of 1952) observation that judicial review just growed like Topsy was a poke in the eyes of originalism and strict constructionism. (Dare I say he was a living constitutionalist? What I can say is he had a sense of humor.)
 

Shaq, please call me "Ron," and I'm about as far from being an originalist or strict constructionist/textualist as one could be. I know that David Strauss has a short book on living constitutionalism and at a conference in May, Randy Barnett told that audience that he's like to write a similar-length rebuttal. I'm one of those people who thinks that originalism is so flawed in so many watys that it's hard to know where to start. I do more or less say this in the first chapter. As I see it, at least in hard constitutional cases, the constitutional text is so indeterminate that it provides virtually no guidance. it's up to the person who has to apply the constitutional provision(s) to the facts of the case, and that's where public justification comes in.
 

Count me among those who see no real distinction between "judicial review" and "judicial supremacy". But I'm old fashioned, I guess, since I don't even buy the distinction between "interpretation" and "construction".
 

Mark, that is old-fashioned, which doesn't mean necessarily that you're wrong, but I think that the distinction between interpretation and construction is essential not only to my theory of constitutional adjudication but also to many, many others. Both Barnett and especially Larry Solum have had something to say about this constitutionally important distinction and I wish that more people wuld take it more seriously.
 

I don't think Mark is old fashioned. Back in the early 1950s while in law school, I would shop occasionally at a Morgan Memorial bookstore for second-hand law books on the cheap. For 50 cents I bought Francis Lieber's "Legal and Political Hermeneutics or Principles of Interpretation and Construction in Law and Politics." This Third Edition was published in 1880; the earliest edition was published in 1837. One of the motivations in buying this book was that it came from the law library of Brandeis, Dunbar & Nutter (with a stamp date of 6-22-'13). I used this book only in a limited fashion while in law school but I did use it occasionally in my practice.

I went into semi-retirement in the fall of 1998 and started auditing classes at a nearby university. One of the courses I took early on was Hermeneutics (Philosophy/Religion Department) that focused on Hans Georg Gadamer and his book "Truth and Method." (Great book!) This led me, via the Internet, into Legal Hermeneutics, which I found to be most interesting, resulting in reading several books and articles on the subject. By the way, Cardozo Law Review republished Lieber's text. I find Legal Hermeneutics helpful in understanding the various ways to interpret and construe the Constitution. The movement may be stalled somewhat. But originalism has gone through several phase-changes, which continue, since the days of Ed Meese in the early 1980s. Prior to Ed Meese, originalism was not the hot legal topic that it became. Heller is perhaps the high point for originalism, but now it's heading downhill - perhaps down that slippery slope that Scalia and others warn us of, now with guns ablaze.

I was out of law school and serving in the military when Prof. Powell gave his Lectures at Columbia. I did not become aware of them until my semi-retirement when I had more time to spend on the Internet. By the way, Prof. Powell's Lectures bore the title: "Vagaries and Varieties in Constitutional Interpretation." (I was able to purchase a library copy via the Internet rather cheaply. It may now be available via JSTOR.) Keep in mind this was well prior to Ed Meese's version of originalism: original intent. Prof. Powell died in 1955, several months after delivering his Lectures.

I attended a legal seminar on conlaw at a local law school in the early 2000s that included Jack Balkin, Randy Barnett and the usual conlaw suspects, one of whom (it turns out, a major, major originalist!) had originally titled his paper similar to Prof. Powell's Lectures but changed it. I asked him if the change had to do with Prof. Powell's title and his answer was a smile.

So I remain alert to the ongoing "Search for the Holy Grail of Constitutional Interpretation" and what may result if and when it is found. Now it's time for a pot of tea - or hold the tea.
 

Shaq, all that I know about Leiber is that his work was cited in the notorious Reynolds v. U.S. (polygamy case) back in the 1870s.

I, personally, don't think that Heller is really originalist but I'm far from an expert on that historical period or any such period for that matter. I have a law professor friend, btw, at UCLA named Adam Winkler who is just finishing a book on the history of gun control, which has surely been a neglected topic.

I'm not searching for a holy grail. Any grail that's better than the others will do :)
 

Attempts to separate judgment from politics always strike me as bizarre. If you want to get rid of judicial review you need to get rid of the Constitution, or at least change it from law into a Statement of Principles. There are reasonable arguments for that (in my opinion).

"A legitimate decision is one that passes the test of public justification and the best decision is the one that is most publicly justified, that is, based on the strongest public reasons. These reasons are those that an ideal reasonable person would accept as good enough because they are as uncontroversial as possible."

"A reasonable person" in 2010 is not the same as a reasonable person in 1925. Reasonableness may be a constant but what it refers to is not. That's why there's no such thing as (static) "public reason". What there is or needs to be is a (static) norm of civility in argument under rules of "public form": divided government, adversarialism, the rule of law etc. with the accepted purpose not as ideal justice but public acceptance of the outcome.

The best argument against SSM being decided in the courts would be to say that because there is no way logically to move beyond private moral preference in separating the right to same sex marriage from the possible right to multiple marriage, which "reasonable people" now oppose but may not in the future, we should leave it to the political process.

You try to replace the reliance on " 'truth' of... conceptions of the good life" with 'truth' as to public reason. You substitute a dream of ideal justice with a dream of ideal justices. Hard cases still make bad law.
 

D.Ghir., you raise some serious points and I wish that I could respond to them in more depth than a blog like this allows. But in the book at least, I tried to do so.

(1) I never separated law and politics as sharply as you think but you're right that I believe and hope that to some extent, in important constitutional cases, it's possible. If constitutional law is really, in the end, politics by another name, then I don't see the point of having judicial review (by judges). Just leave such questions to the people or to their elected representatives.

(2) I don't think (and explain why in the book) why reasonableness is not tied to particular times and places.

(3) Related to (2), I could be wrong about this, but you sound like you're much more of a constitutional relativist than I am. That is, you don't really believe that there are right or at least better answers to hard constitutional questions. I do try to take the sting out of such skepticism. Whether I really do so is another matter.

I appreciate the comments...
 

This comment has been removed by the author.
 

I don't see how you can avoid judicial review if you have a written constitution, and as to relativism, if that means I'm more interested in process than product, then you're right.

The most serious opponents of relativism are also critics -often opponents- of democracy. The strongest defense of democracy is to argue that truth is fundamentally private and that what's public are formal rules and more importantly, informal obligations among actors/players. I'm a relativist about truth but not method.
 

Justice Breyer's new book is out tomorrow. NPR did a piece (h/t Scotusblog).
 

Hey Joe, did you read his first book? Generally speaking, I'm not that sympathetic to civic republican defenses of judicial review but they are to be taken seriously and plenty of smart people find them appealing.
 

Hi. Yes, I did read his first book and found it generally useful as a compact and fairly down to earth expression of his p.o.v.

This allowed me to enjoy it while respectfully disagreeing with him at times. It is one example of the journey being enjoyable even if I'm not quite with him on the conclusion.
 

I have finally completed reading Seidman's article (I thought it was excellent) and Lain's article, each on judicial review (but Lain's was on a different track than Seidman's, but quite interesting).

Inspired in particular by Seidman, I took to verse (to some, perhaps worse):

"SUPREME-R … NOT!

Article III’s brief purview
Specifies NOT judicial review;
Nor judicial supremacy
Over Congress or Presidency.
For co-equal branches
May each construe
Constitutional meaning
With their oaths to be true."
 

I have just finished reading Breyer's new book. I liked it. Ends on a nice note too.

http://www.latimes.com/entertainment/news/la-et-book-20100922,0,6726065.story
 

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Mate this is a very nice blog here. I wanted to comment & say that I enjoyed reading your posts & they are all very well written out. You make blogging look easy lol I’ll attemp to start a blog later today and I hope it’s half as good as your blog! Much success to you! Gebyarbola.com Sbobet
 

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