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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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
How Realist Should the Court be About the Other Institutions of National and State Government?
This is a somewhat modified cross-post from the Election Law blog:
I have recently
come to the view that the issue of what I call
“institutional formalism versus institutional realism” is one of the most profound and pervasive ones in all
of constitutional and public law. This issue is at the bottom of how the Court
does or should review the actions of other institutions of national and state government. Because the issue comes up regarding almost any public institution, it arises through much of what the Court does: whether the Court is reviewing actions of Congress, or the President, or federal agencies, or state legislatures, or state courts. The issue is whether the Court should take into account its own view of
how other institutions “realistically” actually function or whether the
Court’s decisions should rely only on the formal legal powers other
institutions have, without regard to how they are likely to exercise (or
fail to exercise) those powers in fact?
A perfect recent example is the McCutcheon decision. The majority in McCutcheon invokes the fact that other
institutions — namely, Congress and/or the FEC — have the power to fill
any regulatory gaps that might emerge from the Court’s striking down the
aggregate contribution limits. In turn, some critics of the decision excoriate
the Court for invoking the power of Congress or the FEC to act, based on
what I call the “institutionally realist” view that it is unlikely that
either a polarized Congress or gridlocked FEC will in fact do anything; indeed, these condemnations sometimes suggest the majority is being disingenuous -- as if it is obvious the Court should take this realism into account. But the real, underlying question is should McCutcheon – and
cases like it — be decided differently based on the Court’s judgments
of “political realism” about how the political branches and regulatory
agencies are likely to respond?
Once we recognize how pervasive this issue is across different areas of
constitutional law, the depth and complexity of this
“realist/formalist” tension become more fully apparent. I have recently tried to capture this issue, at least as a first cut, in Institutional Formalism And Realism in Constitutional and Public Law, forthcoming in The Supreme Court view, here. Here is the abstract:
Constitutional and public
law often entail judicial review of the actions of public institutions.
In engaging in this review, courts can adopt a stance of either
“institutional formalism” or “institutional realism” regarding how the
institution in question functions. After defining those terms, this
article argues that the tension between institutionally formalist and
realist approaches is a pervasive one, even if obscured or latent,
throughout the constitutional and public law of institutions. We cannot
understand these bodies of law fully without recognizing this fact. Many
scholars in discrete areas of law can be understood as grappling with
this tension in some form. But we have not appreciated how profound this
institutional issue is, nor how it transcends specific areas of law to
stand as one of public law’s general, defining problems.
This formalist/realist institutional tension structures public-law
doctrine and debates regarding judicial oversight of virtually all the
institutions of governance. As this article demonstrates, that is so for
judicial review of the actions of Congress, the President, federal
administrative agencies, state legislatures, and state courts. After
developing this framework, the article applies it to the Supreme Court’s
Shelby County decision, in which the Court struck down part of the
Voting Rights Act, and shows that the case hinges on how formalist or
realist the Court ought to be regarding Congress.
The general struggle in how the law should conceive public
institutions can be seen as the modern successor to the early 20th
century tension between formalist and realist approaches to the
substantive content of legal concepts, categories, and doctrines. Now,
the tension between institutional formalism and realism re-raises the
question of how much pragmatism – this time, at the level of
institutions and processes – is compatible with certain conceptions of
the rule of law. Focusing more directly on this tension illuminates
public law and its controversies but cannot suggest that any final
resolution is available. Yet to understand public law fully requires
appreciating the powerful role this tension quietly plays.
Let's be realists ourselves. The 5 right-wingers on the Court don't make their decisions based on principles of legal interpretation. Their decisions are based on political ideology and/or the identity of the parties. Their opinions are justifications, not explanations, for the pre-determined result.
"ndeed, these condemnations sometimes suggest the majority is being disingenuous -- as if it is obvious the Court should take this realism into account. But the real, underlying question is should McCutcheon – and cases like it — be decided differently based on the Court’s judgments of 'political realism' about how the political branches and regulatory agencies are likely to respond"
Is there anyone outside of Volokh arguing that the Court's majority is not being disingenuous? Roberts, Scalia, Alito and Thomas are political actors. Kennedy does live in some apparent world of unicorns and candy canes, but the other four have made arguments in the last 5 sessions which declare segregated schools to be the goal of Brown, a voter initiative declared invalid while another is valid, a Taney-esque concept of equality amongst states, the attempted evisceration of the Commerce Clause, combined by saying the Feds can't put strings on their money.
These are political actors, as always, whose pleas to legal formalism are absurd.
I get that academics like to keep every nice and not say mean things, but, Jesus, this is the Internet, let your freak flag fly.
After all, anyone who tells you that segregated schools are the intent of Brown loses all right to complain about being insulted
underlying question is should McCutcheon – and cases like it — be decided differently based on the Court’s judgments of 'political realism' about how the political branches and regulatory agencies are likely to respond"
Volokh arguing that the Court's majority is not being disingenuous? Roberts, Scalia, Alito and Thomas are political actors. Kennedy does live in some apparent world of unicorns and candy canes, but the other four have made arguments in the last 5 sessions which declare segregated schools to be the goal of Brown, a voter initiative declared invalid while another is validElo Boost lol代练价格 fifa coins cheap fifa 14 coins