Thursday, June 27, 2019

The Census Decision: Institutional Realism, Institutional Formalism, and Judicial Review

Rick Pildes

Today’s decision in the Census case is a powerful example of what I call an “institutionally realist” approach to judicial review of executive branch action.  The Court not only probed deeply beneath the surface of the formal administrative record, which it rarely does, to conclude that the administration’s justification for the citizenship question was “contrived” and pretextual.  In various other ways, the Court concluded that the “unusual circumstances” of the case warranted the approach the Court was taking.  For example, the Court also concluded that, even though the district judge was wrong to permit discovery outside the record at the stage he did so, it turned out after the fact that there were good reasons for doing, and the Court was therefore willing to rely on the information generated in this way.  That the stakes are far higher regarding the Census than ordinary administrative law issues undoubtedly played a major role in why the Court was willing to approach the case as it did.  The “unusual circumstances” that justified a more aggressive application of administrative-law doctrines were thus a realistic recognition of the (1) magnitude of the issues and (2) the signs that there was nothing regular about the processes that led to the Commerce Department’s decision. 

I want to put this way of looking at the Census decision in a larger context concerning how courts review the actions of governmental institutions more generally.  Back before the Trump administration was a gleam in the eye of American politics, I wrote an article called Institutional Formalism and Realism in Constitutional and Public Law.  I mention when the piece was written to indicate that it was not written (or gerrymandered) for the Trump administration.  But I think it frames the central, underlying issue the courts confront in reviewing many of the actions of the Trump administration, including in today’s Census case.  

The central idea of Institutional Formalism and Realism is  that, when courts are called up to judge the actions of other governmental institutions or actors, they implicitly confront a choice about whether to adopt a more formalist or more realist stance towards the institution or actor involved.   When courts are institutionally formalist, they treat the government institution involved largely as a black box, to which the Constitution (or other sources of law) allocate specific powers or functions.  In this mode, courts do not open up that black box to attempt to make more realist assessments of what underlies the way those institutions exercise their powers at any particular moment in time, or how those institutions might function differently in different eras.  

This is reflected in doctrines like “the presumption of regularity,” which courts ordinarily apply in reviewing agency action – and which Justice Thomas relies heavily on in his critical dissent today.  Institutional realism entails the opposite stance:  in assessing the legality of government decision-making, courts do take into account their judgments about how specific institutions are actually functioning (or failing to function) at particular moments in time.  

After identifying this tension between more formalist and realist views of other institutions, I wanted to make three main claims about that tension:  (1) when we look at actual judicial practice, across all the central areas of public law, we see that courts sometimes adopt more formalist approaches and sometimes more realist ones – this is true regarding judicial review of the actions of state courts, state legislatures, Congress, federal agencies, or the Presidency; (2) given how pervasive both formalism and realism are across all these areas, we cannot say that one approach or the other is inappropriate, at least as a matter of our traditions of judicial review; (3) there are no meta-rules in practice, or probably even in theory, that can identify when it is appropriate for courts to be more institutionally formalist or realist.  This is one of the reasons that sharp conflicts sometimes emerge within the Court in controversial cases:  one side implicitly embraces an institutionally realist approach, the other a more formalist one.  And there is no good generally-accepted way of adjudicating between these approaches.  In other words, there is no way of reaching closure on this tension.  Today’s conflict between majority and dissent is a perfect illustration of this, with Justice Thomas insisting that the Court should be applying a presumption of regularity and the Court not doing do.  The conflict is not just about the specific details of the case, but about the more general question of whether it is appropriate for courts to be institutionally formalist or realist.

My claim is that this conceptual framework provides the most comprehensive way of understanding the issues courts have confronted during the Trump administration and the way the courts have responded.  Today’s decision is just one example.  A similarly vivid expression and recognition of this tension between more formalist and realist approaches is reflected in the Court’s opinion in the travel-ban case, when Chief Justice Roberts notes that, in reviewing that ban, the Court “must consider not only the statements of a particular President, but also the authority of the Presidency itself.”  This is a statement of a more institutionally formalist approach to judicial review.  

There are some contexts in which institutional realism is broadly accepted.  The creation of “hard look” review of agency action after the 1960s clearly reflected a change in the courts’ understanding of how agencies functioned – a shift from the earlier view that agencies were apply independent expertise to a view of the risk that agencies could be captured by the regulated actors they were designed to oversee.  So too, federal court oversight of the actions of state courts was different in the era of the Jim Crow South than in more recent times.  There are also different forms that institutional realism might take.  For example, courts might limit it to when there are formal changes in the rules that structure the design of an institution – such as the Senate before and after Senators became directly elected.  Or, perhaps more controversially, courts might also take into account significant changes in the way an institution actually functions, even if it has not formally changed.   

Today’s Census decision, and the conflict between Chief Justice Roberts and Justice Thomas’ dissent, nicely illustrates how strongly this tension between institutional formalism and realism underlies major Court decisions.  But the tension is pervasive and inescapable. 


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