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.