It Takes a Theory to Beat a Theory

Having my ideas about what Americans should be looking for in the next Supreme Court Justice discussed and carefully criticized by Professor David Strauss, Professor Barry McDonald, and Ed Whelan is an honor, and I am confident that our subsequent exchange will be illuminating and highly enjoyable. I cannot hope to engage with all of the substantive points raised in the initial round of responses to my essay, but I will do what I can.

I will begin with Professor Strauss’s response. Strauss presents my call for judicial engagement as a somewhat naive effort to instantiate libertarian political ideals by judicial fiat without doing the hard work of convincing my fellow citizens that those ideals ought to be instantiated. Damning, if true—but Strauss cannot prove his case. Nor does he offer any alternative theory of constitutional adjudication. By criticizing his critique, I hope to clarify my position and inspire him to articulate a theory of his own.

Strauss begins by situating judicial engagement in the context of a “libertarian conservative” movement that, having been disappointed by the results of the “judicial restraint” that conservatives once called for, is now coming around to the idea that “maybe judges aren’t so bad after all.” Of course, Strauss and I both come to the study of the Constitution with our own political and moral convictions, as indeed everyone does. Discourse about the Constitution would be impossible if we could not identify and define legal principles that are somehow distinguishable from those convictions. If Strauss is implying that judicial engagement really does not have much to do with the Constitution and a great deal to do with “libertarian principles” that I believe ought to be implemented, regardless of what the Constitution has to say about the matter, one would expect him to explain why he believes this to be so.

He does not. Strauss does not take issue with my claim that Article III’s authorization of “[t]he judicial power” imposes a duty upon judges to exercise independent, unbiased judgment in accordance with the “supreme law of the land” ; he does not dispute my characterization of the constitutional function of our independent judiciary (“guard[ing] the Constitution and the rights of individuals”); he does not rebut my argument that, although the Constitution does not specify any particular degree of judicial deference to the other branches of government (or lack thereof) in constitutional cases, judicial engagement equips judges to discharge their duty of independent judgment and enables the judiciary to perform its constitutional function. (Ed Whelan, drawing upon the work of Professor John McGinnis, seems convinced that the Constitution does command a particular degree of judicial deference—I will explain why I believe that he and McGinnis are wrong in a separate response.)

Nor does Strauss even take issue with my description of our current jurisprudence. I have claimed that numerous doctrines of judicial deference fashioned by the Supreme Court that are applicable in consequential areas of law require judges to abdicate their duty of independent judgment and allow Americans to be wrongfully deprived of their liberty, their property, and even their lives. I have claimed that immunity doctrines that insulate government officials from civil liability when they violate constitutional and statutory rights undercut the supremacy of the law and have created a status quo of rights without remedies. I have argued that the default rule of constitutional review—the so-called “rational-basis test”—that is applied in most constitutional settings has been interpreted to require those who would challenge legislation to perform the logically impossible feat of proving that there is no conceivable basis that might support that legislation—even a basis for which there is no evidentiary support—if they are to prevail.

Instead of denying that my description of our current jurisprudence is accurate, or defending that jurisprudence, or articulating a theory of constitutional adjudication of his own, Strauss attacks a straw man. He seems to believe that the case for judicial engagement rests upon the proposition that judges can be transformed into automatons who reliably churn out correct answers to difficult constitutional questions involving complex facts. Thus, while he admits that judicial engagement sounds great as “prescription for an all-knowing, all-wise judiciary,” he claims that I am in the grips of the “Nirvana fallacy”—that I am comparing an actual regime that is imperfect in various ways with an unattainable alternative.

But the case for engagement does not depend upon the proposition that any theory of adjudication can produce infallible constitutional enforcement. It rests instead on the propositions that 1) judges are capable of engagement; 2) engagement equips judges to discharge their constitutional duties and enables the judiciary to perform its constitutional function; and 3) where they apply, the doctrines that I have criticized prevent judges from discharging their duties and the judiciary from performing its constitutional function.

We know that proposition 1 is true. As I noted in my initial essay, judges routinely engage in evidence-based efforts to assess the constitutionality of the government’s true ends and means in cases involving a handful of rights that the Supreme Court has identified as “fundamental” on a largely ad hoc basis or which involve “suspect classifications.” Heightened scrutiny, whether intermediate or strict, has all of the hallmarks of what I am calling judicial engagement—that is, judges seek to identify whether the government’s actions are actually designed to achieve a constitutionally proper end (or ends); they do not take the government’s assertions concerning its ends at face value or accept unsupported factual assertions; and they evaluate the fit between the government’s purported ends and its choice of means by scrutinizing record evidence. As I noted in my initial essay, we can also find those hallmarks in a number of cases in which the Court has said that it is applying the rational-basis test. I have made my case for positions 2 and 3 as well; Strauss has yet to meet it.

Of course, if we had reason to believe that judges would consistently arrive at the wrong answers if they took the approach that I advocate in every constitutional case, rather than broadly deferring to the government in all but a few contexts, the case for engagement would be weak. But Strauss does not give us reason to believe that judges are so incompetent.

Strauss points to what he describes as the “characteristic weaknesses” of the judicial process—its passivity, its dependence upon parties bringing lawsuits to “make the appropriate arguments,” its insulation from majoritarian politics. Yet when one considers the peculiar function of the judiciary—again, enforcing the Constitution and thereby safeguarding individual rights—these are not bugs but features. Precisely because judges are passive—because they do not participate in the creation of the enactments under their review, have not represented to the public, either implicitly or explicitly, that those enactments are constitutionally sound, and must wait for cases to be presented to them—their evaluation of those enactments is more likely to be impartial than that of the officials whose activity produced those enactments. Precisely because only certain kinds of arguments are appropriate in constitutional litigation, judges are more likely than legislators to concentrate on whether those arguments—and only those arguments—are persuasive. Precisely because Article III judges are relatively insulated from majoritarian pressures, they are less likely than legislators to take majorities’ views of the rights of individuals.

Strauss also suggests that “complicated normative issues” like, say, “what the legitimate ends of government are,” are “ordinarily entrust[ed] to the political process.” But surely Strauss would not deny that the Constitution takes a stand on a variety of complicated normative issues. One struggles to think of landmark constitutional cases that do not involve complicated normative issues—a number of them involve the legitimate ends of government. It certainly seems appropriate for those with legal expertise and a duty to decide cases brought before them in accordance with the Constitution to speak to those issues. Indeed, I would go further. Because judges receive tremendous discretionary power over their fellow citizens in exchange for promising to “support this Constitution,” they are both morally and legally bound to give effect to the Constitution’s normative commitments. To borrow a concept from noted contracts scholar Professor Steven Burton, judges must  forego the opportunity to act on the basis of considerations extraneous to the law—their own aversion to grappling with hard, value-laden questions being among such extra-legal considerations—and they must not seek to recapture that opportunity. To the extent that they shy away from controversy, judges betray our trust and leave us vulnerable to abuses of legislative and executive power.

To be sure, there is intense disagreement about when the Constitution does take a stand on normative issues. I do not claim that judicial engagement is sufficient to equip judges to discharge their constitutional duties. Judges need a methodology of constitutional interpretation that equips them to accurately ascertain what the Constitution means as well as a framework for assigning the burdens of producing evidence and persuading the court concerning the merits of constitutional claims between the parties, specifying those burdens, and determining whether those burdens have been carried. As Ed Whelan notes, I have defended originalism on the grounds that it equips judges to accurately ascertain the meaning of the Constitution and thereby maintain the rule of law that the Constitution is designed to establish. But to the extent that judges uphold enactments if challengers have not demonstrated that there is no conceivable basis for believing that those enactments are consistent with the Constitution’s original meaning, originalism’s capacity to maintain the rule of law in practice will be thwarted. Judicial engagement is necessary if one wants consistent and effective constitutional enforcement of the Constitution’s meaning—whatever one believes that that meaning consists in or how one can best ascertain it.

Upon examination, then, Strauss’s effort to paint judicial engagement as a libertarian power play is unsuccessful. He fails to demonstrate that engagement is unmoored from the law; he fails to refute the propositions upon which the case for engagement as a means of constitutional enforcement depends; he fails to articulate an alternative theory of adjudication that would better equip judges to discharge their constitutional duties than that which I have put forward. To return to the initial question that I posed: How should the next Justice adjudicate? I look forward to Strauss’s answer.

Also from This Issue

Lead Essay

  • The Supreme Court Needs a New Judicial Approach: The Case for Judicial Engagement by Evan Bernick

    Evan Bernick makes the case for what he terms judicial engagement: If it is true that the federal judiciary serves to safeguard the rights of individuals and the basic structure of the Constitution, then judges will necessarily have to disagree at times with Congress, and those disagreements will necessarily mean that laws are struck down, perhaps often. Independent judgment, and an independent judiciary, requires nothing less. Bernick addresses some progressive and conservative arguments for judicial deference and finds them lacking; he commends an engaged and active judiciary to conservatives who want to protect economic liberties more strongly.

Response Essays

  • The Name Game by David A. Strauss

    David A. Strauss argues that “judicial engagement” is little more than a buzzword. The political branches of our government can and do fail, but so does the judiciary, and we are not to imagine that somehow a perfected judiciary will one day come along and set everything in its proper place. Like all institutions, the courts have a design and a function that is particularly their own, and this necessarily entails certain institutional features, including institutional failings. Liberals and conservatives alike have watched as the Supreme Court issued rulings that one side or the other did not like. But the problem is not so much whether the Court does too much or too little. Rather, some coherent and defensible judicial philosophy must be found, and when it is, judges should be active, or not, in response to it.

  • The Case for Judicial Disengagement… Except Where Appropriate by Barry P. McDonald

    Barry P. McDonald argues that, properly understood, judicial restraint should be praised. In a democracy, unelected judges’ roles are to be narrow, and they must act only with a clear constitutional mandate. When room for reasoned disagreement exists, we already have a method in place to settle it: That method is the ballot box, because legislatures are better than judges at making complex, often discretionary decisions about economic and social policy.

  • Let’s Break Off the Engagement by Edward Whelan

    Edward Whelan argues that the real question concerns constitutional originalism, not activism or restraint. What matters is how we answer the question of what the Constitution means, because the answer to this question will (or at least should) determine whether any particular law is allowed or forbidden. Whelan charges that “judicial engagement” means nothing more than libertarian judicial activism, and amounts to an attempt to smuggle in libertarian policy preferences that would otherwise be unacceptable.