Posner - A Political Court

7/24/2019 Posner - A Political Court

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THE SUPREME COURT

2004 TERM

FOREWORD:

APOLITICAECOURT

Richard A. Posner

The notion that the genuine valuesofthe people cati most reliablybe

discernedby a nondemocratic eliteis sometimes referred to in the litera-

ture

as

the Fuhre r principle. and indeed

it

was A dolph H itler who said

tha t [m]y pride is that I know nostatesman in theworld whowith

greater rigbt tban

I

can

say he is the

representative

of

his people.

We

know, however, that this is not an attitude limited to rightwing elites.

The Soviet definition

of

democracy,

as

H.B . Mayo has written, also

in-

volves the ancient error ofassuming tha t the wishesof the people can

be ascertained more accurately bysome mysterious method sofintuition

open to anelite rathe r than by allowing people todiscuss and voteand

decide freely. Ap parently moderates are not imm une either.

John Ha rt Eiy^

S

cholars discuss thework of theSupreme Cou rt in two different

ways.

Th e less comm on isthatofsocial science, with itsemphasis

on positive rather than normative analysis,

its

refusal

to

take

at

face

value the official expla nation s forjudicia l p hen om ena profferedby

insiders in a word, itsrealism. To a social scientist, or to a law

professor orother jurist who is imbued with thesocial-scientificap-

proach,

the

Supreme Court

is an

object

of

observation rather than

of

venerationorcon dem nation . Th e social scientist asks, w itho ut preco n-

ceptions drawn from theprofessional legal culture , why the C ou rt de -

Judge, United States CourtofA[)]ealsforthe Seventh C ircuit; Senior Lecturer, Univ ersity

of Chicago Law School. I than k Lindsey B riggs, Paul Clark, Sarah Fackrell. Me ghan M aloney,

and Amy Moffelt fortheir very helpful research assistance; Scott Hem phillforinsightful discu s-

sionofthe suhject; and Hem phill, Ward F arnsworth, Dennis Hutchinson, and Cass Sunsteinfor

helpful comments onaprevio us draft. Section TILL)ofthis Forew ord drawsinpart on my article

No Thanks, We Already Have Our Own Laws: The Court Should Never View Foreign Legal De-

cision as a Precedent

in

Any Way,

LEGAL

AFF. .

July-Aug. 2004.

at

40 .

1

The Supreme C ourt, igjf Term

Forewo rd: On Discovering Fu ndamental Values,

92 H A R \ ' .

L . R E V .5, 51 (1978) (alteration in original) (footnotes omitted) (quoting A L A N B U L L O CK ,


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O O J THE SUPREME COURT FOREWORD 33

cides casesasitdoesandintheforminwhichitdoes (long, scholarly

opinions, etc.),and wha t the consequences ofthe decisionsare.The

inquiry delves into such matters

as the

ideology

and

temperament

of

particular Justices; the appo intmen ts process; the C ou rt 's caseload,

procedures,andstrategic interactions with C ongressand other partsof

government; ' ' behavioral modelsofjudges;'*theinfluence ofthe Zeit-

geist

on judicial decisions;and critically thenatureand strength

ofthe constraints that operateon theJustices. Thegoalisnotonlyto

understand judicial behavior atthe Supreme Court level,butalsoto

unders tand

the

consequences

of

tha t behavior

for

example,

to

esti-

matehow the crime rate,thenumberofpeopleinprison,and theinci-

dence

of

error

in the

criminal process w ould

be

different

had

the Su-

preme Court decided landmark criminal cases, such as Gideon

v.

Wainwright^

or

Miranda

v.

Arizona/

in favor ofthe government,or

howour politics would differ iftheCour thad notenteredthe legisla-

t ive reapportionment thicketin cases suchasBaker v. C arr~and

Wes-

berry

v.

Sanders.^ An interesting recen t literatu re, written from adi-

versity of political perspectivessurprisingly, ma inly from theLeft

asks thedisquieting question wh ether the netbenefits of federal

constitutional law are positive, including the subsumed question

whether constitutional

law has

really made much

of a

difference

inthe

nation's policies, values,

and

practices.^

The other wayin which todiscuss theCo urt 's work and the

way more familiartolawyers,law professors,andjudges istosub-

ject it tonorm ative analysis condu cted from within the professional

For

a lucid summar>-of

the

literatureon

the

Supreme Court's strateg>-ininteracting with

Congress

and

the

President,

see

KENNETH

A.

S H E P S L E

MARK

S.

BONCHEK, ANALYZING

POLITICS: R A T I O N A L I T Y , BE H A V I O R , A N D I N S T I T U T I O N S 422-28 (1997).

See e.g.. R I C H A R D

A.

P O S N E R , O \ ' E R C ( ) M I N G

LAW 109-45 ('995);

S H E P S L E

Box-

CHEK,

supra

note

3,

at405 -31 .

s 372U .S. 335 (1963).

*>

384

U .S. 436 (1966).

'

369

U.S. 186(1962) .

8 376U .S. 1(1964).

*

See

e.g. ROBERT H.BORK, SLOUCHING TOWARDS GOMORRAH: MOD ERN LIBER-

ALISM AND

A M E R I C A N D E C L I N E

117-18 (1996);

L A R R Y

D.

K R A M E R ,

THE

P E O P L E T H E M -

SEL\'t:s:

P O P U L A R C O N S T I T U T I O N A L I S M

AND

J U D I C I A L R E V I E W

227-48 (2004);

R I C H A R D

D.

P A R K E R , H E R E ,

THE

P E O P L E R U L E : A C O N S T I T U T I O N A L P O P U L I S T M A N I E E S T O s i -

n s (1994); MARK TU SHNE T, TAKING

THE

CONSTITUTION AWAV FROM

THE

COURTS

IS4-

76 (1999);

J E R E M Y W A L D R O N ,

L A W A N D

D I S A G R E E M E N T

255-81 (1999);

J.M.

Balkin

San-

ford Levinson,

The Canons

of

Constitutional Law.

i n

HARV. L.

R E V .

963,

1003-06 (1998);

Mi-


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34 HARVARDLAW REVIEW [01.119:31

culture. ^

The

analyst praisesorcondemns par t icular doctr ines or

de-

cisions,or thereaso ns offered forthem by theCo urt (textual, h istori-

cal,

pragmatic,

and so

forth)

more often condem ns them , arguin g

that they aremistaken, unsound mo re precisely, th at they are

mis-

takes of

law,

that theCo urt simply got the lawwron g. Th is typeof

Supreme Court scholarship is a branch of rhetoric oradvocacy a

continuation ofbrief w riting andopinion writing byother means

but it is not wholly unrelated to the first type, the social-scientific

study of constitutional

law.

Thebehaviors andconsequences that a

nondoctrinal perspective brings tolight can be,orcan explain, things

the normative analyst deplores {more rarely approves). Soif, likePro-

fessor Henry Hart

in his

famous Foreword, '^

you

thought

the

Cour t

was making frequent legal errors,you might attr ibute thistostructural

conditionstotheoveruseof summary reversals ' or,asH art himself

believed, to an excessive workload

the

excess being

due

inpar t to the

Court 's proclivityforgranting certiorari inun imp ortan t cases).

M y aimin this Foreword is to berealistic, thoug h w ithou t hew ing

closelyto anypa rticu lar social-scientific me thodolo gy; in deed, I shall

perforce relyto adegreeonthat most du biousofmethodologies, intro-

spection specifically, on theimpressions tha t I have gleaned from

being a federal appellate judge for thelast twenty -four years. I shall

argue that, viewed realistically,

the

Supreme Court ,atleast m ostof

the

time, when it isdeciding constitutional cases is a political organ,and

(confining myself tocon stitutional law)I shall develop some implica-

tions of this view, drawing in par t on earlier Forew ords, such as

Har t ' s .

Par t I presents statistics that bear on twoissues: thetendencyof

the Court tobeh ave legislatively and theperception of

the

Cour tas

an increasingly con stitution al court. Pa rt II presents myma in thesis,

which is that to theextent theCour t is a constitutional court, it is a

politica] body.

I

distinguish there between

two

forms

of

political j ud g-

ing,the aggressive andthe modest ; mypreference is for thelatter.

Par t IIIexamines several alternatives tothe political conception ofthe

Cour t :

the

Cour t

as

expert adm inistrator,

the

Cour t

as

institutionally

constrained tobehave in a lawlike manner, theCour t as moralvan-

guard, and theCour t as a cosmopolitan court searching for interna-

tional legal consensus. The first twoalternatives aredescriptivelyin-

'

The

skeptical works cited

in

the

preceding footnote,

all

by

lawyers, straddle this divide.

For

an important skeptical work

by a

political scientist, see GERALDN. ROSENBERG, THF. HOL-


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2 0 0 5

THE

SUPREME COURT

FOREWORD 35

accurate;

the

latter

two are

aggressively political app roac he s covered

by

a

veneer

of

legal reason ing. Pa rt

IV

discusses, with reference

to

several recent cases, the Court 's potential to be a pragmatic decision

maker

of the

"mo dest" kind introduced

in

Par t

II.

I. W H A T THE S T A T I S T I C S S H O W

Henry Har t was a pioneer in relating caseload tooutpu t. Otherin-

teresting correlations

are

possible.

One

might,

for

example, relate

the

length

and

superficial erudition

of

today 's Supreme Co urt opinions

to

the increased ratioof lawclerkstoJustices '^and to thepracticeof hir-

in g

as law

clerks only individuals

who

have previou s professional

ex-

perience, usually

as

clerks

to

lower court judges, enabling them

to

write opinions more fluently.

But let me

stick

to

caseload

and

note

the

extraordinary growthin theratioof lower court to Supreme Courtde-

cisions. That ratio

has

reached

a

point

at

which

it is no

longer feasible

for

the

Cour t

to

control

the

lower courts

by

means

of

narrow, case-by-

case determ inations

the

patient, incremental method

of the

common

law. Instead, it must perforce actlegislatively.'*

The number

of

decisions reviewable

by the

Supreme Court

is

grow-

ing;

the

number

of

decisions reviewed

by the

Cour t

is

declining.

In

2003,

the

federal Courts

of

Ap peals decided 56.396 case s, ' ' co mp ared

to only 3753

in

1959."^ State courts

of

last resort decided more than

25,000 cases

in

2002 , ' '

an

unknown

but

proba bly substan tial percent-

age of which presented a federal question, if one mayjud ge from the

fact that

13% of

state supreme court decisions

in the

late 1960s

when consti tutional

law was not yet

ubiquitous

presented questions

'^ Until 1947, each Justicehadonlyoneclerk (thoughI am told th atin the ig47 Term Chief

Justice Vinsonhad twoclerks).

See

RiCHARt)A.PoSNER,THE F F . D K R A L COURTS: CHAL-

LENGE AND R E F O R M 139 (1996), Ea chisnow entit ledtofour.

^ As wasremarked disapprovinglyin a recent article,"theCour thascast itselfin an 'Olym-

p ian '

role announcing rulesandstanda rds from onhigh." Carolyn Shap iro,TheLimits ofthe

Olympian Court: Common Law Judging Versus Error Correctionin theSupreme Court,63 WASH.

& LF.E

L.

REV. (forthcoming Winter 2006) (manuscript

at

3 ,

on

file w ith

the

Harvard

Law

School

Library)

(cit ing Arthu r

IX

Hel lman.The

Shrunken Docket

of

the Rehnquist Court,

1996 SUP. C T

R E V .

403,403).

IS ADMIN. OFFICEOFTHE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES

COURTS: 2003 A N N U A L R F . P O R T O FT H E D I R E C T O R 70 tb -B (2004) {hereinafter 2003

A N N U A L R E P < 3 R T J ,

available at

http://www.uscourts.gov/judbus2oo3/contents,html.

i'

A D M I N . O F F I C E

OF THE U.S.

C O U R T S ,

1959

A N N U A L R E P O R T

OF THE

D I R P X T O R

170

tbl.B-i (i960 ) (hereinafter 1959 ANNUAL REPO RT]. I use 1959 and 2003 data (thesearefiscal,

no t calendar, yearsJuly i, 1958, through Ju ne30. I Q 5 9 .andOctober i, 2002. through Septem-


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36

HARVARD LAW REVIEW

[Vol. 119:31

concerning the constitutional r ights

of

criminal defend ants. '^ State in-

termediate appellate courts decided more than 130,000 cases

in

2002 ,'^

some unknown fraction

of

which w ere final decisions th at prese nted

issues

of

federal

law and

therefore were also review able

by the

U.S.

Supreme Court .

If one assumes, very conservatively, that the total number

of

deci-

sions reviewable

by the

Supreme Cou rt

was at

least 75,000

in

2003

(remember that there were more than 55,000 federal appellate deci-

sions alone that year), then since certiorari wasgranted in only87

cases,2o the percentage

of

final decision s poten tially e ligible

for

review

that the Supreme Court did review was only 0.12%. N o correspo nding

figure

is

available

for

i960 because the number

of

state co urt decisions

reviewablebythe Co urt then isunknown. But it ispossibletocom-

pare

the

percentage just

of

federal cou rt cases

in

which

the

Cour t

granted certiorari

in

2004 0.11% (64 divided

by

56,396) with

the

corresponding percentage

in

i960

1.6 (60

divided

by

3753).^'

This means that the Court reviewed,

in

relative t erm s, almost 15 times

as many federal court cases

in

i960

as in

2004.

These figures

are

p otentially

a

little misleading because many

of

the cases terminated

in the

federal Co urts

of

Ap peals are n ot even

re-

motely plausible candidates

for

further review

they were consoli-

dated, or abandoned , or dismissed because of obvious jurisdictional

defects.

If

attention

is

confined

to

cases th at the Ad m inist rativ e Office

of the U.S. Courts classifies

as

term inated on the m erits or (the corre-

sponding, though not identical, classification

in

1959) after hea ring

or

subm ission, the figures

of

56,396 a nd 3753

in

the preceding parag raph

shrmk

to

27,009 and 2705, and this adjustm ent changes the percentag e

of federal courtofapp eals d ecisions reviewed by theSupreme Cou rt

18 eeRober t Kagan

et

al.,

The Business

of

State Supreme Courts 1870-1970 30

STAN

L

R E V . I Z I ,

147 n.63 (1977),

'9 eeSTRICKLAND,

supra

note 17,at 105 tbl. i . The com parable figures for [960are un-

known;

the

earliest year

for

which near ly complete figures

are

available

is

1981,

and the

totals

that year were 50,737 decisions bystate courtsof last resort a nd 100,305 bystate intermediate

appellate courts. ee BUREAU OFJUSTICE STATISTICS, U.S.

D E P ' T

OFJUSTICE , S lATE

C O U R T C A S E L O A D S T A T I S T IC S , 1977 TO 1981. at 5 tbl.3 (1983),

2

The Supreme Court 200J Term The Statistics 118

H A R\ - .

L .

REV .

497, 505 (2004). Cas es

in which the Court either granted certiorari and simultaneously reversed

or

remanded

for

further

consideration inlightofon eofits recent decisions th at is, cases thatdid notreceive plena ry

consideration are excluded.

^1

For the

total num ber

of

federal appe llate decisions av ailable

for

review

in

2004,

see

2003

ANNUAL

R E P O R T,

supra note 15.at70 tbl.B. For the total numberoffederal ap pellate decisions


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2005]

7-//^

SUPREME COURT FOREWORD

3 7

from 0.1 3% and 1.7% to 0.27% a nd 2.4%. ^ N everth eless the differ-

ence remains striking: the Court decided, in relative terms, almost nine

times as many cases in ig6o as in 2004.

The Court has long emphasized that it is not in the business of cor-

recting the errors of lower courts; cases that come to it have already

had at least one tier of appellate review, which should be enough to

reduce th e error rate to a tolerable level. It is plain from the sta tistics

in the preceding paragraph that the Court is indeed out of the error-

correction business, and this is a clue to how far it has departed from

the conventional model of appellate adjudication, and should prepare

us to acce pt its basically legislative character. In princip le, the C ou rt

could be making law the common law way, which is a form of legislat-

ing bu t of a type remote from h ow legislatures proceed. B ut then it

would have little control over the development of the law because it

would be providing, owing to the paucity of its decisions, very limited

guid ance to lower co urts. So the Co urt tries to use the few cases that

it agrees to hear as occasions for laying down rules or standards that

will control a large number of future cases and thus allow the Court to

turn its atten tion elsewhere.^* It is true th at the C ou rt cann ot alw ays

tidy up a field by announcing a crisp rule or standard, either because

of an inability to agree on one or because it would be impolitic to regu-

late so broad ly. I will illus trate bo th possibilities in the last P ar t of this

Foreword with reference to the Ten Commandments decisions of last

Term. -* Bu t more comm on are such rule-im posin g decisions as Roper

V. Simmons^^ and United States v. Booker^^ from last Term, which I

shall also discuss.

The declining ratio of Supreme Court to lower court decisions may

have another effect that of feeding the widespread but inaccurate

perception that a majority of the cases that the Court decides nowa-

days are con stitution al cases. Figu re i reveals th at the percen tage of

Supreme Court cases that are primarily constitutional, although high,

has not exceeded 50 % in recent yea rs. In fact, the C ou rt is deciding a

^2 For the total number of federal appellate cases decided on the merits in 2003, see 2003

A N N U A L

R E P O R T ,

supra

note [5, at 34 tbl.S- i. For the num ber of federal appellate cases dis-

posed of 'after hearing or subm ission in 1959. see iy59 A NNU A L R E I 'O K T , supra note 16, at 170

tbl .B- i. Cu tting the other way, however, is the fact that ihe Supreme Co urt 's certiorari jurisdic-

tion with respect to federal cases is not limited to final decisions, as it is with respect to state court

decisions.

Compare

28 U .S.C . 125 4(1) (200 0). li'i/fc

id .

i257(a).

5

Se e

Frederick Schauer.

Freedom o f Expression Adjudication in Europe and the U nited

States: A Case Study in Com parative Constitutional Architecture in

E U R O PE A N A N D U .S .


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HARVARD LAW REVIEW

[Vol. 119:31

smaller percentage of constitutional cases today than it did in the late

1960s and early 1970s.

F I G U R E I . P E R C E N T A G E O F S U P R E M E C O U R T C A S E S

T H A T A R E P R IM A R IL Y C O N S T I T U T I O N A L ,

1955-2003 T E R M S

1

S

S

E

R

C

E

N

T

^

2

8

7

6

SO

4

3

2

1

195 195si96 1965 197 197sI9S 1985 199 19952 2 5

TERM

The impression that the Court is primarily a constitutional court

may be due to the fact that constitutional cases draw more attention

than statutory ones. They do so because on average they are more

consequential, since Congress can override a nonconstitutional decision

just by passing a statute (not that irrevocability is the only dimension

of consequentiality), and also because tbey are more controversial even

within the Court. Last Term, 80% of tbe Court's primarily constitu-

tional decisions were by spht vote, compared to 63% of its other deci-

sions, **

and a split decision is more likely to attract attention than a

unanimous one, in part by generating more and more contentious

^' Da ta for this figure are draw n from the Ubles entitled Subject M atter of Dispo sitions with

Full Opinion s in the Harvard Law Review No vem ber issues for 1955 thro ug h

2003.

See, e.g..

The Supreme Court, 2002 TermThe Statistics, 117 H.^RV. L.

R K \ .

480. 489 tbI.III (2003).


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2005] ?//

SUPREME COURT FOREWORD

39

opinionsin thecase. Although only 38%of all the Court's cases

were primarily constitutional, 44%

of all

opinions (including concur-

rences and dissents) were issuedinsuch cases.^

And

the

average constitutional decision

has

become more contro-

versial becauseofthe nation 's increased polarization over just the sort

of issue most likely to get theCourt's attention these days, suchas

abortion, affirmative action, national security, homosexual rights, capi-

tal punishment, and government recognition of religion.

Why

the

Court is drawn moth-liketothese flamesissomethingof apuzzle.Po-

litical ineptitude maybe afactor,butprobablya more important one

is simply that theseare the issues that tendtodividethe lower courts,

generating conflicts that only the Supreme Court can resolve.

Still another reasonfor theimpression that the C ourt's dockethas

become dominated by constitutional cases is that as the numberof

cases the Court decides diminishes relative to the total numberof

lower court cases that present federal questions,itbeginstoseemas if

the Court is abandoning large swaths of federal law to the lower

courts. To specialistsinthose fields the Court isa deus absconditus

The impression that

the

Court

has

become primarily

a

constitu-

tional courtisnot entirely misplaced. Casesarenot fungible: weight-

ing numbers

by

consequence

and

controversiality

and

breadth

of

dis-

cretionary judgment, one can well believe that mostofwhat the Court

is doingisindeed the creationofconstitutional law. If aconstitutional

court is a political court, then the U.S. Supreme Court iswellon its

waytobecomingapolitical court.

II. P O L I T IC A L J U D G I N G

A Constitutional Court

Is a

Political C ourt

The more the Supreme Court isseen,and perhaps sees itself,as

preoccupied with polarizing, hot button constitutional cases,the

more urgent is the question whether when deciding constitutional

cases the Court should be regarded as essentially a political body

(which is not to saythat it is a

party

animal political doesnot

equal partisan, as Iwill explain), exercising discretion comparablein

breadth to that of a legislature. Thequestion isurgent in fourre-

spects. First, because

the

federal Constitution

is

so difficult

to

amend,

the Court exercises more power,onaverage, whenitis deciding consti-

tutional cases than when deciding statutory ones. Second,

a

constitu-

tion tends todeal with fundam ental issues,and more emotion is in-


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40

H RV RD L W REVIEW

[Vol.119:31

influences behavior, including

the

decisions

of

judges. Th ird, funda-

mental issues

in the

constitutional context

are

political issues: they

are

issues about political governance, political values, pohtical rights^

and

political power.

And

fourth, constitutional provisions tend

to be

both

old

and

vague

old

because amendments

are

infrequent

(in

par t

be-

cause amending is so difficult) and vague because when amending is

difficult

a

precisely worded constitutional provision tends

to

become

an embarrassment because

it

will

not

bend easily

to

adjust

to

changed

circumstances, and circumstances change more over a long interval

than over a short one. The older and vaguer the provision at issue,

the harder

it is for

judges

to

decide

the

case

by a

process reasonably

described

as

interp retat ion ra ther tha n legislation.

A constitutional court composed of unelected, life-tenured judges,

guided,

in

deciding issues

at

once emotional

and

politicized, only

by a

very

old and in

critical passages very vague constitution

(yet one as

difficult

to

amend

as the U.S.

Constitution

is), is

potentially

an im-

mensely powerful political organ unless, despite the opportunities

that

are

presented

to the

Justices, they manage somehow

to

behave

like other judges.

A

court

is

supposed

to be

tethered

to

authoritative

texts, such as constitutional and statutory provisions, and to previous

judicial decisions;

a

legislature

is not it can

roam free.

But the Su-

preme Court, when

it is

deciding constitutional cases,

is

political

in the

sense

of

having

and

exercising discretionary power

as

capacious

as a

legislature's. It cannot abdicate that power, for there is nothing on

which

to

draw

to

decide constitutional cases

of any

novelty other than

discretionary jud gm ent.

To

such cases

the

constitutional text

and his-

tory, and the pronouncements in past opinions, do not speak clearly

Such cases occupya broad open area where the conventional legalma-

terials

of

decision

run out and the

Justices, deprived

of

those crutches,

have

to

make

a

discretionary call.

Constitutional cases

in the

open area

are

aptly regarded

as

politi-

cal

because

the

Constitution

is

about politics

and

because cases

in the

open area are not susceptible of confident evaluation on the basisof

professional legal nor m s. Th ey

can be

decided only

on the

basis

of a

political judgment,

and a

political judgment cannot

be

called right

or

wrong

by

reference

to

legal norm s. Alm ost

a

quarter century

as a fed-

eral appellate judge hasconvinced me that it is rarely possible to say

with

a

straight face

of a

Supreme Court constitutional decision that

it

was decided correctly

or

incorrectly W hen

one

uses terms like

cor-

rect

and

incorrect

in

this context,

all one can

actually mean

is

that

one likes (approves of, agrees with,or is comfortable with) the decision


10/72

200S] THE SUPREME

OURT

FOREWORD

4I

that

is

just

a

form

of

words.

One can, for

that matter , notwithstanding

tbe maxim

de

gustibus

non est

disputandum

give reasons

for

prefer-

ring

a

Margar i ta

to a

Cosmopolitan.

Tbe

problem,

in

botb cases,

is

that there

are

certain

to be

equally articulate, reasonable people

who

disagree and can offer plausible reasons for their disagreement, and

tbere will

be no

common metric tbat will enable

a

disinterested

ob-

server

if

tbere

is

such

a

person)

to

decide

who is

right.

The

most

striking characteristic

of

constitutional debate

in tbe

courts,

the

class-

room,and the media and a sure sign that sucb debate eludes objec-

tive resolution

is its

interminability. Eve rything

is

always

up for

grabs intellectually, though

not

politically.

To

borrow

an

apothegm

from James Fitzjames Stephen: wben tbere

is

disagreement

on a con-

stitutional issue,

the

m inority gives

way not

because

it is

convinced

tha t

it is

wrong,

but

because

it is

convinced that

it is a

minority. -^

If tbis point

is

correct

I

cannot prove that

it is, but at

least

tbe

realists reading tbis Foreword will find

the

point congenial

and I

shall

try

to

present some evidence

it has

implications

for tbe

role

in our

political system that an inherently,and not merely accidentally, lawless

judicial institution should play.

I use

lawless

in a

nonjudgmental

though unavoidably provocative sense.

I

mean

tbe

word simply

to de-

note

an

absence

of

tigbt constraints,

an

ocean

of

discretion.

If a

judge

decides to star t a trial on Tuesday rather tban onM onday, it wouldbe

laughable

to

think

the

decision dictated

by

law when

all

that

bad de-

termined

it had

been

the

availability

of

witnesses

or the

state

of tbe

judge's appointments book.

The

judg e's action would

be tbe

lawful

act

of a

judicial officer,

but it

would

not be

determined

by a

legal rule

or s tandard.

He

would neither

be

interpreting

in tbe

sense

of

search-

in g

out a

meaning created

by

someone else

a

legislature perhaps

nor following precedent. One could try to save professional appear-

ances

by

saying tbat

the

judge

was

just obeying

the law

that told

him

to exercise disc retion,

but

tba t

too is

just

a

form

of

words.

From

a

practical standpoint, constitutional adjudication

by the Su-

preme Court isalsotheexerciseof discretion and that isaboutall it

is.

If, to

take

an

example from last Term,

the

Cour t

is

asked

to

decide

whether execution

of

murderers under

the age of

eighteen

is

constitu-

tional,-^'

it is at

large. No thing compels

a yes or a no. Tbe

Justices

who formed

tbe

m ajority

in Roper did not

bave

to

worry about being

reversed

by a

bigher court

if

tbey gave

tbe

wrong answer,

let

alone

being removed from office

for

incompetence

or

baving tbeir decision


11/72

4 2

HARVARD LAW REVIEW

[Vol. 119:31

nullified by Co ngress, the President, or some state official. T h a t is,

there were no external constraints on the Justices ' decision.

Th is is not to say tha t there are never such constrain ts. One can

imagine decisions that would evoke constitutional amendments or pro-

yoke budge tary or other retaliation by Cong ress. One can even imag-

ine decisions that the President would refuse to enforce or that would

incite a Jus tice 's im pe ach m en t an d rem ova l from office. M oreover,

because the Court, though powerful, does not have its hands on all the

levers^ of power, it is often possible for Congre ss or the Pre side nt, w ith -

out visibly retaliating, to pull the sting from a constitutional decision.

Last Term provided several examples, including

Booker

and

Kelo v.

City of New L ondon. Booker

enlarged the sentencing discretion of

federal judges, and there are rumblings in Congress, which suspects

that judges will use the additional discretion to impose more lenient

sentences; but Congress can prevent this from happening by increasing

the minimum sentences specified in federal criminal statutes.

Kelo

in -

terpreted the pub hc use criterion of em inent dom ain broadly, bu t

Congress and the states can deprive the interpretation of its signifi-

cance by placing limits on the use of the eminent domain power; the

fact that a statutory power is upheld against constitutional challenge

does not prevent the legislature from voluntarily curtailing the power.

So the Court is not omnipotent; but no branch of government is,

and the claim of the Justices and their defenders that the judiciary is

the wea kest bran ch'* is mostly pretense. Th ere was little dang er

that the

Roper

decision, whichever way it went, was going to provoke

a reaction from the other branch es of gov ernm ent. Tb ere are political

limits on what the Court can do, but they are capacious.

There was no internal constraint some sense internalized by the

Justices of the proper limits of judicial authority in Roper either. As

in most constitutional cases that tbe Court decides, the Justices didn't

bave to worry that someone or something (their own judicial con-

sciences, perhaps) would harrow them for disregarding controlling

text. Th e Eighth A m end m ent's prohibition of cruel and unusu al pu n-

ishm ents is a sponge. A sponge is not constrain ing; nor, it seems, is

precedent. For the Co urt in Roper brushed aside Stanford v. Ken-

tucky,-^- which sixteen years earlier had held that executing a sixteen-

or seventeen-year-old does not violate the prohibition against cruel and

unu sua l punishments.*^ Th e adju dicatio n of con stitution al cases at the

Supreme Court level is dominated by cases in which the conventional


12/72

2O O 5 I THE SUPREME COURT FOREWORD

43

sourcesof legal authority, such aspellucid con stitutional textor hind-

ing precedent the Court does notcon sider itself bo un d by precedent,

as witness what it did toStanford , do notspeak in a clear voice. If

they did,

the

Co urt would rarely have

to get

involved

in the

matter ;

it

could leaveit to thelower cou rts. For I do not .sugKe.st that judges,or

even fortha t ma tter Sup reme Co urt Justices,areindifferent toplaying

wha t I have elsewhere called not intend ing disrespect) the judicial

game. *''

The

game entails

a

certain respect

for the

conventional

ma-

terialsofdecision. In thecase of lower court judge s, those ma terials

include Supreme Court decisions, and this mak es it easier for the

judges toplay thegame. But theSupreme Cou rt is nothound by its

decisions;

it has to

decide whe ther

to

adhere

to a

previous decision,

and that is a discretionary judgment. The Cour t is reluctant toover-

ruleits previous decisions,but thereluctance isprude ntial rathe r tha n

dictated by lawitself; I shall have more to sayab ou t this distinction

shortly.

One might think that if not the text of the Eighth Am endment ,

then itshistory could disam biguate themeaningof cruelandunusual

punishm ents . Th at would have mad ea quick endtoyoung Simmons.

But the Court frequently disregardsthehistor\ 'ofcon stitutional provi-

sionson thesensible if notnecessarily compelling groun d that vagu e

provisions

and

even some rather definite ones) should

be

interpreted

with reference to cur rent values rath er tha n eighteenth-centur>' ones.

Even Justice Scalia does notthink tha t fiogging crim inals,or put t ing

them in stocks, would pass muster unde r theEighth Amendm entto-

day,'^as it would haveinthe eigh teen th century.*^

I said that

the

Co urt gives some weigh t

to

precedent.

But it

does

soforreasons that have nothin gto dowith thinking that precedent h as

some intrinsic authority,as a clear statutory texthasintrinsic au tho r-

ity,or as aprecedentof a higher court has intrinsic authority in the de-

cision making

of

lower courts, which

are not

free

to

disregard such

precedents. Th e Co urt always hasa choice whether tofollow aprece-

dent. If it follows it because it thinks theprecede nt correct, thenthe

precedent has no indepe nden t force, no authority, anymore than a

law review article that the Court thought correct would have authority.

Precedent does have some authority even

in the

Supreme Court ,

but it

isnotepistemic. Th at is,following prece dent is not a warrant tha ta

decision iscorrect;it isnot even evidenceofcorrectness.

To explain, suppose theCo urt issues decisionA andyears lateran

indistinguishable caseB comesup fordecision. Ac tually thisis rather


13/72

4 4 HARVARD LAW REVIEW [Vol. 119:31

unlikely to happen, because tbe lower courts would bave followed

A

in

B

and so there would be no occasion for tbe Court to agree to hear

B.

But put that point to one side, though it is an important reason for

doubting that precedent would determine many Supreme Court deci-

sions even if the Justices felt themselves bound to follow precedent

in wbicb event, moreover, decisions would be narrowly written and

narrowly interpreted, and so tbe area in wbicb precedent dictated out-

comes would still be small.

If

B

does come before the Court, tben even if all the current Jus-

tices disagree with

A,

tbe Court may decide to reaffirm it perhaps

to create tbe impression tbat the Court is rule-bound rather than rud-

derless, or perhaps because people have relied on and adjusted to A.

So the Court decides

B

the same way. If later

C

comes up for decision

and is indistinguishable from

A

and

B,

the fact that both

A

and

B

would have to be overruled for

C

to be decided as the Court would

prefer to decide it becomes an even stronger reason to decide C tbe

same w ay as the two previous cases. Th ere is noth ing in tbe existence

of tbis lengthen ing line of prece dent to suggest tha t C is correct. Tb e

decision to de pa rt from p recede nt would be correct too, if tbe ben e-

fits of deciding C differently wou ld exceed th e costs; and this is a pol-

icy judgment, a discretionary call, rather than anything to do witb law

or legal reasoning in some distinct sense.

In

Planned P arenthood of Southeastern Pennsylvania v.

Casey,-^ ^

Justices O'Connor, Kennedy, and Souter in their joint opinion let slip

the mask, and, in a part of the opinion that commanded a majority of

tbe Court, explicitly grounded tbe policy of adhering to precedent in

concerns for tbe Court's rhetorical effectiveness;

There is a limit to the amount of error that can plausibly be imputed to

l)rior Co urts . If tha t limit should be exceeded, disturbance of prior rulings

would be taken as evidence that justifiable reexamination of principle had

given way to drives for partic ular results in the short term . Th e legiti-

macy of the Court would fade with the frequency of its vacillation. ^

I do not think these Justices m ean t tha t it wo uld be imp lausible to

impute vast error to earlier Supreme Court Justices for there is

nothing implausible about that; it is possible to disagree on entirely

plausible grounds with immense reaches of Court-fashioned constitu-

tional law, including the use of tbe Fourteenth Amendment to make

tbe Bill of Rig hts (with mino r excep tions) app licab le to the states, a

3^

505 U.S . 833 (1993).

0 Id . at 866.

*' See, f.g.. D.W'in P. C L - R R I E . THE C ONSTITUTION IN THE SUPR KME C OIR T THE


14/72

2 51

THE SUPREME OURT FOREWORD 45

move tha t has spaw ned thous and s of questionab le decisions. An d

think of all the decisions that went down the drain when the Supreme

Court overruled

Swift v Tyson^^

Prob ably the trio me ant only th at

whatever the Justices may think of particular prior decisions, they

must adhere to most of them lest the public realize the epistemic shal-

lowness of the body of constitutional law that the Supreme Court has

erected upo n the defenseless text of the C on stitutio n. It is because so

many of the Court's decisions could so easily be questioned tbat error

mu st not be acknow ledged m ore tha n very occasionally. M ore than

public relations is involved, however: the Justices realize that the more

casual they are toward precedent, the less durable their own decisions

will be. Bu t this is jus t anothe r strategic judg m en t.

Honoring precedent injects path dependence into constitutional

law: where you end depends to a significant degree on where you be-

gan. To day's law may be w hat it is not because of tod ay 's needs bu t

because of accidents of judicial appointment many years ago that re-

sulted in decisions that no one agrees with today but that the Court

lets stan d as a matter of prude nce. Th e au thors of the joint opinion in

Casey

made clear that they thought the famous case they were reaf

firming {actually just the core of it) had been decided incorrectly;

probably a majority of today's Court disagrees with a very large num-

ber of the decisions rendered by a much more liberal Court in the tur-

bu lent 1960s. Jud icial opinions may give good reasons for reach ing

similar results in similar cases, but they will be reasons of policy or

politics, not reasons of law un ders too d as som ething distinct from th e

policy or political views of pa rticu lar Justices. A newly app oin ted Su-

preme Court Justice may pay lip service to most of the Court's earlier

decisions even if he dislikes the policies on which they re st B ut he

will construe those decisions narrowly in order to minimize their im-

pa ct. An d wh en he finds himself (as so often in the Co urt) in the open

area in which conventional sources of law, such as clearly applicable

pre ce de nts , give out, he will not feel bo un d by those policies. So if he

is in the majority the law will veer off in a new direction. Ev ent uall y

tbe old precedents will be interpreted to death or, finally, overruled

explicitly.

Against all this it may be argued that the decisional process that I

am calling political is no different from common law, which the judges

make up as they go along; yet common law rulemaking is generally

tho ug ht to be a lawlike activity. It is true th at com mo n law is suffused

with policy, but it differs from constitutional law in critical respects: (i)

it is a decentralized, competitive system of lawmaking because each of


15/72

46

H RV RD UW REVIEW [ V ol. i i g : ^

ject

to

l eg i s l a t i ve over r i de;

(3) it

t ends

to

deal with subjects

on

w hi ch

there

is a

cons i der abl e degr ee

of

po l i t i ca l consensus

(who

o p po s es

en-

f or c i ng cont r act s

or

p r o v i d i n g

a

remedy

for

negl igent injur ies?),

so

t h a t

deci s i on maki ng does

not

require pol i t ical choices;

and {4) the

j u d g e s

really

do

proceed incremental ly,

(5)

g i v i ng m u c h w e i g h t

to

precedent .

As

a

result,

it is a

mor e d i sc i p l i ned, mor e l aw l i ke, body

of law

than

c o n s t i t u t i o n a llaw.

The evidence of the influence of p o l i c y j u d g m e n t s , and hence of

pol i t i cs , on co nst i tut i o na l adj udi cat i o n in the Supr eme C o ur t l i es

everywhere at h a n d . C o n s i de r the emphas i s p l aced, in conf i r mat i on

h e a r i n g s for n o m i n e e s to the S u p r e m e C o u r t , on the n o m i n e e ' s i d e o l -

o g \ '

to the

exclusion

of his or her

legal abi l i ty.

I

do n ' t be l i eve

a

s i ng l e

quest ion directed to t hen- Judg e R o bert s in his h e a r i n g s for conf i r ma-

t i on as Chief Just ice wasdes i gned to testhis l eg a l a c u m e n . N o w a d a y s

a cer t a i n m i ni mum compet ence is d e m a n d e d (and R o b e r t s did receive

s o m e g r u d g i n g r e s p e c tfor his out s t andi ng cr edent i a l s) ,but abo ve t hat ,

cont ender s get l i t t le credit for being abler legal analysts than their

c o m p e t i t o r s , and so metimes neg at ive credit : the fate of R o b e rt B o r k ,

w hose i nt e l l ect ua l d i s t i nct i on was he l d aga i nst him as m a k i n g him

m o r e d a n g e r o u s . ^ '

Or glance back through f if ty years of S u p re m e C o u r t F o r ew o r d s

and

ask

yourself whether

the

pos i t i ons ur ged

in the

" subst ant i ve"

F o r e w o r d s ,as dist inct fro m those that deal wi th pro cedural or inst i tu-

t i ona l quest i ons , coul d be t ho ug ht i nt er pr eti ve (in a deferential sense,

i nt er pr et at i on as d i sco ver i ng r a t her t han i mpo s i ng meani ng ) , r a t her

t han l eg i s l a ti ve . W hen, for exampl e . Pro f esso r Fr ank Mi chel m anpro-

posed t hat the Equal Pr ot ecti o n Cl ause be interpreted to require

minimum welfare benefi ts for poor people,'*"' couldhe h a v e t h o u g h this

p r o p o s a la d i scover \ 'of them e a n i n gof e q ua l p r o t e c ti o n ? W h a the was

sayi ng,at least sotto voce wast h a t he as a l iberal would l iketo see the

S u p r e m e C o u r tdos o m e t hi n g for p o o r p e o p l eand t h a t theC o u r t c o u l d

do t h i s , w i t hout be i ng l aughed attoo har d, by e m p l o y i n g the r het or i c

of equal pr ot ect i on depl oyedin his F o r ew o r d. If one is not a l iberalin

the welfare-state sense, Michelman's argument his

brief,

really

fal ls completely flat even if one w o u l d bow to a per suas i ve ar gument

that welfare rights really are "found in the Equ al Pr o t ecti o n Cl ause;

no such ar gum ent is ava i l abl e .

In Roper^ then,

the

S u p r e m e C o u r t

was not

i nt er pret i ng

a

direct ive

text, hewing

to a

convi nc i ng h i s t or i ca l under st andi ng

of the

C o n s t i t u -

t i o n ,

or

empl oyi ng apol i t i ca l pr i nc i p l es

of

stare decisis

or

c o m m o n

law

'' See LawrenceC. M a rs h a l l , Intellectual Feastsand Intellectual Respon sibility. 84 Nw. U. L.


16/72

2OO51

THE SUPREME COURT

FOREWORD

47

adjudication.

Tt was

doing what

a

legislature asked

to

allow

tbe exe-

cution of seventeen-year-old murderers would be doing: making a po-

l it ical judgm ent. T ba t

is

true

of

most

of tbe

Co urt 's constitut ional

de-

cisions.

It is

true even

of the

most celebrated constitutional decision

of

modern t imes.

Brown

v

Board

of

Education.^^

On strictly legal

grounds . Brown could have been decided

the

other

way by a

(defensi-

bly) narrow reading

of tbe

Equal Protection Clause

and a

respectful

bow

to

Flessy v Ferguson-*

and tbe

reliance tbat

tbe

soutbern states

bad placed on

Plessy

in configuring tbeir public scbool systems. But

Brown illustrates

a

small class

of

Supreme Court decisions tbat seem

at once political

and

right, because sometimes

tbe

considerations

of

policy

and

m orality tha t (along witb interest g roup pressures, igno-

rance,and emotion) drive political judgments all lineup on the same

side.

The

segregation

of

public facilities

in the

South

was

intended

to

keep black citizens

in a

servile state

by

stamping them with

a

badge

of

inferiority. Tbis was contrary to basic American ideals, gratuitously

cruel,

and an

embarrassment

to tbe

United States

in its

conflict with

international communism.

It was

also based

on

inaccurate beliefs

about

the

capabilities

of

black people

and to

sbow that

a

policy

is

based on factual error is an especially powerful, because objective,

form

of

criticism. T ha t

is why

soph isticated m odern religions avoid

making claims tbat could

be

falsified empirically, sucb

as

that tossing

a

goat into

a

live volcano will bring rain.

Three thingscan be said against thedecisionin

Brown,

butnoneof

them undermines

my

point. First,

if

instead

of

forbidding segregation

the Court

had

insisted tbat states spend

as

much money

per

black

as

per wbite pupil,the sheer fiscal costto the southern statesof m aintain-

ing parallel public scbool systems migbt bave forced integration more

rapidly than

the

Court 's actual decision, which

was not

fully imple-

mented

for

decades.-^'

But

this

is

sheer specu lation. Second,

the

Court 's opinion

was

unsatisfactory

to

m any conve ntional legal analysts

of

tbe era

because

tbe

Cour t

had to

overrule

a

long-establisbed deci-

sion, heavily relied

on by the

segregationist states

in

fashioning their

institutions, educational

and

otherwise;

and it bad to do so in tbe

face

of evidence that the framers and ratifiers of the Equal Protection

Clause

bad

intended only

to

protect blacks against

tbe

w i thdrawa l

of

the standard police protections tbat whites received,

so

tbat blacks

45 347 U.S. 483 (1954).

-to 163 U.S. 537(1896)-


17/72

4 8

H RV RD LAW REVIEW

[Vol. 119:31

would n ot be ou tlaw s in a literal sense.''* And finally, for reason s of

politesse the Court was unwilling to state forthrightly tbat segregation

was racist and instead had to cite unconvincing social science evidence

co ncern ing the psychological effect of seg regated schooling.* B ut the

second and third criticisms just identify Brown as a political decision

and the opinion as a political docu m ent. It was a politically soun d de-

cision and a politically sound opinion; and apparently that is good

enough, for no responsible critic of the Court questions the soundness

of Brown anymore.

It is the unusual constitutional case, however, in which it is possible

to elide the i. . ueof conv entional legal soundn ess by observin g, yes, it

is a political judgment but unquestionably a sound one and it would

be peda ntic to dem and m ore. Usu ally there is political disag reem ent,

and rarely can a political disagreement be bridged without (often not

even with) evidence; and the legal process is not geared to producing

solid enough evidence regarding tbe stakes in, or consequences of, a

constitutional decision to sway jud gm en t. And wh en there is no evi-

dence, the judges perforce fall back on ideology, temperament, and

other influences remote from the model of legal reasoning.

Amicus curiae briefs sometimes try to fill empirical gaps (as in the

Kelo

case, which I discuss in the last Part of this Foreword), but these

are advocacy documents, not subject to peer review or other processes

for verification.' And often the needed evidence is un obta inab le be-

cause it lies beyond th e research frontier. W he the r the eviden ce is un-

obtainable or is either not presented to the Justices or cannot be pre-

sented to them in a form they can digest, the Justices have only their

intuitions, by whatever shaped, to guide their decision.

It is no longer open to debate that ideolog>- (which I see as inter-

mediary between a host of personal factors, such as upbringing, tem-

perament, experience, and emotion even including petty resent-

ments toward one's colleagues and the casting of a vote in a legally

indeterminate case, the ideology being the product of the personal fac-

tors) plays a significant role in the decisions even of lower court judges

when the law is unce rtain and em otions arou sed.' ' ' It m ust play an

*8 See CURRIE,

supra

note 41, al 348-49 &n.143,

Se e Dennis J, Hutchinson. Perspectives on Brown, 8 GREEN BAG 2D 43, 47 (2004) (citing

Brown, 347 U .S. al 494 & n. 11).

^0 For a comprehensive study of amicus curiae briefs in lhe Supreme Court, see Joseph D.

Kearney & Thom as W, Merri ll ,

The Influence of Amicus Curiae Briefs on the Supreme Court.

148

U, P.\. L.

R K \ ,

743 (2OOO), Th e auth or s Ho not, how ever, distin gu ish sys tem atically h etw een th e

informational and the argumentaUve content of .such briefs.

Se e DANIKI. R, PiNELLO. GAV RKiHTS AND AMERICAN LAW (3003); Frank B, Cross.


18/72

20051 THE SUPREME COURT FOREWORD 4Q

even larger role

in the

Suprem e C ourt, where the issues

are

more

un-

certain

and

more emotional

and the

judg ing less co nstra ined ."

The

literature on the personal factor

in

judging still has not been integrated

into

the

dom inant academic com men tar\'

on the

Supreme Cou rt

(in-

cluding

the

Forewords). Th at comm entary continues

to

pretend that

the Justices

are

engaged

in a

primarily analytical exercise that seeks

"correct" answers

to

technical legal question s, even tho ugh

the

com-

m enta ry itself is suffused it h the co m m en tato rs' politics,

as in

the ex-

ample

I

gave

of

M ichelman's F 'oreword."

My argument may seem undermined

by

the fact th at the emp irical

studies

of the

voting patterns

of

Sup reme Co urt Justices never find

that ideology explains anywhere near 100%

of

the Justice s' votes.

In-

deed, there are many examples

of

the Justi ce s' voting ag ainst the grain

more precisely, voting

for

results tha t they would

not

favor

if

they

were legislators

or

other policymakers,

and in

tha t role were unco n-

strained

by

political con sideration s. Ex am ples from last Term inc lude

Florida v.

Nixon,'^-^

in

which Justice Ginsbu rg w rote the Co urt 's opin-

ion reinstating

a

death sentence that

the

state suprem e court

had re-

versed on federal constitutional grounds,^^ and

Illinois v. Caballes,^

in

demic Debutes Abou t Statistical Mea sures. 99 NW . U. L. REV. 743, 759 (2005); Cass R. Sunstein

et

al.,

Ideological Voting

on

Federal Courts

of

Appea ls: A Preliminary Investigation, qo

VA .

L .

REV.

,501 (2O04J,

'-Onideological votin ginlhe Suprem e Cou rt , set , for cxamp lu. jKKt'RKV A . SiKiA l . & HA R-

OLD J. S P A K T H . T H K S U P R KM K C O L H T A.\ri THK .-VrTiri DINAI. MOUKI. R K \ ISITKH .'7


19/72

50

HARVARD LAW REVIEW

[Vol . I

which Justice Stevens wrote the Court 's opinion holding that a dog

sniff conducted during a lawful traffic stop was not a search because it

could not reveal anything other than an unlawful substance and so did

not invade a legitimate interest in privacy.^'

Justices occasionally, and sometimes credibly, issue express dis-

claimers that a particular outcome for which they voted is one they

wo uld vo te for as a legislator. I believe Jus tice Scalia when he says

that his vote to hold flag burning constitutionally privileged^^ was con-

trary to his legislative preferences;^^' and I believe Justice Thomas

when he says he wouldn't vote for a law criminalizing homosexual

sodomy even as he dissented from the decision invalidating such

laws.fi Bu t such discrep ancies between persona l and jud icial positions

usually concern rather trivial issues, where the judicial position may

be supporting a more important, though not necessarily less personal,

age nd a of the Justic e. N o one (except, na tura lly eno ugh , the two mili-

tary veterans on the Supreme Court Chief Justice Rehnquist and

Justice Stevens both of whom dissented in the flag-burning cases)

could get excited over flag burn ing . N ot only is it rare an d incon se-

quential, it is likely to be even more rare if it is

not

punishable for

then the flag burner is taking no risks and his action, being costless to

him, does not signal deep conviction to others and so its symbolic and

hortato ry significance collapses. (Where would Ch ristianity be w ithou t

Its martyrs?) And only someone deeply disturbe d by hom osexuality

could mourn the passing of the sodomy laws, since by the time the Su-

preme Court declared them unconstitutional they had been repealed or

invalidated on state law grounds in most states and had virtually

ceased to be enforced in the remaining ones, ' ' ' though people hostile to

hom osexuality may have valued the laws as symbolic statem ents. On e

of the things that is important to Justice Scalia is promoting a textual-

1st approach to the Constitution that would, if adopted, entail the

eventual overruling of

Roe v. Wade^'

and other decisions of which he

deeply disapproves. And one of the things that is im po rtant to Justice

Th om as (as also to Justice Scalia) is oppo sing the kind of living con-

See id.

al 837.

^^ 5ep Texas V .Johnso n, 491 U.S. 397, 398 (1989).

^'> See, e.g.,Jam es F. McCarty, Scalia Says His Beliefs, His Feelings Can Differ: He Tells How

He H ad T o Side w ith

Flag^

Burner,

PLAIN DEALER (Cleveland), Mar. 20, 2003, at B4; Dennis

O'Brien,

Scalia Discusses F lag Burning, His Job on High Court, BALT. SUN,

Apr. 13. 1995, at sB;

Frank Sikora,

Mstice Scalia: Constitution Allows 'Really

Stupid

Things,

BiRMlNCHAM

N R W S '

Apr. 14. 1999, at 3D; Margaret Talbot,

Supreme Confidence: The Jurisprudence of Justice Antonin

N E W V ORK E R,


20/72

2005]

THE SUPREME COURT FOREWORD

SI

stitution rhetoric deployed byJustice Ken nedy inhom osexual rights

cases,^'*

a

rhetoric tha t invites conforming constitutional

law to the

personal preferences of progressive jurists. Ineffect, Ju stice s Scalia

and Thomas t radea minor preferencefor a major one.

Justice Scalia's vote in Booker (and in thecases leading up to it

Apprendi

v

New Jersey^^

and

Blakely

v

Washington^ )

may seemto

cut against his legislative preferences more sharply than his voteinthe

flag-burning cases because he is notsym pathetic to crimin al defen-

dants . I

dou bt it. N either Booker, nor the version

of

Booker that Jus-

tice Scalia would have preferred, which would nothave requiredthe

qualified adherence to the Guidelines tha t Justice Brey er 's ma jority

opinion requires, islikely tocausea reduction in theaverag e severity

of crimin al sentences. Con gress has

the

last wo rd

on

how severely

to

pun ish federal crimes. Justice Scalia has noobjection to sentencing

schemes that give judges untrammeled discretion within the minimum

and maximum sentences prescribed byCongress. So byraising some

minimum sentences. Congress {or state legislatures in the caseofstate

crimes) caneasily negate w ha teve r effect

Booker

may beexpectedto

ha ve . (More on the effectofBooker on criminal defendants later.)

So it ismisleading whena Justice repliesto acriticismof acontro-

versial decision that

he or she

joined

by

saying that

it was a

vote

against the Jus tice 's desire. People have m ultiple desires, often

clashing, and then they mu st weigh them ag ainst each other. A Justice

may desire that burning theAm erican flag be punished but desire

more that constitutional standards suchasfreedom ofspeechberecast

as rules that have very fewexceptions. Thesecond desire is as per-

sonalorpolitical as the first; it is notsubmission tothe compulsionof

the constitutional textorsome other conven tional sourceof legal guid-

ance because there are nosuch comp ulsions in thecases th at I have

been discussing.

The

predictive limitations

of the

ideological voting

studies show th at con ven tional left an d right ideologies are not the

only things that matter to Supreme Co urt Justices . But the other

things that matter tothem neednot beprofessional legal no rm s, espe-

cially ones incapable ofguid ing decision b ecause their app licationre-

quires a clear text, a bind ing preced ent (and remem ber, theCour tis

never bound by precedent), a clear legislative history, or some other

conventional sourceoflegal decision m akin g tha t isunavailablein the

majorityofcon stitution al cases tha t the Supren:ie Co urt d ecides.

Sometimes, moreover, what is involved in voting ag ainst one's

seeming druthers may be a calculation that theappearance of being


21/72

52 HARVARD LAWREVIEW [Vol. 119:31

"principled"isrhetorically

and

politically effective. It fools people. So

it

is

worth adhering

to

principle when

the

cost

to

com peting desires

is

slight.

I do notmean to bepo rtraying theJustices as cynics who con-

sciously make

the

tradeoffs that

I

have been d escribing.

I

assume they

accept the conventional law-constrained conception ofjudges and be-

lieve they conform to it. They would be uncom fortable otherw ise.

Most jobholders sincerely believe that their

job

performance conforms

to their employer 's reasonable expectations, butmany are mistaken.

The riseof

the law

clerk

has

brought with it anincrease in

the

judicial

comfort level. Lawclerks are more numerous*^^ and experienced^^

than they used to be;they are also on averag e abler, b ecauselaw

schools draw ahigher av erage q ualityofapp licant th an they usedto, ^

probably as a consequence ofhigher relative salaries forelite law yers.

There is almost no legal outcom e tha t a really skillful legal analyst

cannot cover with

a

professional va rnish .

Soa

Supreme Court Justice

however outlandish-seeming hisposition in a particular case can,

without lifting a pen ortouching thecomputer keyboard, butmerely

by whistling for his law clerks, assure himself th at he can defend

whatever position head op ts w ith sufficient skill andforce tokeeptbe

critics

at

bay.

N or

do

I mean tosuggest th at merely because anissueisideologi-

cal

it is

fated

to be a

political football

forthe

Justices.

In

most socie-

ties,

including our own, there is a large area of ideological consensus.

The point isobscured wh en

one

isspeakingofconstitutional adjud ica-

tionin

the

Supreme Court only becauseanissue usually d oe sn't

get all

the way to the top of thejudicial hierarchy unless it is highly con-

troversial, which often means that it's at theintersection of clashing

ideologies.

I

do not

even mean

to

deny tha t some co nstitutional cases

can be

decided ascon ven tional legal casesbyliningupthe facts alongsidethe

constitutional text. Those tend, however, to behypo thetical cases. If

Congress passed a law requir ing that all books be submitted to a

presidential board ofcensorsforapp rova l {which wou ld

be

withheldif

the book criticized any federal official), adjudging the statute unconsti-

< ' RicH.\RD \ .

P O S N E R ,

THK

F E D E R A L C O U R T S ; C H A L L E X C E

AND

R E F O R M

139 (1^96)-

^'

In

2004, ever>' clerk m

the

Su|)reme Cou rt

had

previous clerking experience

at the

federal

appellate level.

See

Supreme Court Librar\-,

Law

Clerk Datahase 2004

(on

file with

the

Har\ 'a rd

Law School Library). Incontrast, itappears th at noneofthe clerksin the i960 Term had previ-

ous cierkship experience. See Supreme Court Library, LawCierk Datab ase i96 0(on file withthe


22/72

O O 5 THE

SUPREME OURT FOREWORD 5 3

tution al would not require a political jud gm ent. Bu t cases tha t clear

arise very infrequently, and when they do they rarely reach the Su-

prem e C ou rt. A nd the cases tha t are unc lear in the legal sense are

rarely clear in the political sense. Brown being the exception.

But maybe I am exaggerating the rational indeterminacy of such

cases, their person al an d sub jectiv e charac ter, by raising the thres h-

old for w ha t should count as objective too high. M aybe I am mis-

take nly confining reaso n to the proc edu res of the physical sciences

and mathematics ignoring Aristotle 's reminder that the attainable

level of analytical precision is relative to the subject matter,'^'' ignoring

too Aristotle 's concept of rhetoric as not oratory but rather as the

reasoning process designed for issues that because of lack of informa-

tion cannot be resolved by methods of exact inquiry, such as logic and

science.^' I ackn ow ledg e th at soun d decisions by which I mean de-

cisions that seem correct to most thoughtful observers can be based

on inexact inquiry.

Brown

is not the only example, or law the only

field in which one finds such examp les. Alm ost all Am ericans believe

that the United States was correct to invade Afghanistan in 2001 both

in retaliation for the g/ii attacks and to prevent that nation from be-

ing used as a staging area for further attacks on the United States.

This belief is not observer-independent, like a belief that water boils at

one hundred degrees Celsius at sea level, because there is no way to

persuade the Taliban and al Qaeda to share the

belief.

Bu t it is correct

within the U,S. frame of reference because within that frame there is

sufficient agreement about the premises (mainly the right of the United

States to self defense and the defensive character of the Afghanistan

operation) to enable the decision to attack Afghanistan to be cast as

the objectively correct solution to a problem. Th e agreem ent on

premises that enables many decisions to be confldently pronounced

correct within the relevant frame of reference is missing in most consti-

tutional cases.

Think of all the landmark Supreme Court decisions of the past one

hundred years, thus including even

Lochner v. New Vork ^

which

has its perfectly respectable present-day defe nd ers. ' ' Th ere probab ly

^^

Se e

A R I S T O T L E , N I C O M A C H E . A . N E T H I C S b k. I. ch- 3-

' Se e

A R I S T O T L E .

RHETOKlf lk. I, chs. 2-3; id . bk. II, ch. 22.

'1 198 U.S . 45 (1905).

'^ See, e-g., R A N D V E . BA RN E T T , RESTORING THE LOST COXSTITUTION: THE PRE-

SUMPTION OF LIBERTY 211-1S, 222-23 i2OO4); RiCHARU A. Kl'STEIN, TAKINGS:

F R I V V F E


23/72

54 HARVARD L WREVIEW [Vol.119:31

isn ' t a single

one

tha t would nothav e been decid ed differentlybut

equally plausibly

had the

Cou rt been differently

but no

less ably

manned. Mostofthem were decided by close votes,buteven

Brown,

which

was

una nim ous , m ight have been decided differently

had

Ear l

Warren

not

been Chief Justice. -^ One

can

arguepro

and

con these

de-

cisionsargue eloquently, learnedly,

and

atgreat length

but

in

substance,aswellas inmotivation, theargumentsareatonce political

and inconclusive,

and

indeed

for the

most p art easily rebuttab le

by

arguments themselves easily rebuttable.

B. Aggressive Versus Mo dest Approach es

to

Political

Judging

in

Con stitutional Cases

If neither law in

the

senseof

an

analy tical techniq ue th at differs

from policy analysis,

nor

policy analysis

(in

some sense objective ,

to

distinguishitfrom political jud gm ent )itself,

is

going

to

dictate

the

out-

come ofmostof

the

constitution al cases that reach theCo urt, then

how should theself-conscious Jus tic e, theJustice (improbably)per-

suaded by

my

analysis, conceive of

his

or herrole? Th ere

are two

main alternatives. One

is for

theJustice

to

accept

the

political cha rac -

ter of constitutional adjudication wholehe artedly andvote in cases

much

as

legislators vote

on

bills.

The

other alternative

is,

feeling

bashful about beingapoliticianinrobes,

to set for

hinriself

or

herselfa

very high thresholdforvotingtoinvalidateonconstitutional grounds

the action ofanothe r branch ofgovernment. Thefirst, the aggressive

judge approach, '- expands

the

Co urt 's authority relative

to

tha t

of

other branchesofgovernment.

The

second,

the

modest judge

ap-

proach,'^ tells

the

Cour t

to

think very bard indeed before und ertak ing

to check actionsbyother branchesofgovernment. Judges can often

be sorted into

one

or

the

other

of

these catego ries evenifthey

do not,

as most

do

not,

think

in

these terms;

a

social scientist insists

on the

importance

of

unconscious mo tivations.

Formulations of the modest ap proach include Jame s Bradley

Thayer 's principle that statutes should

be

invalidated onlyifthey

are

contrary to

any

reasonable understanding of

the

constitutional text '

DA\-II) SCHOF.NHROD. POWER WITHOUT RF:spONsinirjT\-: How CONCIRESS ABUSES

TH E

P E O P L E T H R O U ( ; H D E L E G A T H J N (199.3)) (lamentinK the Constilution-in-exile ).

'- '

See

MICHAEL

J,

KLARMAN, FROM

JIM

CROW

TO

CIVIL RUJHTS

302 2004),

^^

Often called -judicial activism ;but I.shatl avoid theterm becauseitha.sbecomeaport-

manteau termofabusefor adecision that theabuser doesnot

like,

rather Uianadescriptionof


24/72

2005] TfiE. SUPREME COURT FOREWORD 5 5

and Justice Holmes's can 't he lps , or puke, test: a statute is un-

constitutional only if it makes you want to throw up.^ Holmes was

not speaking literally, of course; he meant only that a conviction of er-

ror is not enough there must be revulsion. There is a subtle but

important difference between the two approaches. Thayer's is a one-

way approach, Holmes's a two-way. Th ayer's approach limits, it

never expands, judicial review. Holmes's approach allows stretching

the constitutional text when necessary to avoid extreme injustice.

Holmes's Constitution has, in effect, no gaps.

The difference between the two modest approaches is illustrated by

Griswold v.Connecticut,^ ^ which invalidated a Connecticut statute

anachronistic in 1965 (only Massachusetts, another heavily Catholic

state, had a similar statute) and well-nigh incomprehensible today

that forbade the use of contraceptives, with no exception even for mar-

ried couples.^*' A Thayerian would disapprove of the decision because

the Connecticut statute certainly was not unconstitutional beyond a

reasonable doubt; indeed, it is very difficult to find a provision of the

Constitution on which to hang one's hat in a case about contraception.

A Holmesian might find the statute so appalling (not only because of

its theocratic cast, but also because its only practical effect was, by

preventing birth control clinics from operating, to deny poor married

couples access to contraceptive devices other than condoms^') that he

would vote to invalidate it despite the difficulty of grounding his vote

in the constitutional text. Tha t is my reaction not only to

Griswold

but also to the issue in Harm elin v.

M ichigan ^^

in which the Court re-

fused to invalidate as cruel and unusual a life sentence for possessing a

small quantity of cocaine. ^ Actually there was a bigger constitutional

handle in that case to reverse the sentence the Eighth Amendment

than there was to invalidate the statute in Griswold.

Thus, in the modest role, the Justice is still a politician, but he is a

timid politician. He w ants the Supreme Court to play a role a bit like

that of the House of Lords after its authority was limited to delaying

legislation enacted by the House of Commons. The Court can keep its

Lette r from Ju.stice Holm es to Harold Lask i (Jan. 11, 1929)-

reprinted in 2

HoLMES-LASKI

L E T T E R S 1124 (Ma rk DeWolfe Howe ed., 1953).

78 Se e Letter from Justice Holmes to Harold Laski (Oct. 23. 1926), reprinted in 2 HOLMIiS-

L A S K I L E T T ER S ,

supra

not

77, at 888.

75 381 U.S. 47q(i965).

80 See id. a t 484-86.


25/72

56

H RV RD L W REVIEW

[Vol.119:31

t hum bin the dike only so long;if public opinion is overwhelming,the

Justices must give way.

as any

politician wou ld have

to do,

If

the

Justices acknow ledged

to

themselves

the

essentially personal,

subjective,

and

indeed arbitrary character

of

most

of

their constitu-

tional decisions, thendeprived of thelawmademe do it rationali-

zation for theassertion of power they probably would be lessag-

gressive upsetters

of

political

and

policy applec arts th an they

are.

Tha t , in my opinion, would be all to thegood. But it is toomuch to

expect. People d o n 't liketo be in a state of dou bt. Jud ges do n' t like

to think they are tossing a coin when they decide a difficult case. I

have

had the

experience

I

think

all

judges have

that sometimes

when

I

star t

to

work

on a

case

I am

uncertain

how it

should

be de-

cided itseemsa toss-up. Yet I havetodecide (theduty todecideis

the primary judicial duty),

and the

longer

I

work

on the

case,

the

more

comfortable

I

become with

my

decision.

And

comfortable

is the

word; there is a psychological need to think one is making the right

decision rather than just taking a stab in the dark . Th is need is re-

lated

to my

earlier point abo ut judg es rarely acknow ledging

to

them-

selves the political dimension of their role, an acknowledgement tha t

would opena psychologically disturbinggap between their officialand

their actual

job

descriptions.

A

judge

who did not

become comfort-

able with

his

decision

by the

time

it was

handed down might

be tor-

mented in the future by doub ts about whether the decision had been

correct. No onelikesto betormented; andjudgesdo not like to look

back

and

worry ab out

how

many

of

their thousand s

of

votes

may

have

been mistaken because they were really just stabs

in the

dark.

(I

have

voted in almost 5000 argued cases.) So as theyears pass they become

more confident, because they have behind them an ever-longer trainof

decisions that they

no

longer doubt

are

sound.

Some judges agonize over their decisions (that

is,

over their votes);

some even pray over them. Yet for the most part an agonizer 's deci-

sions,

too, are

quite predictable once

he's

been placed

in his

part icular

ideological slot. Justice B lack m un

was not a

happy camper,^'^

but his

decisions were no less predictable, and certainly no less aggressivein

their assertion of judicial power, than those of Justices who take a

more relaxed attitude toward their judicial duties.

Judicial modesty

is not the

order

of the day in the

Supreme Court .

I instanced Roper; another example from last Term

is

Booker

in

which

the Court invoked

the

constitutional r ight

to a

jury trial

and to be

judged by thes tandard of proof beyond a reasonable doubt to invali-


26/72

20051 THE SUPREME COURT FOREWORD 5 7

lines mandatory.^^^ T he res ult of

Booker

is tha t the Guidelines are

merely advisory sentencing judges can depart from them on any

grou nd tha t a reviewing cou rt deem s reasonable.'* Th e cha racter, and

un tow ard consequen ces, of the aggressive jud ge app roach to judg ing

in the open area are well-illustrated by the decision.

In setting criminal penalties, legislatures usually specify a minimum

and a maximum sentence often far apart, thus creating a very

broad sentencing range and let the judge choose in each case the ac-

tual pena lty to impose on the defe nd ant. Before the Senten cing Re-

form Act of 1984,'*^ the statute that ordained the Guidelines, federal

judges could pick pretty much any sentence within the statutory range

to impose on the defenda nt. Th e Guidelines limited their sentencing

discretion and

Booker

restored it, though not completely, because any

departure from the Guidelines must be reasonable in light of sentenc-

ing factors set forth in the Act.****

The guidelines regime required that the sentence be based not only

on the facts about the defendant's conduct that the jury had found be-

yond a reasonable doubt, but also on facts that the judge found at the

sentencing hearing by a mere prepo nde rance of the evidence. Th e

defendant might have been indicted for and convicted of possessing

with intent to distribute two grams of cocaine, but if the government

at the sentencing hearing persuaded the judge by a preponderance of

the evidence that the defendant had actually possessed with intent to

distribute 200 grams, the judge was required to sentence the defendant

in accordance with the guideline applicable to the larger quantity.

Critics of the mandatory guidelines regime worried about sandbag-

ging. Th e gove rnm ent m ight put on a barebo nes case involving a tiny

amount of an illegal drug, reserving its evidence of the actual amount

for the sentencing hearing, at which its burden of proof would be

lighter and the jury bypa ssed. Actually, this was not sandbag ging.

San dbag ging implies surprise, and everyone knew tha t this was a

tactic invited by the Gu idelines. And u nde r the pre-Guidelines regime,

which no Justice thought unconstitutional, the procedure had been

even more lax:'^ the sentencin g jud ge could imp ose the statu tory m axi-

'S Se e United States v. Booker, 125 S, Ct, 738. 748-50 (2005) (Justice Stevens's opinion for the

Court); id .

at 756-57 (Justice Brey er's opinion for the Co urt), Ste\'ens and Breyer each wrote a

majority opinion. Stevens on the unconstitutionality of the mandatory character of the guidelines

and Breyer on the constitutionality of the Guidelines as advisory rather tbun mandatory directives

to sentencing.

8^

See id.

at 764-66 (Justice Breyer's opinion for tbe Court),

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