Making Our Democracy Work (14 page)

Yet if originalism cannot help (for example, by safeguarding judges from the charge of following subjective preferences), then how are courts to decide difficult questions in ways that maintain the public’s respect? Should they simply follow their own political instincts about what the public will accept and shape the law accordingly?

The answer to this question must be no. Indeed,
Dred Scott
demonstrates the debilitating consequences of any other answer. Decisions tailored to the prevailing political winds would weaken—if not eviscerate—the Constitution’s protections, particularly as applied to unpopular individuals and groups. Furthermore, the very reason for placing the power of judicial review in the courts is to secure enforcement of the Constitution when it is politically unpopular to do so. If the Court’s decisions reflect short-term popularity, then why have the Court conduct judicial review in the first place? Why not place the constitutional review power in a politically responsive body, namely, Congress, particularly because, as
Dred Scott
shows, judges are not accomplished political meteorologists? For that matter, how could a law that reflects public opinion, which can shift quickly, maintain reasonable stability over time?

The best reason for the public in a democracy to support an independent
judiciary with the power of judicial review remains Alexander Hamilton’s reason: the public will come to understand the need to occasionally tolerate unpopular Court decisions to help ensure a government that stays within the Constitution’s boundaries over time. The “political winds” do not offer pragmatic or any other support for a Court’s constitutional decision.

But what then? If judges neither follow a deterministic theory such as originalism nor act politically, will they, in difficult cases with important social consequences, simply substitute their own subjective preferences for the law? Are we left with subjective decision making?

To think so is to counsel despair. How could a legal system work if each judge decided even a few important cases on the basis of personal views about what is “good” or “bad”? Given the fact that different cases arising at different times embody different circumstances with different desirable (or undesirable) attributes, it would be difficult for a single judge, let alone nine judges, to remain consistent. Why would a public, aware of that kind of decision making, accept the views of those unelected judges as legitimate? And with different presidents appointing different judges, how could a subjective system remain stable?

E
VEN IF “ORIGINALISM,”
“politics,” and “subjectivity” offer unacceptable answers, they do not exhaustively describe the way judges reach decisions. My earlier book,
Active Liberty
, described a judicial tradition that hesitates to rely on any single theory or grand view of law, of interpretation, or of the Constitution. That tradition can find antecedents in the American judiciary of the eighteenth century, when, as a leading scholar points out, judicial “appeals to reason and the nature of things became increasingly common.” The judges took an “unusually instrumental attitude toward law,” offering “prudent and pragmatic regulations” and justifying them by what the Connecticut jurist Jesse Root, in 1798, called “the reasonableness and utility of their operation.”
⁶

Modern American judges working in this tradition, like most
judges, use textual language, history, context, relevant traditions, precedent, purposes, and consequences in their efforts to properly interpret an ambiguous text. But when faced with open-ended language and a difficult interpretive question, they rely heavily on purposes and related consequences. In doing so, judges must avoid interpretations that are either too rigid or too freewheeling. They must remain truthful to the text and “reconstruct” past solutions “imaginatively” as applied to present circumstances, at the same time projecting the purposes (or values) that inspired those past solutions to help resolve the present problem. The judges must seek an interpretation that helps the textual provision work well now to achieve its basic statutory or constitutional objectives.
⁷

The Constitution establishes political institutions designed to ensure a workable, democratic form of government that protects basic personal liberties; divides and separates power (among state and federal governments, among three federal branches of government) so that no single group of officeholders can become too powerful; ensures a degree of equality; and guarantees a rule of law. These purposes can guide a judge’s efforts to interpret individual constitutional phrases. By taking account as well of the role of other government institutions and the Court’s relationships with them, the Court can help maintain these workably democratic constitutional objectives.

The Constitution, by creating several governmental institutions and dividing power among them, stresses the importance of considering those institutions as part of one government, working together. I add that the Court will sometimes find it can better interpret the law by staying aware of the different powers, responsibilities, and capacities with which the Constitution endows these various institutions. In doing so, the Court will reach decisions that take advantage of both its own and other institutions’ comparative competences and experience. Those decisions may well garner political support from other branches—the kind of support that flows from an individual’s understanding that his or her interests have been addressed even where they have not proved determinative. This is all to the good—simply one more reason why these decisions will likely work well and prove effective in practice.

I do not argue that the Court should simply defer to other institutions. Although the Constitution assigns different roles to different institutions, it subjects all of them to important constraints. Indeed, the very creation of governmental power simultaneously calls for constraints. As Madison wrote in
The Federalist
number 51:

As we have seen, the Court has the duty to ensure that governmental institutions abide by the constitutional constraints on their power. And it must continue to do so.
⁸

Thus, the Court can and should take account of purposes and consequences, of institutional competences and relationships, of the values that underlie institutional collaboration, and of the need to assert constitutional limits. The more detailed illustrations in the following chapters make up the substance of my claim that by taking proper account of these matters, the Court can help to maintain the workable democracy that the Constitution foresees.

The approach I have in mind can be described as pragmatic—as that concept is broadly used to encompass efforts that consider and evaluate consequences. Pragmatism in this context requires the Court to focus not just on the immediate consequences of a particular decision but also on individual decisions as part of the law, which is to say as part of a complex system of rules, principles, canons, institutional practices, and understandings.

Although the law is composed of some highly specific rules, such as those about how to deduct charitable contributions from income taxes, it also includes broad understandings, such as methodological understandings about how a judge should apply an earlier decision to a later circumstance, how a lawyer should determine the way in which one decision affects another, or when a court can change an earlier rule of law because the court now thinks it wrong. Pragmatism in respect to
law recognizes that individual decisions not only set forth specific legal rules that affect the parties to the case but also interact with other portions of the law’s fabric. The resulting fabric affects the world, sometimes more (as in
Brown v. Board of Education
), and sometimes less (as with an interpretation of a technical tax code provision).

Thus, pragmatism does not require a court to
automatically
overrule a decision simply because it produces harmful consequences. Even if all agree that a technical rule of antitrust law embodied in a century-old Supreme Court case produces some harmful antitrust consequences, a court might still preserve it. This is because changing that one legal rule will have implications for overturning others. Furthermore, the act of overruling old cases itself negatively affects the law’s stability.

Pragmatic approaches to law are not naive. They can take account of the interactions of a single decision with, for example, other decisions, rules, principles, methods, canons, practices, and the consequential overall effects of modifying the legal fabric. In
Brown v. Board of Education
, for example, the Court fully understood the logical, legal, and practical contradictions between its precedent
Plessy v. Ferguson
, the nineteenth-century case that authorized “separate but equal” facilities, and the basic purposes underlying the Constitution’s equal protection clause. Notwithstanding the importance of following precedent, the Court properly overruled
Plessy.
⁹

One might argue that pragmatic criteria, such as workability, just invite the judge to decide cases using political or subjective criteria. But this is not so. For one thing, the simple fact that a judge uses an approach, and eschews a more full-blown detailed theory, does not automatically mean he or she is thereby “freed” to act subjectively or politically. This is because, even without such a theory, many other aspects of the judicial craft constrain the judge’s decision making. Judges do not simply announce a legal conclusion. They
reason
their way to that conclusion in an opinion written for all to see. The obligation to provide legally defensible reasoning in a publicly accessible format prevents a judge from escaping accountability. Indeed, a good judicial opinion is transparent and informative. It shows that the decision is principled and reasoned. The strength of this reasoning matters.

Moreover, judges in a constitutional court, like all judges, are constrained
by prescriptions of the legal craft that have long guided judges toward better answers, even when a question is difficult and language open. A great judge, Learned Hand, a member of the federal Court of Appeals for the Second Circuit, answered the charge of “subjectivity” by pointing to “those books,” the law books, which include a common-law tradition and, in statutory matters, considerations of language, structure, history, precedent, purposes, and consequences.
¹⁰

In constitutional matters, too, language, history, purposes, and consequences all constrain the judge in that they separate better from worse answers even for the most open questions. The Constitution’s basic values or purposes—democratic decision making, protection of basic individual rights—constrain the judge by informing an individual case and by setting outer limits. The central values that underlie a particular general phrase set limits—for example, “Commerce … among the several States” or “due process of law.” Prior Court decisions and the need for stability in the law set limits. So do personal constraints—those that arise out of the judge’s own need for consistency. Justice Sandra Day O’Connor has described a judge’s initial decisions as creating footprints that his or her later decisions will follow.
¹¹

Furthermore, to insist that
judges
decide cases by applying an overarching legal theory is to misunderstand the nature of the judicial role. Judges must work quickly, deciding difficult cases in weeks or a few months at most. They inevitably reason through the merits of those cases by appealing to general principles, to the facts at hand, and to more general assumptions about what the facts show.

As the argument proceeds, the judge may modify his view of the facts or of related assumptions. He or she may decide that other basic principles are more directly applicable to the facts at hand. Those involved in the argument may speak at different times at different levels of generality, sometimes referring to specific facts, sometimes to intermediate (more general) facts, sometimes to general principles, and sometimes to consequences (sometimes specific, sometimes more general) evaluated, in turn, by principles, sometimes more, sometimes less specific in nature. Any of these parts of the argument may reshape the judge’s views of any of these matters as the argument proceeds.

This may sound complicated, but consider how most practical
arguments proceed: Should we invite your cousin to the wedding? Should we relocate the plant, when and where? As is true of any practical argument, including moral arguments, rarely does a single theory provide a determinative answer. Afterward, legal scholars or philosophers may use a set of determinative theories to evaluate the legal conclusion (as is true of a moral conclusion), but the judge rarely has the time to do so.

Consider how a judge actually decides an open, difficult legal question objectively even when he or she cannot discover a single legal theory that dictates an answer. A particular case will help show how the judge’s decision rests upon an evaluation of the purposes underlying a phrase, along with a pragmatic understanding of how the phrase means to help the institution work. At the same time, it shows how different judges might reach different conclusions without “subjective preferences” or “politics” providing the most plausible explanation of the differences.