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Thursday, June 22, 2006

McConnell on Breyer

Constitutional law scholars should take note of the excellent June issue of the Harvard Law Review, which features a fascinating article on separation of powers by Levinson and Pildes that I have been interested in since drafts began floating around on the Internet several months ago; I hope to write on it in more detail later this summer.  The issue also features a review by Judge Michael McConnell of Justice Breyer's recent book, Active Liberty.  A great issue, hopefully still on a newsstand near you.  (Though I have a question -- what happened to the "Developments in the Law" issue?  Doesn't it usually show up by issue 7 of the volume?)

McConnell's review is typically well-written and interesting.  But it begins with a bunch of seemingly unnecessary throat-clearing that raises more questions than it answers.  For instance, McConnell writes, enjoyably enough, that "The judiciary may not be the least dangerous branch, but it is usually the most boring."  I think it's a toss-up -- is an ERISA opinion really more dull than a mark-up hearing? -- but it is a cute phrase.  Still, is it really true to say, as he then does, that the federal courts only "burst onto the front page" from time to time in American history, and that "[w]e seem to be in the midst of one such time?"  I'm not sure.  It's difficult to point to many eras in this century or the last when the courts were not involved in the controversies of the day, and our attention these days is focused at least as much on the executive branch and on the state courts as it is on the federal judiciary. 

More consequential, though it still reads like throat-clearing, is McConnell's introductory effort to discuss differences between liberals and conservatives with regard to the courts.  Both sides criticize the courts, McConnell writes.  But conservatives "say there is an important difference.  They offer a principled justification for the pattern of decisions they favor: that judges should interfere with legislative decisions only when necessary to protect individual rights or structural principles genuinely derived from the text of the Constitution, as interpreted in light of its history and tradition."  Liberals, on the other hand, "have yet to propound a comparable theory" that would allow them "to offer a persuasive critique of conservative decisions, beyond mere political disagreement about results."

This strikes me as thin stuff, which unnecessarily and conveniently obscures a rich debate.  Of course it is possible to propound a theory that allows a persuasive critique of conservative decisions beyond mere political disagreement about results.  For example, one might argue that the Constitution ought to be interpreted in a way that makes the nation more just along some particular set of propositions about justice, or that advances the principles of political liberalism, or that best helps left-handed people, or, to fall back on the old Tushnet example, that best advances the cause of socialism.  If you think the Constitution actually requires that we adhere to such a rule, you can interpret the Constitution accordingly -- even, I suppose, if you're not a socialist or left-hander; so it's not enough to say that such an approach is simply about political disagreement over results.  These approaches are every bit as "principled," in the sense that McConnell seems to mean here, than the conservative "principled justification" that he describes, which he paints at such a high level of generality that it obscures the degree to which intramural "quibble[s]" with particular outcomes will undermine any claim to a coherent conservative principle of adjudication.

It would have been better, I think, for McConnell not to talk about a "principled justification" here, but to talk in terms of legitimacy.  Coherent theories of constitutional interpretation abound, and there may be as many available theories as there are books in Borges's library, but they are not necessarily undergirded by theories of the legitimacy of a particular approach to constitutional interpretation; thus, my socialist example may be coherent, but that doesn't make it legitimate.  Conservatives claim that their approach to constitutional interpretation is not just coherent, but it is also legitimate, and it is this debate that is worth joining. 

[more after the jump]    

Of course, the notion that the first several pages of law review articles consist of throat-clearing is a common complaint about legal scholarship, so McConnell has plenty of bedfellows in this regard.  For the most part, you could just skip these first couple of pages and still enjoy his review.  So why -- other than the " you load sixteen tons" aspect of blogging, which always requires more grist for the mill -- is it worth focusing on here?  Because I think it actually is related to McConnell's broader argument in the review.

I have no quarrel with one aspect of McConnell's review, albeit he doesn't focus on it that much.  This is the idea that Breyer is less interested fostering active liberty than he seems -- that, in a kind of reverse-Wizard-of-Oz situation, there's a scary technocrat hidden underneath the guise of the folksy populist.  But McConnell's other mission is to suggest indirectly, by way of critiquing Breyer's approach rather than building up his own, that the proper approach to constitutional and statutory interpretation is the "textualist-originalist" approach.  He wants to argue that Breyer's approach, and other approaches that involve judges' considerations of "justice, equality, good consequences, or other normative concerns," ultimately lack any objective foundation, while the textualist-originalist approach "supplies an objective basis for judgment that does not merely reflect the judge's own ideological stance."  McConnell does not say this is true of every textualist-originalist judge in every case, since these judges, like the rest of us, are all too human.  But "[t]he point is that in principle" an objective basis for judgment is available. 

The problem with this, to my eye, is that McConnell is also at great pains in the review to make the textualist-originalist approach more palatable and attractive by reducing, if not eliminating, the prospect of a principled version of textualism/originalism -- or at least the prospect that this approach could be applied in anything resembling a principle and objective way.  Thus, he says that the textualist-originalist must, in ambiguous cases, subordinate his sense of what the Constitution actually requires in favor of deference to the legislature; that the textualist-originalist understands that "constitutional principles are not frozen in time," and will interpret various provisions of the Constitution more or less broadly; and that the textualist-originalist in any event will often defer to past rulings in the name of stare decisis.  (And, as I suggested above, he certainly is not limiting constitutional meaning to the constitutional text narrowly read; his reference to "structural principles" suggests the whole mishegoss of modern Eleventh Amendment caselaw.) 

Of course, these are all perfectly attractive and reasonable modifications of or nuances in a textualist-originalist approach.  But by the time McConnell is done whisking the bogeyman version of textualism/originalism out of the room, I find it difficult to detect much that can be called clearly coherent and objective.  Saying at this point that "in principle" an objective basis for judgment is available feels to me a little like saying, "In Neverland, we can fly."

Lest I call the textualist-originalists on my head like the plagues on Egypt, let me make it clear that my point is not to criticize textualism or originalism, let alone to suggest that they are inferior to Breyer's approach.  There is much to admire in them on a pragmatic basis (the basis I find most attractive in thinking about textualism and originalism, although I think McConnell would reject this defense of the textualist-originalist method), and there is much to critique in Breyer's defense of "active liberty."  (Would that he had just gone ahead and written a defense of technocratic judging!)  And, too, there is the question of constitutional legitimacy.  But McConnell's review basically ignores the legitimacy debate,* instead arguing that because Breyer's approach is not objective, and because the conservative approach he sketches is objective in principle, then all the potential liberal approaches to constitutional interpretation must be a matter of mere political preferences, and the conservatives must win by default.  It's a very readable and enjoyable review, but color me unconvinced.

*McConnell does say, quoting Breyer, that if judges committed to active liberty prefer interpretations "that are consistent with the people's will," then (in McConnell's words) "we must ask how the people manifest their will.  I suggest they do so in three ways: by creating and amending the Constitution, by developing constitutional tradition, and by electing representatives who enact legislation."  He says that, on this account, active liberty actually provides support for a textualist-originalist approach.  I think this line of argument is more about nicely hoisting Breyer on his own petard than about constitutional legitimacy, and as such it's a fun argument.  But I wonder what he means by "developing constitutional tradition."  How, exactly, do "the people" develop constitutional tradition?  And to the extent they do, why does this tradition not include, among other approaches, at least some of the justice-seeking approaches that McConnell dismisses in his review?  And I think that by referring to the process of legislation only, as if that's all legislators do, he's left another means of manifesting the people's will off the list: that the democratically elected President nominates, and the democratic Senate, confirms federal judges.  On that account, McConnell the textualist-originalist is a manifestation of "the people's will" -- and so is Breyer the technocrat/active-libertarian.      

Posted by Paul Horwitz on June 22, 2006 at 07:09 PM in Article Spotlight | Permalink


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Of course it is possible to propound a theory that allows a persuasive critique of conservative decisions beyond mere political disagreement about results.Ethan and Adam have posted similar thoughts a couple of months ago (see here and here), but this whole business is starting to seem like the quest to write the Great American Novel: you all keep saying that it's possible (easy, even: "well, if all it takes is a theory," one might scoff), but at some point, someone has to stop talking about it and actually sit down and come up with one.

I would think that,instead of saying "everyone turn your telescopes to the horizon! The Great Liberal Judicial Theory is just over the horizon! I think I can see the top of its tallest mast,right there!," a far better line of attack for you would be to point out that conservative judicial theories do not do nearly as much work as they're sold as doing. Granted, this would mean that liberals would have to stop pretending that all conservative jurists are exactly the same (no more "Scalito", and no more attacks on Thomas), but it seems to me that originalism and textualism are touted - if not by legal scholars, then by foot soldiers - as an all-encompassing panaca to judicial discretion. They are sold as being far more deterministic than they are. This isn't to say that they aren't better - both in the sense of legitimacy and practicality - than, for example, "active liberty," which is about the thinnest gruel imaginable from someone of Breyer's considerable stature (truly, if it was presented by one of your students in response to an exam question, "describe a consistent theory of how you would approach ajudicating cases", what grade would you give it?), but they do at least provide some practical, external constraints; they at least attempt to posit neutral standards of general applicability which reduce the scopeforsubjective assesments. No liberal theory yet offered - including (and I assume this was offered as a joke) Tushnet's "does this advance the socialist cause" approach: the baffling plethora of socialist sects (see Monty Python: The Life of Brian, scene 7), all of whom disagree on how to "advance the socialist cause," should make this plain enough.

Posted by: Simon | Jun 22, 2006 11:26:00 PM

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