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Tuesday, November 22, 2011

Judicial Transparency and Pragmatism

One of the most well known constitutional pragmatists is Dan Farber. He authored an important article advocating such an approach back in 1988, and has followed it up with two books on similar themes. In the article (72 Minn. L. Rev. 1331) he argued that courts should use all of the tools at their disposal and try to arrive at the best result possible. He said these tools include precedent, original intent, social science, and any other considerations that may be helpful. I call this comprehensive pragmatism. It treats constitutional interpretation as requiring judges to use all of the tools in the toolbox. The obvious problem is how to rank the value of the tools if they point in opposing directions.

Richard Fallon has written about this effort (100 Harv. L. Rev. 1389), akin to seeking an algorithm, and has generally rejected pragmatic considerations as normatively undesirable in favor of placing the text and other considerations first. Mike Dorf authored an article (87 Cal. L. Rev. 593) responding to some later Fallon criticisms of pragmatism. While I have no algorithm to offer, it would certainly be helpful if the Court wrote more transparent opinions admitting that the tools sometimes point in different directions. Imagine if Chief Justice Warren had openly acknowledged in Brown that the 14th Amendment’s original intent supported segregation, but that this was outweighed by moral considerations, as well as by the practical reality that separate but equal was not equal. Far too often, the Justices write opinions like legal advocates, and try to demonstrate that all of the differing criteria favor their result. In the long run, this lack of transparency harms the Court in my view. Indeed, I just taught the First Amendment secondary effects doctrine in constitutional law class today, and my students immediately figured out that this doctrine helped the Court avoid saying that the municipalities were engaging in content discrimination.

Posted by Mark kende on November 22, 2011 at 07:03 PM in Constitutional thoughts | Permalink


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Seems right to me. But you've got to reference Posner, a major advocate for pragmatism and transparency.

But I'm not sure on Brown. Acknowledging contrary original intent would help legitimate the opposition. And, the Court honestly thought the original intent was obscure, I think.

Posted by: frankcross | Nov 23, 2011 12:39:32 PM

Thanks for the reference Patrick. In answer to the other questions: one important piece of evidence suggesting that the 14th Amendment framers did not oppose segregation was the fact that they had segregated public galleries in the Congress at the time. Sadly, Plessy v. Ferguson was the legacy of this attitude. There is other evidence as well, though Michael McConnell has argued that the framers intent does support Brown. But he in the minority of scholars there. On the other question, I agree that Warren could not have "politically" admitted that original intent supported segregation. Thus what he did was also pragmatic in a sense. Yet for the reasons mentioned, it was not totally transparent in my view. Thanks for the questions.

Posted by: Mark Kende | Nov 22, 2011 11:12:26 PM

"Imagine if Chief Justice Warren had openly acknowledged in Brown that the 14th Amendment’s original intent supported segregation, but that this was outweighed by moral considerations, as well as by the practical reality that separate but equal was not equal."

I am imagining it. Southern States engaged in massive resistance for over a decade, and the Court's very legitimacy was constantly challenged. How would that have been better if the Court claimed in its opinion that its moral views regarding segregation were entitled to more weight than the moral views of many Southerners?

Posted by: slipperyslope | Nov 22, 2011 9:28:36 PM


E.W. Thomas's* The Judicial Prcess: Realism, Pragmatism, Practical Reasoning and Principles (CUP, 2005) strikes me as the work of a "comprehensive pragmatist" (in this case it's broader than 'constitutional interpetation,' having to do with judicial methodology in general). Have you read it?

*"Sir Edmund Walter 'Ted' Thomas, KNZM, QC (born 1934) is a jurist and former New Zealand Court of Appeal Justice and a member of the Privy Council of the United Kingdom. [....] Justice Thomas was brought out of retirement to become an acting Judge of the Supreme Court of New Zealand from 2005."

Posted by: Patrick S. O'Donnell | Nov 22, 2011 8:55:54 PM

What evidence is there that the original intent of the Fourteenth allowed segregation??

Posted by: bacchys | Nov 22, 2011 8:27:59 PM

I don't have much to add other than you make a good point. I suppose once you are a lawyer, you don't ever lose your approach of being an advocate. That or courts want their decisions to seem as objective as possible, and decisions on how to weigh very different types of factors sound subjective. In any event, interesting post.

Posted by: Jarod Bona | Nov 22, 2011 7:33:33 PM

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