« Argument in Thompson v. Clark | Main | The state role in offensive and defensive litigation »

Wednesday, October 13, 2021

Should Court Reformers Attack the Idea of Law?

Continuing their important and timely project of promoting court reform, Professors Ryan Doerfler and Sam Moyn have written a scathing book review that nonetheless makes me think much more highly of the book being reviewed. At issue is Justice Breyer’s new “pamphlet,” as Doerfler and Moyn call it, and particularly its claim “that it would be dreadful to abandon the line between politics and law.” 

In their review, Doerfler and Moyn cast the failure of the law/politics distinction as the core reason to reform the Court. They argue that we have nothing to fear, and much to gain, from “open recognition that law is political.” It is easy to see why they would make that point. Defenses of the status quo sometimes insist that the Court is just doing law, so critics should take their political gripes elsewhere. Doerfler and Moyn want to preempt that defense by showing that the Court is really doing politics, rendering it a legitimate target for ideological critique. 

Yet the case for disempowering the Court doesn’t actually depend on rejecting the law/politics distinction and would be much more persuasive if it did not try to do so. 

For one thing, there is a difference between law and politics, haters notwithstanding. Just as a naïvely absolute law/politics division is oversimple, so too is it untenable to claim that law never has, or cannot possibly have, a practical, normative, or sociological identity different from politics. Doerfler and Moyn state that “Breyer comes exceedingly close to confessing that the Supreme Court is actually a political institution.” A more charitable reading of the book is that Breyer is channeling the sophisticated views of legality that are taught in jurisprudence courses every day. If Doerfler and Moyn embrace a similarly nuanced view, then perhaps there isn’t such a stark opposition between the reviewers and the Justice after all.

For another thing, the idea that the Court should be weaker is entirely compatible with the law/politics distinction. Perhaps the Court is just not very good at answering legal questions, at least in its current configuration. Or maybe the laws that the Court applies are themselves too capacious, or too amorphous, for democracy to flourish. If the Court is getting the law wrong, or if the law is itself undesirable, then we might have eminently good reason for judicial disempowerment—as many conservative critics of the Court have argued in recent decades. By seeming to insist on collapsing law and politics, Doerfler and Moyn prevent themselves from laying claim to these kinds of arguments and make adversaries out of allies.

Finally, frontal attacks on the law/politics distinction, besides being exaggerated and unnecessary, can indeed be very harmful. Breyer makes this point both in his book and in several interviews, and Doerfler and Moyn single it out for special rebuke. Here is one such passage from their article:

Identifying a very particular American institution with the “rule of law,” Breyer similarly remarked in a New York Times interview in late August that “tyranny, autocracy, irrationality” are the only alternatives. But Breyer’s belief that reform will bring lawlessness and oppression seems entirely melodramatic, given that no court in any other country enjoys the kind of policymaking authority our Supreme Court does—and those democracies often function better.

If Breyer is being “melodramatic,” then perhaps his critics are as well. In the interview that Doerfler and Moyn reference, Breyer was explicitly open to more careful reforms, like term limits. What Breyer is trying to say (I think) is that having a "rule of law" that is separate from politics is a precious, fragile thing. A society that completely rejects that separation, because it cannot see that judges do something different from politicians, is in trouble. Thus, we should guard against well-intentioned reforms that assume, or aspire to achieve, the collapse of law into politics. In this way, a melodramatic defense meets a comparably melodramatic critique. 

Doerfler and Moyn reply that the U.S. Supreme Court is the most powerful court in the world. Perhaps so, but it surely isn’t the only court premised on the existence of law. In essence, Breyer’s defense forces Doerfler and Moyn to shift to a different topic, one that they should have focused on all along: power. They can leave the law/politics distinction alone.

Posted by Richard M. Re on October 13, 2021 at 10:09 PM | Permalink


Just correcting some mistakes in my comment down there:

Should be: " Extremely important" and not: "Extremally important" of course.

And, instead of: "in cases that has nothing to do with politics whatsoever", should be: " in cases that have nothing to do....." of course.


Posted by: El roam | Oct 14, 2021 1:20:35 PM

Extremally important.

Too many complications here. Yet, one thing, which is the most important thing in that related post:

I quote:

Breyer and Feldman are right, of course, that enough institutional legitimacy is required for all otherwise justifiable institutions to function and survive. But such legitimacy is never itself the justification of an institution. In a democracy, the value by which to judge institutions—to safeguard if they serve it and reform them if not—is whether they advance or incarnate our collective self-rule. Breyer sidesteps this criterion entirely, as if the whole problem were saving the appearance that the Supreme Court is apolitical, managing a situation where his institution has accreted too much power to be regarded, in so many instances, as following legal rules rather than making political choices.

End of quotation:

But, legitimacy is by itself a goal or the main goal, in democracies (beyond that senseless issue of distinction between law and politics regarding the judicial branch).

Let's compare it to the executive branch:

Why would the executive branch bear any legitimacy ? Finally, it would always represent only certain publics, not the public as a whole. Even those represented publics or groups, would complain, that things are out of control. This is because of the fact, that they only sound promising, but never fulfill actually their promises. So, what are we left with:

The rule of law. Which is almost totally consensual. But, it stands on legitimacy. Because, neither laws are accepted by all, nor the rulers themselves. It has always been so. But, we are all bound only by one thing:

Rule of law. And actually it stands on appearance then, over, essence. Because as mentioned, essence is impossible to be achieved (at least completely so, and even far from it).

So, in this regard, even those who think that courts are politically based (which is totally wrong) must agree that legitimacy plays primary role here. If they accept the executive branch as such, and wouldn't preach for reform, surly the judicial branch, which is far greater closer to fulfill that fundamental notion or principle of the rule of law, over, any other branch.

Finally, not to forget, we mix politics with the legal field, or, actually judges or justices. But, this is due to the fact, that we grant too much importance to landmark rulings, over, huge workload, done day by day, in cases that has nothing to do with politics whatsoever. And those cases, are far greater more important then those noisy landmark rulings.


Posted by: El roam | Oct 14, 2021 7:08:39 AM

Post a comment