Thursday, November 29, 2007

The Next Justice

Christopher Eisgruber is the Provost of Princeton University and a former law professor at NYU. He is one of the most elegant writers on constitutional law, both in his solo work and in his collaborations with his former NYU colleage (and current Dean of the University of Texas Law School) Lawrence Sager. Eisgruber's most recent book, The Next Justice, argues for a new approach to the selection of Supreme Court Justices. I'll be talking about the book on a panel at Princeton this afternoon and thought I'd very briefly preview my remarks here.

Roughly half of The Next Justice addresses matters of constitutional (and to a much lesser extent, statutory) interpretation. In order to know what the confirmation process should look like, Eisgruber says, we need to know what it is that we want our Justices to do. His answer is that Justices apply "ideological" and "procedural" values in interpreting the open-ended (Sager would say "justice-seeking") language of the Constitution (and statutes). Ideological values vary greatly based on a Justice's background, experience and commitments, and map roughly onto the conservative/lberal divisions that we see in politics. Procedural values, however, are distinctively non-political, and include a commitment to the consistent application of principle, blindness to party interest and respect for the decision-making capacities of other institutions. Thus, on the merits, Eisgruber offers a vision of judicial decision making that is broadly similar to the one I offer in No Litmus Test: Law Versus Politics in the 21st Century. We each think that ideology matters to judging, but neither of us thinks that ideology alone matters. Judging is a distinct activity from legislating.

How should this translate into the appointments process? Presidents, Eisgruber observes, take account of the ideology of potential Supreme Court Justices, and so should Senators. They should generally seek, Eisgruber says, "moderate" Justices, by which he means those who are in the mainstream ideologically and who manifest a commitment to the procedural values that make judging an enterprise that is distinct from politics as such. I don't quarrel with the latter but I do have serious doubts about the former: If a very liberal (or very conservative) President has a very liberal (or very conservative) Senate, then why shouldn't they appoint very liberal (or very conservative) Justices? Eisgruber's answer is that it's okay to appoint one or two such Justices but that beyond this, the Court should be dominated by moderates because they are more likely to accept the institutional settlements reached by other branches and levels of government. He offers that latter point (deference to institutional settlement, which is a term used by Hart & Sacks, not Eisgruber, but which captures his meaning) as a matter of the Justice's procedural values. But it is not clear to me that the degree to which a Justice defers to institutional settlements can be placed in the "procedural" rather than the "ideological" column. And by hypothesis, in my example, the President and the Senate favor Justices whose ideology makes them less deferential to conservative (or liberal) institutional settlements than the ideology of a moderate would.

I'll report back on the panel tomorrow or over the weekend.

Posted by Mike Dorf