During his acceptance speech for the 1984 Democratic Presidential nomination, Walter Mondale made the following statement:
Whoever is inaugurated in January, the American people will have to pay Mr. Reagan's bills. Taxes will go up, and anyone who says they won't is not telling the truth. Let's tell the truth -- Mr. Reagan will raise taxes and so will I. He won't tell you. I just did.That didn't work out so well for Mondale and indeed, it is practically a truism of American politics that promising tax increases--even desperately needed tax increases--is an excellent way to lose an election. To be clear, I don't think tax increases are needed now. I'm with Buchanan and Krugman in thinking we desperately need deficit spending right now. But that's a wholly different point.
Here I want to draw an analogy between the Mondale phenomenon and the ongoing debate over constitutional interpretation. In my latest FindLaw column, I conclude by drawing a contrast between Justice Stevens (speaking for living Constitutionalists generally) and Justice Alito (speaking for the majority and for formalists more generally) in McDonald v. Chicago. Stevens, I note, says that some measure of value judgment is inevitable in decisions taken under the rubric of substantive due process, and because he thinks (and I agree) that incorporation of the Bill of Rights is a subset of substantive due process, this means that the majority is relying on substantive value judgments in saying that the Second Amendment is incorporated against the states. The majority in McDonald essentially says that the incorporation question is one of determining positive law. It asks a question about the values of the American people (are they "deeply rooted" or "fundamental"?) and thus does not call for judges to use their own values.
In this story, the living Constitutionalists are Mondale and the formalists are Reagan (or as suggested by the title of this post, Bush I). My fear is that the results have turned out the same in the domain of constitutional interpretation as in the domain of taxes and politics. One side is saying "we're doing something you don't like, but so are the other guys." The other side is saying "they're doing it but we're not." Given this choice, voters (in the case of elections) and citizens more broadly (with respect to judicial role) tend to prefer the second viewpoint. Why?
If the public clearly understood that taxes do need to go up sometimes or that judging inevitably involves some element of subjective judgment, then they would presumably prefer the truth-tellers to the dissemblers. However, economics and law are both sufficiently technical and mysterious to the uninitiated--and in both fields experts take a wide range of views--that the public who want lower taxes or judges who will simply "apply the law objectively" can choose to support the politicians and prospective Justices who tell them what they want to hear.
Interestingly, Democratic nominees for elective office and to the Supreme Court are beginning to learn the Mondale lesson. It's true that Obama ran for President planning to raise taxes for high earners, and even that opened him to the charge that he would "raise taxes," but he could successfully counter by repeatedly emphasizing that he would not raise taxes on the middle class. Meanwhile, both then-Judge Sotomayor and, based on the first couple of days of hearings, SG Kagan, have taken something like the formalist line that as Justices their job is to put their own subjective views aside.
Now there is a sense in which this is clearly right and even banal: Where one's values conflict with the law, a judge must follow the law rather than her values. (I'm assuming the entire legal system isn't evil. In that circumstance, a kind of judicial civil disobedience might be warranted. Robert Cover wrote about this phenomenon with respect to slavery and Ronald Dworkin addressed the issue in the context of non-Nazi judges in the Third Reich.) But of course, the issue more commonly arises in cases in which the law does not provide a clear answer. As to those cases, the liberal/realist position is that judges can't help but give vent to their values, to some extent. The conservative/formalist position is that the judge's subjective values don't properly play a role even in those cases.
If current trends continue, we will eventually have a Court filled with two classes of Justices: 1) formalists who say that their values don't influence their decisions, and they may even believe that, but if so they will be mistaken; and 2) living Constitutionalists who think that every judge's values play an irreducible role in judicial decision making but had to hide that view to get confirmed.