By Michael Dorf
As Professor Buchanan noted in his post on Thursday, there is a lot of agreement among the DoL bloggers. But not 100% agreement. Although the blog bears my name, I give my bloggers the freedom to disagree with me, and sometimes they do. For example, Professor Segall is more of a legal realist about the SCOTUS than I am. This is admittedly a difference of degree rather than kind. I agree with his basic characterization of the Court in his weekend post as mostly driven by values rather than law. I might quibble with the characterization of values and law as separate modalities but that would indeed be quibbling. I understand that when he says law he means formal legal materials that would lead all competent professionals to the same result.
I also agree with Professor Segall's explanation for why the ratio of values to law is higher in the SCOTUS than in lower courts: the SCOTUS controls its own docket, selecting cases that have divided the lower courts or are otherwise controversial; and no higher court sits above the SCOTUS, making precedent a substantially less important factor for it than for lower courts. Yet despite my basic agreement with Professor Segall's characterization of the Court's work, I do not share his general pessimism regarding its role in American law and society. I'll highlight four points.
(1) Critics of judicial supremacy sometimes urge that, in Professor Tushnet's phrasing, the Constitution ought to be taken away from the Court. As I noted in an article co-authored with Professor Matt Adler, that may not be entirely possible. But I think we all have a practical sense of what Professor Tushnet and other judicial supremacy skeptics have in mind: The courts would give essentially complete deference to Congress and, in some proposals, state and local legislative bodies, treating legislative enactment as conclusive validation of constitutionality.
Yet Professor Segall's leading example of a current-Term case in which we can expect values or ideology rather than law to drive the result is King v. Burwell. As he acknowledges, that is a statutory case. How, one wants to know, could statutory interpretation be taken away from the courts? If Congress writes a law that is unclear, some person or institution must be given responsibility for clarifying what it means when close cases arise. If not the courts, then what institution should be given this responsibility? The answer cannot be Congress itself, because we have justifiable norms against retroactive lawmaking and in any event, the national legislative process is often gridlocked, as it is now. Given the current makeup of Congress, a Democratic-led effort to clarify that subsidies are available on federally established exchanges would be defeated in both the House and the Senate. Meanwhile, a Republican-led effort to "clarify" that subsidies are not available would be filibustered in the Senate and even if approved, would be vetoed by the President, whose veto would not be overridden.
That leaves the executive branch, if not the courts or Congress, as the place to lodge responsibility for clarifying the meaning of statutes. Under the Chevron doctrine, the executive already has this power but subject to important limits set by the courts. I don't think Professor Segall suggesting that Chevron deference ought to be expanded to the point that any executive construction of statutory text is permissible, even if it is plainly inconsistent with the language of the statute. And if he would retain a judicial role for the courts in saying when the executive construction exceeds the plain language of a statute, then he would leave the Court exactly where it is in King v. Burwell, perhaps with an admonition to be serious about deferring to the executive. More generally, what about the statutory ambiguities that arise in cases between private parties outside of any agency context? Or how about criminal cases, in which the agency is the government prosecuting an individual. Should courts turn to the prosecutorial branch itself to resolve statutory ambiguities?
Professor Segall concludes his post by asking "under what theory do we allow unelected, life-tenured governmental officials to exercise such great power over all of us?". The answer, at least with respect to the statutory cases that appear to concern him as much as constitutional ones is the theory that says there's no better alternative.
(2) To be sure, the alternative is clearer in constitutional cases, but here it is worth looking over our history. Doing so leads to the conclusion that the critics have it pretty much backwards. As Barry Friedman demonstrates in The Will of the People, throughout American history, the Court has rarely been a strongly counter-majoritarian institution. Although the Court has sometimes erred by striking down laws it ought to have upheld, it has also failed by being insufficiently resistant to mob justice--as during the nearly six decades from Plessy to Brown and in Korematsu. Whether the "type 1" errors are worse and/or more numerous than the "type 2" errors is a complex question that is partly empiricl and partly normative, but I tend to think that Friedman is correct. He says at the end of the book that the right question is not How can We the People grant the Court so much power? but something more like How can we get the Court to take seriously its responsibility to protect minority rights? or Why bother having a Supreme Court that largely follows public opinion? (My modest attempt to answer that question can be found here.)
(3) It also strikes me that judicial review critics (including but hardly limited to Professor Segall) overstate the importance of court decisions, not to mention law itself. As I have said before, I don't agree with the view that judicial decisions have no impact. They are part of a legal dynamic that in turn interacts with the social and political worlds. But even so, it is a wild overstatement to think that by accepting the power of judicial review we have given over a very large chunk of our decision making power. Courts have either no role or a very minor role in deciding such matters as what to tax and at what rates, how to spend the government's revenue, whether and when the nation goes to war, foreign relations more generally, and numerous other vital matters. Even issues the Court does decide--such as whether there is a constitutional right to same-sex marriage, to abortion, to own guns, against affirmative action--are decided in ways that don't deviate that much from public opinion. (See 2 above.)
(4) I do not mean to sound Polyannaish about the SCOTUS. It makes plenty of bad decisions that are important to the people immediately affected. And if its actions make little difference over the long run, I am nonetheless mindful of what Keynes said about the long run. That said, my goal here is to push back mostly against the tone of Professor Segall's post. All in all, it is not clear to me that we could do much better than the system we have--as evidenced by a global trend adopting more or less the same system.
Professor Segall correctly notes that the Court has long had the power that worries him. What has changed in the last half century is that nearly every other democracy in the world has chosen to give similar powers to national constitutional courts or international human rights courts or both. Academics in other countries have somtimes voiced similar concerns about the counter-majoritarian character of these bodies but for the most part, these powers have been accepted with a yawn.
To be sure, there are features of the U.S. system that give our SCOTUS Justices somewhat more power than their foreign counterparts. In particular, our Justices have life tenure rather than serving for fixed terms. In addition, the difficulty of amending the U.S. Constitution makes SCOTUS decisions harder to overrule than comparable decisions in other countries. However, decisions of constitutional courts tend to be quite sticky even in regimes of "soft" judicial review susceptible to relatively easy override (as in Canada and the UK). As I have noted before, that stickiness suggests to me that judicial review tends to have popular legitimacy.