Friday, July 10, 2015

Taking Ted Cruz (Too) Seriously: Would Judicial Retention Elections Lead To Formalism?

by Michael Dorf

Senator (and presidential candidate) Ted Cruz recently announced his support for a constitutional amendment that would make Supreme Court Justices subject to retention elections. A number of commentators noted the irony that, in response to the perception that the Court was too politicized, Cruz was proposing to make it more political. For example, Prof. Randy Barnett is quoted in the WaPo story linked above saying: “The last thing we need is to make judges more like politicians, having to run for retention.” But that criticism may miss the point of the Cruz proposal. Presumably Cruz’s logic goes more like this: The Court is already deciding questions politically, so it ought therefore to be subject to the basic accountability mechanism of politics: elections.

Like most politicians and commentators who criticize the Supreme Court for judicial activism, Cruz is highly selective. His evidence of the Court acting politically invariably involves the Court reaching liberal results when, in his view, the law clearly requires a conservative result. And this fits the general historical pattern. In the first third of the twentieth century, liberals who sought to rein in the Court cited its conservative decisions as evidence of its infidelity to the law.

Politicians and pundits sometimes phrase their criticism in plainly outcome-based terms: The Court must be reined in because it is too liberal/conservative or because it is supposedly anti-Christian. Despite the fact that Senator Cruz is a former Supreme Court clerk and Supreme Court litigator, he sometimes speaks in this key, at least when talking to his base. For example, in deriding the SCOTUS ruling in Obergefell v. Hodges, he declared that marriage is “an institution that was ordained by God” and “long predates the United States of America.” But at least when speaking for wider audiences, Senator Cruz is more careful to couch his criticisms in jurisprudential terms. In particular, his criticisms tend to be couched in formalist terms. Obergefell and King v. Burwell are "tragic" decisions because they are exemplars of "judicial activism, plain and simple."

One can oppose (or support) the Cruz proposal for judicial retention elections for Supreme Court justices on various grounds, but here I want to pose one question: Would the proposal lead to more or less formalism?

We could try to answer the question empirically. According to Wikipedia (I know, I know, but this is just a blog post), twenty states use judicial retention elections. One might compare and contrast cases in these states with states that don't have such elections. Or one could look at states that changed from not having judicial retention elections to having them (or vice-versa) and look for changes. Any such empirical project would face very difficult coding challenges. Judges rarely say that they are deciding cases according to formalism, textualism, purposivism, intentionalism, originalism, living constitutionalism, or any other methodology, and when they do, it's not at all clear that such assertions can be taken at face value. In any event, I'll leave this empirical task for someone else and think about the question theoretically.

During their Supreme Court confirmation hearings, potential justices tend to speak in formalistic terms about the law and the role of a judge. CJ Roberts's conception of a judge as an umpire merely calling balls and strikes tends to get cited most frequently these days, but nearly all nominees, regardless of the party of the nominating president, say such things. Presumably they do so because the Senators who vote for or against confirming them want to hear this, and presumably the Senators want to hear professions of formalism because the public are formalists. And that is consistent with my experience as well. The general public believe in formalism.

Or at least they think they believe in formalism. As Jerome Frank explained in 1930 in Law and the Modern Mind the public belief in formalism is naive--a result of insufficient contact with the way the law actually works in a complex society. To paraphrase my colleague Steve Shiffrin, students enter law school as naive formalists and leave as legal realists.

Now obviously that doesn't apply to everyone. In the last thirty-some-odd years, the Federalist Society and Justice Scalia have revived formalism as a respectable jurisprudential philosophy. I strongly disagree with the claims of the neo-formalists, but that's a story for a different day. The important point concerns mass public opinion rather than elite opinion, and the great mass of the public--lacking a sophisticated understanding of law--are naive formalists. Thus, a justice who is worried about losing his or her seat in a retention election would seem to have an incentive to write his or her opinions in a formalist key. Accordingly, there is at least some reason to think that Senator Cruz's proposal would lead to greater formalism.

Nonetheless, as noted above, it's relatively easy for a judge to write a formalist-sounding opinion while actually basing his or her decision on other grounds. Indeed, I would argue that just about all formalist opinions in hard cases do exactly that, precisely because a hard case is one in which the formal legal materials do not resolve the issues. But even assuming that there are "real" formalist decisions and "fake" ones, it is not credible to think that the general public will be able to tell the difference.

Instead, the public will generally regard outcomes they agree with as correct on the law and those with which they disagree as incorrect on the law. And of course, the general public won't read judicial opinions. Thus, the most likely result of judicial retention elections will be to retain justices who decide cases in accord with public opinion. To the extent that the Supreme Court currently decides cases based on a mix of "legal" and "political" factors, the Cruz proposal would likely increase the proportion of political considerations while perhaps also leading to a modest increase in formalist language in judicial opinions.