Monday, July 17, 2017

Justice Gorsuch and Foolish Formalism

By Eric Segall

Last week, Professor John McGinnis wrote an essay at the Law & Liberty Blog praising Justice Gorsuch for his commitment to a “formal conception of law.” While others have criticized Gorsuch for his aggressive questioning and decision-writing so early in his SCOTUS career, McGinnis defended Gorsuch, arguing that his confidence stems from Gorsuch’s view that a “lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think.”  According to McGinnis, being a Supreme Court Justice for a formalist is "no different from being any other kind of judge.”  Because Gorsuch is an “experienced judge” who believes in formalism, he “was able to act forcefully from day one on the Supreme Court.”

Professor McGinnis is a respected scholar. His views on originalism, in a book he wrote with Professor Michael Rappaport, are interesting, provocative, and need to be taken seriously (which I do in my forthcoming book). But this praising of Justice Gorsuch, and his commitment to formalism, is both unpersuasive and dangerous.

Federal trial and appellate judges might be able to use formalism to decide many of the cases on their dockets. Most federal cases do not implicate national concerns and, to the extent the parties are fighting over legal rules rather than factual issues, the governing law is often clear enough where one of the parties can honestly be deemed to have “the better of the argument.” These judges also handle enormous numbers of criminal cases where the governing law is not in dispute. Of course, these judges also from time to time decide tough legal questions where they will have enormous discretion, but such cases do not make up a sizable portion of their dockets (I clerked for both federal trial and appellate judges).

But none of this has anything to do with the Supreme Court of the United States. The Justices self-select about eighty cases a year. Most of these disputes have national implications. The facts are usually not in dispute. The constitutional cases almost always require the application of vague constitutional text such as "equal protection," "due process." or "establishment of religion" to modern problems. The statutory interpretation disputes also center around unclear language and unforeseen complications resulting from statutory ambiguity. These cases cannot be decided by the Justices, and are not decided by them, based solely on the “meaning” of the language in question. Even if a Justice tried hard to keep her personal values from affecting her interpretation of the legal text, inevitably the decision will be based primarily on the Justices’ priors, politics, and life experiences. That is why conservative Justices usually (not always) vote conservative, and liberal Justices usually (not always) vote liberal.

Another reason formalism is a foolish way to describe what the Justices do or ought to do is that, unlike lower court judges, the Justices are not bound by precedent. One of the significant differences between the Justices and all other federal judges is that if the Justices don’t like a prior case, they can simply overrule it, either explicitly or implicitly. This discretion is why the Court has changed its mind dramatically in virtually every litigated area of constitutional law. From commercial speech to the commerce clause to commandeering to abortion to affirmative action and beyond, the Justices frequently change their minds. Formalism simply cannot tell a Justice when he should follow or not follow a prior case.

It is dangerous to perpetuate the view that Supreme Court Justices can decide cases without regard to practical consequences or their prior value judgments. McGinnis discusses how important it is that all judges “candidly set out the reasoning in support” of their decisions. I agree that all judges should do their best to transparently explain their decisions. But for most of the Court’s docket, the governing law will run out before a decision can be made.

The legal realists have been making these arguments for generations. Justice Oliver Wendell Holmes, Jr. was the intellectual leader of the early realist movement. He didn’t think that prior legal rules decided cases as much as the Justices’ personal, social, and political views. Along with Justice Cardozo and many leading academics such as Jerome Frank and Karl Llewellyn, the realists argued that Supreme Court decisions reflected judgment not logic. In his wonderful book, “Originalism in American Law and Politics,” Professor Jonathan O’Neil summed up the legal realist movement this way:

The core claim of the realists was that in deciding cases judges responded primarily to the facts and reached a result based on what they thought was fair and right--decisions were not motivated or constrained by the legal reasons or the constitutional text…. Furthermore, analogical reasoning, statutory interpretation, and facts themselves were often too indeterminate to resolve a case.

Although we can fairly debate how accurately the realists described the work of lower court judges, their primary target was the Supreme Court, where the Justices have the final judicial word on national problems arising out of unclear text and contested historical accounts of that text. Both Justice Gorsuch and Professor McGinnis would do the public a service by candidly admitting that most of the controversies the Justices select for decision cannot be resolved by formal legal rules and apart from the Justices’ personal values. That admission is the kind of honesty and transparency the nine most important judges in America should provide in their judicial decisions.