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.


Joe said...

“candidly set out the reasoning in support”

One person who does this as much as anyone else in my book is Justice Breyer, including being aboveboard on his priors regarding what should go behind a good decision. But, fans of Gorsuch (putting aside this person, who might be atypical) tend to criticize him as not being a good judge.

And, repeatedly, critics have spelled out how Gorsuch really hasn't been candid.

Gorsuch's tone rankles but even more so when -- as tends often to be the case -- such patronizing "aw sucks" characters are guilty of "obtuseness" and self-righteously are both not candid and wrong. This particularly annoyed people, even those agnostic, during the confirmation hearings.

Joseph said...

"But this praising of Justice Gorsuch, and his commitment to formalism, is both unpersuasive and dangerous."

I do not see the danger and it seems that your response simply points at the divide between realists like yourself and formalists like Prof McGinnis (granted not an unworthy topic of discussion). I don't know McGinnis's views enough to say, but at least in that post he wasn't advocating for a unanimously formalist Court - though I would guess he would like to see more formalism. He seemed to appreciate the approach of non-formalists on the Court. And I suspect he is realist enough to not expect formalism to dominate the Court.

I think diversity on the Court is healthy. I think a Court composed of nine "realists" would be dangerous and more importantly it is simply unrealistic! If Gorsuch tugs the Court ever so slightly in the direction of formalism, that is clearly anathema to your view of the Court. Even in isolation a formalist justice appears intolerable to your view. So I don't know what kind of argument would be persuasive.

But maybe this is intended to be a more big picture debate disguised as something else, where one academic shines a light on an exhibit of his view and then another must be sure to try to undermine. You do suggest quite plainly that "Justice Gorsuch and Professor McGinnis would do the public a service by" forgetting formalism and adopting realism. Thus the debate was ended! :)

McGinnis's focus was on criticism of Gorsuch's early assertiveness which McGinnis contended is nothing more than criticism of formalism itself. McGinnis clearly isn't going to convince anyone that formalism is great with his post but I think he was merely being descriptive.

Unknown said...

"[M]ost of the controversies the Justices select for decision cannot be resolved by formal legal rules and apart from the Justices' personal values." Yet the majority of decisions this Term were unanimous (at least, in the sense of having all participating Justices voting for the same judgment). Many of those unanimous decisions reversed or vacated federal court of appeals or state high court decisions: County of Los Angeles v. Mendez, Coventry Health Care v. Nevils, Dean v. United States, Endrew F. v. Douglas County School District, Fry v. Napoleon Community Schools, Goodyear Tire & Rubber Co. v. Haeger, Microsoft Corp. v. Baker, Packingham v. North Carolina, Sessions v. Morales-Santana, Town of Chester v. Laroe Estates. Those were not "easy" cases in the sense that any reasonably sophisticated appellate judge would have reached the same result: in every instance, the Supreme Court rejected the lower appellate court's judgment. Were these instances in which the Justices were "able to use formalism to decide many of the cases on their docket[]"? If so, maybe a commitment to formalism is not quite as feckless as Professor Segall argues. And if not, how does a realist explain why Justices applying "judgment not logic" -- reflecting their own "personal, social, and political views" -- are so frequently able to achieve broad agreement in cases with "national implications" that involve "vague constitutional text" or unclear statutory language?

Eric Segall said...

"how does a realist explain why Justices applying "judgment not logic" -- reflecting their own "personal, social, and political views" -- are so frequently able to achieve broad agreement in cases with "national implications" that involve "vague constitutional text" or unclear statutory language?"

David, I don't accept your premises.I don't think there is broad agreement about the cases I'm talking about. The Justices are careful not to take too many of those cases in any one term. Also, the Court as an institution takes many cases that not all the Justices care deeply about so often they just go along. Finally, unanimous decisions may reflect just unanimous values not unanimous agreement on legal sources like text and history.

Unknown said...

Prof. Segall -- Thanks for the response. I'd thought you were discussing generally the docket of "about eighty cases a year" that "[t]he Justices self-select". If your post only concerns a subset of those cases, though, then perhaps you'd agree that the Justices can (and do) apply formalism in some instances, as you recognize federal appellate judges may do. But then it would follow that formalism isn't a completely wrong description of what the Justices do -- it just isn't a comprehensive account. It would also follow that the practical limit on normative formalism isn't that the Court can never render a formalist decision in any case -- it's just that the Court may not be able to do so in every case. Lastly, I think you leave open the question why, if formalism in Supreme Court decision-making is possible, there shouldn't be more of it. To be clear, I'm not necessarily disagreeing that there are instances in which a Justice should decide a case based on "judgment not logic". But I think it's fair to demand that a Justice who does so explain her choice in that case. She shouldn't have the cop-out of claiming that the Court never decides, and can't decide, any case based on logic.

Shag from Brookline said...

Perhaps the late George Carlin might have pointed out the difference between a "lawful" and an "awful" judge is a letter "l." Some might think that "l" represents liberalism or libertarianism or even libertinism. Is formalism versus realism a step back from originalism versus living constitutionalism? Or is this legal academia's Bud Light version? [I'll stick to a longneck Corona with a wedge of lime.]

Samuel Rickless said...

I have little or no objection to formalism as a prescription for an ideal language. But language is chock-full of infelicities, no matter how much experience we have with them and no matter how much effort we put in to avoid them. An excellent example of this is a decision that, for reasons that bemuse me, Justice Gorsuch refers to as a shining example of textualist methodology: Lockhart v. United States (2016). The question concerns the proper interpretation of the phrase "prior conviction...relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward". The majority went with the Last Antecedent Canon. The dissent went with the Series Qualifier Canon. According to the LAC, "involving a minor or ward" applies only to "abusive sexual conduct". According to SQC, the phrase applies to "aggravated sexual abuse" and "sexual abuse" as well as "abusive sexual conduct". Who is right? There was a Circuit Split, and the justices themselves were split. Understandably so. The language itself is ambiguous, the context does not clearly disambiguate (as it would, for example, with "Supreme Court Justice, Senator, or actor in a Star Wars movie"), the legislative history doesn't point clearly in one direction or the other, there are precedents that could be appealed to on both sides. One would think that this would be a perfect case for the Rule of Lenity, but the majority thought the contextual cues in favor of LAC were sufficiently strong that lenity was not justified. This is run-of-the-mill judging at SCOTUS. One might have thought that judges would send this one to the linguists or philosophers of language. But no. Justice Gorsuch isn't going to help any, because, like too many Justices on SCOTUS, he thinks that amateur linguistics or amateur philosophy of language is good enough for most cases. Hubris. And hubris is very dangerous in a judge.