Posner, Chemerinsky, and the Perils of Dishonest and Dangerous Formalism
As readers of this blog probably know, I was extremely fortunate to have a close relationship with retired judge Richard Posner, including hours of on the record taped conversations (it is common knowledge that he tragically now suffers from severe Alzheimer’s). I was recently listening to one of our discussions about the Hobby Lobby and Little Sisters of the Poor cases. We discussed both after his court rejected Notre Dame's absurd argument that signing a form granting it an exemption from the Affordable Care Act's requirement to provide birth control for its employees constituted a substantial burden on religion. We got into the weeds of free exercise and RFRA doctrine, or I should say, I tried to engage him in that conversation, but he refused. I was trying to show him that Justice Alito in Hobby Lobby effectively reduced substantial burden claims to non-reviewable sincerity claims, a point Justice Ginsburg made in dissent. I argued Alito’s move was deceitful and wrong.
Instead of discussing the doctrine, Dick said to me that we need to stop focusing on “silly legal tests.” He said that all of these claims, whether under RFRA or the First Amendment, should be answered by asking how important is the prohibited practice to the people who are claiming that it negatively affects their religion, and how important are the government's secular interests behind the law it is trying to enforce. You figure out a way to balance those two sets of values, and you explain why one is more important than the other. Everything else, he argued, was extraneous nonsense.
I have been thinking about my many conversations with Dick and his complete rejection of formalism in the context of the Roberts Court. In case after case after case, the Roberts court has simply done the bidding of the Republican Party. In the Trump immunity case, the insurrection case, Dobbs, Bruen, and many more, the Court's conservatives have relied on the fake tools of textualism, traditionalism, and originalism to justify their results. But even moderately informed lawyers who read those decisions understand that judges using those same tools could have come out the exact other way in every single case. What was really happening was the justices were implementing their GOP-inspired value judgments.
All of which led me to think about whether our country
would be better off if the Supreme Court simply said in its most important and
controversial decisions, “we think this value is more important than that value," or "we think this side of the argument is stronger than that side of the
argument because it reflects our values and politics better.” I know what Dick’s answer to
that question would be. He would have said unequivocally, yes. In fact, he did
say that to me on many occasions which brings to mind Dean Erwin Chemerinsky, whose
politics were completely different than Dick’s, but who in his famous Harvard
Law Review Foreword in 1989 said the following:
“Ultimately, constitutional law is a matter of defining and protecting society’s most cherished values. The paradigm for constitutional law (adjudication) must facilitate discussion and decision-making as to which matters to leave to the political process and which to safeguard from it. The focus on majoritarianism [and formalism] masks and obscures the Court’s value choices and should be replaced by an approach that directs attention to the difficult conflicts at the core of constitutional law….
Constitutional law is now, and is always about values….Ultimately, the decisions must be defended or criticized for the value choices the Court makes. There is nothing else.”
In my books and articles, I have rejected all manner of legal formalisms, favoring an approach based on strong judicial deference to other governmental officials. I do believe that judges understand burdens of proof and legal presumptions. But after thirty-four years of study, I have also come to believe that virtually no politicians, including Supreme Court justices, liberal, moderate, or conservative, will voluntarily give up their own power.
When I have attacked formalisms this way with my progressive friends in the academy, one response I get is that, even if keeping personal value judgments out of judging is impossible, that goal is at least a good aspiration that might constrain some judges, some times. This response is similar to the one Professor Neil Siegel, a truly brilliant academic, gave me after I told him that I was writing a book arguing that the Supreme Court is not a real court. Even if true, he asked, why would you pull the curtain back from an institution the country needs in a way that would doom that institution?
I don't think it would doom the institution to admit what Posner and Chemerinsky see as the only true basis for constitutional law (and even many difficult statutory interpretation cases where text and history are unclear) the balancing of values. I think most Americans would applaud judicial candor instead of judical smoke screens.
Justice Amy Comey Barrett, a faux formalist whose values almost always align with the Republican Party, recently chastised Justice Jackson for writing an honest and transparent dissent:
The principal dissent focuses on conventional legal terrain, like the Judiciary Act of 1789 and our cases on equity. Justice Jackson, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever.... We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.
Almost everyone agrees that the question of whether a single district court judge under exisitng federal statutes has the power to prevent the Executive Branch from enforcing its orders nationally with respect to non-parties is a difficult one upon which reasonable people can differ. The Court, which had discretion to rule either way, at least until Congress acts clearly to affirm or reject universal injunctions, focused on the history and tradition of equitable remedies, which if relevant may help provide some insight into this hard and fundamental issue of American politics. But text, history, and tradition were not the true basis for the majority opinion, which would not have been and was not issued during a Democratic Administration. But even setting aside politics, a large factor for the majority was obviously its carve-out that, of course, the Supreme Court has that power (and has and will use it). Legal doctrine had little if anything to do with this case, and Justice Jackson was right to make the normative points she made (even if I might disagree with her answer).
From the legal realists of the 1930's, to the critical legal scholars of the 1960's, to Judge Richard Posner, to Dean Erwin Chemerinsky, many of our most brilliant judges and academics understood that constitutional law is about the balancing of values.
There is, in fact, nothing else.
And the American people know it.
Eric Segall