Constitutional Makeweights, The Supreme Court, and the Rule of Law

By Eric Segall

Professor Ronald Krotoszynski, Jr., recently published an important and provocative article titled, "On the Importance of Being Earnest: Contrasting the Dangers of Makeweights with the Virtues of Judicial Candor in Constitutional Adjudication." The first sentence of the article is compelling: "For better or for worse--and mostly for worse--the Supreme Court does not always play it straight with We the People." 

Krotosznski argues, citing Ronald Dworkin and others (disclaimer, including me), that the "legitimacy" of a court's decision depends on the quality of the reasons the judges provide as the basis for the holding. This much-needed transparency furthers the rule of law and allows the people to judge the court's work. Krotosznski contrasts sincere reasons with "constitutional makeweights," which obscure and hide the judges' true rationales for their decisions. He argues that all courts "should abstain from the practice of offering bogus reasons in support of their judgments" because:

Genuine peril exists ... for a judge who assumes that they enjoy the same freedom of choice as an elected politician to take inconsistent positions over time in order to reach congenial results on important questions of constitutional law. For a judge to say one thing today, and then adopt an entirely inconsistent position tomorrow, makes it clear that the reasons offered in support of one of the judgments were insincere (at best) and patently false (at worst). Going forward, a reasonable consumer of that jurist’s opinions will take whatever they say with a grain (or two) of salt. Perhaps the judge’s stated reasons are the actual reasons for their judgment--or perhaps they are not. Over time, a sensible person would give less credence to the reasons offered by a judge who exhibits little or no regard for embracing the outcomes that their own precedents, and the legal reasons set forth within those decisions, 

Although all courts should abstain from using makeweight reasons, Krotoszynski accurately says that what "holds true of courts in general holds doubly true of the Supreme Court of the United States."

Krotoszynski selects three areas of law--stare decisis in constitutional cases, the Chevron doctrine, and affirmative action--as examples of the Court providing reasons for its decisions that simply can't be the actual bases for the decisions: the arguments are constitutional makeweights. He then gives examples of where he thinks the Court has given the actual reasons for the decisions--the first amendment's ban on prior restraints, the dormant commerce clause's prohibition on discriminatory state laws, and the anti-commandeering rule that Congress may not direct state legislatures and executives to help enforce federal law. 

It is a little hard to ascertain how much of a problem Krotoszynski thinks this lack of transparency is for the Court's reputation with the American people or how often the Court offers "bogus" reasons for its decisions, but at the least he is quite concerned that this failure of sincerity is a real issue. Not surprisingly, I think this lack of transparency is a bigger problem than he does but that difference does not really matter. The article is well worth reading regardless of one's views on how often the Court uses "constitutional makeweights." 

The remainder of this blog post will summarize a few of the examples Krotoszynski provides to give an accurate flavor of his article and will then conclude with a few thoughts about his thesis and why I think he understates the problem of the Court's failure to act in "earnest" and provide real reasons for its decisions.

The constitutional makeweight in affirmative action cases is not hard to spot. In a series of cases over many decades, the justices have held, incorrectly in may view, that all governmental racial preferences receive what is known as strict scrutiny: the government must have a compelling interest and use means that are narrowly tailored to further that interest. But, as Krotoszynski explains, the Court's

invocation of strict scrutiny, as actually applied, rather clearly constitutes a form of intermediate scrutiny because the means/end fit can be far from exact when a state government seeks to promote 'diversity' but is really seeking to remediate the pervasive forms of social discrimination that we know exist in contemporary U.S. society. In this context, the Supreme Court says one thing but actually does something else.

Although all of this likely to change this June, as of this writing, Krotoszynski is correct that the Court's higher education affirmative action cases are inconsistent with strict scrutiny for many reasons, including the Court giving deference to university goals of improving educational diversity and not really examining whether other non-race based programs would work or whether the program actually does hurt other groups other than the ones getting the benefit of the preferences. The Court says it is applying strict scrutiny but in reality it is in fact doing something very different, as opponents of affirmative action like to point out. (Krotoszynski would prefer that the Court apply and say it is applying intermediate scrutiny to affirmative action cases.)

Krotosznski also targets with great precision the Court's alleged doctrine of stare decisis in constitutional cases. This section of the article is supremely important. About precedent, Krotoszynzki says the following:

Stare decisis presents a poster child example of a constitutional makeweight. The doctrine supposedly reflects a well-settled and ancient rule that requires a court, including the Supreme Court, to abide by its former decisions. The rule constitutes a kind of judicial 'good housekeeping' doctrine that, in theory, serves to vindicate the reasonable reliance interests that arise naturally from prior judicial decisions.

Krotoszynski catalogues the many ways the Court ignores and abuses stare decisis and how the justices manipulate the many factors that go into the alleged calculous to determine whether or not to uphold a prior decision. He concludes that courts have a duty to wrestle in good faith with the reasons given in prior cases and only overturn precedents if those reasons are no longer persuasive (taking into account reliance interests).  This judicial examination of the reasons should be transparent and comprehensive, and I agree with his view that the Court has a long way to go to acknowledge how often it reverses prior cases, not because the reasons in the prior case were unpersuasive, but because the people on the Court have changed.

Krotoszynski's examples of constitutional doctrines that are not full of makeweights strikes me as somewhat controversial. I agree that the Court will not allow prior restraints in most free speech cases, and the reasons for that rule are well-articulated by judges. But his other two examples--the anti-discrimination rule in dormant commerce clause cases and the anti-commandeering rule--are far more difficult than he suggests. If nothing else, neither doctrine is supported by the Constitution's text, and both are riddled with exceptions that seem to undercut the general rule. The Court has held that states can discriminate against interstate commerce if they monopolize a "traditional state function" and that Congress may commandeer state legislatures and executives if it does so through a generally applicable law that applies to both state and private entities. These exceptions are highly dubious and suggest that the Court's reasons for the doctrines themselves are undercut by the exceptions. But these are quibbles and it is possible to disagree with my critiques of these sections and still find the article compelling reading.

Krotosznski ends this fine article with a resounding call for all courts, but especially SCOTUS, to give the real reasons for their decisions. Whether you think that the Supreme Court fails miserably on this score and for that reason often acts lawlessly, or whether you believe  just a little improvement or even none at all is needed, this article is a must-read for how it connects transparency of reason giving  and the rule of law. The final paragraph eloquently sums it up:

Constitutional rules, to constitute rules rather than little more than talking points, must effectively and reliably serve as the basis for decision in cases presenting the same legal questions. So too, constitutional rules must constrain judicial discretion--at least with respect to the governing legal framework. A constitutional rule can vest judges with wide discretion--balancing tests invariably convey discretion, for example--but the rule must encompass the analytical framework and legal standards that the court will apply to decide future cases raising the same legal question. When a legal doctrine does not set forth the considerations that actually animate outcomes and when decisions turn on unarticulated reasons, continued judicial reliance on the bogus doctrine will undermine the public’s confidence in the judiciary’s work. Unelected, life-tenured federal judges have a duty to We the People to articulate and defend the actual basis for their resolution of a pending constitutional dispute rather than invoke a verbal shibboleth that has little, if any, meaningful impact on either the court’s reasoning or decision.

Just so. My wish is that the justices themselves read this fine article and take away some important lessons to encourage the Court to act more consistently with the rule of law.