Is Legal Realism an Impediment to Judicial Resistance to Authoritarianism? (A Preview of My Upcoming Lecture)
Today and tomorrow I'll be attending the Seventeenth Annual Constitutional Law Colloquium at Florida State University College of Law, where I'm honored to be delivering the keynote address later today. Below I'll briefly preview my lecture, but first I just want to say how much I'm looking forward to attending sessions featuring, among others: my co-blogger Eric Segall; my former students Beau Baumann, Eric Berger, and Caroline Corbin; old friends like Bill Araiza (who clerked across the hall from me at the Ninth Circuit and down the hall at the Supreme Court), Perry Dane (my former Rutgers colleague), Steve Griffin, and Rivi Weill; and numerous others whose work I've long admired (like Jack Balkin). I'm super-grateful to the colloquium co-organizers Barry Sullivan and Alex Tsesis for inviting me.
The title of my keynote is Realism, Formalism, Courage, and Hyperopia: Reflections on the Roberts Court’s Response to Authoritarianism. In a few places it draws on an essay I wrote for SCOTUSblog in July but the overall topic and thesis are new. The lecture will ask the question whether legal realism might impede the ability of courts to block authoritarianism. That question was sparked for me by the observation that when lower court judges have stood up to President Trump's most aggressive second-term actions, they have done so using formalist language, saying, in effect: the law here is clear, so I have no choice but to invalidate the administration's action. As I shall say in my lecture:
For example, just a few days into Trump’s second term, Federal District Judge John C. Coughenour, an appointee of President Reagan, had this to say about the birthright citizenship executive order: “I’ve been on the bench for over four decades. I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.” As we know, three Supreme Court Justices would ultimately vote to uphold the order and a fourth would find it constitutional but in violation of a statute. At the time, however, the ability to assert that Trump was blatantly violating the Constitution was rhetorically useful. I am not accusing Judge Coughenour of lying, but if he was lying, that is, if he thought the “subject to the jurisdiction thereof” language of the Citizenship Clause and United States v. Wong Kim Ark left some wiggle room for the Trump order, his invocation of formalism might be considered a noble lie.
In other words, formalism--the view that the formal legal materials typically play a decisive role in deciding contested cases--can give judges cover to take the actions needed to stand up to authoritarianism. And conversely, legal realism--the view that the formal legal materials are typically under-determinate in contested cases, especially in apex courts with control over their own dockets and the power to overrule past precedents--could undercut judges' ability to reject authoritarian actions as unlawful. Here is how I put the hypothesis that I explore in the lecture:
Whatever its defects in ordinary times, legal formalism is a useful tool by which the courts can resist an authoritarian presidential administration. In saying, in effect, “the law plainly forbids the president’s actions,” courts can deflect the kind of personal responsibility that a legal realist perspective would assign them for their actions and thereby rally public opinion against the president’s misdeeds. The rallying of public opinion is facilitated by the fact that despite over a century of legal realism, most non-lawyers hold naïvely formalist views of law.
I ultimately reject the hypothesis but not necessarily for all of the reasons that readers might think. For instance, even as I acknowledge that the Trump administration is not especially constrained by public opinion, I argue that it is somewhat constrained. For one thing, there is good evidence from political science that even full-on authoritarian regimes are somewhat constrained by public opinion. For another, we have examples of Trump pulling back in the face of sufficiently strong public opposition. He fired Kristi Noem and Greg Bovino in response to public opinion and abandoned efforts to restrict the public’s telephone access to the Social Security Administration after widespread public expressions of dissatisfaction, part of the general public backlash against the DOGE cuts to government programs. He has denied rumors that he is considering firing Pete Hegseth due to the unpopularity of the Iran war as revealed by Tuesday's election results, but such Trump denials often precede firings.
My point is not so much that public support for judicial invalidation of an authoritarian president's actions will lead to their abandonment but that it could. And therefore, if a judicial methodology strengthens public support for rulings against the administration, that methodology could play a role in constraining authoritarianism. Moreover, it is plausible to believe that formalism is such a methodology because we have reason to think the public are formalists. Why? As I say in my lecture, "even judges who have previously expressed legal realist views about the discretion the law affords them speak of the law in formalist fashion when their words will be heard by the general public, as in televised Supreme Court confirmation hearings."
That's anecdotal, to be sure, so in my lecture I canvas the leading empirical studies of public opinion about the Supreme Court, formalism, and legal realism. The picture is somewhat complex but the account I find most persuasive goes like this:
The public’s views of the substantive policy outcomes of cases shape whether they believe the Court to be simply following the law as determined by formal legal materials or deciding on policy grounds with which they disagree. Put differently, the public manage the cognitive dissonance between their formalist instincts and the evidence of their own eyes by supposing that when Justices rule as the public like, they are following the determinate law, but when the Justices rule contrary to the policy druthers of the public it is because the Justices are elevating their own policy druthers over what the public imagine the law to be.
The upshot is that if the general public like the bottom line of a Supreme Court case, they will support it and assume it reflects the law, regardless of the style (formalist or otherwise) in which it is written; if they disapprove, they will oppose the ruling and assume it reflects illicit judicial activism, also regardless of the style in which it is written. Accordingly, neither a judge who sincerely is committed to formalism nor a judge who is a legal realist but writes in a formalist style will be able to win over the public. Hence, formalism does not make it easier for judges to stand up to an authoritarian administration; conversely, therefore, legal realism does not make it more difficult to do so.
Indeed, in the concluding portion of my lecture, I offer a reason to think that the opposite might be true. Drawing on the SCOTUSblog essay I linked above, I explain that the Court's worst decisions in the Trump era have been hyperopic: they aim at addressing future hypothetical problems while mostly overlooking immediate ones. (Hyperopia is the opposite of myopia; one who is hyperopic misses the trees for the forest.) As I've explained before, Trump v. United States, the immunity ruling, is the sharpest exemplar. Both during the oral argument (in questioning by Justices Alito and Gorsuch) and in the final opinion (authored by Chief Justice Roberts), the Court focused on future risks, such as a cycle of political prosecutions of former presidents creating an incentive for presidents to hold on to power (Alito) and the over-deterrence of decisive presidential action for fear of criminal liability (Roberts). There's nothing wrong with considering the potential precedential effect of a ruling, but in Trump v. United States and other cases I discuss in the lecture, the Court did so while paying insufficient attention to the harm that was being done in the here and now.
I then suggest that a commitment to formalism may induce hyperopia. How? Here's how I put it in the lecture:
A Justice who believes that formal legal materials are generally determinate will, when facing a question as to which the pre-existing formal materials are relatively under-determinate, focus on crafting a forward-looking rule that will not misfire. To do so will require considering a range of hypothetical cases in which the rule might misfire. The case before the Court will merit some consideration but not necessarily more than those potential future cases.
In other words, belief in the determinacy of legal rules will lead formalists both to ascribe most of their decisions to pre-existing rules and, when they need to decide a case of first impression, to formulate a rule. To reduce the risk that such a rule will be over- or under-inclusive, the formalist judge will consider a wide range of hypothetical cases, thus downplaying the importance of the particular case before the court. Hence, formalism induces hyperopia.