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July 10, 2006
Legitimacy and Activism
One of the consequences of this approach is that in most cases you can make an argument for either side, for deference or for suspicion. That's why I said this approach isn't all that useful for deciding whether a decision is right or wrong. But looking for an objectively right or wrong answer to the difficult constitutional questions, particularly the value-laden due process and equal protection ones, is probably barking up the wrong tree. This is not because such questions are inherently indeterminate or purely political; it's because they depend on the relative weights of different factors, such as the standard degree of deference to representative branches and the significance of a history of constitutional violations or some structural reason to question the soundness of the democratic process. Different people will give these factors different weights, and as long as they're consistent in their approaches, I don't think they can be accused of abandoning the judicial role.
So how does this work in practice? For the full exposition, you have to get the book, which I hope some people will. That has a bit of theoretical groundlaying and also some argument about the meaning of particular constitutional provisions. Suppose for now that some constitutional provisions (notably the Equal Protection and Due Process Clauses) have some sort of reasonableness or justifiability requirement. That is, they tell the government not to treat some people worse than others without an adequate justification, or not to deprive people of liberty unless doing so benefits society. The question then is how deferentially the Court will review the legislature's determination that some particular law meets that test, and this is where the different factors come in.
Generally speaking, the Court's Equal Protection and Due Process jurisprudence seems like a fairly reasonable approach to the question as I've described it. Discrimination against racial minorities gets an anti-deferential review because there's a history of constitutional violations and reasons to doubt that the legislative process will weigh costs and benefits accurately (basically, Carolene Products/John Hart Ely reasons). So this makes Brown an easy case. Discrimination against gays and lesbians has some similar characteristics, so I see Romer and Lawrence as legitimate also. Abortion is a little harder, but given the underrepresentation of women in legislative bodies and the history of laws restricting their equal participation in society, I again see reasons why a court might not defer. So Roe and Casey are also legitimate, though neither is quite as convincing as it could be. (I don't really buy fundamental rights substantive due process.)
But Roe and Casey certainly aren't compelled--it would also be legitimate for a judge to say "It may be that legislatures are undervaluing women's liberty, but women are a majority and the abortion issue is better left to the political process." If this judge was sincere, you would expect him to be very deferential in other circumstances as well--notably, perhaps, in the case of affirmative action, but also with sex discrimination more generally. (So if you buy some form of heightened scrutiny for sex discrimination, I think you probably also have to go for some form of heightened scrutiny for abortion restrictions.)
What, then, is an illegitimate decision? The easiest examples are ones where the Court is taking an anti-deferential stance without any obvious justification. I think strict scrutiny for affirmative action is the clearest example of this--I just don't see why the political process can't be trusted. Some of the new federalism decisions--Morrison and Lopez, and even more so Garrett and Kimel--also seem like they're refusing to grant any deference to Congress without a good explanation of why the Court is a better decisionmaker. Bush v. Gore is another--there the Court takes an aggressive stance vs. the Florida Supreme Court with respect to Florida law and also vs. county canvassing boards with respect to the proper standards for counting votes. Neither of those is easy to justify as a general rule, and indeed the Court generally defers in such circumstances, hence the infamous line about consideration being "limited to the present case."
The set of illegitimate decisions that's harder to be confident about is ones where the Court deferred but shouldn't have. Plessy v. Ferguson is the one I feel most confident about. The Court there seemed to be willing to say that discrimination intended to vex or oppress blacks was unconstitutional, but then it took the word of the Louisiana legislature that this was not that kind of a law. But there were ample historical and structural reasons to doubt that the legislature would weigh the interests of blacks equally, so the case for deference is weak--and, as Justice Harlan's dissent pointed out, the social meaning of the law was in fact pretty clear.
Korematsu is a very interesting case from this perspective. I think in the end it's legitimate, because the military necessity of a particular measure is something that courts are much worse than the executive at deciding. Certainly it would have been legitimate to go the other way, too, and in retrospect the decision seems wrong, in that the trust the Court placed in the Executive was misplaced. But deference to military decisionmaking really makes a lot of sense. The problem in Korematsu, I believe (and this is what I want to dramatize in the novel but am having some trouble figuring out how to integrate into the Court-focused story), was that the Executive misled the Court in the conduct of the litigation. Of course, that historical precedent is a factor pointing against deference to claims of military necessity in the future, and the Court's awareness of it is certainly part of the subtext of Hamdi and Hamdan. As the saying goes, "Fool me once, shame on--shame on you. Fool me--you can't get fooled again."
Posted by at July 10, 2006 6:27 PM
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Comments
Glad to know about it.
Posted by: Paul at July 11, 2006 6:59 AM