A Neoformalist Manifesto
Introduction It started with a findlaw column by Edward Lazarus on the theme of judicial intergrity. I responded with a post entitled: Judicial Integrity, Legal Realism, and the Second Amendment: A Commentary on Lazarus and Kozinski, and Matthew Yglesias endorsed some of my remarks. Sunday morning Jack Balkin responds in a post that I urge you to read--awesome. In this post, I respond to Jack Balkin's critique and provide A Neoformalist Manifesto. So here goes.
Neoformalism: What? Labels are tricky. "Formalism" is one of the labels that is most often used by instrumentalist critics of the idea that judging can proceed on the basis of public rules that have relatively stable and determinate meanings. Tom Grey has a very good paper entitled, "The New Formalism," that provides a marvelous but critical discussion of renaissance of formalism in contemporary American legal thought. And when I outted myself as a "formalist" on this blog in January, I titled the post Confessions of Neoformalist to distinguish my views from the "formalism" that we all "know" was impossibly simplistic and wrongheaded. By "neoformalism," I simply mean an up-to-date version of formalism that takes into account contemporary legal theory and reformulates formalist notions so as to acknowledge both American legal realism and sophisticated analytic legal philosophy--especially the important line of thought that runs through Hart-Raz-Dworkin-Finnis and many others.
Neoformalism: Why? This is a deep and important question--obviously an adequate answer is far beyond the limits of a single post on a blog, but there is a central theme that can be stated simply and concisely. Neoformalism is an attempt to craft a normative theory of judicial practice that answers to the values that we summarize with the phrase the rule of law. On the one hand, the rule of law serves a cluster of instrumental purposes. Neoformalist judging makes the law more predictable and certain--allowing individuals and firms to plan. Neoformalist judging also avoids the long-run problems that can be created by the politicization of the law. When the law becomes thoroughly politicized, it is inevitably corrupted as even the most routine lawsuits become an opportunity for rent-seeking and patronage. On the other hand, the rule of law provides an important set of protections for human liberty and basic human rights. Instrumentalism (or legal realism in its instrumentalist form) is simply not up to the task of fully realizing the very great values we associate with the rule of law. In a nutshell, instrumentalism leads to politicization and over time, the politicization of the judiciary will inevitably undermine the rule of law. I know that these arguments are impossibly sketchy, but that's the best I can do in a paragraph.
Neoformalism: How? How would a neoformalist practice of judging work? In my post on Saturday, I offered a very brief sketch. For the purposes of illustration, I will discuss only constitutional cases. I do this for two reasons. First, because widening the scope of discussion to include common-law adjudication, statutory interpretation, and administrative law would make even a bare sketch unbloggable. Second, because constitutional interpretation is thought to be a difficult case for formalists. I began my brief sketch with by saying, "first and foremost judges should follow the rules laid down.," and I followed that with a set of guidelines that neoformalist judges might follow in constitutional cases. Let's try to present those more formally, as a set of principles, which are lexically ordered:
Principle One, Precedent: Judges in constitutional cases should follow an adequate and articulated doctrine of stare decisis. Among the features of such a doctrine is that even courts of last resort (i.e. the United States Supreme Court) should regard their own decisions as binding, unless there is a compelling reason to do otherwise.
Principle Two, Plain Meaning: When the precedents run out, judges should look to the plain meaning of the salient provisions of the constitutional text.
Principle Three, Intratextualism and Structure: When the text of a particular provision(s) is ambiguous, judges should construe that provision so as to be consistent with other related provisions and with the the structure of the Constitution as a whole.
Principle Four, Original Meaning: If ambiguity still persists, judges should make a good faith effort to determine the original meaning, where original meaning is understood to be the meaning that (i) the framers would have reasonably expected (ii) the audience to whom the Constitution is addressed (ratifiers, contemporary interpreters), (iii) to attribute to the framers, (iv) based on the evidence (public record) that was publicly available. (Adapting Grice's formulation of speaker's meaning.)
Principle Five, Default Rules: And when ambiguity persists after all of that, then judges should resort to general default rules that minimize their own discretion and maximize the predictability and certainty of the law. (And in this post, I will only offer a promissory note with repsect to the content of such principles.)
Principle Six, Lexicality and Holism The first five principles are to be understood as lexically ordered in the following sense. Judges should order their deliberations by the first five principles--attempting to structure their conscious deliberations by attending to the features highlighted by each each principle in order before proceeding to the next principle. But this requirement does not entail that judges either will not or should not recognize that the considerations thematized by one principle may be relevant to deliberations explicitly organized by another principle. Thus, the interpretation of a precedent will sometimes (perhaps always) require consideration of the text, structure, and original meaning, and so forth. (Lexical ordering is a guideline for structuring deliberation, and is not inconsistent with the observation that interpretation involves what Gadamer called the hermeneutic circle.) These are principles not rules, and lexical ordering operates a methodological heuristic and not as a rigid rule.
It goes without saying that this is a simplified theory of constitutional interpretation. It is offered for the purpose of pointing in the direction of a more fully-developed neoformalist theory of judging.
Neoformalism: Who? A neoformalist methodology is a necessary but not a sufficient condition for realization of the rule of law. Even the most elaborately detailed set of methodological principles would be of no avail, if applied by judges who aimed to bend the method to the goals supplied by their political ideology. For this reason, a neoformalist theory of judging is incomplete without a complimentary account of judicial character--of the judicial virtues and vices. To adumbrate this aretaic turn, for neoformalist to work, judges must be selected for thier possession of the following virtues, among others:
--Judicial Courage. Judges must not be so fearful of their social position or reputation that they are unwilling to do what the law requires, even when it will be unpopular.
--Judicial Temperance. Judges must have their desires in order--in order to avoid the temptations that can lead to corruption. The phrase "sober as a judge" reflects the recognition of this fact in folk jurisprudence.
--Judicial Intelligence. Judges need to be pretty smart, because the law is frequently complicated or obscure. Moreover, a good judge must be "learned in the law."
--Judicial Wisdom. Sound rule application requires legal vision--the ability to recognize the legally salient features of a choice situation. Rules do not apply themselves, and only a judge with the virtue of phronesis or practical wisdom will consistently apply the rules in a sensible way.
--Justice. Judges must posesse the virtue of justice--the disposition to decide in accord with the law, as opposed to whim, partiality, bias, or political ideology.
Let me repeat an important point--the laws do not apply themselves and correlatively the constitution does not interpret itself. Bad judges can make a mess of the best system of rules. Corrupt judges can depart from even the clearest rule. Political judges can bend the law to their own ends. But stupidty, corruption, and politicization are not inherent features of human nature. Judicial virtue is possible, and many judges on the bench today are virtuous. Neoformalist depends on these facts.
The Virtue of Justice
Balkin's Brilliant Argument And this brings me back to Balkin's primary challenge. Balkin raises exactly the right objection. He makes the right move. He focuses the debate on the crucial issue: what is the virtue of justice? I will explain after I quote Balkin's formulation of the objection:
Let me take a simple example. I assume for purposes of discussion that Larry (and Matthew, for that matter) would agree that women should not be subjected to discrimination by the states or the federal government. In fact, the line of sex equality decisions that begins with Reed v. Reed in 1971 is something that I think most federal judicial nominees would be expected to agree with; or to put it another way, any judicial nominees who forthrightly stated that sex discrimination was constitutional would likely never be confirmed. I would go further: these precedents are something that we can and should be proud of; they demonstrate that we have become a freer, more equal, more tolerant, and more democratic society than we were before. To me they are not examples of bad judging, but examples of good judging, and if a theory of judging is inconsistent with them, I think that is a reason to be suspicious of the theory.
Now one can easily justify following these cases today because they are precedents. But the question I want to ask is whether the cases were originally correctly decided in the first place. That is, could someone who holds the views that Larry does about good judging consistently come out the "right" way on the sex discrimination issue? Frankly, I don't think it's possible. I don't think one can make a serious case that the 1970's sex discrimination cases are consistent with Larry's notion of what good judging is, at least if the point of good judging is to "follow the rules laid down."
Oh, man! Am I in trouble now. Balkin has chosen his example with care. It seems to put me on the horns of an inescable dilemma. Either I agree that the gender equality decisions were wrong when originally decided--showing that I am against equality for women (and putting me in very bad company) or I try to argue for the Supreme Court's gender equality jurisprudence on neoformalist grounds. But if I grasp the second horn of the dilemma and try to argue that neoformalism supports the gender equality decisions, then I will open the door for Balkin to show that I am really a neorealist in disguise. Now, I am sweating. How will I get out of this?
Biting the Bullet So I really have to bite the bullet. As Balkin recognizes, I am forced into the following position. Although the Supreme Court's gender equality jurisprudence is binding precedent and should continue to be followed by both the Supreme Court and the lower courts, those decisions were badly reasoned and gave insufficient weight to contrary precedent. Now, Balkin is right when he assumes that I "would agree that women should not be subjected to discrimination by the states or the federal government." So how can I possible think that decisions which lead to a result of which I approve are incorrect as a matter of law? Haven't I contradicted myself? Well, no. In fact, obviously not. Why not? Because judicial fiat is not the only way to change the law. Law can be changed by amending statutes, promulgating regulations, and even in some cases, by amending the constitution. If the Supreme Court had taken the steam out of the political movement, the Equal Rights Amendment might now be law. Even with the Supreme Court's gender equality jurisprudence, both Congress and state legislatures have enacted a wide variety of important gender equality legislation. And it is not clear the polities without our institution of judicial review (the United Kingdom, Denmark, etc.) have lagged behind the United States in achieving gender equality.
The Flip Side And it is important to remember that there is a flip side of Balkin's argument. It is an accident of history that Balkin and I are debating these issues in 2003. In the long run of American history, the Warren and Burger courts are not the rule, they are the exception. The judicary is not usually the vanguard of progressive politics. The judiciary is usually a force for conservative values and entrenched interests. Balkin argues for constitutional change through what he calls high politics (see Balkin here, my satirical critique here, and Balkin's reply here.) But high politics can be practiced by the left and the right, by the progressives and conservatives, by the friends and foes of women's equality. If you read Balkin's full post, you will find that he argues that the Supreme Court's gender equality jurisprudence cannot be supported by precedent, text, structure, or original meaning. Balkin argued that the only justification for the gender equality decisions was "high politics." This is very, very important. So Balkin's theory argues that high political judicial decisionmaking is justified even when the decisions run contrary to the precedents, text, and original meaning of the Constititution. And hence, Balkin is committed to the proposition that high political decisions overruling Roe v. Wade or Brown v. Board or even the very genderal equality decisions he endorses would be legitimate. Legitimate, not right. Balkin can argue that the high politics that would lead to these results would be bad high politics. But he cannot argue that it would be illegitimate high politics. By way of contrast, neoformalism leads to the conclusion that it would be illegitimate to overrule Roe, Brown, or the gender equality decisions for political reasons. If Balkin's theory were followed, then the progressive decisions he treasures can be blown away by a shift of the high-political winds (the jet stream of politics). If neoformalism were to prevail, then the progressive decisions he treasures and many Rehnquist Court decisions he dislikes would both be protected from high political hurricanes and tornados. Of course, neoformalism does not require precedents to remain unaltered forever. A gradual process of case-by-case adjustment can lead even neoformalists to the conclusion that a precedent has become bad law.
The Downside of High Politicization But the flipside is not the real downside of Balkin's theory. The real downside of "high politics" is that it poses a fundamental threat--over the long run--to the rule of law. Balkin is a master rhetorician and a brilliant argumentative tactician, but even he cannot disguise the true nature of his position. Balkin's fundamental position is that the judges should make political decisions in constitutional cases, even when those decisions cannot be justified by precedent, text, or history. Balkin knows that many readers (especially those outside of the legal academy and departments of political science) will have great difficulty swallowing this radical position. So he tries to sugar coat it. Here is what he says:
Does all of this mean that I don't think that the Supreme Court should decide cases according to law? Of course not. It's simply that I have a much more capacious view about what decision according to law is. It's not just following the rules laid down, and it's not just moving from modality to modality in hierarchical order. Judgment according to law is a matter of, well, judgment. And that judgment, particularly in the big cases, but also in the small ones, inevitably involves considerations of larger political principle, what I have called "high" politics.
Stunning! Stunningly audacious, that is. By the wave of his magic wand, Balkin transforms decisions that would be understood as lawless by any conventional understanding of the norms of judicial craft into decisions made "according to law." Black is white. Up is down. Left is right. Law is politics. But a rose by any other name would smell as sweet. High politics are politics, nonetheless. High politicization may seem attractive in the short run, but where will it lead in the long run?
The Downward Spiral of Politicization Actually, high politics might not be such a bad thing in a society with a strong and stable consensus on matters of fundamental value. In such a society, judges would rarely need to strike down legislation on the basis of high political decisionmaking. And when high politics were called for, there would be little disagreement on the bench--since the judges would all share the same political ideology. But we don't live in that kind of polity. As Balkin recognizes, high politics are highly contentious in our current circumstances. Moreover, we are closely divided on a variety of issues with constitutional dimensions. If we live in Balkin's world, then high political ideology becomes the primary criterion for selecting judges--and as a result we get confirmation wars--so long as neither party controls both the Presidency and the Senate. If one party does gain control of both institutions, then it becomes in that party's self-interest to do their best to pack the federal judiciary with ideological judges who will vote for the party's high political preferences when on the bench. Decisions that disregard precedent, text, and history are legitimate--so long as they have high political rationales. Even lower court judges can get into the game. Why not construe Supreme Court precedents very narrowly--if they conflict with your own high political preferences? The Supreme Court can attempt to retaliate with summary reversals, but given the limits of the Supreme Court as an institution, it is inevitable that determined trial court and appellate court judges will be able to circumvent the will of the Supreme Court a great deal of the time. And down the spiral we go. The confirmation process becomes increasingly contentious and bitter. Justices snipe at one another, with colleague accusing colleague of blatantly political decision making. In this atmosphere, will the distinction between high politics and low politics remain inviolate. Will the parties refrain from nominating and confirming low-political judges if they get the chance? Will judges who began their careers as high politicians refrain from low politics once it becomes clear that "Law is the continuation of politics by other means." Does any of this sound familiar?
How Low Can You Go? Very Low! And where is the bottom of a downward spiral of politicization? Where does this all end? We need not avail ourselves of science fiction or possible worlds to answer this question, because the world of a thoroughly politicized judiciary is all too familiar from human history and comparative jurisprudence. A thoroughly politicized judicary offers no protection for human rights when the judges are aligned with the ruling regime. A thoroughly politicized judiciary views every case as an opportunity for patronage and political favortism. And when the rule of law goes, the piper will be paid in more than the currency of human rights. Without the rule of law, the transparency of markets begins to erode and eventually markets begin to collapse. Of course, there are stopping points on the slippery slope short of the complete breakdown of the rule of law. Most significantly, as the rule of law begins to erode the costs begin to become apparent, creating political pressures for the reformalization of the judiciary. My point is not that we are doomed. Quite the opposite. It is that we have choices in the here and now. Deescalation is a possibility. Presidents can nominate judges who are dedicated to the rule of law. The Senate can evaluate those nominees on the basis of their possession of the judicial excellences rather than on the basis of their political ideologies. The highly politicized Supreme Court can gradually move towards a more formalist, constrained approach to constitutional interpretation.
The Virtue of Justice Again Aristotle's account of the virtue of justice sometimes sounds quite odd to modern ears. Aristotle believed that possession of the virtue of justice meant the disposition to act according to law--call this justice as lawfulness. Contemporary jurisprudence and political philosophy has been infected by a very different conception of justice. Those of us who grew up or came to political maturity in the Warren and Burger Court eras came to see the virtue of justice as the disposition to do the right thing even when it was contrary to the rule of law--call this justice as fairness. As youthful enthusiasm gave way to more sober understandings, contemporary jurisprudence labored mightily to reconcile these two conceptions, preserving the great value of the rule of law while simultaneously endorsing the authority of judges to do what we believed was so clearly righteous even in the face of contrary precedents, text, and history. Elaborate theoretical edifices were constructed--some of them stunningly brilliant in their architecture and execution. Ronald Dworkin's theory of law as integrity is one of those efforts. Jack Balkin and Sandy Levinson's theory of constitutional adjudication as high politics is another. And Bruce Ackerman's hugely ambitious version of popular sovereignty theory is yet a third. These are powerful theories, intricately constructed and defended with deep knowledge, clever argument, and convincing rhetoric. But in the end, even our most brilliant theorists have been unable to overturn fact with argument. A constitutional decision that cannot be justified by precedent, text, or history is not a decision according to the rules laid down. The rule of high politics is not the rule of law.
A Category Mistake And that, I think, is why these theorists frequently slide between the normative and the explanatory. Because Jack Balkin is right. You cannot explain constitutional change with a normative neoformalist theory of judging. That would be a category mistake, as Balkin well knows. I can well believe that our constitutional history involves theories like Balkin and Levinson's, Dworkin's, or Ackerman's in an explanatory role. More crudely, of course, Balkin is right. Of course, we can only explain the Warren and Burger Courts by bringing politics into the picture. But that isn't a normative argument. "Ought" implies "can," but "is" doesn't imply "ought."
The Bitter Truth Oh, how I yearn for my optimistc faith that fairness was lawfulness. Oh, how much I want it to be that case that the Constitution is perfectly just. Oh, how I long for the theory that would make this so. Oh, how I wish that my high politics were the law of the land. As a law student, I believed with all my might that it was so. And every once in a while I am able to talk myself into believing once again--although sadly, I find that these glorious moments grow shorter and shorter, fewer and fewer. These days my mouth is full of bitter truth.