Vanderbilt Lawyer - Volume 37, Number 2

An excerpt from Judgment Calls: Principle and Politics in Constitutional Law

by Suzanna Sherry and Daniel Farber
Judgment Calls: Principle and Politics in Constitutional Law

Judicial review was an American invention, but it has spread to most democracies around the world. Courts in countries as diverse as Canada, India, Israel, Germany, and South Africa now exercise the power to enforce their constitutions.

Ironically, American judicial review has seemingly suffered a kind of crisis of legitimacy at home just when it has attained acceptance abroad. Some critics denounce judicial rulings as politics disguised in legal jargon. Other critics seemingly believe that judicial review can be salvaged, but only by adopting some rigid method for deciding cases, such as strict adherence to the original understanding of the Constitution at the time of its adoption. Both sets of critics agree that constitutional law, as it has actually been practiced, allows a few justices to impose their political preferences on the population at large. Their solutions may vary, then, but their diagnosis of the problem is the same: When it comes to judicial discretion, it is either the heavens or the abyss. The rhetoric adopted by critics suggests that constitutional decision making comes in only two flavors: either pure politics or pure formalism. Unless judges in constitutional cases can be tightly constrained by "strict constructionist" approaches such as originalism or textualism-and some do not think this is possible-the only alternative seems to be the unfettered discretion of politicians masquerading as judges. For these scholars, there is no middle ground.

We disagree, and in [Judgment Calls], we describe and defend this middle ground. Constitutional decisions can be judicial and principled (and thus firmly rooted in the rule of law rather than in politics), as well as judicious and pragmatic (and thus range beyond the narrow confines of text and original intent). Good constitutional adjudication should be neither the mechanical application of formal rules nor the freewheeling exercise of pure politics.

Lawyers know that some arguments are "rational"-they do not violate any of the rules of logic-but not reasonable; others fail to qualify as legal arguments because they involve extraneous considerations. Our thesis is that judicial decisions can be judged on the basis of this standard of reasonableness-whether their readings of texts are plausible, whether they consider all of the relevant factors (but not others), whether they acknowledge and adequately account for competing considerations, whether they articulate plausible distinctions and intelligible standards-in short, on the basis of the strength of their legal reasoning. This may seem like an uncontroversial thesis-and it should be-but in fact we have received remarkably sharp rejoinders from skeptics.

To be clear, we do not mean that legal reasoning is a purely objective exercise that has no connection to the varying perspectives and values of judges. Judges do not operate in a vacuum, and their worldviews inevitably-and properly-shape their rulings in hard cases. But judges operate in a different world than do legislators. There are both internal and external constraints on their decisions. These constraints do not provide definitive answers to every case. Especially in important cases, reasonable judges may differ about the correct outcome. How judges resolve these hard cases is inevitably connected with their views of the world and their political leanings. But there is a space between ironclad logic and unrestrained discretion, a space in which judges as well as administrative officials often operate. Trying to eliminate this middle ground is fruitless. Instead, we need to consider how judges can responsibly exercise their leeway in deciding hard cases-or in other words, what makes it possible for the rule of law, rather than lawless fiat, to operate in a world that lacks the comforting certainty of mathematical reasoning.

[Judgment Calls] seeks to present a new picture of judicial review-new in the way it combines elements, though not in the individual elements. We seek to reconcile the democratic rule of law with the recognition that judges have discretion. That discretion sometimes requires judges to make controversial value judgments. Our argument is directed in part against those who see a stark choice between a formalistic conception of law and raw politics as the basis for judicial decisions. Our approach to constitutional adjudication, then, cannot be captured in a catchword or a set of instructions. We must instead describe in detail the processes by which judges should-and largely do-decide constitutional cases, and the built-in constraints that filter the effect of politics or personal values.

Implicit in this vision of judicial reasoning is an understanding of the role of the Supreme Court in American society. We do not see the Court as either the keeper of ancient wisdom (as some originalists seem to) or a crusader for social reform (as some progressives would like). Rather, we view the Court's role as evolutionary, fostering change and also maintaining stability. Sometimes the Court's role requires it to frustrate the efforts of elected officials or ignore some indications of public opinion. This is not surprising given that a key role of constitutions is to protect political minorities. But constitutions are also meant to empower governments and democratize the political process, and it is not surprising that these too are functions of the Court. ...

Judicial review is not without its risks. Judges are as imperfect as the rest of us, and perhaps more prone than the rest of us to bask in the dignity of their positions. Their views may be outmoded, particularly in times of rapid social change. Yet, judicial review on balance has made a strong contribution to our society. We would be poorer as a society-and less democratic and free-without judicial rulings upholding free speech, the rights of religious and racial minorities, equal voting rights, gender equality, and the right of criminal defendants to a fair hearing. Few of these decisions were dictated by clear-cut constitutional language, nor by unambiguous historical evidence. It is hard to believe that our society would be freer or more democratic if these decisions had never existed. Society cannot empower the Court to make good decisions without taking the risk of bad ones, but in our view, the risk is worth taking.

Like others, we are often dissatisfied with the Court's rulings. Many of the justices do not share our political views; some may not be paragons of judicial temperament. We do not wish to be understood as apologists for the current bench, nor do we ignore the flaws of their predecessors. But the imperfections of the institution of judicial review should not blind us to the real contribution it has made to our democratic society. It is in the nature of human institutions to disappoint idealists, but without those institutions, our ideals would have no traction on reality.