Vanderbilt Lawyer - Volume 37, Number 2

Making Judgment Calls

Suzanna Sherry and Daniel Farber explore the proper role of the judiciary in their most recent book.

Suzanna Sherry

Judgment Calls: Principle and Politics in Constitutional Law, the latest book by long-time collaborators Suzanna Sherry, the Herman O. Loewenstein Professor at Vanderbilt, and Daniel Farber, the Sho Sato Professor of Law at the University of California-Berkeley, seeks to find a middle ground between competing visions of constitutional law.

In two earlier books, Desperately Seeking Certainty and Beyond All Reason, Sherry and Farber, who began their collaboration when both were serving on the law faculty at the University of Minnesota, criticized several theories of constitutional law advocated by scholars on both sides of the political aisle. In Judgment Calls, they present their own views, charting a middle ground between the originalist ideal of judges as constitutional caretakers whose chief task is applying the "original public meaning" of the Constitution, and those who insist that constitutional interpretation depends entirely on judges' political preferences. Sherry and Farber instead advocate a more pragmatic judicial approach that takes into account current societal norms and values as well as history and judicial precedent.

Judgment Calls describes and defends an American institution that currently looms large in the political spotlight: judicial review, the power of courts to strike down laws that violate the Constitution. The controversy over judicial review arises largely because many key constitutional cases raise questions that the language and history of the Constitution do not definitively answer. Sherry and Farber are firm and forthright in their defense of judges-and in particular, the justices on the Supreme Court-as the proper shapers of American law through their decisions in these thorny cases. "The results of such cases aren't clearly dictated by any source of constitutional authority, because they aren't addressed in the language of the Constitution, its history, or judicial precedent," Sherry says. "But even in these hard cases, we believe that reasoned legal decisions are possible. One of our goals in writing Judgment Calls was to show how judges can work within the leeway they have to make careful, reasoned decisions. We also wanted to identify the kinds of judges who tend to do the best job with these difficult cases, and the institutional structures needed to support reasoned decision making."

Sherry and Farber single out for particular criticism the oft-heard argument that "as currently practiced, constitutional law is just a charade whereby judges conceal their political views and pretend that decisions are based on something beyond personal preferences." As Sherry, who rejects that cynical view of judges and law, explains, "American constitutional law is more than naked political preferences. It has developed as a series of Supreme Court decisions erected on a foundation of constitutional text and precedent." And Sherry and Farber contend that the vast majority of judges take very seriously their responsibility as shapers of the law. Part of the problem with the current debate over the way in which the judiciary upholds the Constitution, they argue, rests in our discomfort with the fact that the judiciary is a human institution and therefore imperfect. "Judges can't rescue society from its follies, nor are they immune from mistakes," Sherry says. But as the two authors say in Judgment Calls, "What judges can do... through the evolving fabric of constitutional doctrine, is to provide a framework for democratic governance-one that respects the authority of the majority while providing basic protection for minorities."

Sherry and Farber open Judgment Calls by describing and defending the role of judges as interpreters of the Constitution. They turn next to a careful examination of discretion and judgment, explaining how judicial decision making can be principled without being mechanical. The book then focuses on the constraints that serve to limit judicial discretion, including precedent, process, and professional norms. Sherry and Farber close with an illuminating review of recent judicial decisions in controversial cases dealing with terrorism, abortion and affirmative action.

"We wrote Judgment Calls to set forth a middle ground showing how judges can be both guided by 'the law' and active participants in shaping the law," Sherry says. "We think that viewing judges as just 'politicians in robes' is the wrong approach, whether it leads to a conservative demand for 'strict constructionism' or a liberal cry to 'take the Constitution away from the courts.' Viewing constitutional law as politics rests on a fundamentally mistaken view of constitutional interpretation. We try instead to present a more accurate description of constitutional interpretation, one that respects precedent, incorporates process safeguards, and seeks to uphold constitutional values. We don't agree with everything the Court has done. But the imperfections of judicial review should not blind us to the real contribution it has made to our democratic society. Judicial review still represents the best way forward—as it has for more than two centuries."