The Supreme Court Review, 2013

The Supreme Court Review, 2013

by Dennis J. Hutchinson

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For fifty years, The Supreme Court Review has been lauded for providing authoritative discussion of the Court's most significant decisions. The Review is an in-depth annual critique of the Supreme Court and its work, keeping up on the forefront of the origins, reforms, and interpretations of American law. Recent volumes have considered such issues as


For fifty years, The Supreme Court Review has been lauded for providing authoritative discussion of the Court's most significant decisions. The Review is an in-depth annual critique of the Supreme Court and its work, keeping up on the forefront of the origins, reforms, and interpretations of American law. Recent volumes have considered such issues as post-9/11 security, the 2000 presidential election, cross burning, federalism and state sovereignty, failed Supreme Court nominations, the battles concerning same-sex marriage, and numerous First and Fourth amendment cases.

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The Supreme Court Review Volume 2013 (2014)

By Dennis J. Hutchinson, David A. Strauss, Geoffrey R. Stone

The University of Chicago Press

Copyright © 2014 The University of Chicago
All rights reserved.
ISBN: 978-0-226-15873-0



Richard H. Pildes

Constitutional law, and public law more generally, often entails regulating and reviewing the actions of institutions. Most prominently, in the realm of national affairs, public law oversees the actions of Congress, the President (a mix of an institution and a person), and administrative agencies. In the arena of state action, public law assesses the performance of institutions such as state courts and legislatures. To be sure, public law often involves judging more particularized actions of individual agents of the state—whether law enforcement officers, for example, have conducted a constitutional search or seizure in a specific factual setting. But much of the most important work of constitutional law—and certainly many of the highest-stakes and most visible cases—involves judicial review of the performance of the institutions of government. So it is with one of the most symbolically and politically charged Supreme Court decisions in decades, Shelby County v Holder, in which the Court concluded that Congress had failed to provide adequate justification for reauthorizing the unique preclearance regime of the Voting Rights Act (VRA).

When courts engage in reviewing the actions of other governmental institutions, such as Congress, they nominally apply, or purport to apply, what I call "institutional formalism." This formalism consists of treating the governmental institution involved as more or less a formal black box to which the Constitution (or other source of law) allocates specific legal powers and functions. Legal doctrine, that is, assimilates the institution—"the Congress," or "the President"—at a high level of abstraction and generality. By design, this institutional formalism blinds courts to any more contingent, specific features of institutional behavior, or to the particular persons who happen to occupy the relevant offices, or to the ways in which the institution actually functions in particular eras in which the institution is embedded within distinct political, historical, and cultural contexts. Instead, the role of judicial review is to assay the powers and properties of the institution at a general, essentialized level that intentionally ignores these fluid features—though these features are central, as we know, to the way the institution actually functions. That this institutional formalism exists is often taken for granted as part, some might say, of what the rule of law entails. How could it be otherwise?

And yet, an alternative does exist, in some form of institutional realism. This form of realism would entail constitutional and public-law doctrines that penetrate the institutional black box and adapt legal doctrine to take account of how these institutions actually function in, and over, time. There are many forms and degrees of institutional realism that legal doctrine could reflect. Such realism could be limited only to certain indicators of institutional change, such as those considered most "objective." For example, the most narrowly legalistic form of institutional realism would take into account only those changes directly reflected in a public institution's formal structure; should the passage of the Seventeenth Amendment, for example, influence federalism doctrines? But the functioning of institutions can change dramatically, of course, even absent any formal structural change. For example, should the way the Court responds to congressional, executive, and administrative action shift at all to reflect that the "Congress" of our era is constituted by hyperpolarized political parties more ideologically unified and more politically distant from each other than throughout the twentieth century? Does the Court's expansive reading of the Clean Air Act, to permit the EPA to regulate greenhouse-gas emissions, already evince this realist view about the Congress of our era? Similarly, institutional realism could operate at higher and lower levels of generality: it could mean taking into account how this particular presidency or this particular agency is perceived to function. If legal doctrine is receptive at all to institutional realism, where should this form of realism begin and end?

Legal doctrine and judicial decisions, as noted, are typically framed in institutionally formalist terms. This is most obvious, perhaps, with respect to administrative agencies. In the unifying ambition of the Administrative Procedure Act (APA) and administrative law, agencies are legally and formally the same. Regardless of differences in features of how particular agencies are designed or function, courts nominally defer to all agencies to the same extent under the Chevron doctrine and apply the same "arbitrary and capricious" or "substantial evidence" tests under the APA. Institutional formalism of this sort is even more consequential, yet ironically less visible, when it comes to "Congress" or "the President." Legal doctrine comprehends these institutions as singular, not just at any moment in time, but over time as well (diachronically as well as synchronically, for fans of structural linguistics). Supreme Court doctrine developed decades or even centuries ago on how much deference Congress is owed in a certain regulatory domain, for example, is relevant precedent today—regardless whether the actual Congress is hindered or empowered in dramatically different ways. "Congress" is always "Congress," for legal purposes. The constitutional powers of "the President" do not ebb or flow with the manifold changes of many forms that make the presidency a radically different institution in the early twenty-first century than the early nineteenth century. The manifestations of this institutional formalism radiate throughout public law.

Despite the rhetorical prevalence and rule-of-law appeal of institutional formalism, this article argues instead that the tension between institutionally formalist and realist approaches is pervasive, even if often obscured or latent, throughout the constitutional (and public) law of institutions. We cannot understand this law fully without recognizing this fact. Many scholars in discrete areas of law can be understood as grappling with this tension in some form. But I do not think we have appreciated how profound this institutional issue is, nor how it transcends specific areas of law to stand as one of public law's general, defining problems. Notwithstanding the nominal weight of institutional formalism, the pull of institutionalism realism is sometimes irresistible, whether opinions acknowledge so (as they occasionally do) or not. Part of the reason is that, even though some democratic theorists focus on pure procedural democracy, actual institutional designers do not. Constitutional democracies (indeed, all democracies) are institutionally designed with an eye toward substantive performance, based on assumptions about how institutions will function: a single- rather than plural-headed executive to make accountability and decisiveness more likely, separation of powers to achieve an appropriate level of checks and balances, bicameralism to protect minority interests. For those charged with implementing this system, including judges, not to take into account how these institutions function in fact would be, at the least, odd (and judges on our most important public-law courts live and breathe, not in Kansas, but amidst the institutions that comprise the national government). Dramatic conflicts within the Court, as well as public and academic debates about judicial decisions, thus are often implicitly fueled by differing stances on how formalist or realist the judiciary should be about Congress, the presidency, or other institutions.

Part I will demonstrate the pervasive presence of this formalist/realist tension across all the main institutions whose actions the federal courts review: the state "courts," the state "legislatures," the federal administrative "agencies," the United States "Congress," or "the presidency." Regardless of the public institution involved, the question of how formalist or realist the federal courts should be about that institution shapes what legal doctrine is, as well as debates about what doctrine ought to be. Part II will then apply this framework to offer a particular perspective on the Court's Shelby County decision. I conclude by suggesting that constitutional and public law can neither get rid of, nor solve, the tension between institutional formalism and realism. We cannot make any final choice between formalism and realism regarding institutions. Yet no titration formula (how much realism, how much formalism) exists either. Institutional realism might seem terrifying to contemplate, but public law cannot and does not live by institutional formalism alone.

I. Institutional Formalism Versus Realism: The General Framework

The formalist/realist institutional tension structures public-law doctrine and debates regarding judicial oversight of virtually all the institutions of governance. In the realm of doctrine, the Supreme Court and other federal courts sometimes engage the tension overtly. At other times, we can do no more than speculate, with stronger evidence in some contexts, regarding how much this tension shapes the Court's actions. Indeed, when legal doctrines change, I suggest it is often because the Court has altered its foundational stance toward the particular institution at issue: from a more formal to more realist stance or to a new and altered realist account concerning how the institution now functions. Scholarship, too, frequently turns on judgments and disagreements, explicit or not, on this underlying institutional question.

This tension in how the law should conceive public institutions can be seen as the modern successor to the early twentieth-century tension between formalist and realist approaches to the substantive content of legal concepts, categories, and doctrines. When the more pragmatic and consequentialist vision of legal realism threatened to be too corrosive to legal concepts, categories, and doctrines altogether, the Legal Process school of thought sought to stabilize legal practice by shifting the focus from the substantive content of law to regulating the appropriate processes and institutions through which the underlying substantive conflicts should be resolved. But now the tension between institutional formalism and realism re-raises the question of how much pragmatism—this time, at the level of institutions and processes—is compatible with certain conceptions of the rule of law. I begin with the field of federal courts.

a. Courts

The core debate that roiled the field of federal courts for decades (and perhaps still does) was precisely this formalist/realist divide over the stance the federal courts should take toward the state courts, particularly in habeas corpus review of state criminal convictions. The linchpin to all other discrete issues concerning federal habeas review was essentially this: whether a state court is a court like any other court. More precisely, the question was whether the federal courts on habeas review should treat state courts like any other court (i.e., a federal district court) with respect to issues such as whether federal courts had the power and obligation to readjudicate federal constitutional issues fully and fairly litigated already in the state courts.

Doctrinally, this debate was launched with the decision in Brown v Allen (decided nearly at the same time as Brown v Board of Education), which opened the door wide to routine federal court habeas relitigation of federal questions. During the 1950s and 1960s, the Court continued to license this expansive federal court review of state criminal convictions—more expansive than that which the Court enjoyed over lower federal court decisions, but starting in the 1970s, the Court shifted direction and began to require the federal habeas courts to defer much more to state criminal proceedings. In the expansive phase of federal review, the Supreme Court did not, of course, expressly belittle the capacities or performance of state courts in general—even as the Court authorized expansive federal second opinions on state court decisions. But there can be little question that disputes within the Court, differences in Court decisions over time, and scholarly analyses and conflicts rested on differing, general institutional views of state courts, including whether doctrine should treat those courts in more formalist or realist terms.

In scholarship, this institutionalist issue was the core of the "parity" debate. For the figures who initially dominated federal courts scholarship starting in the 1950s, the Constitution required that state courts be conceptualized as in parity with federal courts. That followed logically from the original Madisonian compromise that Article III reflects; because Congress was not required to create lower federal courts, the Constitution presumed that state courts would be as adequate as a federal court to adjudicate federal issues. Doctrine over a range of issues had to reflect that constitutional conception; penetrating the black box of "state courts" any further to judge how they generally function or perform in fact is not appropriate. This institutional formalist vein, most elegantly elaborated in Professor Paul Bator's classic article on institutional "finality," makes further "realist" questions about state versus federal judges legally irrelevant. Institutional formalism also entails consistency over time in the rules that govern federal court oversight of state courts; the same doctrines that applied in one era should apply in another.

"The Myth of Parity," my colleague Professor Burt Neuborne's influential rejoinder, is a quintessential argument from institutional realism. In essence, Neuborne argued that not all courts are created equal; that to think so was a "dangerous myth"; that a more institutionally realist appraisal revealed that federal courts were more receptive to enforcement of federal constitutional rights than state courts; and that legal doctrine in the federal courts area should reflect this institutional realism. Examining the three factors Neuborne invoked to justify this position is important to assessing institutional realism. He argued that (1) state judges are more prone to majoritarian pressures against unpopular federal claims because most state judges are elected; (2) that federal judges are more technically competent lawyers better able to work with complex or novel claims, because federal judgeships are more prestigious and better compensated; and (3) that beyond greater technical legal competence, federal courts had a "psychological set"—a set of cultural and attitudinal characteristics—that made them more disposed to accept federal constitutional claims than state judges.

Notice two distinct aspects of this institutional realism. First, it involves what I call "categorical" or wholesale realism about institutions. The argument is about state courts as a general or categorical matter. That is, the argument is not cast at a more particularist level of realism, such as an argument about how state courts function in a particular moment or era or how particular state courts function. Categorical realism of this sort could therefore still spawn general rules of federal court doctrine applied the same way over time; they would simply be different rules, which gave less deference to state courts on (some? all?) federal claims than the rules generated by the commitment to institutional parity. Second, note important differences between the kind of factors Neuborne invokes. His first factor rests on an objective, structural fact about formal institutional design (life tenure versus elections). But his other two factors are more subjective, elusive ("a psychological set"), and, indeed, capable of change over time.

From the perspective of legal doctrine, categorical realism about institutions is more judicially manageable than retail versions, examples of which we will soon see. Categorical realism, as noted, still enables courts to craft doctrines of broad and general applicability regarding these institutions. And categorical realism is easiest to justify when based on objective, structural features of an institution. As soon as realism rests on more subjective institutional assessments, as in Neuborne's final two factors, institutional realism will inevitably become more controversial normatively, more contested empirically, and more destabilizing, potentially, to conventional rule-of-law notions. For these less structural justifications for institutional realism open up possibilities such as that the habeas cases of the 1950s and 1960s were correct and that the retrenchment from those decisions in later decades was also correct. For if state courts in more recent decades (particularly Southern courts, after the civil-rights revolution) have developed a different "psychological set" than in earlier decades, institutional realism would argue that greater respect for the finality of state court adjudications would be warranted. Indeed, the Justices who led this retrenchment wrote precisely that. This is one area in which judicial decisions explicitly and directly reflect changing Court (perceptions) of the arguably dynamic nature of public institutions.


Excerpted from The Supreme Court Review Volume 2013 (2014) by Dennis J. Hutchinson, David A. Strauss, Geoffrey R. Stone. Copyright © 2014 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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Meet the Author

Dennis J. Hutchinson is Senior Lecturer in Law and William Rainey Harper Professor in the College, Master of the New Collegiate Division, and Associate Dean of the College, the University of Chicago. He has taught contracts, constitutional law, elements, and legal history, which is his principal field of inquiry. Geoffrey R. Stone is Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago. He has been a member of the law faculty since 1973. Professor Stone teaches primarily in the areas of constitutional law and evidence, and writes principally in the field of constitutional law. David A. Strauss is Harry N. Wyatt Professor of Law at the University of Chicago. His current teaching interests are constitutional law, federal jurisdiction, and elements of the law.

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