+ "Law" vs. "Politics" +
CoolHandDuke TheBlueDevilMan
DECISION PROVES IT"
By MICHAEL C. DORF
http://writ.news.findlaw.com/dorf/20001227.html
Wednesday, Dec. 27, 2000
For roughly the last century, an academic debate has raged over the
nature of judicial decision-making. The radicals in this debate argue
that there is, at bottom, no distinction between law and politics. They
have scored important partial victories — for nearly everyone now
concedes that, at least in close cases, a judge's philosophy and values
play an important role. However, mainstream legal thinkers have, until
now, resisted the effort to collapse the categories of law and politics
completely.
The widespread perception that the Supreme Court acted politically in
Bush v. Gore appears to be an important victory for the radical
position. If the highest court of the land cannot rise above partisan
political divisions, then, many observers may conclude, there really is
no difference between law and politics; they are one, just as the
radicals have always contended.
But that conclusion would be wrong. Ironically, the very fact that the
Court's decision in Bush v. Gore appears "political" — indeed, more
political than any other decision in recent memory — only confirms the
existence of the law/politics distinction. If law were just politics, it
would be meaningless to criticize a judicial decision as political, and
all the Court's decisions would seem equally "political" to observers.
Of course, many issues that are hotly debated in the political arena
also become legal issues for resolution by judges — and many of the
arguments made in the political forum are also made in the judicial
forum. Yet it hardly follows from this overlap that every judicial
decision is simply a political one. Judges are bound by legal texts and
their own prior precedents to a degree that political actors are not.
And crucially, judges have an obligation to explain their results as the
product of legal judgment. Thus, law and politics are neither completely
distinct nor indistinguishable.
* The Law/Politics Debate Begins: Legal Realism versus Formalism
To understand the likely effect of the Bush v. Gore decision on future
understandings of the law/politics distinction, let us consider a very
abbreviated summary of the history of the jurisprudential debate about
whether such a distinction exists.
Until roughly the beginning of the 20th century, the dominant legal
philosophy in the United States was formalism. Formalists believed that
the application of legal principles embodied in statutes or prior
precedents was a largely mechanical enterprise. The decision in any
given case, formalists asserted, was a straightforward matter of
discerning the meaning of words, aided by canons of construction
(interpretive rules, developed over history, by which legal sources are
construed) and other neutral tools.
Formalism still has its champions, the most prominent of whom is Justice
Antonin Scalia, who is fond of quoting dictionaries in his quest for the
"plain meaning" of statutes and constitutional provisions. And it was
formalism's vision of the judge as blank slate that Justice Clarence
Thomas invoked when he said during his confirmation hearings that upon
taking his seat on the bench, he would "strip down, like a runner, to
eliminate ideologies."
But despite these well-placed defenders, formalism has been in decline
for nearly a hundred years. In the first half of the 20th century, an
alternative philosophy known as legal realism emerged to challenge
formalism. One familiar formulation of legal realism asserted that what
the judge happened to have for breakfast on any given day was as good a
determinant of his decision in a particular case as was anything found
in the law books. More generally, legal realists argued that legal
interpretation is not a neutral, mechanical process but a subjective,
human one in which the judge's beliefs, values, and politics come into
play.
Today, this claim may seem obvious to the point of banality, but it was
not until roughly the middle of the 20th century that most mainstream
legal thinkers accepted the legal realist critique of pure formalism.
Accordingly, legal scholars and theorists with widely divergent views
now generally acknowledge that constitutional provisions, statutes and
precedents typically leave gaps that must be filled by judges, and that
judges with different values and philosophies will fill those gaps
differently.
Does that acknowledgment imply, as well, that law is simply politics?
That was the next hotly debated theoretical question.
* The Legal Process School Offers a Resolution to the Debate
Even as mainstream lawyers, judges, and academics accepted legal
realism's critique of formalism, they resisted the claim of some radical
legal realists that law is just politics. In the 1950s and 1960s, the
legal process school of thought attempted a synthesis of the different,
warring philosophies.
According to those in the legal process movement, the fact that the law
leaves gaps provides a reason to be careful in the allocation of power
among the legislative, executive, and judicial branches. Within that
careful allocation, the judge's role is to follow the law as best as he
or she can — but the "best" interpretation of the law, the legal process
school conceded, may vary somewhat from judge to judge.
Like Bismarck or Clinton, mainstream legal thought defeated the radical
vision of the opposition by co-opting its most attractive features. The
legal process school rang true with experience, as realism had — for it
acknowledged that reasonable judicial minds could differ. But it also
held out the hope that judges might operate within some degree of
constraint, and within a limited sphere of power.
* The Debate Continues: Critical Legal Studies Offers an Even Harsher
Realism
The debate did not end with the legal process school, however. By the
1970s, the heirs to the radical branch of the legal realist tradition
had reformulated their position through the critical legal studies
movement (also sometimes referred to by the acronym CLS).
Where legal realism had emphasized the indeterminacy and potential
arbitrariness of judicial decision-making, critical legal studies
focused on politics. The "crits," as they were known, reveled in
demonstrating how throughout American history, judges had resolved
ambiguities in the law by rendering decisions that served the interest
of the dominant social class — or, at least, the political values held
by the particular judges on the bench.
Critical legal studies reached its peak of influence during the 1980s,
when several high-profile tenure battles at leading law schools — in
which the value of the work of professor who were identified as "crits"
was hotly debated — were taken as microcosmic enactments of the larger
war over the nature of law. Law schools that denied tenure to (some)
crits on the basis of criteria susceptible to manipulation opened
themselves to the accusation that they were no different from courts
that invoked formally neutral criteria in the service of a political
agenda.
But this tendency for self-absorption prevented CLS from attracting
adherents outside the academy. And within the academy, the CLS movement
waned because the crits never developed an affirmative program of their
own, to explain how legal interpretation should be conducted if it
really was merely political. As a result, the critical legal studies
movement ran out of steam by the late 1980s.
At the same time, though, the CLS movement spawned successor movements
like critical race theory and critical feminism, which emphasized the
role racial and gender concepts played in the law. In the end, however,
these two schools of thought owe more to the civil rights movement and
the women's movement, respectively, than they do to critical legal
studies.
Indeed, to the extent that critical race theory and critical feminism
endorse the idea that rights are meaningful legal concepts that can
advance equality, rather than merely the political tools of special
interest groups, these schools of thought are in some tension with CLS.
Consequently, the crits' most radical claim, that law is simply
politics, has remained largely a fringe view.
* Will Bush v. Gore Revive the Radical View?
So matters stood until the Supreme Court decided Bush v. Gore. In that
decision, the Court's most conservative Justices announced an
interpretation of the Equal Protection Clause so broad that if generally
applied, it would sweep aside election procedures for nearly every
office in a majority of American states. At the same time, the Justices
refused to consider the consequences of their sweeping decision for any
other circumstances, thereby suggesting that the principle announced
would not be generally applied, but would be arbitrarily limited to the
facts of the Bush-Gore election.
The inconsistencies go on. Most of the conservative Justices' opinions
attacked the Florida Supreme Court's interpretation of Florida law,
refusing to defer to it. But on the crucial question of whether a
recount could proceed beyond December 12, these Justices suddenly,
arbitrarily chose to defer to the Florida Supreme Court.
Even worse, the one Florida Supreme Court decision to which the
conservative Justices deigned to defer was a decision that court never
actually made. According to the anonymously authored 5-4 opinion of the
Court, the Florida Supreme Court said that the legislature would prefer
meeting the December 12 deadline (for avoiding a challenge to electors
in Congress) to obtaining an accurate vote count. Yet the Florida
Supreme Court had said no such thing.
The astoundingly unpersuasive reasons given by the Supreme Court for its
decision in Bush v. Gore have led many observers to conclude that the
Justices were (at least subconsciously) voting on the basis of their
political views, rather than the legal arguments. And if that is the
best account of this most supremely important Supreme Court decision,
then one might wonder if perhaps the crits are right after all — there
is no distinction between law and politics.
* Bush v. Gore is Different and in the End, Rebuts CLS
Nonetheless, Bush v. Gore feels different from other cases. For one
thing, to even seasoned observers, it feels surprising. If law were
really always just politics, as CLS claims, there would be nothing at
all surprising about either of the Court's two decisions
— first to stay the manual recount and then to prevent further recounts.
Yet many observers quite familiar with the Court's workings (myself
included) were stunned by those decisions.
Of course, these subjective reactions do not prove anything. It is
possible that prior to Bush v. Gore, we were in a state of denial about
the true nature of judicial decision-making. Now that we have been shown
the light, will we give up our former delusions, or will we, like
Plato's cave dwellers, cling to them and mock those who speak the truth?
In this instance, I shall cast my lot with the troglodytes. Bush v. Gore
not only feels different; it is different. To be sure, we have numerous
instances of Justices acting inconsistently from case to case. Most
prominently, the Court's conservatives attack judicial activism in the
service of reproductive rights, gay rights, and church-state separation
while practicing judicial activism in the service of states' rights,
color-blindness, and associational freedom. And the liberals practice
judicial activism in cases involving the first set of issues while
attacking it in cases involving the second set.
But it is at least possible to articulate a vision of the Constitution
that sanctions greater judicial solicitude for one constellation of
values than for another. By contrast, in Bush v. Gore, one senses the
Justices straining legal logic not in the service of a larger
constitutional vision, but in the service of a particular candidate for
office.
Many difficult questions of constitutional law have no single obviously
correct answer. Should the limits on Congress's power be enforceable by
courts, and if so, what are those limits? Do courts have the power to
enforce rights not expressly spelled out in the Constitution's text, and
if so, what rights? (The right to choose abortion? The right to exclude
homosexuals from private associations?) Does affirmative action remedy
violations of the Equal Protection Clause, or violate it? In the wake of
legal realism, it would be foolish to suggest that anyone could answer
such questions without relying in some measure on his or her own
somewhat subjective value judgments.
Yet, as I often tell my students as they are studying for exams, the
fact that a question has no single right answer does not mean that it
has no wrong answers. In denying the crits' claim that law is just
politics, mainstream legal thinkers maintain that constitutional
provisions, statutes and precedents rule out certain results, even as
they leave open a range of legitimate results. The constitutionality of
affirmative action and school vouchers are open questions; the
constitutionality of slavery and an official church of the United States
are not.
The problem with Bush v. Gore is not that the Court made a poor choice
among a range of legitimate options. The problem is that the Court
appeared to choose a result from completely outside that range. For this
reason, the case will likely stand as an exception to the usual form of
judicial decision-making, rather than an archetypal example of it.
------------------------------------------------------------------------
Michael C. Dorf is Vice Dean and Professor of Law at Columbia
University. He and Charles Sabel are currently working on a book, to be
entitled Democratic Experimentalism.
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The Duke Blue Devils -- 2001 NCAA Champions
ACC Tournament Champions -- '99, '00 & '01
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