Administrative judicial rhetoric: the Supreme Court's new thesis of political morality.

• Author: Makau, Josina M.

Legal critics Dellapenna and Farrell (1991) urge examination of "how modes of judicial reasoning and the discourse in which that reasoning has resided have changed." Such work is important, they note, because the discourse of law "structures the 'conversation through which democracy proceeds'". This essay supports Dellapenna and Farrell's perspective. Uncovering three judicial inventional strands--a rhetoric of efficiency, a revised rhetoric of reasonableness, and appeals to tradition and majoritarian ethics--the essay reveals how judicial discourse has been used to redefine the Court's role and the world-view presumed for its audiences. More specifically, this study shows how the resulting new "thesis of political morality" (Sager, 1990, p. 28) has transformed this nation's conception of democracy.

Studies of judicial reasoning (Dworkin, 1986, Golden and Makau, 1982) reveal that Supreme Court inventional strategies both reflect and help create cultural norms, particularly those that govern institutional ethics and the ostensible grounds for institutional decision making. Upham's (1991) study of differences between Japanese and American methods of judicial invention supports this view. Upham's research indicates that although the actual legal results of cases in these diverse cultures are sometimes remarkably similar, the Justices' inventional strategies are strikingly different. According to Upham, the fundamental difference in rhetorical strategy "both exemplifies and creates a different understanding of the nature of society that may be fundamentally more important than any similarity in outcomes".

White's (1984) research further supports study of judicial inventional strategies. He notes that the law "constitutes both the community and the culture it commands". The language of law is a language "in which our values and motives are defined, in which our methods of reasoning are elaborated and enacted; and it gives us our terms for constructing a social universe by defining roles and actors and by establishing expectations as to the propriety of speech and conduct" (White, 1984, p. 36).(1) Examining evolving judicial inventional strategies therefore provides valuable insight into shifting cultural norms.

SETTING THE CONTEXT FOR JUDICIAL INVENTIONAL STRATEGIES

From Marshall's famous Marbury opinion, written largely to legitimize the power of judicial review, to today's controversial decisions, Justices have crafted arguments responsive to societal standards of reasonableness (Murphy, 1964; Ball, 1978; Berkson, 1978; Golden & Makau, 1982; Makau, 1983, 1984a, 1984b). Throughout this history, however, critics have challenged judicial efforts to maintain an ethos of reasonableness. During this century, legal realists posed a difficult and prolonged challenge to the Court's ethos by publicly questioning, for example, the authenticity of the Court's reasoning strategies. The noted Realist Jerome Frank (1930) insisted that judges "in fact" start with conclusions and make efforts to substantiate them as they proceed. He argued that judicial decisions are primarily the result of hunches combined with a judge's entire life of experiences, shaped values, and beliefs. He urged both judges and scholars to acknowledge the tenuous nature of judicial decision making, thereby helping all involved refine techniques of prediction.

The more recently evolved Critical Legal Studies Movement seeks even greater "realism."(2) Proponents of this perspective reject even the pretense of reasonableness in judicial decision making. They see instead the hand of politics (i.e., ideology) and economics behind every major Court decision, casting doubt on even the most zealous judicial effort to appear reason bound.

But even adherents of the Realism and Critical Legal Studies (CLS) perspectives readily acknowledge that Justices seek to maintain an ethos of reasonableness. They recognize, too, the potency of judicial rhetoric. Arguably, in fact, proponents of CLS are largely motivated by a fear that Justices have succeeded in "duping" the public into believing their decisions are essentially reasonable rather than fundamentally political. In an important sense, the strategies Justices employ to maintain and enhance their ethos of reasonableness embody public norms of reasoned discourse. Therefore, studying changes in judicial conceptions of reasonableness can be highly instructive.

EVOLVING STANDARDS OF REASONABLENESS

Throughout its history, the Court has drawn critical distinctions between types of cases. Economic regulation cases, for example, have been treated differently than civil liberties cases. From 1905 to the mid-1930s, the Court looked askance at most legislative efforts to control or regulate the economy. To enforce their laissez-faire economic philosophy, majority Justices used an interpretive and analytic tool known as strict scrutiny, an approach that involves rigorous and aggressive review of legislative acts.

During this era of anti-economic judicial regulation, the Court struck down approximately two hundred economic regulations. Most of these decisions struck down statutes protecting laborers, regulating prices, and restricting entry into business (Stone, et. al., p. 802). In the mid-1930s, however, the Court dramatically shifted its adjudicative stance. Many political scientists attribute this dramatic shift to external constraints. Roosevelt had threatened the bench with a Court-packing scheme. Further, the Justices found themselves defending policies without the backing of a strong constituency (Baum, 1992). The Justices' response to this political environment was to replace strict scrutiny with deference toward economic regulative legislative judgments. Applying this standard, the Court's new position was that governmental action in cases involving economic regulation are constitutionally valid "if the Court could conceive an argument to support the action" (Makau, 1984b, p. 384). Post-Lochner era Justices have liberally peppered their economic regulation case opinions with such deferential phrases as "we cannot say" that a particular legislative judgment is "not an allowable one." Since 1937, the shift from strict due process scrutiny to deference has been striking.

As the Court began in the mid-1930s to defer to legislative judgments in the area of economic regulation, a change in the area of civil liberties protection began to emerge as well. By the mid-1950s, the Court's decisions and accompanying justifications were increasingly activist in cases involving conflicts between governmental interests on the one hand and individual and group civil liberties on the other. In the area of racial discrimination, for example, the Court applied strict scrutiny to governmental actions and policies said to violate individuals' equal protection under the law. Justices developed standards of reasonableness cast in terms of the constitutional significance of the interests represented. Particular care was taken to describe individuals' rights as identifiably central to the Constitution's underlying purposes. Similarly, majority Justices spoke of constitutionally derived mandates to maintain the sometimes precarious balance between the three branches of government. Perhaps most significant was the evolution of a conception of democracy that required judicial intervention in the service of protecting minorities from a tyrannical or insensitive majority. While permitting governmental agencies almost free reign to regulate the economic marketplace, the Court regularly challenged governmental efforts to limit minority access to schools, the polls, and to exercises of free expression. The Court's rhetoric appealed to an expansive notion of what it means to live in a democratic world, one marked by change and a commitment to social evolution.

Since the early 1980s, however, this rhetoric has been replaced with a discourse marked by two important related shifts: adoption of an efficiency model for economic regulation and civil liberties and an increased tendency to adopt the language of deference in cases involving civil liberties. Together, these changes reflect a shift from a view of democracy as "a system of government where no group is subordinated to others, where free expression thrives, where liberties requisite to personal development are protected, where no group is systematically excluded from economic opportunity, and where persons' circumstances encourage and enable them to participate in politics," to a view of democracy as a political process in which "decision by an elected legislature and elected executive officials is the only legitimate means for making fundamental moral choices" (Sager, 1990, p. 28).

RHETORIC OF EFFICIENCY

The first shift in strategy began to appear in the Burger Court's adoption of a rhetoric of efficiency. White (1985) summarizes how this rhetoric reveals itself: "The overriding metaphor is that of the machine; the overriding value is that of efficiency, conceived of as the attainment of certain ends with the smallest possible costs"(31).

Justices employing the rhetoric of efficiency employ strategies that closely resemble instrumental reasoning. The term 'efficiency' used in this context denotes a method characterized as mechanistic and quantitative. The most important link in the efficiency orientation is its bond to economics: "the primary criterion for those who see economics as the foundation of law is efficiency, and to them, efficiency is best promoted by the free operation of the market" (Schwartz, 1990, p. 164).

Legal scholars view the combination of law and economics as an emerging trend in jurisprudence. In 1985, Tribe wrote:

The Supreme Court, long our nation's principal expositor of the Constitution, is coming increasingly to resemble a judicial Office of Management and Budget, straining constitutional discourse through a managerial sieve in which the 'costs' (usually...