[J]udges play an interdependent part in our democracy. They do not alone shape legal doctrine but ... they participate in a dialogue with other organs of government, and with the people as well.(1)
In Marbury v. Madison,(2) the Supreme Court asserted its power to strike down on constitutional grounds policy pronouncements of the Republic's highest ranking political officials. Building on that foundation, the Court has crafted over the years a body of doctrine that bespeaks a judicial preeminence in defining constitutional rights. Citing Marbury, the Court has declared itself the "ultimate interpreter" of constitutional protections.(3) The Court's decisions, it has told us, are "final"(4) and "supreme."(5) According to the Court, the "very purpose" of having constitutional rights is "to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."(6)
This rhetoric supports a vision of constitutional law that many lawyers and laypersons take for granted. According to this view, the Court stands apart from the other branches--independent, even aloof--in executing the "solemn function" of judicial review.(7) The political branches adopt rules; the Court evaluates the constitutionality of those rules; the Court declares those rules valid or invalid--and that's that.(8)
This "on-or-off" or "hard-and-fast" or "all-or-nothing" conception of the judicial role not only fits the Court's rhetoric, but also comports with many of the Court's actual rulings as well. Governments may not operate racially segregated classrooms;(9) they may not criminalize pre-viability abortions;(10) they may not require prayer in public schools(11)--all because the Court has told us so pursuant to an accepted notion of the judicial function.(12) A Court-dominated, result-centered conception of the Marbury power thus captures much, perhaps most, of our constitutional law.(13) But it also fails to capture much of what is important about that law.
Close observers of the Court have recognized this fact, noting that political officials participate in constitutional decision making in a myriad of ways.(14) Some analysts have emphasized the prominence of jurisdictional rules, particularly the "political-question" doctrine, that grant de facto authority to nonjudicial actors to make key constitutional choices.(15) Others have noted that political officials often take up constitutional questions on their own(16)--in deciding, for example, whether to enact laws,(17) to veto legislation,(18) or to confirm Supreme Court nominees.(19) An ever-growing body of commentary emphasizes the congressional power to check federal judicial delineations of rights by constricting Article III jurisdiction.(20) Other commentary suggests that, when viewed over time, constitutional rules often are reshaped by the Court in response to forces exerted by the political branches and the public at large.(21)
There is, however, a more immediate and important way in which an all-or-nothing, court-dominated conception of the Marbury power misdescribes our constitutional regime. Often the Court directly engages nonjudicial officials in a shared elaboration of constitutional rights. It does so through the use of doctrines that focus on whether nonjudicial actors have taken an appropriately close and sensitive look at policy judgments that threaten important constitutional values. In many of these cases, the Court in effect "remands" constitutionally controversial programs to the political branches--inviting a more studied consideration of the program than attended its initial adoption, and leaving open the possibility that the readopted program will be upheld against constitutional attack.(22) By employing doctrines of this kind, the Court steers attention away from what a traditionalist would identify as the central elements of the usual constitutional case: the nature of the right infringed, the degree of infringement, and the available justifications for the state's action.(23) Instead, when a question arises as to whether a government rule offends some particular substantive constitutional value (like free speech, free exercise, or federalism), the Court focuses its inquiry on the policymaker's use of quality-enhancing processes and structures (like explanatory findings, preenactment studies, or sunset limitations) in deciding whether a constitutional violation has occurred.(24) More and more, the modern Court has safeguarded substantive constitutional values by focusing, not only on the what of government policymaking, but also on the how.(25)
The Court's structural doctrines range from the familiar vagueness rule to the little noticed judicial practice of disregarding statutory justifications no longer relied on by the state.(26) Through the use of these and many other process-centered rules, the Court initiates a dialogue with and among nonjudicial actors, often deferring to decisions of political branches on how to resolve constitutional issues, so long as those decisions bear the earmarks of deliberation and care. These doctrines thus may be called "rights-driven rules of deliberation and dialogue" or "structural safeguards of substantive rights."(27) In the interest of brevity, I refer to them in this Article simply (and synonymously) as "second-look" or "structural" doctrines or rules.
Gregory v. Ashcroft(28) provides a useful example. In Gregory, the issue was whether the Age Discrimination in Employment Act (ADEA) applied to state judges. The Court said it did not because Congress had not clearly expressed its intention to interfere with a state's choice of its key decision makers in this way.(29) In other words, the Court subjected Congress to a structural rule. Under this rule, if Congress is going to threaten a set of constitutionally recognized substantive interests--namely, "states' rights" (and, more particularly, the "right" of a state's citizenry to fashion its own system of selecting important government officials)--then Congress must jump through a judicially constructed "how" hoop by declaring its intention to do so with crystal clarity.
In an important sense, the Gregory rule focuses on the means of government action. This fact suggests that the rule may be merely one component or exemplification of the "judicial scrutiny of means-ends relationships" that pervades our constitutional law.(30) The Gregory rule, however, does not assess the propriety of legislative means in anything like the way courts assess those means in applying standard forms of rational-relation, intermediate, or strict scrutiny.(31) The reason why is that Gregory's rule of clarity does not concern the proper fit between a challenged rule's substantive content and the specific goals that underlie that very rule.(32) The Court in Gregory, for example, did not ask whether Congress's inclusion of state judges in the statutory proscription on age discrimination would render the act unduly overinclusive with respect to its objective of countering stereotypical or irrational biases.(33) Rather, the sort of rule involved in Gregory focuses on the special risk that government actions pose to identified substantive constitutional values and, in light of that risk, how carefully, in terms of procedures, the policymaker acted in taking the challenged action. Attention thus centers on such matters as how unmistakably the law-giver expressed itself, how painstakingly and dispassionately it proceeded, and how pointedly it invited objection to its proposed action by potential opposition groups.
For this reason, the rules we address bear a kinship to rules of procedural due process(34)--rules, for example, that require a chance to be heard,(35) an impartial decision maker,(36) or a statement of reasons for government action.(37) But the rules we consider do not, like ordinary procedural due process rules, focus on fair, well-informed and dignity-respecting decision making in the adjudication of individual disputes.(38) The matters addressed here instead concern the structural features of how broad policy is made.
In this respect, the rules that concern us resemble the process-centered aspects of "hard-look" review--linked closely to the Administrative Procedure Act's prohibition on "arbitrary and capricious" action(39)--that courts sometimes use to test the legality of agency rulemaking.(40) As with structural constitutional rules, these "hard-look" principles take account of such matters as "detailed explanations," the invited "participation in the regulatory process [of] a wide range of affected groups" and the focused consideration by rulemakers of purportedly "reasonable alternatives."(41) Hard-look rules differ from true structural rules, however, in three major ways. First, the hard-look rules of administrative law seem wholly, or at least largely, statutory in origin.(42) Second, hard-look rules limit only the power of agencies, whereas the constitutional rules we consider cover all policymaking officials, including the Congress, the President, and state legislatures. Finally, hard-look review in administrative law tends to foster deliberation across the board in agency rulemaking proceedings; structural rules of constitutional law, in contrast, respond in particularized ways to particularly important substantive constitutional values.
Gregory concerns one important sort of structural rule: namely, a rule of clarity. For two separate reasons, however, Gregory does not stand alone. First, the Gregory rule exemplifies a wide array of clarity doctrines that protect not only "states' rights," but, in varying ways and in varying contexts, all sorts of substantive constitutional values.(43) Second, and more important, these many rules of clarity are themselves only one part of a rich tapestry of structural doctrines. A full listing of...