In search of a theory of deference: the Eighth Amendment, democratic pedigree, and constitutional decision making.

Author:Berger, Eric

TABLE OF CONTENTS INTRODUCTION I. JUDICIAL DEFERENCE AND THE EIGHTH AMENDMENT A. Deference (Briefly) Defined B. Deference in Baze and Kennedy 1. Brief Doctrinal Overview 2. Ostensible Similarities a. State Counting b. Evolving Standards of Decency c. Dignity 3. Doctrinal Divergence and the Treatment of Facts II. DRIVING THE DISJOINTED DOCTRINE A. "Who" vs. "How" B. Precedent C. Interfering with the Death Penalty D. Litigation Costs E. Justices' Personal Preferences F. Summary III. DEFERENCE AND DEMOCRATIC PEDIGREE A. Justifications for Judicial Deference B. Proposing a New Theory: Deference and Democratic Pedigree 1. Political Authority a. The Legislative Conundrum b. The Administrative Inquiry i. Intelligible Principles ii. Rules Carrying the Force of Law iii. Formalized Procedures iv. Oversight v. Transparency c. Protecting Unpopular Minorities 2. Epistemic Authority C. Applications 1. Baze 2. Kennedy D. Advantages 1. Normative Advantages 2. Practical Advantages CONCLUSION INTRODUCTION

The United States Supreme Court recently announced two high-profile Eighth Amendment death penalty decisions. In Baze v. Rees, (1) the Court upheld Kentucky's lethal injection procedure against a challenge that it created an unconstitutional risk of excruciating pain. Less than three months later, in Kennedy v. Louisiana, (2) the Court struck down Louisiana's statute permitting the imposition of the death penalty for child rape. The Court in both cases purported to apply longstanding Eighth Amendment tests to determine whether a state practice is "cruel and unusual." (3) Both cases, for instance, discussed other states' practices, "evolving standards of decency," and the vague concept of "dignity." In other words, even though one case challenged a method of execution and the other challenged a death sentence as disproportionate to the crime, the Court posed similar questions in both cases.

Despite these ostensible similarities, the Court approached its own questions very differently. Baze was highly deferential to the state policy; Kennedy was not deferential at all. (4) Baze ignored details increasing the risk of excruciating pain and, in a far-reaching opinion, not only rejected the challenge to Kentucky's lethal injection procedure but also ostensibly protected other states' procedures. By contrast, Kennedy went out of its way to question the penological efficacy of Louisiana's policy. Nowhere, though, did the Court explain why it was properly positioned to overrule the Louisiana legislature's determination that capital punishment served retributive and deterrent purposes in this context or why its view of the facts was superior to the State's. In short, Baze gave all benefit of the doubt to the State, whereas Kennedy gave none. (5)

There are ways of explaining the Court's different approaches. (6) Perhaps the Court cares more about policing "who" will be executed than "how" he will be executed. It might believe, for instance, that invalidating a method of execution would require intrusive judicial oversight of the replacement method. The Court, however, does not articulate or justify that preference. Nor is such a preference justifiable; alternative methods of execution are easily implemented without substantial judicial involvement. (7) Nor did the Court embrace any of the other potential explanations for the discrepancy. Moreover, such explanations are ultimately just that--explanations, not adequate justifications. The Court, of course, need not decide all Eighth Amendment cases the same way, but when it approaches cases arising under the same constitutional provision so differently, it ought to explain what triggers such different levels of review. The Court needs a theory of deference.

This Article explores the long-ignored problem of constitutional deference that is highlighted by these contrasting decisions. The levels of deference--judicial respect for the political branches' policy judgments and factual determinations (8)--are often outcome determinative in constitutional cases, yet there is often no roadmap for the level selected. The Court, of course, uses the familiar tiers of scrutiny (rational basis, intermediate scrutiny, and strict scrutiny) in, inter alia, equal protection and First Amendment doctrine, but it applies those tiers inconsistently and has not imported them to all constitutional doctrine. Similarly, the Court sometimes defers to legislative facts but offers little guidance to lower courts and litigants as to when such deference is appropriate. (9) Scholars, for their part, have focused little on the issue of deference outside the obvious context of the tiers of scrutiny. (10)

Judicial and scholarly silence, however, is misleading. The degree of deference often dictates the result in constitutional cases. (11) And whether it admits it or not, the Court approaches cases with widely varying degrees of deference. (12) Though the Court typically does not articulate a level of deference in Eighth Amendment cases, it is quite clear that it applied something resembling strict scrutiny in Kennedy and, essentially, rational basis review in Baze. (13) In neither case, though, did the Court explain what triggers rigorous or lax review on either policy or factual questions. This Article examines the Court's stealth, outcome-determinative judgments and proposes more transparent factors that the Court should consider when selecting a level of deference in Eighth Amendment and other constitutional cases, particularly those currently lacking doctrinal approaches to deference.

This examination begins with what often drives judicial deference in constitutional cases in the first place: political authority and epistemic authority. (14) With regards to political authority, the Constitution separates power into three branches of government, (15) and political branch officials--who are often elected by and answerable to "the people"--usually possess more authority to make policy decisions than unaccountable judges. (16) As for epistemic authority, the political branches also often have a technical expertise that exceeds judges' in many substantive areas, so courts frequently stay away from fact-laden debates. (17) There are, of course, other reasons for judges to defer, but these two are often paramount in constitutional cases.

While these rationales in theory seem reasonable, courts in practice sometimes cite them without regard to whether they actually make sense in a given case. For example, to the extent that political authority concerns militate in favor of judicial restraint, lest courts interfere with the will of the people, application of deference on these grounds assumes that the challenged governmental policy roughly reflects democratic preferences. (18) But not all governmental policies are products of an equally democratic genesis. In some cases, elected legislators pass a bill, and it is signed into law by the elected executive. other times, low-level bureaucrats craft policies in secret with no legislative guidance or oversight. (19) In such cases, the political authority of the policy should not be taken for granted. Similarly, to the extent that deference rests on epistemic authority, that deference is less warranted when the political branches, in fact, lack any real understanding of the relevant subject.

Deference should therefore turn in part on the actual (rather than theoretical) political authority and epistemic authority behind a policy's enactment. In other words, deference should turn on the applicability of the very reasons courts typically cite when they defer. Collectively, a policy's political authority and epistemic authority comprise what I call that policy's "democratic pedigree." (I am therefore using the phrase "democratic pedigree" as a shorthand for the political and epistemic authority underlying a challenged policy.) Inquiries into democratic pedigree--that is, into political and epistemic authority--should help courts determine the extent to which governmental policy and factual determinations result from properly functioning governmental processes that help "ensur[e] broad participation in the processes and [benefits] of government." (20)

To ascertain a policy's political authority, courts should first consider the political authority of the governmental institution creating that policy. Courts often treat legislative policies as presumptively democratic, (21) but the political authority of administrative agencies, by contrast, turns more on context. To gauge this authority, courts can look at the nature of the administrative processes used to adopt a challenged policy (such as a lethal injection procedure). Specifically, courts, drawing on administrative law principles, should consider (1) the specificity of the legislative delegation; (2) the extent to which the legislature intended to grant the agency lawmaking authority; (3) the extent to which the agency adopted its policy using formalized administrative procedures and weighing constitutional constraints; (4) the amount of oversight over the delegated policy; and (5) the transparency with which the officials adopted and implemented the policy. (22) Collectively, these inquiries can help courts ascertain whether the enacting agency possesses genuine political authority and accountability worthy of judicial deference. Deference under this inquiry, then, should exist on a sliding scale--the more political authority, the more deference the agency presumptively deserves. in other words, if an agency has adopted a policy without legislative guidance, lawmaking authority, formalized procedures, oversight, or transparency, the political authority of the resulting policy is weak.

Another component of political authority draws on the famous Carolene Products footnote. (23) This inquiry asks whether the challenged policy (whether legislative or administrative) uniquely burdens unpopular minorities incapable of...

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