Judicial review, the congressional process, and the federalism cases: an interdisciplinary critique.

• Author: Frickey, Philip P.

Following the lead of Alexander Bickel's The Least Dangerous Branch: The Supreme Court at the Bar of Politics, (1) legal scholars have been obsessed with the countermajoritarian aspects of judicial review. (2) Much of the literature is normative--how can the dilemma of judicial review in a democracy be reconciled theoretically? (3) In this vast, important, and sometimes self-important literature, one might, in the whimsical manner of William Prosser, find examples of arguments ranging from the philosophical to the lawyerly. (4) In contrast, political scientists who study judicial behavior generally take a descriptive tack, contending that judicial review is best understood as simply correlating with the political values of the Justices (5) or as representing the strategic behavior of self-interested actors in a complex institutional setting. (6) One would be hard-pressed in academe to find many other scholarly areas with so much overlap and so little congruence.

Generally speaking, judges are probably untroubled by these conflicts, finding them, if you will, academic. Recently, however, the Supreme Court has operationalized judicial review in cases concerning congressional authority to invade state prerogatives, not so much by normative articulation of constitutional standards as by descriptive evaluation of the nature and quality of the congressional process underlying the enactment of the statute. In this respect, the Court has invited a new intersection of legal scholarship and political science, one concerning the judicial capacity to evaluate and to control congressional processes under our constitutional system of separated national powers.

In this Essay, we combine our mutual perspectives to analyze the Court's performance at this new juncture of constitutional law and political science. We demonstrate that the Court's intrusion into congressional processes is not simply too rigorous, but institutionally wrongheaded in a variety of ways. Whatever might be said about the outcomes in these federalism cases--and for purposes of this Essay, we remain agnostic on that score--some of the techniques of judicial review exercised in them are contrary to any plausible scholarly understanding of Congress as an institution. Whatever might be said, whimsically or otherwise, about the Court as philosopher or lawyer, it has flunked political science.

We are not the first commentators to criticize the methodology of the new federalism cases. Several articles have examined the trend in the case law, complaining that it, among other things, is contrary to precedent, wrongly transplants to constitutional statutory review the model of judicial review of administrative decisionmaking, unfairly retroactively imposes procedural obligations upon Congress at the expense of the constitutionality of important legislation, constitutes impermissible judicial interference with Congress contrary to the separation of powers, and improperly translates congressional questions of legislative fact into judicial questions of law. (7) There is much to admire in these commentaries, and our analysis necessarily overlaps with them in many more ways than can be demonstrated productively by citation within the confines of the essay format. Our goals are to use our interdisciplinary partnership to advance this literature in two important ways. First, largely from the perspective of public-law theory, we situate the federalism cases within broader jurisprudential frames of reference, examining theories of due process of lawmaking and the intersection of judicial review and statutory interpretation. We ask not only whether the theories undermine the cases, but also whether the cases undermine the theories. Second, largely from the perspective of social science, we present a focused and detailed interdisciplinary evaluation of the legislative deliberation model based on a more complete understanding of congressional decisionmaking processes.

In Part I, we begin by identifying three models of judicial interaction with the political branches that turn in large part on institutional and procedural concerns rather than on normative articulation of constitutional principles. Part II then discusses the federalism cases within the domain of our study, with particular focus on the judicial review of congressional processes at the heart of them. These cases appear to fit our third model of judicial proceduralism-institutionalism, one inquiring whether the political actor duly deliberated before making the law in question. Part III provides a thorough evaluation of the "due deliberation" model in the federal cases in light of the common understanding of Congress found in the social sciences. We conclude that Congress is capable of meeting the Court's fact-gathering requirements, but cannot satisfy the Court's requirement of due deliberation and rational, articulated decision. In our judgment, at least this aspect of the Court's model is likely to be abandoned eventually. One reason is that the model is a dysfunctional imposition upon Congress. Another, more ironic, reason is that the majority coalition of Justices in these cases was assembled in apparent violation of the very principles of nonstrategic interaction, deliberation, and articulation of reasoned, sincere decisions that the coalition has seemingly sought to impose upon Congress. The concluding portions of the Essay examine some alternatives suggested in recent literature for the future of judicial review focused on legislative processes.

1. MODELS OF DUE PROCESS OF LAWMAKING

   We begin by examining a set of judicial techniques that attempt to ameliorate the supposed tension between judicial review and democracy by encouraging judges to evaluate the degree to which the policy under challenge was undertaken by a democratically legitimate actor (usually, a legislature) through appropriate procedures and with adequate and articulated deliberation. In theory, these techniques seek to avoid any conclusive judicial evaluation of the value of the policy in question. Instead, they reflect the idea that judges can force more democratically legitimate actors to improve the quality of their decisionmaking processes.

   Case law and scholarship have suggested three major approaches to judicial review of this sort. (8) The institutional legitimacy strand concerns the identity of the policymaking institution appropriate for a given decision. For example, a legislature might be viewed as having greater legitimacy than an administrative agency for making certain constitutionally sensitive decisions. The procedural regularity variant holds that courts should at least sometimes require the legislature to follow procedural lawmaking rules, especially those specified in the constitution under which the legislature operates. The newest form, which appears in ambiguous ways in the federalism cases on which we shall focus, is the legislative deliberation model. This approach requires that the courts scrutinize the quality of the decisionmaking processes within the legislature that led to the statute under review.

   Similar techniques are familiar to administrative law. Under the Administrative Procedure Act (APA), (9) administrative action is customarily subject to judicial scrutiny, under which the reviewing court will often consider whether the agency acted arbitrarily or capriciously, or contrary to law. (10) If the agency holds trial-type hearings, the court will ask whether there is substantial evidence in the record to justify the agency's resolution of the controversy. (11) This is a sort of "due process of law-administration," and while mostly rooted in the APA and the judicial common-law practice preceding and surrounding the statute rather than in the Constitution, it is taken for granted in contemporary public law.

   The techniques we examine in this Essay are a major expansion and transplantation of these techniques. They amount to a kind of "due process of lawmaking," under which legislatures would be encouraged by judges to gather the relevant facts, identify the legal standards applicable to the context, and reach a reasoned result through appropriate procedures and due deliberation. At first glance, encouraging the legislature to make better decisions to which judges will ultimately defer may seem a sensible way to ameliorate the tension between judicial review and democracy. Upon reflection, however, at least some of these approaches may seem a strange and empirically unsound attempt to subordinate the primary political function of legislatures in favor of a deliberative function that legislatures cannot easily handle and that might, in fact, cause more harm than good.

   1. The Model of Procedural Regularity

      We owe the term "due process of lawmaking" to Hans Linde, the distinguished legal scholar and judge. A quarter-century ago, he delivered a series of now-classic lectures that provocatively criticized some aspects of the American practice of judicial review. (12) The primary focus of this analysis was the judicial practice of assessing the rationality of legislation under the Equal Protection and Due Process Clauses of the Constitution. Linde understood this inquiry as an instrumentalist view of law demanding a purely logical linkage between identified legislative goals and the statutory means chosen to effectuate those goals. For Linde, such judicial inquiries were misguided. He asserted that rationality review led to a process of litigation in which counsel defending the law were driven to ad hoc justifications for the law that may have nothing to do with the legislative motivation behind it. Moreover, "a law, even at the time it is enacted, is rarely meant to achieve one goal at the sacrifice of all others" (13) and often reflects policy choices and compromises, practical senses of the equity of situations, or even sympathy for certain interests, rather than purely instrumental rationality. (14)...