Progressive political theory and separation of powers on the Burger and Rehnquist Courts.

• Author: Claeys, Eric R.

INTRODUCTION

The Rehnquist Court is widely believed to be the most conservative Court in recent memory. Especially in the legal academy, the Rehnquist Court has a reputation as being conservative in its politics, (1) originalist in its interpretive commitments, (2) and suspicious of the New Deal. Mark Tushnet wonders whether the Rehnquist Court has shaken the American constitutional order so profoundly that "the New Deal/Great Society political system is no longer in place." (3) Tushnet is no supporter of the Rehnquist Court, (4) but many of the Court's defenders and admirers share the same view. In the most ambitious defense of the Rehnquist Court to date, John McGinnis insists that the Court's "reflects a more skeptical view of centralized democracy in an era in which there is more elite skepticism about the prospects of nationally mandated social reform than existed in the eras of the New Deal and Great Society." (5)

As widespread as this view is, there is at least one good reason to doubt it. It treats Supreme Court Justices too much as trend setters and too little as trend followers. Most Justices get their offices by dint of distinguished practice or public service, not extensive post-graduate academic training. Quite often, they assume the truth of normative opinions that either are conventional among legal elites when they serve on the Court, or were so when they went to law school. As John Maynard Keynes once explained, public officials often write into law political philosophy they learned "from academic scribblers of a few years back." They do so not "immediately, but after a certain interval; for in the field of economic and political philosophy there are not many who are influenced by new theories after they are twenty-five or thirty years of age." (6)

Obviously, no single article could explore this doubt in any comprehensive way. Yet there is a surprisingly simple way to demonstrate that it deserves attention--to reexamine how the Rehnquist Court has treated separation of powers. Separation of powers law counts as one of the great puzzles of the Rehnquist Court. Knowing what constitutional scholars knew in 1987, (7) there was every reason to expect that the Rehnquist Court would put separation of powers front and center in its constitutional agenda. Word for word, separation of powers takes up more space in the Constitution than any other doctrine. Chief Justice Rehnquist and Justice Scalia were widely known to sympathize with "original intent" principles of interpretation. (8) More important, as this Article will show, the Burger Court had left the Rehnquist Court with several excellent originalist precedents. Later, the Rehnquist Court would change the law of constitutional federalism using the precedential equivalent of whole cloth. (9) By contrast, at the beginning of the Rehnquist Court, the Court had all the precedents it needed to launch a sweeping revolution in separation of powers.

Yet there was no revolution. (10) The Rehnquist Court has declined several invitations to breathe more life into originalism through separation of powers law. In the process, the Court has continued a trend that has frustrated constitutional scholars for years, veering erratically between originalist and non-originalist interpretive methodologies with barely any explanation. (11) Did the Justices on the Burger Court take originalism seriously from the beginning? If not, why have the Burger and Rehnquist Courts applied originalism at all? Many academics have criticized the Burger and Rehnquist Courts for their inconsistency, (12) but no one has yet explained these Courts' track records convincingly.

This Article explains that puzzle. The Burger and Rehnquist Courts have used originalism and non-originalism selectively. Both Courts have chosen one or the other depending on which better promotes a theory of government this Article calls "the Progressive theory of apolitical administration." In simple form, this theory holds that government operates best when the Constitution is construed to stop elected politicians from interfering with expert bureaucrats. Leading Progressive academics deduced this theory of government from a more comprehensive political theory of a living Constitution. During the New Deal, the theory of apolitical administration lost its overt associations with living Constitution theory and became widely accepted, in legal education and among leading public-law officials and practitioners.

A broad bloc on the Burger and Rehnquist Courts has continued to use the Progressive theory of apolitical administration to decide hard separation of powers cases. That bloc has used the theory to decide whether to apply an originalist methodology or a non-originalist one in separation of powers cases. Since methodology often decides results in constitutional cases, this bloc has really used the Progressive theory of apolitical administration to decide the merits of separation of powers cases. This controlling bloc has been quite broad. Justice White was a consistent non-originalist, while Justices Scalia and Thomas have been fairly consistent originalists. The other members of the Court, however, have mixed and matched the two approaches. This group has included Chief Justice Burger and Justices Stewart, Powell, Stevens, O'Connor, Kennedy, and Souter. More often than not, it included Chief Justice Rehnquist and Justices Brennan, Blackmun, and Marshall. It probably includes Justices Ginsburg and Breyer.

The Progressive theory of apolitical administration does not come into play in every case, but it strongly influences cases that test how administrative agencies relate to the three traditional departments of government. The clearest test cases began in 1976 and continued through 1992. While the Court has not heard enough separation of powers cases in the last twelve years to say with certainty whether the theory continues to control, the available evidence suggests it does. Most of the time, the law under review promotes Progressive ideals by transferring power from the traditional three departments to an administrative agency. In such a case, the controlling bloc of Justices applies a deferential, non-originalist methodology called "New Deal functionalism" to uphold the administrative scheme. By contrast, when the law under challenge seems to flout the ideal of apolitical administration, alarm bells go off and the controlling bloc worries that Congress is trying to inject politics into administration. The Justices in this bloc then use originalism to declare the law unconstitutional.

This episode teaches two important lessons. The first relates to separation of powers. The Supreme Court does not take originalism nearly as seriously as scholars do. Although scholars disagree whether originalism is a desirable or workable approach to separation of powers, they do agree that, if the Court were to apply originalism consistently in separation of powers, it would need to invalidate most of the administrative state. (13) In reality, however, the Burger and Rehnquist Courts have used originalism in a manner that dedicated originalists would find perverse--only when doing so bolsters the constitutional case for the administrative state. Not to put too fine a point on it, but the Burger and Rehnquist Courts have paid attention to James Madison's opinions about separation of powers only when his views happen to dovetail with Frank Goodnow, Woodrow Wilson, and James Landis's plans for an independent and centralized national bureaucracy.

The second lesson is relevant to retrospectives that have or will soon be written about the Rehnquist Court. (14) In one of the most important areas of constitutional law, a broad cross-section of Justices on the Burger and Rehnquist Court took their bearings not from conservative political beliefs, not from original-intent jurisprudential beliefs, but from Progressive-New Deal political theory. Somewhere in their education or practice, the Justices on these Courts learned to think that the best way to run a government was to establish centralized bureaucracies staffed by well-educated lawyers and public-policy specialists, and substantially free from meddling by politicians. If similar connections explain other areas of the Court's case law, that Court has been much less conservative and much more conventional than most academics assume.

Before proceeding, let me briefly explain this Article's methodology. The Article is primarily descriptive. It is normative only to the extent that it uses a theory of government to describe and predict how the Burger and Rehnquist Courts have approached separation of powers cases. This interpretation could be described as "attitudinalist," in that it presumes that Justices decide cases primarily on the basis of political preferences shaped by Progressive political theory. (15) At the same time, this Article concentrates far more than attitudinalist studies usually do on how Justices may have formed their political preferences and attitudes. In addition, the Justices studied here could maintain with sincerity that they kept their political attitudes largely separate from their constitutional interpretation. The Progressive and functionalist ideas discussed throughout the Article could have convinced Justices that sound constitutional interpretation can and should consider the substantive consequences of different interpretations under consideration--in which case they could appropriately have relied on the Progressive theory of apolitical administration while interpreting the separation of powers provisions of the Constitution. While John McGinnis has explored a similar approach in his explication of the Rehnquist Court, (16) legal scholars have not developed this genre of interpretation as systematically as have political scientists who study the Supreme Court. Ronald Kahn has called this approach "constitutive," by which he means that...