I am very grateful to Professor Tushnet for his probing response to my treatment of structural, review.(1) His comments are valuable under the principle of res ipsa loquitur, for Professor Tushnet long has been a leading observer of the Court's structural work.(2) I am especially grateful for Professor Tushnet's encouraging words about my project and its goals.(3) WE share, it seems, a strong conviction that academic lawyers, political scientists, and ultimately, the courts need to give more systematic attention to structural (or what he would call subconstitutional) review.(4)
Professor Tushnet's own essay focuses on two key thoughts. First, he worries that the Justices might manipulate structural review to obtain desired substantive outcomes while avoiding "the sting of the charge that they are foreclosing legislative choice."(5) Second, he considers the impact of structural doctrines on the Court's more traditional substantive work, including by raising the possibility that their now-pervasive use may remove the need for substantive judicial review altogether.(6)
Limitations of time and space foreclose a full reply to these provocative observations. In this Essay, however, I will pause to note some reasons why the "sham decision" critique of structural review is, for me, unpersuasive. I also will offer a few comments on the proper relationship between structural and substantive review. I note, in particular, that an endorsement of "activist" structural review need not lead to a "nonactivist" approach to substantive review, far less its total abandonment. I also suggest that a vigorous embrace of structural rules may well lead to more, rather than less, overall judicial protection of fundamental rights.
STRUCTURAL REVIEW AS A SHAM
Professor Tushnet poses the question whether the true purpose of structural review is to facilitate strategic behavior by judges bent on writing their own philosophies into law. On this view, as Professor Tushnet has written elsewhere, "[c]lever judges ... invoke structural review when they predict that the legislature will be unable to enact legislation that contravenes the judges' personal preferences."(7) They thus "`rig' a desired substantive outcome."(8) They pretend to be exercising judicial restraint by declaring that the legislature may reinstate an invalidated law, all the while knowing that, as a practical matter, it cannot.(9)
Why do I doubt that judges often use structural review as a subterfuge for de facto substantive review? There can be no doubt that judicial motivation--like any form of human motivation--is complex. My own sense of things suggests, however, that judges usually state real reasons for real decisions when they set forth their reasons in written opinions.(10) It is difficult to prove this proposition. It seems to me, however, that it corresponds with what we expect of ordinary citizens when they make important formal and public pronouncements. Why should we expect anything less of judicial authorities who are distinctively steeped by training and experience in the importance of truth, precision, and principle?(11)
Let us assume, however, that judges (or at least many of them) have no qualms about manipulating doctrine any way they can to etch their own substantive preferences into law. In my view, if one aims to achieve substantive outcomes by way of judicial action, there are strong practical and tactical reasons not to rely on structural rules.
The key problem is that the technique "lacks reliability."(12) From a sham-decision-making perspective, for example, the Court apparently felt it had done enough to lay the death penalty to rest when it decided Furman v. Georgia.(13) The Court also apparently felt it had done enough to ensure that legal aliens could get federal civil service jobs when it decided Hampton v. Mow Sun Wong.(14) And the Court apparently felt it had done enough to safeguard states from damages actions under the Rehabilitation Act when it decided Atascadero State Hospital v. Scanlon.(15) In all these instances, however, the law supposedly scuttled by way of a strategic structural invalidation made a roaring comeback in identical or near-identical form.(16) In each of these cases, then, the Court's ostensible purpose failed, for the remand to political authorities produced precisely the substantive result the Court supposedly had sought to foreclose.(17)
Another reason to doubt the reliability--and thus the common use--of substance-seeking structural invalidations arises out of the passage of time. It is difficult enough for a judge to predict what a sitting legislature will do with a law invalidated on structural grounds. But it will require true powers of prophesy to project what a very differently constituted legislative body will do two, ten, or twenty years down the road. Put another way, even if one can confidently conclude that today's legislature will not reinstate a law invalidated in a structural ruling, that fact does not mean tomorrow's legislature will have the same disinclination. Any judge interested in achieving a substantive end beyond the short term is therefore unlikely to use a structural approach.
One possible rejoinder to these observations is that manipulative judges who unsuccessfully deploy structural rules for substantive ends have a second line of defense. On this view, following restoration of a rule initially jettisoned on structural grounds, the court can simply declare the now-restored rule invalid in a conclusive ruling based on substantive doctrine. Professor Tushnet notes, for example, that the Supreme Court first invoked clear-statement rules when it set out to undermine would-be congressional abrogations of Eleventh Amendment immunities. When Congress responded by legislating abrogations with clarity, he says, "[t]he Court then imposed the substantive limits anyway."(18)
There are subplots to this story, however, that highlight the risks inherent in any judicial reliance on the fallback of a substantive invalidation. First, in its initial brush with the substantive question whether Congress could legislate clear abrogations, the Court...