"The respondent in this case killed a 10-year-old child."(1) So states the first sentence of Justice White's dissent in Brewer v. Williams. White approached Brewer from the factual premise that a heinous crime had been committed, while the majority framed the case conceptually, as presenting a "right to counsel" issue. It is this distinction between fact and concept, between underlying transaction and doctrine, that provides critical insight into the jurisprudence of Justice Byron White. White's philosophy cannot be pinned to a single point on any jurisprudential spectrum: conservative to liberal, activist to strict constructionist, interpretivist to noninterpretivist. Nor do such terms as moderate, centrist, or swing vote adequately describe his role on the Supreme Court. Yet, White's jurisprudence is not a unpredictable nor as enigmatic as commentators have suggested.(2) His critics' frustration may arise from an assumption that the formality of law predominates over the transactions that give rise to legal controversies. Not too surprisingly, a jurisprudence that proceeds upon a different assumption may well appear unpredictable or enigmatic within the formal structure. But from a slightly different perspective--from the perspective of legal realism--such a transaction-oriented jurisprudence may appear more coherent.
Of course, I realize that by using the term "legal realism," I am entering a definitional thicket from which there may be no completely satisfactory exit. Exactly who the realists were as well as the specific content of their school of thought remains a matter of continuing debate.(3) I use the term to capture some of the salient elements that are generally recognized as part of the realist tradition. First, legal doctrine should arise from a clear understanding of how society actually functions. In other words, facts should precede doctrine, and not the converse. Second, lawyers and judges are not necessarily the best fact finders. In fact, to some extent lawyers and judges should be mistrusted as both self-interested and idiosyncratic. Third, and perhaps somewhat incongruously, experts in social science and empirical research will provide the necessary insights into how society functions. And finally, the evolutionary state of society and social institutions requires a government structure that can adapt to changing circumstances.(4) As such, my definition of legal realism also includes the underlying reformist attitude espoused by some traditional legal realists, of both the Progressive and the New Deal varieties.(5)
Just as the quotation from Brewer v. Williams elevates hard fact over legal concept, this Essay attempts to elevate what Justice White actually did (or attempted to do) over how a more formalist approach might define or categorize the various points in his career. Although the Essay often concentrates on selected doctrinal areas, the purpose is not to catalog doctrine but to examine Justice White's thinking about our political system and the judiciary's role within that system.(6) This reversal of priorities will provide insight into White's performance as a Justice as well as encourage an appreciation for the perspective from which that performance emanated, a perspective that was influenced by the aura of legal realism and policy science that pervaded Yale Law School while White was a student there.(7)
Speaking more generally, the Essay attempts to show that formal distinctions between doctrines are not, ultimately, distinctions of substance, but of organizational convenience. For example, the separation of powers and the protection of fundamental rights are merely different aspects of the same basic problem regarding the nature and function of our political system. Yet our lack of intellectual dexterity relegates us to draw boundaries that facilitate discussion. At some point, however, the artificiality of these boundaries ought to become apparent. In the end, doctrines are nothing more than different perspectives from which to consider the same basic themes and questions.
Diffusion of Power and the Agenda of a Modern Government
Our government is formally structured into three branches created by the text of the Constitution and described with neat precision in basic civics books. But as soon as one looks at this system in action, the formal structure begins to dissolve. The constitutional system of checks and balances, including the power of judicial review, ensures that although the branches are technically separate, the separation is never complete. Practicalities of governing further dilute the purity of formal lines. Justice Robert Jackson described this intermingled separation:
The actual art of governing under our Constitution does not and
cannot conform to judicial definitions of the power of any of its
branches based on isolated clauses or even single Articles torn from
context. While the Constitution diffuses power the better to secure
liberty, it also contemplates that practice will integrate the dispersed
power into a workable government. It enjoins upon its branches
separateness but interdependence, autonomy but reciprocity.(8) This same pragmatic concern--creating a "workable government"-- preoccupied the legal realists.
Early legal realists sought to discover and understand how law and legal institutions functioned within society.(9) But functionalism was not merely a tool of discovery; the function of law was thought to be the proper determinant of doctrine.(10) Justice White's decisions often employed this functionalist analysis. Two of his opinions (both dissents) involving the separation of powers illustrate functionalism and reflect yet another realist theme: the propriety of permitting government to exercise a wide range of flexibility in its quest to resolve complex social problems. While demonstrating both the elegance and utility of functionalism, the opinions expose its shortcomings as well.
Northern Pipeline Construction Co. v. Marathon Pipe Line co. involved the constitutionality of the Bankruptcy Act of 1978.(11) At issue was a provision of the Act that authorized the newly created Article I bankruptcy courts to adjudicate state-law claims. Since bankruptcy judges were not Article III judges, the question was whether this conferral of authority violated the principles of Article III.
Justice Brennan's plurality opinion held that Congress may not constitutionally confer Article III adjudicatory power upon institutions that do not meet the conditions set forth in Article III, namely, life tenure and salary independence. Brennan derived his conclusion from the "abstract principle"(12) of an independent judiciary.(13) That is, the opinion first developed the concept, defined independently from the controversy, and than applied the abstraction to the facts. In its conceptual analysis, the plurality did recognize three historical exceptions to the prescriptions of Article III--territorial courts, courts-martial, and courts adjudicating public rights. The bankruptcy courts, however, fell into none of these carefully defined, and hence formal, categories.(14)
Justice White began his dissent with a mock concession: the language of Article III could "easily" be interpreted to require that any court established by Congress meet the conditions set forth in Article III.(15) Such a reading would be "eminently sensible" and "well founded in both the documentary sources and the political doctrine of separation of powers that stands behind much of our constitutional structure."(16) But such an approach would be a "gross oversimplification" and "superficial"(17) For White, the Article III doctrine could not be adequately derived from "unsupportable abstractions, divorced from the realities of modern practice."(18) Rather, a proper analysis must consider the historical and contemporary "functions"(19) of the bankruptcy courts and Article III.
White chastised the plurality for its unrealistic appraisal of pre- and post-Act bankruptcy courts. While the plurality viewed the conferral of jurisdiction over state-created claims as novel, White argued that bankruptcy court jurisdiction over state-law claims was a common and well-accepted practice prior to the 1978 Act; the new law merely changed the scope of that jurisdiction from in rem to in personam.(20) He wrote: "One need not contemplate the intricacies of the separation-of-powers doctrine ... to realize that the majority's position on adjudication of state-law claims is based on an abstract theory that has little to do with the reality of bankruptcy proceedings."(21) For White, one must begin with the operational facts. Here that required an appreciation of how bankruptcy courts actually functioned both before and after the adoption of the Act.
One a more general level, White viewed the Court's Article III doctrinal model as out-of-sync with history, precedent, and modern practice. He regarded the three exceptions (territorial courts, courts-martial, and courts adjudicating public rights) not simply as legalistic categories to be construed strictly against a formidable wall of Article III jurisprudence, but as examples of how government structure had developed and changed.
There is no difference in principle between the work that Congress
may assign to an Art. I court and that which the Constitution assigns
to Art. III courts. Unless we want to overrule a large number of our
precedents upholding a variety of Art. I courts--not to speak of those
Art. I courts that go by the contemporary name of "administrative agencies"--this conclusion is inevitable. It is too late to go back that far; too late to return to the simplicity of the principle pronounced in Art. III and defended so vigorously and persuasively by Hamilton in The Federalist Nos. 78-82.(22)
The basic principles of Article III did play a part in his analysis, but only as a relatively fluid check upon the evolving structure of...
The jurisprudence of Justice Byron White.
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