Reasoning About the Irrational: the Roberts Court and the Future of Constitutional Law

• Publication year: 2021

REASONING ABOUT THE IRRATIONAL: THE ROBERTS COURT AND THE FUTURE OF CONSTITUTIONAL LAW

H.Jefferson Powell(fn*)

Abstract: Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators' political views on the desirability of the Court's recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court's assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects of the Court's inquiry into rationality, and reject altogether the generally accepted view that rationality review is a deliberate underenforcement of a constitutional norm of substantive reasonability, primarily implemented by the legislature. Footnote 27 cites Chief Justice Roberts's opinion in Engquist v. Oregon Department of Agriculture, which adopts a similar view of rationality as free of normative content. The common threads linking footnote 27, the Engquist opinion, and a debate between Justices Alito and Breyer in McDonald v. City of Chicago this past June, suggest that footnote 27 is a significant clue to the fundamental understanding of constitutional law that commands at least a plurality on the current Court. If this understanding becomes dominant, it will profoundly change the Court's treatment of precedent, rational-basis scrutiny, and the role of the political branches in constitutional law.

INTRODUCTION. ...............................................................................218

I. MCDONALD AND HELLER SIGNAL A NEW DIRECTION FOR JUDICIAL REVIEW OF LEGISLATIVE AND AGENCY DECISIONMAKING..................................................223

II. THE GAP BETWEEN CONSTITUTIONAL COMMAND AND JUDICIAL RULE DEFINES CONSTITUTIONAL DOCTRINE. ..................................................................................229

III. THE OPERATION OF STARE DECISIS DEPENDS UPON WHETHER THE ISSUE IS FRAMED AS ONE OF "FAULTY DOCTRINE" OR "ERRONEOUS

INTERPRETATION". ..................................................................234

IV. DOCTRINAL DECISIONS AND EXTRAJUDICIAL CONSTITUTIONAL INTERPRETATION . ................................ 239

A. The Non-Exclusivity of the Judicial Power to "Say What (Constitutional) Law Is".......................................................239

B. Doctrinal Underenforcement of the Constitution................. 242

C. Williamson v. Lee Optical Is an Example of Judicial Underenforcement Through Rational-Basis Scrutiny..........245

1. The Doctrinal Gap in Williamson.............................248

2. The Implications of Nonjudicial Constitutional Enforcement Under the Facts of Williamson. ...........251

V. HELLER'S FOOTNOTE 27 REPRESENTS A REJECTION OF THE STRATEGIC UNDERSTANDING OF RATIONAL-BASIS SCRUTINY......................................................................253

VI. FOOTNOTE 27 EMBODIES CHIEF JUSTICE ROBERTS'S UNDERSTANDING OF THE CONSTITUTION'S REQUIREMENT OF RATIONALITY........................................261

A. Engquist Is a Paradigm for the "Irrational"..........................261

B. Engquist Creates a Novel Definition of Irrationality...........267

C. The Understanding of Rationality in Engquist and Footnote 27 Differs Radically from Its Traditional Meaning in Constitutional Law............................................273

VII. FOOTNOTE 27 REWORKS THE DISTINCTION BETWEEN LAW AND POLITICS ON THE ROBERTS COURT . ........................................................................................ 276

CONCLUSION. ...................................................................................280

INTRODUCTION

Disagreement over the proper direction of constitutional law is as old as the Republic. At present, however, it isn't clear to many which direction-right or wrong-the United States Supreme Court is taking constitutional law. On the one hand, the editorial board of the New York Times spoke for a host of other critics in complaining that "the Roberts [C]ourt demonstrated its determination to act aggressively to undo aspects of law it found wanting, no matter the cost."(fn1) By "the Roberts [C]ourt," the editors meant what they described as a five-Justice "conservative majority [that] made clear that it is not done asserting itself" on issues of grave national importance,(fn2) perhaps including the constitutionality of health-care reform. From the perspective of these commentators, the Roberts Court has "come of age" and "entered an assertive and sometimes unpredictable phase," in which (despite the occasional surprise) the majority Justices are "fearless" in exerting their power to advance the politically conservative (pro-business, pro-gun, anti-criminal defendant) interests Chief Justice Roberts favors.(fn3) Elena Kagan's succession to the seat of retiring Justice John Paul Stevens, on this view, was at best a holding action against the Court's complete takeover by the Right.

On the other hand, the admirers of the Court's decisions generally insist that the critics are vastly overstating both the ideological content of the Court's judgments and the aggressiveness of the Justices who usually make up the majority in highly ideological, divided decisions. This error of analysis was quite deliberate, and the tale of political takeover was "all such tedious sophistry" by the Left, a dishonest demonization of Justices whose decisions were marked by caution and attention to the specific demands of the judicial process.(fn4)

The identity of the current Court, on this view, is shaped more by circumstance than ideology, and by the Justices' lawyerly approach to its role. As Jonathan Adler argued, "The Roberts Court is a work in progress, and the change in Court personnel will introduce new dynamics, as will a different combination of cases and issues that come before the Court. . . . [A]t present, we can characterize the Roberts Court as a moderately conservative minimalist Court . . . ."(fn5)

No reader was surprised to notice that critics of an aggressively ideological Roberts Court are to the left of center in terms of American politics, or that admirers of a judicially modest majority are equally likely to occupy positions to the political center's right. Those are precisely the positions of criticism or apologetics that one would expect, given contemporary politics and the contemporary Court. In itself, this correlation between the politics of commentators and their perceptions of the Court proves nothing: either the liberal critique or the conservative apologetics might actually be warranted by the Court's actions, even if there are political or sociological explanations for the views the observers espouse. (fn6) The consistency with which the individual observer's analysis tracks his or her political views, however, does suggest that we are unlikely to make jurisprudential sense of "the Roberts Court," or more precisely of the law announced by the Court's current working majority in divisive cases, if we let our analyses move too quickly to the bottom line issues of political, economic, and moral significance to the Court's decisions. The outcomes simply matter too much-to most of us and to the Justices-and the demonstrable ideological content of the cases is reflected, isomorphically, in the demonstrable ideological slant of the commentators' analyses. As a result, much of what has been said about the Roberts Court has told us a great deal about the commentators' political, economic, and moral commitments-and very little about the Court's decisions as judgments of law.(fn7)

One response to the emptiness and predictability of so much purported analysis, enthusiastically endorsed by many political scientists, is to conclude that there is little or no value to the enterprise of making jurisprudential sense of the U. S. Supreme Court's constitutional decisions, in this or any other era. The Court is a political actor, the Justices' constitutional decisions are exercises of political choice (which of course need not mean political choice in a crude, partisan sense), and whatever socially valuable contributions scholars can make by studying the Court must lie in the various modes of empirical investigation into the demonstrable sources and ascertainable consequences of the Court's decisions. But empirical research, valuable as it is in ascertaining the Court's patterns of decision and its impact on the world, cannot displace entirely normative analysis, at least without a price heavier than perhaps most of us are willing to pay. The search to make sense of what the Court actually does, in the light of what the Court ought to do, is essential to the idea that the Court is actually "doing law" when it announces constitutional decisions. If we can say nothing about the Court's success, or failure, in carrying out the task of constitutional decision responsibly, as a matter of law, other than to express our pleasure or dismay at the apparent politics of the Justices, then we have emptied that task, and constitutional law itself, of...