The Collateral Consequences of Ex Post Judicial Review

• Publication year: 2021

THE COLLATERAL CONSEQUENCES OF EX POST JUDICIAL REVIEW

Brianne J. Gorod(fn*)

Abstract: Judicial review produces disruptions to democratic preferences that are not constitutionally required. Judicial review produces these disruptions because the law the Court declares unconstitutional is not automatically replaced with the laws that policymakers would have enacted had they known their preferred policy was unconstitutional. The Court is institutionally ill-equipped to address these disruptions, and the coordinate branches are often unwilling or unable to do so-unwilling because their membership has changed since the law was enacted, or unable because of institutional features that make quick response difficult. Under either scenario, these disruptions are cause for concern. Yet they are virtually inevitable under our current system of ex post judicial review. The answer is not to abandon judicial review, which plays an important role in our constitutional structure, but to reconceptualize it. This Article offers preliminary thoughts on what a system of ex ante judicial review might look like and argues that such a system would also address the policy distortions and significant legal uncertainties caused by our current system. Recognizing that such radical reforms are unlikely to be imminent, the Article also offers a number of more modest proposals that could help address these greater-than-necessary democratic disruptions in the short term. Finally, the Article argues that the Supreme Court has not taken even these modest steps because it is unwilling to acknowledge the policy disruptions its decisions often produce. This lack of honesty about its role may impair the Court's ability to fill that role effectively.

INTRODUCTION ................................................................................ 904

I. COURTS AND COMMENTATORS HAVE PAID INSUFFICIENT ATTENTION TO AN IMPORTANT CONSEQUENCE OF JUDICIAL REVIEW ............................... 911

A. In the Literature .................................................................. 911

B. In the Courts ....................................................................... 915

II. JUDICIAL REVIEW PRODUCES DEMOCRATIC

DISRUPTIONS THAT ARE NOT CONSTITUTIONALLY REQUIRED .................................................................................. 918

A. Explaining Collateral Consequences .................................. 919

B. Scenario I: Legislative Lag ................................................. 921

C. Scenario II: Political Change .............................................. 924

III.COLLATERAL CONSEQUENCES IN PRACTICE .................. 926

A. Trying Again (Through Constitutional Means) .................. 926

B. Addressing Other Policy Vacuums .................................... 930

C. Facilitating Changes ........................................................... 934

IV. REFORMING JUDICIAL REVIEW ........................................... 936

A.Toward Ex Ante Judicial Review ......................................... 936

B. Changing the Court ............................................................ 944

1. Transparency, Advice, and Communication ................ 945

2. Staying Judgments ........................................................ 948

3. Second-Best Preferences .............................................. 951

C. Changing Congress (and Other Policymakers) .................. 953

1. Fallback Law ................................................................ 953

2. Expedited Proceedings ................................................. 954

3. Housekeeping ............................................................... 955

V. TIME FOR A NEW REALISM ................................................... 957

CONCLUSION .................................................................................... 959

INTRODUCTION

The most obvious facts are sometimes the least appreciated. Each time a legislature or an agency enacts a new law or regulation, it does so against the backdrop of the existing statutory or regulatory regime, and its decisions about what laws are necessary or desirable are thus informed (at least to some degree) by its understanding of what laws already exist.(fn1) This fact may be obvious, but the consequences that follow from it often are not. This Article explores one such consequence: the significant, but not constitutionally required, disruptions to democratic preferences that constitutional judicial review commonly produces. These disruptions are what I call the "collateral consequences" of judicial review.

Constitutional judicial review-which I define broadly to include any judicial action that displaces legislative or regulatory judgment on constitutional grounds-has been a feature of the American judicial system for nearly as long as the system has existed. Although the origins of judicial review are often associated with Marbury v. Madison(fn2) and Chief Justice Marshall's famous declaration that it is the province of the judiciary to "say what the law is,"(fn3) Marshall was recognizing an existing practice, not creating a new one.(fn4) And it is a practice that, notwithstanding "one long dry spell,"(fn5) has remained a persistent feature of our constitutional democracy ever since.

Judicial review has been the subject of significant academic attention. Most notably, the academic community has long been obsessed with what Alexander Bickel called the "countermajoritarian difficulty"-that is, understanding whether (and in what circumstances) it is appropriate for unelected judges to overturn the judgments of democratic actors.(fn6) But the difficulty is not an insurmountable one. To many, judicial review plays an integral role in our constitutional structure, enabling courts to strike down statutes and regulations that are inconsistent with the nation's highest law, the Constitution.(fn7)

The problem, however, is when an act of judicial review produces disruptions to democratic preferences that are not constitutionally required. Such disruptions frequently arise for the reason I noted above. When policymakers enact laws, they do so in reliance on the existing state of the law. In other words, they enact some laws and not others based on which laws seem necessary to achieve desired policy goals in light of other laws already on the books. Thus, for example, policymakers will not enact law Y because they think law Y is unnecessary in light of existing law Z, which accomplishes the same goal. This is an eminently reasonable approach to legislating, except for one problem: when the Court strikes down law Z as unconstitutional, constitutional law Y is not in place even though policymakers would have enacted it had they known law Z was unconstitutional. Thus, the Court's decision to strike down law Z produces disruptions to democratic preferences beyond those the Constitution requires.

Consider a more concrete example: the Supreme Court's landmark decision in Citizens United v. Federal Elections Commission.(fn8) In that case, the Court held that Citizens United, a nonprofit corporation, could engage in political spending to distribute its anti-Hillary Clinton documentary on video-on-demand during the 2008 election cycle.(fn9) To reach that result, the Court held unconstitutional a federal law that prohibited "corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an 'electioneering communication' or for speech expressly advocating the election or defeat of a candidate."(fn10) Whether one agrees with the Court or not,(fn11) it held that this disruption to democratic preferences was required by the First Amendment.(fn12) But the Court's decision produced other disruptions to democratic preferences that were not constitutionally required under its holding in that case. For example, one consequence of the Court's decision in Citizens United was arguably to allow foreign involvement in U.S. elections in ways that were not previously possible,(fn13) even though the Court expressly left open the question whether restrictions on such involvement would be constitutional.(fn14) Likewise, the Court's decision enabled this spending to occur without adequate disclosure,(fn15) even though the Court suggested that disclosure requirements would be constitutionally permissible.(fn16) Again, the Court's decision produced these disruptions because the campaign finance regime assumed the existence of the prohibition on corporate and union spending; policymakers had not enacted laws they might have wanted had they known corporations and unions would be able to engage in this kind of political spending.

These sorts of democratic disruptions reflect the paradoxical nature of the Supreme Court's power.(fn17) Although the Court's influence on American society and politics is profound,(fn18) it has always been (and was created to be)(fn19) the least powerful of the three coordinate branches of government.(fn20) Its power is (in theory) limited to resolving the specific case or controversy before it,(fn21) and it cannot enact rules to address gaps or other disruptions in the law that its rulings may create. Thus, when the Court strikes down a law, it does not put in place the additional policies or rules policymakers would have enacted had they known their preferred outcome was...