Now published in the Hastings Law Journal, Brian Leiter: Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature. (Via Leiter Reports)
I posted on this article — actually the 2015 Mathew O. Tobriner Memorial Lecture at Hastings Law School — earlier here. But its publication is an excuse to quote the provocative introduction:
I propose to defend and explore three claims in this Essay. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the Supreme Court. There, the Court operates as a kind of super-legislature, albeit one with limited jurisdiction. The jurisdiction is limited in two important ways: first, the Court can only pass on issues that are brought before it; and second, the Court is constrained, to some extent, by its past decisions and by constitutional and legislative texts. The problem, however, is that those constraints underdetermine the Court’s decisions in most cases, so the Court essentially makes its final choice among the legally viable options based on the moral and political values of the Justices, and not simply on the basis of legally binding standards. The latter claim is, in part, a jurisprudential thesis about what constitutes “legally binding standards.” I shall defend the first claim by reference to the most plausible account of the nature of law—the legal positivist theory developed by H.L.A. Hart and Joseph Raz.
Second, the absence of law in so many parts of federal constitutional law means that the quality of moral and political judgment exercised by judges is of decisive importance in how they fulfill their role. Thus, it should be the overriding factor in the appointment of federal appellate judges, especially Supreme Court Justices. That brings me to my third claim, namely, that all political actors know that the Supreme Court often operates as a super-legislature, and thus that the moral and political views of the Justices are decisive criteria for their appointment. This almost banal truth is, however, rarely discussed in the public confirmation process, but is common knowledge among political and legal insiders. To be sure, there is always media speculation about the political predilections of the nominees, but their actual moral and political views are treated as off limits in the real confirmation process. This antidemocratic secrecy is, in my view, deeply wrong and must be replaced with a realistic acknowledgment of the role of the Supreme Court as a political actor of limited jurisdiction. I will illustrate these claims by discussing a number of important public law cases, recent and not-so-recent.
I agree with pretty much everything in the first paragraph. And the Court's 2014-15 term I think reinforced this view in many people's minds, not just because it turned out that "established by a state" meant "established by the federal government" but also because it turned out that "prescribed in each State by the Legislature thereof" meant "prescribed in each State by a body which is not the Legislature thereof."
But arguably there's an alternative to the second paragraph: to make what the Court does less dependent on the Justices' moral and political judgments and more dependent on legally binding standards. That, I take it, is the originalist/textualist project. And in my view, an important step in assessing the originalist/textualist project is establishing the proposition in the first paragraph. That is, there is (perhaps) a choice between Justices proceeding by their moral and political intuitions and Justices proceeding by the text and original meaning. But there isn't (much of) an alternative. It's one or the other. Once we see it that way, then we can decide which is best.
To be clear, I think there are some things to be said for the Supreme Court as a Super-Legislature (or rather, I would say, as the third branch of a three-branch legislature, whose consent is required for all legislation). I am most interested in seeing the choice express in those terms.
Posted at 6:35 AM