Dysfunction, Deference, and Judicial Review

Category: Print Issues

Barry Friedman & Margaret H. Lemos

Volume 29

, Issue 2

29 GEO. MASON L. REV. 487 (2022)

Introduction

Although grateful to have been invited to participate in this discussion—“Does the ‘Will of the People’ Actually Exist? Judicial Deference to Whom,”—we have been tripping over the assignment itself, because it seems, at least initially, to be a bit of a non sequitur. We had not understood that judges exercising the power of judicial review were supposed to be deferring in any way to the popular will. And for that reason, the first question we were asked to address—whether such a will exists or is discoverable—seemed unrelated to the second—whether judges exercising the power of judicial review should defer to the political branches.¹

Still, a conclusion about deference to the political branches might follow from a premise about the will of the people, if we were to add another link to the logical chain: a belief that the outputs of the political branches track, in some meaningful sense, the preferences of a majority of the people. It is this, we suspect, our organizers had in mind. If so, they are not alone. Writing in 1962, Alexander Bickel argued in The Least Dangerous Branch that judicial review is a “deviant institution” in a democracy for just these reasons.²

As Bickel saw it, “[t]he root difficulty is that judicial review is a counter-majoritarian force in our system.”³ Bickel acknowledged “various ways of sliding over this ineluctable reality,” such as when the great Chief Justice John Marshall “spoke of enforcing, in behalf of ‘the people,’” constitutional limits on government.⁴ And Bickel understood that “the word ‘people’” itself was an “abstraction.”⁵ Still, he insisted, “when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now.”⁶ There it is—the “representatives of the actual people.”⁷

To be clear, Bickel never suggested, nor has any serious scholar since, that judges simply should adhere to or enforce the naked popular will. If that were the case, the judiciary would serve as nothing other than some better-than-average Gallup Poll. Even if the vision made normative sense, it’s hard to know how the judiciary would do better than the pollsters, who are having their own problems these days.⁸

Rather, for Bickel, the challenge was to identify a role for judges that would justify their overturning the otherwise lawful decisions of institutional decisionmakers: legislators and executive officials.⁹ Why was it acceptable for judges to impose their own judgments about the Constitution over the conclusions reached (on constitutional grounds) by those lawfully empowered in our democracy to make law? That was the question Bickel set out to solve, and many scholars since have followed in his footsteps.¹⁰

Nonetheless, Bickel did hold to a fairly robust view that the political branches were tenable proxies for majority sentiment, and in this sense trumping their decisions was “counter-majoritarian.”¹¹ It’s a bit remarkable that, writing in the early 1960s, he was obsessed with the problem that the political branches were majoritarian, but the courts were not. It’s old hat that the Framers didn’t write the Constitution in a way designed to make the political branches mere trumpets for public preferences. Quite the contrary, many familiar institutions of American democracy were created to dampen the influence of such preferences, prominent among them bicameralism and the apportionment of the Senate.¹² Nor were the political branches particularly good proxies for popular views in the 1960s. Among other things, the House of Representatives was horribly malapportioned, something the Supreme Court aimed to fix (which Bickel, ironically, opposed) in Wesberry v. Sanders.¹³ Finally, Bickel had a sophisticated understanding of the political science of his day, which was taken up with discussions of the influence of “pressure groups,” and various other types of legislative dysfunction that might defeat majoritarianism.¹⁴ Despite all this, he fell back on the importance of the electoral process.¹⁵ “[I]t remains true nevertheless,” Bickel insisted stubbornly, “that only those minorities rule which can command the votes of a majority of individuals in the legislature who can command the votes of a majority of individuals in the electorate.”¹⁶

Whatever was true in 1962, it seems notably less true today that the political branches ought to be seen as close proxies for popular opinion. That is the point we make in Part I of this Essay, highlighting widespread dysfunction in our current political system that calls into question whether political outcomes mirror majority will in any meaningful way.

In Part II, we turn to deference. If we’re right that political decision-making cannot easily be equated with the will of the people, does it follow that deference becomes less relevant, or that more aggressive judicial review is warranted? We think not.

As a normative matter, the extent of deference need not have any relationship to the majoritarian nature of political outcomes. On the one hand, there are many reasons for deference—as well as many reasons to reject deference in favor of more aggressive judicial review—that have nothing to do with respect for majority will. On the other hand, the relationship between deference and majoritarianism may tell us a great deal about the balance between the judiciary and the rest of government. Historically, our roughly majoritarian system provided mechanisms that helped keep the judiciary roughly in the mainstream, on the issues that were salient over time. There are signs that the system may be breaking down. The same sort of political dysfunction described in Part I is leading to an increasingly polarized bench, while breaking down the tools the people traditionally have used to corral the judiciary. This should give pause to anyone concerned about the long term health of our tripartite system.

I. The Will of the People?

Let’s assume the people have a “will” on at least some sizeable subset of constitutional questions, which we could identify if we could look into the hearts and minds of the American public.¹⁷ The question we want to explore is whether such a popular will (i.e., preferences shared by a majority of people) is reflected reliably in the work of the political branches. Bickel’s optimistic answer to that question was penned at a time that, to the modern eye, looks like a remarkable period of bipartisanship, running roughly from the end of World War II to the 1980s.¹⁸ Today’s politics, by contrast, are marked by what some have termed “hyperpartisanship”: not only are elected officials from the two major parties “more ideologically polarized than they have been in over a century,” but “when they engage in legislative redistricting and other forms of election law, Democrats and Republicans regularly rig the rules of the game in their favor and gouge the other party in outrageous fashion.”¹⁹ Whatever was the case for legislative majoritarianism in Bickel’s day, we think modern political realities cast serious doubt on any claim that the outputs of the political branches track, by and large, the will of the people.

To begin with, there is the problem that our legislatures—both federal and state—often fail to reflect the bare minimum requirement of majoritarianism (i.e., that “[t]he party with the most votes wins”).²⁰ This is not entirely new. As noted above, low-population states hold an advantage in the Senate, not by chance but by constitutional design. Someone who lives in Wyoming (population approximately 580,000) is represented by the same number of senators as someone who lives in California (population approximately 39.5 million).²¹ Low-population states are overrepresented in the Electoral College as well, thanks to the fact that each state gets at least three electors: each of Wyoming’s three electors represents roughly 195,000 people, whereas California’s fifty-four electors speak for approximately 732,000 people each.²²

What is new is our political geography, in which the urban-rural divide increasingly maps the division between the two major parties, translating into a significant Republican advantage in both the Senate and the Electoral College. Republicans won more votes than Democrats in only four of the fifteen Senate races from 1990 to 2018 but held a majority of seats in nine.²³ During the same period, two Republican presidents (George W. Bush and Donald Trump) prevailed in the Electoral College despite losing the popular vote.²⁴

More surprising is that the same political geography translates into representational distortions in the U.S. House of Representatives and many state legislatures—bodies whose members are selected from single districts rather than statewide tallies. Since the reapportionment decisions of the 1960s, districting is supposed to equalize population differentials, with each district containing roughly the same number of voters.²⁵ Yet single-member districts nevertheless can produce minority rule if co-partisans are concentrated in ways that transform statewide majorities into minorities in most districts. Today’s urban-rural polarization increasingly produces precisely those patterns—which then are magnified in many states by partisan gerrymandering.²⁶ The upshot is that the party that wins a majority of votes may remain a minority in Congress, as was true for Democrats in the House after the 1996 and 2012 elections.²⁷ Minority rule is even more pronounced in state legislatures: between 1968 and 2016, there have been 146 minoritarian outcomes in state senates and 121 in state houses.²⁸

These electoral systems affect not only who is elected, but also how those in office exercise their power. The use of single-member districts “tend[s] to produce what the literature calls a ‘winner’s bonus,’” disproportionately exaggerating the size of the winning coalition beyond what a system of proportional representation would produce.²⁹ Add in geographical clustering and/or gerrymandering, and the bonus can be inflated significantly. That is, if voters from one party are packed into certain districts, the other party may win a narrow majority of votes statewide but prevail in a far greater proportion of districts, ending up with “very large legislative supermajorities.”³⁰ And “[l]egislators with such artificial cushions may be less responsive to the concerns of both the median voter and of partisan minorities.”³¹

Extraordinarily high rates of political polarization in state and federal legislatures provide additional reasons to doubt that legislative outputs will reflect majority preferences reliably. Polarization can be understood in a variety of ways, but two important measures are partisan sorting and ideological divergence.³²Cynthia R. Farina, Congressional Polarization: Terminal Constitutional Dysfunction?, 115 Colum. L. Rev. 1689, 1694 (2015) (emphasis added in part). Partisan sorting involves a tighter association between ideology and party identification, typically measured by the degree of overlap between the most conservative Democrats and the most liberal Republicans.³³ Where in the Congress there once was considerable overlap between members of the parties on ideology, today there is none.³⁴ Ideological divergence typically is measured by the distance between the party medians and it, too, has increased dramatically.³⁵ In short, “[t]he Democratic and Republican [p]arties are more polarized today than they have been in decades—maybe more than a century, according to some measures.”³⁶

Although the causes of polarization are debated hotly, few researchers view polarization among elected elites as a simple reflection of polarization in the public at large. Instead, most agree that polarization in Congress (the focus of most studies) is significantly more pronounced than polarization among the public. If the people’s representatives are polarized in ways the people themselves are not, “then Congress may not reflect the underlying views it is supposed to represent.”³⁷ Polarization, on this view, is contributing to a “[d]isconnect” between voters and elected officials, a “[b]reakdown in [r]epresentation.”³⁸

Like the electoral systems sketched above, polarization has consequences both for the makeup of federal and state legislatures and for how those institutions operate. Although the direction of the causal arrow is hard to pin down, it is clear that today’s high rates of polarization coincide with pronounced “‘team play’ behavior—the will to win and desire to beat the other party,” and the refusal to break rank with one’s own party and engage in bipartisan compromise.³⁹ In periods of unified government, polarization and team play are likely to produce legislation that is ideologically extreme.⁴⁰ Importantly for present purposes, research indicates that such legislation may well “overshoot” the preferences of many of the majority party’s own constituents.⁴¹

But when government is divided, the probable consequence of polarization plus team play is gridlock.⁴² As political scientists Michael Barber and Nolan McCarty have explained, “[i]ncreased policy differences shrink the set of compromises that both parties are willing to entertain,” while simultaneously exacerbating “the incentives to engage in brinkmanship in bargaining and negotiation, thereby endangering even the feasible compromises.”⁴³

Gridlock is common today even under unified government, thanks to how polarization and party discipline interact with various features of the legislative process that require supermajority consensus—most notably, the filibuster in the Senate. The filibuster allows the minority party to block proposed legislation by engaging in extended debate, which (under current rules) can be ended only by a vote for cloture by at least sixty senators.⁴⁴ The filibuster is not new—the Senate’s rules have permitted unlimited debate since the early 1800s—but it has changed.⁴⁵ Historically, filibustering Senators actually spoke on the floor of the Senate, and no other work could proceed while a filibuster was ongoing.⁴⁶ In 1972, however, the Senate moved to a “two-track” system that permits Senators to filibuster, while the chamber considers other business.⁴⁷ And filibusters today are often “silent”—that is, objecting senators do not have to speak for hours on end but simply can “tell[] the leadership that 41 senators won’t vote for a bill.”⁴⁸ The consequence has been a steep increase in the use of the filibuster. In 1962, when Bickel published The Least Dangerous Branch, the Senate logged four motions to invoke cloture and end debate; in 2020, that number was 328.⁴⁹ Today we have a Senate in which the de facto threshold for legislation now stands at 60 votes—“[a] Senate, in other words, where minorities reign.”⁵⁰

Gridlock may thwart popular preferences in various ways, including—most obviously—by giving the people stasis when they want change.⁵¹ But policy making doesn’t simply stop during periods of divided government; instead, political outputs tend to be reshaped and redirected into different channels. In the Senate, for example, legislators increasingly use reconciliation processes to sidestep the filibuster.⁵² Reconciliation was created by the Budget Act of 1974 as a way of fast-tracking measures that would reconcile long-term spending programs with the goals of the annual budget and appropriations process.⁵³ Originally designed “as a modest tool that would align legislation with revenue and spending targets set forth in the budget resolution, [reconciliation] has since risen in importance.”⁵⁴ Writing in 2013, Tonja Jacobi and Jeff VanDam observed that “[m]any of the major legislative battles of the previous decade involved reconciliation bills in a central role, including, notably, President George W. Bush’s tax cuts and President Barack Obama’s health care reform.”⁵⁵ Eight years later, we can add the massive 2017 Tax Cuts and Jobs Act to that list.⁵⁶ Like other forms of what Barbara Sinclair dubbed “unorthodox lawmaking,” reconciliation offers a means of breaking the logjam—but it does so by bypassing congressional committees and other important procedural sites for input, debate, and compromise.⁵⁷

Gridlock in Congress also means more matters are left to “an ever-increasing array of states, agencies, private actors, and quasi-private actors.”⁵⁸ Little about that list screams “will of the people.” States, as described above, are prey to the same political pathologies that affect the legislative process.⁵⁹ Administrative agencies, for their part, have inspired mountains of scholarship wrestling with the “serious legitimacy problem” presented by lawmaking by unelected bureaucrats.⁶⁰ And administrative law is replete with doctrines designed to ensure that agencies are sites for “reasoned decision-making”; an agency that defended a new regulatory policy on the ground that it tracks majority preferences would likely meet a swift rebuke in court.⁶¹

There’s much more we could say here about the failure of political outputs to reflect majority views. We could talk about the realities of modern campaign finance, burgeoning voter-suppression efforts in the states, and much more. But we believe the basic point is plain enough: if representation in the political branches supplies the logical link between the will of the people and the question of deference to the legislative and executive outputs, the link is—at best—frayed. And that seems a very generous assessment.

II. Deference and Judicial Review

Which brings us to the question at the heart of this symposium: whether deference is due the decisions of the political branches. If political outcomes do not reliably reflect majoritarian preferences, is there any reason for judges to defer to what politics renders? Or should judges abandon deference altogether?

In this Part, we argue that this conclusion—that deference is unnecessary if institutional outcomes are not majoritarian—is too quick. Put simply, there are many reasons for and against judicial deference that have nothing to do with majority will. Yet majoritarianism does matter to the functioning of judicial review. The reason rests not in normativity and law, but in a historical and social-scientific understanding of how majority will and judicial will interact. Rather than thinking solely about whether judicial review thwarts majoritarianism, it is important to understand that majoritarianism has served as a check on judicial review over the ages.⁶² In modern times, majority will and judicial review have been in equilibrium. But dysfunction in the political branches is breeding similar dysfunction in the judiciary, and there is a risk that the equilibrium will collapse. If so, as we explain, dysfunction may have the effect of causing action to be taken against the judiciary; or it may leave the judiciary out of sync with the public, with the political branches unable to respond.

A. Deference and Majority Will

The question of how judges should review the decisions of other institutional actors is a complicated one (to put it mildly) that has generated vast literatures. Some theories hold that judges should defer to the constitutional judgments of the political branches; others seek to justify non-deferential review of political outputs. Despite their many differences, theories of judicial review—deferential or not—share two features that are key for our purposes. First, they are normative, focusing on how judges ought to act vis-à-vis the political branches. Second, many theories of judicial review have little, if anything, to do with whether the outputs in question reflect majority will. Some do, but it seems safe to say that there is no necessary connection between deference (or lack thereof) and majoritarianism.

Take theories of deference. Some of these turn on the notion that there are better and less good ways of finding answers to complicated policy questions, and deference is due the former. For example, if extra-judicial entities have superior fact-finding capabilities or other epistemic advantages, that may be a reason to defer to outcomes they render.⁶³ The capacity to speak with one voice, rather than a cacophony, may be another reason for deference—as in the context of executive action on foreign affairs.⁶⁴ In other cases, there simply may not be a right or clear answer to some questions, and absent a clear constitutional answer, it may be better to leave legislative or executive settlements undisturbed. This was the view of James Bradley Thayer, or at least part of the reasoning for his position that judicial review should not trump the determinations of the political branches—whose decisions will “accomplish results throughout the country of the profoundest importance before any judicial question can arise or be decided”—absent “clear” error.⁶⁵

By the same token, it hardly is the case that theories that seek to justify non-deferential judicial review of political outputs necessarily turn on whether an outcome is majoritarian. Indeed, most theories of judicial review—that is, about whether and how judges should invalidate the enactments of political actors—are to the contrary. The point holds even for Bickel. He started with the countermajoritarian problem, but his ultimate answer was that courts were forums of “principle,” serving as “republican schoolmaster[s]” for the rest of the nation.⁶⁶ (Suffice to say his answer hardly solved his own dilemma.⁶⁷)

Then there’s originalism, which is the antithesis of majoritarianism. Originalism holds that judges are to hew to the [insert your favorite flavor of] the original meaning of the Constitution.⁶⁸ In its purest form, one supposes deference to the political branches is not part of the equation at all—indeed it might be heresy if those branches are treading upon the original Constitution. Steven Calabresi makes this clear in an essay rejecting James Bradley Thayer’s “clear mistake” rule.⁶⁹ As Calabresi puts it, “the Supreme Court ought to decide constitutional cases in accord with the original public meaning of the relevant text as it applies to the circumstances of our modern world.”⁷⁰ For that reason, it would be “unconstitutional for the Supreme Court to erase constitutional rights that actually are in the Constitution, and that is what the adoption of Thayerian reasoning [i.e., deference] would lead to.”⁷¹

Even one of the theories of judicial review most attentive to fostering majoritarian politics still does not tell judges to defer to majoritarian outcomes. For John Hart Ely, representation reinforcement was the order of the day.⁷² Putting it (too) crisply, courts were to do two things. One was to scrutinize closely political decisions that disadvantaged “discrete and insular” minorities (i.e., those who could not find protection in the political process because of built-in bias).⁷³ The other was to “[c]lear[] the [c]hannels of [p]olitical [c]hange,” which is to say, facilitate democratic governance.⁷⁴ And what Ely often wanted to facilitate was majoritarianism. Thus, whereas Bickel disagreed with the Supreme Court entering “the political thicket” in the reapportionment cases, for Ely this was precisely what the Court should be doing: fostering a vibrant majoritarianism.⁷⁵ That’s different, though, from striking or upholding decisions based simply on whether they are majoritarian. It’s hard to see Ely cottoning to that.

We don’t purport to offer anything like a comprehensive survey of theories of judicial review, but the point by now should be clear: majoritarianism qua majoritarianism is hardly a central part of the theory of how judicial review should operate. Rather, it was a frame for various theories of judicial review in the post-New Deal era. Legal scholars became “obsessed” with the majoritarian problem beginning around Bickel’s time, for reasons that were historically contingent. Progressives had attacked the courts in the first part of the twentieth century for striking down popular enactments designed to regulate market failures.⁷⁶ After Franklin Roosevelt had the opportunity to remake the Supreme Court, the justices eschewed challenging economic legislation but slowly started to strike down other sorts of laws denying the safeguards of the Bill of Rights.⁷⁷ Liberals thus faced a dilemma: how could they like judicial review in the latter instance, while having deplored it in the former? This was the root of Bickel’s countermajoritarian problem and that of the liberal academy that followed him. (It was not a problem that much concerned conservatives, although they too have deployed the countermajoritarian concern strategically at times.⁷⁸) The countermajoritarian difficulty is a jumping-off point for theories of judicial review, not a theory in and of itself. And it has not been a core of the most prominent theories of judicial review.

B. Judicial Review and Majority Will

All that said, there is a view of judicial review that sees a relationship between majority will and judicial review. One of us wrote a book about it (entitled The Will of the People), and both of us were co-authors on a casebook (Judicial Decision-Making: A Coursebook) that explores the matter at length.⁷⁹ That theory, however, is descriptive—not normative. It suggests how judicial review in fact operates, rather than prescribing how judges should exercise the power of judicial review.

The descriptive theory of the relationship between judicial review and the popular will is that over time, on salient issues, the judiciary tends to come into line with public opinion.⁸⁰ Note all the caveats. It’s over time, not immediately. It is salient issues, not all of them. And, although the theory tends to suggest that the judiciary comes into line with prevailing views, there is some evidence that the judiciary affects popular views as well. The direction of the causal arrow is not entirely clear.

Although this is a descriptive and not a normative theory, it contains a seed of concern for a judiciary that ignores the theory’s fundamental insight. The theory was intended as a partial response to Bickel’s supposed countermajoritarian problem: on the issues that mattered, over time, the judiciary did not in fact trump the will of the people. So, everyone who worried over the countermajoritarian difficulty simply could relax a bit.

But the flip side of the insight—that the judiciary is not often out of line with the public in the long run—is that there is peril if it gets out of line. Time and again since the founding of the Republic, judges have paid a price when they have defied the popular will. “Americans have abolished courts, impeached one justice, regularly defied Court orders, packed the Court, and stripped its jurisdiction.”⁸¹ The point is that the public—and more aptly the political branches—has not lacked for tools to discipline a judiciary that had no care for the deeper mores of the American people, as represented by deep public opinion over time.

The extent of peril the judiciary has faced itself has been historically contingent. Modern times have seen fewer attacks and even fewer successful ones. Of course, it is impossible to tell if that is because the political weapons have lost their luster, or if the judges have been attentive to the threat of discipline. Even if an aroused public wants the Court’s head on a platter, political actors—such as our countermajoritarian Senate—can protect it from any measures that require legislative assent. There is a deep respect for the judiciary, so deep that even at a time of great anger with the judiciary, Franklin Roosevelt’s court-packing plan failed.⁸² (Of course, the Court also acceded to popular views, and had it not, the outcome may have been different.⁸³)

We discuss all of this because what is discernible, and concerning, is that the political dysfunction described in Part I is having its impact on the judiciary. To put the point sharply, not only is the judiciary not immune to ideological partisanship, but the increased partisanship and non-majoritarian nature of politics may be driving the judiciary in the same direction. And should that get out of hand, the judiciary may well find itself in trouble. Or, perhaps worse, the judiciary may deserve to be checked but avoid reform because the political branches are unable to act. Once the system falls out of equilibrium, it’s difficult to say what the result might be, but historically it has not been good.

1. A Broken Selection Process Leads to a More Extreme Bench

Let’s start with a broken selection process. It is hardly a new insight that over the last few decades the process for choosing federal judges has gone off the rails. What used to be a fairly quiet and deferential affair, certainly for courts other than the Supreme Court, has become highly contentious and partisan.⁸⁴ There’s a battle royale over what constitutes the original sin, and both parties have a list of grievances about the other as long as a freight train.⁸⁵ There’s no point in adjudicating who’s right. The result is a nasty game of tit for tat.

What’s notable is how this mirrors what happens generally in Congress in these partisan times. During times of divided government (and here what matters is party division between the presidency and the Senate), there are signs fewer judges will be appointed at all.⁸⁶ Both parties have figured out how to slow down confirming judges that are nominated by the opposing party.⁸⁷ The highest profile example of this is how the nomination of Merrick Garland languished, but the same phenomenon is true of nominees to the lower courts.⁸⁸ Commentators suggest that, taken to an extreme, one party simply could stop confirming almost any judges.⁸⁹ This in part is because, in highly polarized times, even individuals previously deemed moderate will be seen as players for the other team. But the greater motivation is to save the seats in the hope that in the next cycle your team will get to make the appointments.

Again, matters look different under unified government, when the President and Senate majority are of the same party. We saw above that hyperpartisanship combined with unified government can produce extreme policy; in the context of courts, the likely product is extremism in judicial appointments. Part of the story here involves the decline or demise of institutional features designed to promote moderation, including the filibuster (discussed in Part I) and the so-called “blue slip” process, which historically gave home-state senators from either party an effective veto over judicial appointments.⁹⁰ Although the filibuster continues to stymie regular legislation, the Senate has abandoned it for judicial appointments, which are now subject to a simple majority vote.⁹¹ Meanwhile, “recent, frequent alteration[s]” to the blue-slip process have weakened it substantially.⁹² With those minority-empowering tools gone, the party in power can confirm pretty much anyone it wants.⁹³

None of this is hypothetical; both dynamics have been on display during the last decade under the leadership of former Senate Majority Leader Mitch McConnell.⁹⁴ McConnell himself has identified judicial appointments as a “top priority,” and there is some evidence he and his party compatriots rode the Trump coattails in large part for this reason.⁹⁵ McConnell purposefully engineered a slowdown in confirmations during the Obama Administration, creating a large number of vacancies for Trump to fill.⁹⁶ And fill them he did: during his one term in office, Trump filled as many appellate seats as most presidents fill in two, not to speak of his three appointments to the Supreme Court.⁹⁷

What’s really interesting is the evidence of increased partisanship and ideological extremism of those appointees. Some of the evidence points in different directions and it is difficult to arbitrate what is going on. For example, Trump’s nominees garnered far more “no” votes from the opposing party than is typical, which could suggest those nominees were more partisan and ideological, or could simply reflect growing partisan battles generally.⁹⁸ Other evidence is more clear, especially because supporters of the appointees crowed about it enthusiastically.⁹⁹ The Federalist Society had a huge hand in picking Trump judges, from the famous pre-election list from which Supreme Court nominees would be chosen, to the lower courts more generally.¹⁰⁰ Republicans, fed up with disappointment over “stealth” nominees, have chosen judges who were far more ideologically engaged before their nomination—and a good deal younger—than had historically been the case.¹⁰¹ And there is some indication in the output of those judges that they are holding true to the increasingly polarized commitments that put them on the bench in the first place.¹⁰²

2. Legislative Stasis Empowers the Judiciary

It’s not just the selection process, though, that is leading to heightened extremism in judicial results; congressional gridlock too is a contributor. Congressional stasis makes judges all the more important. First, as noted in Part I, hyper-partisanship and polarization make it difficult for Congress to agree on anything.¹⁰³ Legislation, when it passes, has more holes to be filled by judges, or by administrative actors whose work judges review.

Second, Congress is less able to supervise the judiciary on matters of statutory interpretation and the like. Outside of the realm of most constitutional cases, if Congress doesn’t like what the judges are doing, it can override judicial decisions. As other scholars have shown, at other times in history, this has happened with some frequency.¹⁰⁴ But if Congress is at a partisan standoff, then overrides become impossible.¹⁰⁵ This not only empowers the judiciary—by rendering even statutory decisions effectively immune to revision by other actors—but also causes those same decisions to take on the importance generally associated with constitutional rulings.¹⁰⁶

Finally, the very tools that have been used throughout history to curb the judiciary become almost impossible to wield if Congress cannot agree. Reforms like court-packing and jurisdiction-stripping require legislation, and a gridlocked Congress will not be able to deliver it—even if the reforms enjoy widespread public support. The consequence, once again, is to liberate the judiciary still further.

Conclusion

We don’t have a crystal ball and won’t pretend to know where this all ends up. The Senate may find a way to break its downward cycle. The public may adjust to rampant judicial partisanship. Or the judiciary could get wildly out of sync with the public, and the public could get angry enough that politics responds in some way. Maybe the political branches will be too dysfunctional to respond, and the whole system craters. It’s not like these are optimistic times.

Whatever the case, though, this seems to us the ultimate relationship of judicial deference and majority will. Majoritarianism is not some normative lodestar for when judicial review should be exercised. Rather, it is a key to when the system will be in equilibrium and when it will fall out. On the one hand, judges should not defer to the political branches or the public out of sheer majoritarianism. On the other hand, there often are plenty of other reasons to defer, which vary with the case. Judges should be attentive to those reasons and thoughtful in the actions they take. That’s what it means to judge, rather than to play on an ideological or partisan team.

Category: Print Issues

Dysfunction, Deference, and Judicial Review

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