Abstract
American proponents of legal formalism, such as Supreme Court Justice Antonin Scalia, worry (quite reasonably) that unfettered judicial discretion poses a threat to democratic legitimacy, and they offer formalism—the mechanical implementation of determinate legal rules—as a solution to this threat. I argue here, however, that formalist interpretive techniques are neither sufficient nor necessary to impose meaningful constraint on judges. Both the text and the “original meaning” of legal rules are endemically under-determinate, leaving much room for judicial discretion in the decision of cases. But meaningful judicial constraint can and does flow from other sources in American adjudication. Judges are constrained by the dispute-resolving posture of their task, which requires that they be impartial as between the litigants and responsive to the litigants’ participatory efforts. And they are constrained by the need to be faithful to the substantive principles that justify legal rules, even when those rules themselves are indeterminate. Judicial constraint in the American system thus stems not primarily from formalist interpretative methods, but rather from largely unwritten procedural principles of judicial impartiality, responsiveness, and faithfulness.
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Notes
- 1.
Scalia (1989a), pp. 863–864.
- 2.
In the Nicomachean Ethics, Aristotle (1941) wrote: “[A]ll law is universal but about some things it is not possible to make a universal statement which shall be correct. In those cases, then, in which it is necessary to speak universally, but not possible to do so correctly, the law takes the usual case, though it is not ignorant of the possibility of error. And it is none the less correct; for the error is not in the law nor in the legislator but in the nature of the thing, since the matter of practical affairs is of this kind from the start” (p. 1020).
- 3.
For an argument to this effect, focused on judicial application of rules gleaned from precedent, see Hellman (2014).
- 4.
See, for example, Scalia (1989b), p. 1179.
- 5.
Sunstein (1997), p. 530.
- 6.
See United States Constitution, Article III(1): “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office”.
- 7.
The obvious apparent exception is the prior judges whose decisions often are applied as precedents by current judges. Where these precedents interpret the work of institutions that are politically accountable to current majorities—statutes enacted by legislatures and regulations adopted by administrative agencies—their continued existence might be seen as implicit acquiescence in their substance by these accountable institutions (the legislature could simply overturn incorrect interpretations of its statutes by amending the statute in question). On this theory, respect for prior judicial decisions might be understood as a form of subservience to democratically more-accountable institutions. Matters are more obscure where the judicial precedent interprets a constitutional provision and thus is very difficult to correct by means of constitutional amendment. Many formalists thus distrust the presumptive American practice of adhering to constitutional precedent (see Peters (2014), pp. 189–198), although Justice Scalia himself professes to accept the practice (see Scalia (1989a), p. 861): “[A]lmost every originalist would adulterate [originalism] with the doctrine of stare decisis”.
- 8.
- 9.
Hart (1958), p. 607.
- 10.
Ibid.
- 11.
Fuller (1958), p. 663.
- 12.
Hart (1958), p. 607.
- 13.
Scalia (1997), pp. 23–24.
- 14.
18 USC § 924(c) (1).
- 15.
508 US 223, 241, 242 (1993) (Scalia, J., dissenting).
- 16.
The decision in question is United States v. Windsor, 133 S. Ct. 2675 (2013).
- 17.
- 18.
For an originalist’s account of the general rejection, among originalists, of “original intent” originalism in favor of “original public meaning” originalism, see Solum (2011), pp. 6–17. For influential critiques of “original intent” originalism as indeterminate, see Brest (1980); Dworkin (1985), pp. 34–57.
- 19.
See Urofsky and Finkelman (2011), pp. 201–205.
- 20.
Ibid., p. 204. See also Ellis (2001), pp. 198–201.
- 21.
Ellis (2001), p. 191.
- 22.
Scalia (1989a), pp. 856–857.
- 23.
- 24.
Barnett (2004), p. 121.
- 25.
Ibid., p. 120.
- 26.
- 27.
See, e.g., Lujan v. Defenders of Wildlife, 504 US 555 (1992); Allen v. Wright, 468 US 737 (1984).
- 28.
The Seventh Amendment to the federal Constitution guarantees the right to a jury trial in many civil cases in federal court, but this right may be waived by the parties. In both federal and State courts, the litigants typically participate in the process of choosing jurors, known as voir dire, by asking questions of prospective jurors (either directly or by submitting them to the judge), by moving to exclude prospective jurors “for cause”, and by exercising “peremptory challenges” to strike a certain number of jurors without cause.
- 29.
In fact, procedural rules and statutes in the United States increasingly encourage out-of-court settlement of disputes, and far more cases “settle” than go to trial in American courts. See Galanter and Cahill (1994). There are exceptions, however, to the baseline principle that judicial approval is not required for settlement, such as class-action lawsuits, where judicial approval is required in order to protect the interests of absent class members. See Federal Rule of Civil Procedure 23. And while the terms of settlements rarely require judicial approval, it is commonplace that judges use various means to encourage the litigants to settle. See Galanter and Cahill (1994).
- 30.
In the federal court system, the requirement of a final judgment as a condition of appeal is codified in 28 USC § 1291. There are a number of exceptions to this requirement, one of which allows the trial judge, of her own accord, to “certify” certain issues for immediate appeal. See 28 USC § 1292(b). The “final judgment” requirement for appeal is less stringent in many State court systems. In the federal courts, the requirement that an appeal from a final judgment may be taken only by an aggrieved party has been held to be at least partly constitutional in stature, flowing from Article III’s grant of the federal judicial power to decide only “cases” and “controversies”. See Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); United States v. Windsor, 133 S. Ct. 2675, 2684-2689 (2013).
- 31.
Such as Federal Rule of Civil Procedure 52, which requires federal judges who serve as triers of fact to write opinions justifying their decisions on both factual and legal grounds.
- 32.
Formalists often recognize the practical constraint imposed by the American adversary model of adjudication. Justice Scalia, for example, advocates strict adherence to justiciability requirements as a way to limit judicial power. See United States v. Windsor cit. (Scalia, J., dissenting) (criticizing the majority’s willingness to recognize standing to appeal in the case as reflecting “an exalted conception of the role of [the Supreme Court] in America”). This recognition sits somewhat uneasily alongside the professed belief that formalist interpretive techniques can meaningfully constrain judges. If formalism imposes significant constraint, it is unclear why the additional measure of strict justiciability limitations is necessary.
- 33.
Grutter v. Bollinger, 539 US 306 (2003); Gratz v. Bollinger, 539 US 244 (2003).
- 34.
“No State shall … deny to any person within its jurisdiction the equal protection of the laws”.
- 35.
See Parents Involved in Community Schools v. Seattle School District No. 1, 555 US 701 (2007). Between 2003 (when Grutter and Gratz were decided) and 2007, Justice O’Connor had left the Court, replaced by the more-conservative Justice Samuel Alito (who voted with the majority in Parents Involved). In addition, Chief Justice Rehnquist had died and been replaced by John Roberts, but that change did not affect the Court’s attitude toward race-conscious affirmative action, which both Rehnquist and Roberts opposed.
- 36.
See Parents Involved cit., at 723 (“In upholding the admissions plan in Grutter, … this Court relied upon considerations unique to institutions of higher education …”).
- 37.
Grutter v. Bollinger, 127 F. Supp. 2d 821 (E.D. Mich. 2001). Federal district (trial) court judges are required by rule to expressly state the findings of fact and the rulings of law upon which their final judgments are based. See Federal Rule of Civil Procedure 52.
- 38.
Gratz v. Bollinger cit., 282 (Stevens, J., dissenting).
- 39.
Dworkin (1978), pp. 22–28.
- 40.
Ibid., p. 24.
- 41.
Ibid., p. 26.
- 42.
Ibid.
- 43.
Ibid., p. 22.
- 44.
The discussion that follows is drawn from Peters (2011), pp. 176–181.
- 45.
Hart (1958), p. 607.
- 46.
Cf. Hart and Sacks (1994), p. 1378: “Why would reasonable men, confronted with the law as it was, have enacted this new law to replace it? The most reliable guides to an answer will be found in the instances of unquestioned application of the statute”.
- 47.
Dworkin probably would refer to it more specifically as a “policy”—“a kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community”. See Dworkin (1978), p. 22. Or it might be called the “purpose” behind the ordinance: “the set of reasons for making those words a fixed part of the body of the law”. See Wellman (1987), p. 463.
- 48.
Dworkin (1978), p. 26.
- 49.
See Peters (2011), pp. 78–81.
- 50.
28 USC § 455(a).
- 51.
A ban on comment about active legal issues imposed on judicial nominees or candidates might run afoul of the Free Speech Clause of the First Amendment. The Supreme Court has invalidated on First Amendment grounds a state law forbidding an elective judicial candidate to “announce his or her views on disputed legal or political issues”. See Republican Party of Minnesota v. White, 536 US 765 (2002).
- 52.
Ibid., at 778 (emphases in original). The Court in White acknowledged that preserving judicial impartiality in this sense might be a compelling state interest, but it nonetheless invalidated the limitation on judicial-candidate speech in that case on the ground that it was not in fact intended to serve that interest.
- 53.
See Peters (2001), pp. 25–27.
- 54.
Fuller (1978), p. 388.
- 55.
- 56.
Federal Rule of Civil Procedure 52(a).
- 57.
- 58.
There is of course much writing by American judges themselves regarding how they understand their duties. For a classic judicial statement of this understanding that accords with the principle of faithfulness, see Cardozo (1921).
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Peters, C.J. (2015). Legal Formalism, Procedural Principles, and Judicial Constraint in American Adjudication. In: Pineschi, L. (eds) General Principles of Law - The Role of the Judiciary. Ius Gentium: Comparative Perspectives on Law and Justice, vol 46. Springer, Cham. https://doi.org/10.1007/978-3-319-19180-5_2
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