Vol. 32 No. 2 (February, 2022) pp. 14-16.
LAW AND LEGITIMACY IN THE SUPREME COURT, by Richard H. Fallon, Jr. Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 2018. 221pp. Harcover $40.51. ISBN: 978-0674975811. E-book: $38.63. ISBN: 0674975812.
Reviewed by: Matthew Reid Krell, Department of Political Science, Vassar College. Email: rkrell@vassar.edu.
We’re all puzzled by the question of why anything the Supreme Court does matters. As Alexander Hamilton pointed out, the Court “has neither force nor will, but merely judgment” (Hamilton 1789), and it’s not entirely clear why, as a matter of politics, the actors which do have force and will would submit to the decisions of the Court. And indeed, the question of whether the Court would have the last word in deciding what laws meant was not resolved by Hamilton’s position (Graber 2003) and remains contested to some extent today (e.g., Huq 2012). So why do the American executive and legislature continue to tolerate the power of the Court to set aside their policymaking, especially when there are ample examples of nations that do exactly the opposite (Tushnet 2003; Bhagwati 1984; Weill 2011)?
One argument sometimes advanced for what is sometimes referred to as “judicial supremacy” is that the judiciary is seen as apolitical and therefore its decisions are invested with greater legitimacy than those of political branches (the executive and legislature) (Gant 1996). And while social scientists sometimes scoff at this idea, given the evidence that suggests that the justices are at best normatively constrained by law (Bailey and Maltzman 2011), the myth of judges as apolitical appears to have significant salience for how the public views the Court, although the appearance of a fair process seems relevant as well (Mizrahi, Vigoda-Gadot, and Cohen 2021).
Richard Fallon’s 2018 book, LAW AND LEGITIMACY IN THE SUPREME COURT, attempts to square the circle by offering a new theory for how the justices ought to decide cases. While a review of a 2018 book may seem somewhat untimely, as we consider the role of Trump-appointed justices who are viewed with a gimlet eye by their political opponents, the question of the Court’s legitimacy and ways that it can preserve that legitimacy seems salient. In particular, as the Biden commission on judicial reform continues its work, and experts offer their opinions that the Court’s control over the constitutional order is fundamentally illegitimate (Bowie 2021), the counterargument weighs heavy.
Fallon’s argument amounts to asking and answering the question “How would the Supreme Court of the United States need to decide the cases before it – both procedurally and substantively – in order to justify imposing its will on those who reasonably disagree with its conclusions about the bearing of the Constitution on politically charged issues (p.7)?” In order to answer the question, he begins by asserting that there are three different types of “legitimacy” that the Court carries: legal, moral, and sociological. He defines legal legitimacy as related to H.L.A. Hart’s internal critiques of decisions and disposes of it summarily (pp. 35-41). While social scientists are, he asserts, mostly concerned with the sociological legitimacy of the Court, he argues that the moral legitimacy of the Court is the most important lens. Moral legitimacy carries two meanings: a “minimal” and hopefully universal moral legitimacy that any legal or political regime must meet in order to demand respect and obedience, and an “ideal” moral legitimacy that is usually contested based on differing values (pp. 24-35).
He then spends a significant amount of time discussing the ways that the Court currently creates moral legitimacy for its decisions, ultimately rejecting all of them. He provides a lengthy and, to my mind, serious critique of originalism by mustering evidence that originalism’s appeal to “original public meaning” presupposes that there is such a thing as one “original public meaning” and that this presupposition is almost always false. He further criticizes the alternative backward-looking internal critique of a strong norm of stare decisis by noting that many past decisions fail to meet even the minimal standards of moral legitimacy and therefore deserve to be swept aside and overruled.
Moving into the theory that animates Supreme Court decision-making, Fallon argues that the Supreme Court currently benefits from a constitutional order described by H.L.A. Hart when he asserted that “rules of recognition” define who gets to decide what is within the bounds of the legal system. In short, because Americans collectively agree that courts have this power, they do; if that collective agreement ever falters, there is room for the courts to reassert it and claim that power much as Hamilton and Marshall did, so long as no other actor steps into the vacuum first (Frank 2010). Because these rules of recognition are unwritten and therefore indeterminate, the Court must invoke its own moral senses in hard cases. While “easy” cases present little concern in applying previously articulated principles, these hard cases mean that where the justices appraise moral stakes differently, they will view the correct outcome differently.
Finally, Fallon offers his own preferred theory of judicial decision-making, which he bases on Rawls’s deliberative justice theory. The logic will be familiar to anyone who has used Bayes’ rule in their research: justices should begin with their intuition as to what the “right” outcome in a case is, but where that intuition does not square with the outcome commanded by their previously-stated methodological commitments, they should mentally inhabit both worlds in order to evaluate the consequences of adhering to their methodological commitments versus supporting their intuition. While Fallon encourages a strong norm of preferring prior commitments, he acknowledges that where an adherence to past commitments leaves an unshakeable conviction that that outcome is wrong, that justices should be unashamed to confess prior error and overrule past decisions. Fallon concludes by noting that his theory can only provide greater judicial legitimacy than the current system if it is explicitly embraced; an implicit embrace of his theory would simply leave the Court engaged in ad hoc reasoning and offering no coherent rationale for why some cases are decided in one way while others are decided another way.
I will confess that I find Fallon’s argument unconvincing. To begin with, he starts from the presumption that the Court ought to remain the final arbiter of the American constitutional order. While I agree with him on that, that conclusion cannot bear its own weight and must be supported by argument and evidence, which Fallon does not offer. Given how brief the book is, offering even just a few pages of argument to support why American-style judicial review deserves to continue as an institutional design choice would be helpful.
Second, I’m troubled by the blithe dismissal of “sociological legitimacy” as basically unimportant. While Fallon concludes his book by noting that the Court’s public standing is currently declining, he offers little attempt to explain that decline, instead focusing on elite opinion. If he thinks that elites are driving mass opinion about the Court, a la Stimson (2015), then I would expect to see arguments about how the media talks about the Court. Instead, Fallon’s argument focuses on ways that the Court can describe its own actions that will increase its legitimacy through an uncertain causal mechanism.
While Fallon’s argument has new salience as questions of judicial reform become more prominent in American political discourse, I don’t find this explication of that argument helpful. Fallon doesn’t offer us a new way to research the public standing of the Supreme Court; nor does he give us a new theory to test against the Court’s work product. In fact, Fallon argues at the very end of this book that his preferred theory of Supreme Court decision-making is equally consistent with the evidence as the existing social science consensus (p. 173). Leaving us with a non-falsifiable theory, his best final prescription is that the justices and those who create the system within which they work must “do better” (p. 174). While I agree, it would have been nice to have had a path laid out that would allow that to happen.
REFERENCES:
Bailey, M. and Maltzman, F. (2011). THE CONSTRAINED COURT. Princeton, NJ: Princeton University Press.
Bhagwati, P.N. (1984). “Judicial Activism and Public Interest Litigation,” COLUMBIA JOURNAL OF TRANSNATIONAL LAW 23: 561-578.
Bowie, N. (2021). “Written Statement before the Presidential Commission on the Supreme Court,” available at https://www.whitehouse.gov/wp-content/uploads/2021/06/Bowie-SCOTUS-Testimony.pdf (last accessed July 1, 2021).
Frank. J. (2010). CONSTITUENT MOMENTS. Durham, NC: Duke University Press.
Gant, S.E. (1996). “Judicial Supremacy and Nonjudicial Interpretation of the Constitution,” HASTINGS CONSTITUTIONAL LAW QUARTERLY 24: 359.
Graber, M. (2003). “Establishing Judicial Review: Marbury and the Judicial Act of 1789,” TULSA LAW REVIEW 38: 609-650.
Hamilton, A. (1789). Federalist No. 78. In Writings (Freeman, J.B., ed.). Penguin Random House 2001.
Huq, A.Z. (2012). “Enforcing (But Not Defending) ‘Unconstitutional’ Laws,” VIRGINIA LAW REVIEW 98:1001-1091.
Mizrahi, S., Vigoda-Gadot, E., and Cohen, N. (2021). “Antecedents of trust in the judiciary: between fair process and high satisfaction,” INTERNATIONAL PUBLIC MANAGEMENT JOURNAL 24: 250-268.
Stimson, J. (2015). TIDES OF CONSENT. New York: Cambridge University Press.
Tushnet, M. (2003). “Judicial Activism or Restraint in a Section 33 World,” THE UNIVERSITY OF TORONTO LAW JOURNAL 53: 89-100.
Weill, R. (2011). “Reconciling Parliamentary Supremacy and Judicial Review: On The Theoretical and Historical Origins of the Israeli Legislative Override Power,” HASTINGS CONSTITUTIONAL LAW QUARTERLY 39: 457.
© Copyright 2022 by author, Matthew Reid Krell.
