Progressive Political Theory and Separation of Powers on the Burger and Rehnquist Courts

Claeys, Eric R., Constitutional Commentary

INTRODUCTION

The Rehnquist Court is widely believed to be the most conservative Court in recent memory. Especially in the legal academy, the Rehnquist Court has a reputation as being conservative in its politics, (1) originalist in its interpretive commitments, (2) and suspicious of the New Deal. Mark Tushnet wonders whether the Rehnquist Court has shaken the American constitutional order so profoundly that "the New Deal/Great Society political system is no longer in place." (3) Tushnet is no supporter of the Rehnquist Court, (4) but many of the Court's defenders and admirers share the same view. In the most ambitious defense of the Rehnquist Court to date, John McGinnis insists that the Court's "reflects a more skeptical view of centralized democracy in an era in which there is more elite skepticism about the prospects of nationally mandated social reform than existed in the eras of the New Deal and Great Society." (5)

As widespread as this view is, there is at least one good reason to doubt it. It treats Supreme Court Justices too much as trend setters and too little as trend followers. Most Justices get their offices by dint of distinguished practice or public service, not extensive post-graduate academic training. Quite often, they assume the truth of normative opinions that either are conventional among legal elites when they serve on the Court, or were so when they went to law school. As John Maynard Keynes once explained, public officials often write into law political philosophy they learned "from academic scribblers of a few years back." They do so not "immediately, but after a certain interval; for in the field of economic and political philosophy there are not many who are influenced by new theories after they are twenty-five or thirty years of age." (6)

Obviously, no single article could explore this doubt in any comprehensive way. Yet there is a surprisingly simple way to demonstrate that it deserves attention--to reexamine how the Rehnquist Court has treated separation of powers. Separation of powers law counts as one of the great puzzles of the Rehnquist Court. Knowing what constitutional scholars knew in 1987, (7) there was every reason to expect that the Rehnquist Court would put separation of powers front and center in its constitutional agenda. Word for word, separation of powers takes up more space in the Constitution than any other doctrine. Chief Justice Rehnquist and Justice Scalia were widely known to sympathize with "original intent" principles of interpretation. (8) More important, as this Article will show, the Burger Court had left the Rehnquist Court with several excellent originalist precedents. Later, the Rehnquist Court would change the law of constitutional federalism using the precedential equivalent of whole cloth. (9) By contrast, at the beginning of the Rehnquist Court, the Court had all the precedents it needed to launch a sweeping revolution in separation of powers.

Yet there was no revolution. (10) The Rehnquist Court has declined several invitations to breathe more life into originalism through separation of powers law. In the process, the Court has continued a trend that has frustrated constitutional scholars for years, veering erratically between originalist and non-originalist interpretive methodologies with barely any explanation. (11) Did the Justices on the Burger Court take originalism seriously from the beginning? If not, why have the Burger and Rehnquist Courts applied originalism at all? Many academics have criticized the Burger and Rehnquist Courts for their inconsistency, (12) but no one has yet explained these Courts' track records convincingly.

This Article explains that puzzle. The Burger and Rehnquist Courts have used originalism and non-originalism selectively. Both Courts have chosen one or the other depending on which better promotes a theory of government this Article calls "the Progressive theory of apolitical administration." In simple form, this theory holds that government operates best when the Constitution is construed to stop elected politicians from interfering with expert bureaucrats. Leading Progressive academics deduced this theory of government from a more comprehensive political theory of a living Constitution. During the New Deal, the theory of apolitical administration lost its overt associations with living Constitution theory and became widely accepted, in legal education and among leading public-law officials and practitioners.

A broad bloc on the Burger and Rehnquist Courts has continued to use the Progressive theory of apolitical administration to decide hard separation of powers cases. That bloc has used the theory to decide whether to apply an originalist methodology or a non-originalist one in separation of powers cases. Since methodology often decides results in constitutional cases, this bloc has really used the Progressive theory of apolitical administration to decide the merits of separation of powers cases. This controlling bloc has been quite broad. Justice White was a consistent non-originalist, while Justices Scalia and Thomas have been fairly consistent originalists. The other members of the Court, however, have mixed and matched the two approaches. This group has included Chief Justice Burger and Justices Stewart, Powell, Stevens, O'Connor, Kennedy, and Souter. More often than not, it included Chief Justice Rehnquist and Justices Brennan, Blackmun, and Marshall. It probably includes Justices Ginsburg and Breyer.

The Progressive theory of apolitical administration does not come into play in every case, but it strongly influences cases that test how administrative agencies relate to the three traditional departments of government. The clearest test cases began in 1976 and continued through 1992. While the Court has not heard enough separation of powers cases in the last twelve years to say with certainty whether the theory continues to control, the available evidence suggests it does. Most of the time, the law under review promotes Progressive ideals by transferring power from the traditional three departments to an administrative agency. In such a case, the controlling bloc of Justices applies a deferential, non-originalist methodology called "New Deal functionalism" to uphold the administrative scheme. By contrast, when the law under challenge seems to flout the ideal of apolitical administration, alarm bells go off and the controlling bloc worries that Congress is trying to inject politics into administration. The Justices in this bloc then use originalism to declare the law unconstitutional.

This episode teaches two important lessons. The first relates to separation of powers. The Supreme Court does not take originalism nearly as seriously as scholars do. Although scholars disagree whether originalism is a desirable or workable approach to separation of powers, they do agree that, if the Court were to apply originalism consistently in separation of powers, it would need to invalidate most of the administrative state. (13) In reality, however, the Burger and Rehnquist Courts have used originalism in a manner that dedicated originalists would find perverse--only when doing so bolsters the constitutional case for the administrative state. Not to put too fine a point on it, but the Burger and Rehnquist Courts have paid attention to James Madison's opinions about separation of powers only when his views happen to dovetail with Frank Goodnow, Woodrow Wilson, and James Landis's plans for an independent and centralized national bureaucracy.

The second lesson is relevant to retrospectives that have or will soon be written about the Rehnquist Court. (14) In one of the most important areas of constitutional law, a broad cross-section of Justices on the Burger and Rehnquist Court took their bearings not from conservative political beliefs, not from original-intent jurisprudential beliefs, but from Progressive-New Deal political theory. Somewhere in their education or practice, the Justices on these Courts learned to think that the best way to run a government was to establish centralized bureaucracies staffed by well-educated lawyers and public-policy specialists, and substantially free from meddling by politicians. If similar connections explain other areas of the Court's case law, that Court has been much less conservative and much more conventional than most academics assume.

Before proceeding, let me briefly explain this Article's methodology. The Article is primarily descriptive. It is normative only to the extent that it uses a theory of government to describe and predict how the Burger and Rehnquist Courts have approached separation of powers cases. This interpretation could be described as "attitudinalist," in that it presumes that Justices decide cases primarily on the basis of political preferences shaped by Progressive political theory. (15) At the same time, this Article concentrates far more than attitudinalist studies usually do on how Justices may have formed their political preferences and attitudes. In addition, the Justices studied here could maintain with sincerity that they kept their political attitudes largely separate from their constitutional interpretation. The Progressive and functionalist ideas discussed throughout the Article could have convinced Justices that sound constitutional interpretation can and should consider the substantive consequences of different interpretations under consideration--in which case they could appropriately have relied on the Progressive theory of apolitical administration while interpreting the separation of powers provisions of the Constitution. While John McGinnis has explored a similar approach in his explication of the Rehnquist Court, (16) legal scholars have not developed this genre of interpretation as systematically as have political scientists who study the Supreme Court. Ronald Kahn has called this approach "constitutive," by which he means that overarching normative ideas "constitute" in Justices' minds overarching but distinct understandings of law, government, and legal interpretation. (17) This genre of scholarship, however, now goes by the name "institutionalism." (18) As Howard Gillman explains, institutionalists aim to describe the Supreme Court and other public institutions by reconstructing "those bundles of ideas and motivations that are associated with particular institutions." (19) They do so "in the hope that [they] can induce with some confidence the reasons that led a particular course of conduct." (20) Stated in institutionalist terms, then, this Article's thesis is that the Progressive theory of apolitical administration is an especially big stick in the bundle of ideas and motivations that inform the current Court's decision making in separation of powers cases.

That said, the interpretation presented here may depart from institutionalist scholarship in one significant respect: By surveying the Burger and Rehnquist Courts' achievements in context of developments from the Progressive Era and the New Deal, this approach may paint with too broad a brush for many institutionalists. Institutionalists often prefer to describe motivations and intentions, in Gillman's words, "at a particular historical moment in a particular context." (21) There are sound reasons to focus on narrow historical context. This Article illustrates the risk: One must be careful not to assume that Justices on the Court in the last 30 years have understood and applied the theory of apolitical administration as Woodrow Wilson and other Progressives did. Progressives tended to understand that theory as one of several necessary implications of an encompassing Hegelian, "living Constitution" theory of the state, while contemporary lawyers and legal academics prefer to ground the theory in more technical and policy-oriented consequentialist claims.

At the same time, there are also useful reasons to take a longer view than institutionalists typically prefer. The main reason is a concern about interpretation. Contemporary separation of powers doctrine is hard to understand on its own terms, in large part because it is reconciling deep tensions between Progressive intentions, a constitutional design arguably inconsistent with those intentions, and pre-Progressive case law demonstrably inconsistent with those intentions. To understand the intentions behind current doctrine, it helps to start with the intentions of leading Progressives, which were quite clear, and then to interpret current doctrine as an attempt to reconcile the Constitution and the case law with those intentions. (22) This interpretive approach may in turn produce other benefits for constitutional scholarship if it bears fruit in subsequent studies of other areas of the Supreme Court's case law. It may contribute to the study of Supreme Court history, for its long view may help put the Rehnquist Court in sensible historical perspective in relation to the most important constitutional developments of the early twentieth century. Separately, the long view may provide useful examples to engage important issues in contemporary normative constitutional theory. The Rehnquist Court has opened up wide-ranging debates about the merits of "original intent" and "living Constitution" approaches to constitutional interpretation. (23) To appreciate the stakes of such debates, it is helpful to go back and find points of contact in theory and the case law between originalist and living-Constitution approaches to interpretation. In separation of powers law, that point of contact lies in the Progressive Era.

I. THE PROGRESSIVE ERA, THE NEW DEAL, AND APOLITICAL ADMINISTRATION

A. THE PROGRESSIVE THEORY OF APOLITICAL ADMINISTRATION

Progressive political theory made a huge contribution to twentieth-century political practice by making popular and respected the theory of apolitical administration. This theory filled what leading Progressive academics perceived to be a gap both in American political practice and in the canon of political theory generally. For better or worse, both practice and theory had focused on questions about the ends of government to the exclusion of questions about the means of government. To fill that gap, the Progressives proposed that American governments teach a class of professional experts the tools of social and political control, insulate them from the ruckus of electoral and party politics, and then leave them rationally and efficiently to implement the legislative priorities that emerged from such politics.

The basic critique was sketched out in a seminal 1887 article by Woodrow Wilson--then a political scientist, and later a president of Princeton, Governor of New Jersey, early leader of the Progressive wing of the Democratic Party, and ultimately President of the United States. (24) Wilson ambitiously called "the science of administration ... a birth of our own century, almost of our own generation"--and at the same time "the latest fruit of that study of the science of politics which was begun some twenty-two hundred years ago." (25) After asking rhetorically where the new science administration could be found, he answered, "Surely not on this side the sea," for "[t]he poisonous atmosphere of city government, the crooked secrets of state administration, the confusion, sinecurism, and corruption ever and again discovered in the bureaux at Washington forbid us to believe that any clear conceptions of what constitutes good administration are as yet very widely current in the United States." (26) Wilson turned away from American practice to the canon of political theory, and here too he noticed a gap. Most political theory to his day, he believed, had focused on questions of ends and regimes--what objects governments should undertake, and which forms of government were best-equipped to attain those objects. This canon had overlooked a different question, namely "how law should be administered with enlightenment, with equity, with speed, and without friction." This question of means, …

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Publication information: Article title: Progressive Political Theory and Separation of Powers on the Burger and Rehnquist Courts. Contributors: Claeys, Eric R. - Author. Journal title: Constitutional Commentary. Volume: 21. Issue: 2 Publication date: Summer 2004. Page number: 405+. © 1998 Constitutional Commentary, Inc. COPYRIGHT 2004 Gale Group.

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