Taking What They Give Us: Explaining the Court's Federalism Offensive

Whittington, Keith E., Duke Law Journal

INTRODUCTION

For several years now, the Supreme Court has disquieted observers and commentators by reasserting the presence of constitutional limitations on national power resulting from the federal structure of the American political system. Although not quite amounting to a revolution in American constitutional law, the recent federalism cases are nonetheless striking. (1) They are, of course, most remarkable because they reverse over fifty years of nearly uninterrupted deference to the national government in matters relating to federalism and the structural limits on the powers of the central government. With the exception of an ill-fated attempt to identify such limits in 1976, under the guidance of then-Associate Justice William Rehnquist, (2) the post-New Deal Court had carefully refrained from giving judicial teeth to the idea that the national government was one of enumerated powers.

In recent years, the Rehnquist Court has signaled its seriousness about federalism. It has acted on the issue not once, but repeatedly, over nearly a decade. (3) Moreover, the Court has not limited its focus to a single doctrine or aspect of federalism, but rather has opened multiple fronts to be prosecuted simultaneously. (4) Perhaps most notably, the Court has even been willing to return to service an old war-horse from pre-New Deal campaigns: the Commerce Clause. (5) The Court's concern with federalism has contributed significantly to a historically unprecedented spate of federal legislation being struck down as unconstitutional. In sharp contrast to most of its predecessors, the Rehnquist Court has trained nearly as much of its activist fire on its fellow coordinate branches of the federal government as on the relatively powerless states and localities.

The Court's actions raise any number of problems and puzzles. Not least among those puzzles is the matter of explaining why the Court has taken this course. Of course, it is possible to develop a purely jurisprudential explanation that would conclude that the Court has taken these actions simply because the Constitution, properly interpreted, compelled it to do so when faced with the type of legislation at issue in these cases. Without question, the jurisprudential explanation would be complicated and controversial. (6) The text of the Constitution has not changed in regard to federalism during this period, and the statutes that the Court has examined generally have not been especially innovative. What has changed is not the Constitution or the laws, but the Court's understanding of the Constitution. If the Court has reached the correct judicial answers to these constitutional questions only recently, then it remains to be explained why this Court is willing or able to get these cases right when previous Courts were not. A jurisprudential explanation of the Court's recent federalism offensive will have to be supplemented with a political explanation. Although the political investigation need not be hostile to the jurisprudential one, this Essay will limit itself to the former.

The federalism offensive can best be understood as a product of the Court's taking advantage of a relatively favorable political environment to advance a constitutional agenda of particular concern to some individuals within the Court's conservative majority. The Court has moved carefully but steadily to reestablish some federalism-based constraints on the national government. The exercise of the power of judicial review striking down acts of Congress, and on federalism grounds no less, (7) immediately evokes images of the Lochner-era (8) Court's pitched battles with the Roosevelt administration over the New Deal and the Court's ultimate humiliation. (9) The analogy is misplaced, however. This Court is not in the same position or pursuing the same strategy as the Lochner-era Court, and it is much more likely that the Court will be able to maintain its current efforts without significant political costs. In considering the Court's federalism offensive, Part I of this Essay lays out two approaches within the political science literature for explaining Supreme Court decisionmaking. Part II considers Bruce Ackerman's theory of constitutional moments as an explanation for the recent transformations of the federalism jurisprudence. Part III builds on the new institutionalist school of analysis to help explain the recent federalism revival.

I. POLITICAL APPROACHES TO JUDICIAL DECISIONMAKING

There is a substantial political science literature on judicial decisionmaking. (10) This literature is concerned primarily with offering political (that is to say, nonjurisprudential) explanations for the decisions that the judiciary, and especially the Supreme Court, makes. This literature can be extremely useful, but it has to be approached with some caution. For one thing, political scientists are not always interested in explaining the same things as legal scholars. Not only are they likely to focus on a different set of explanations in which doctrine and legal arguments play a limited role, but also they are likely to focus on different objects of explanation. The outcomes of particular cases or the substantive content of particular opinions are likely to fall outside the scope of political science analysis, which is more concerned with general patterns. From a legal perspective, political science explanations of court behavior simply may not be very satisfying. For another thing, political scientists are not of one mind as to how best to understand the actions of the Supreme Court. Particularly in the 1960s, fierce debates raged between political scientists who primarily thought of the Court and the law in legal and normative theoretical terms and those who primarily thought of the Court in political and positivist terms. (11) For a long period thereafter, the latter group was ascendant. Their primary product was what has become known as the "attitudinal model," which explains judicial outcomes in terms of the policy preferences of individual Justices. (12) Recently, an alternative approach known as "new institutionalism" has become prominent. (13) There are several variations of the new institutionalist approach, but they collectively emphasize the importance of the particular institutional environment of the Justices in affecting the Court's work. (14) The approach may be particularly useful to help explain the Court's recent actions.

To some degree, essentially all political science approaches to judicial decisionmaking are "externalist," not "internalist," as Professor Christopher H. Schroeder defines those categories, in that political science approaches incorporate explanations that "are not based on anything "internal to the legal process itself." (15) Rather than being strictly dichotomous, internalist and externalist explanations exist on a spectrum of possible accounts of judicial decisionmaking. Attitudinal explanations would likely fall near the extreme externalist end of such a spectrum, since they minimize the importance of legal reasoning or doctrine in determining judicial outcomes. (16) Other political science approaches to understanding judicial behavior, most notably the new institutionalist approaches, take internal features of the legal process more seriously. These approaches do not embrace the pure internalism of the legal idealist model, however. They instead offer the type of middle-ground argument that Professor Schroeder believes may be most useful for understanding and explaining legal change.

The attitudinal model views legal and constitutional change as a simple matter of counting votes on the Court. (17) In any given case, the attitudinal model expects Justices to act so as to advance their preferred policies, regardless of such legal factors as precedent, statutory or constitutional text, or historical intent. (18) Judges behave like any other political actors faced with making choices that have political and policy consequences. (19) They act so as to advance their preconceived goals and reach the results that are most agreeable with their personal predispositions. (20) The very institutional features designed to secure judicial independence (such as lack of electoral accountability) insure that the Justices can give their ideological preferences "free play" (21) and "base their decisions solely upon personal policy preferences." (22) Although directly testing judicial adherence to the legal process is difficult, supporters of the attitudinal model have noted that Justices tend to vote in an ideologically consistent fashion over time regardless of the particular facts or legal issues raised in individual cases, and that simply knowing the past voting behavior of the Justices or even their ideological profile at the time of their nomination is sufficient to predict accurately their votes in future cases. (23) Justices adhere to precedents only when they otherwise agree with them. When individual Justices disagree with a precedent, they ignore it. (24) When a majority of the Justices disagree with a precedent, they abandon it. (25) Constitutional law changes whenever five Justices who would prefer a different law land on the Court.

Strictly speaking, the attitudinal model no longer attempts to explain the origins of these policy preferences or the composition of the Court. (26) Nonetheless, this account of decisionmaking on the Court is fully consistent with political science arguments emphasizing that judicial appointments follow the election returns. It should be emphasized that the attitudinal model implies that the Court as a whole only follows the election returns through the process of judicial replacement. (27) Individual Justices will ignore electoral shifts and continue to vote their personal policy preferences, even if those policies have been rejected at the polls. (28) Presidents and senators can be expected to select Justices who are sympathetic to their own ideological predispositions. As a consequence, the course of constitutional law can be expected over time to reflect electoral outcomes. (29) Once this conclusion is reached, the political science analysis of the judiciary fades into the extensive literature on political parties and elections.

This literature can be extremely useful in clarifying aspects of the Court's

behavior, especially in relation to the actions of the Justices over a large number of cases. Some of the political scientists' claims still are being contested on empirical grounds, while other empirical findings are still being interpreted. (30) In the meantime, this type of analysis tells us only so much. In keeping with the central tendencies of empirical political science since the 1950s, the attitudinal model is concerned with observable, measurable, and politically effective individual behavior. (31) As a purely externalist model of judicial decisionmaking, the attitudinal model has little to say about the subjective experience of judging or the substantive content of legal reasoning and judicial opinions. Although the externalist and internalist perspectives are often posited as offering competing explanations of judicial behavior, the real challenge is to bridge the gap between them to develop accounts that can reconcile the verifiable observations of the externalist explanations with the also significant empirical support for the internalist explanations. In part, this means understanding how the legal process internalizes the "external" stuff of politics.

New institutionalist accounts of judicial behavior are focused particularly on that issue, and Professor Schroeder's helpful analysis can be understood as a contribution to this growing literature. (32) In particular, his historicist account of the social and intellectual context within which judicial doctrine is formulated is fully consistent with what has become known as historical or interpretive new institutionalism. In general, the new institutionalist approaches to politics broadly and to judicial politics specifically are concerned with investigating how the context within which political actors make decisions matters. (33) The "institutional" environment, which encompasses procedural rules, other powerful actors, informal norms, intellectual discourses, and other features, may structure, constrain, or guide political decisions. (34) For new institutionalism, the law matters to judicial behavior, even as the law itself is embedded within a larger social, political, and intellectual context. (35) For rational choice new institutionalists (or the "positive theory of institutions"), the law primarily matters because of the sanctions that can come from violating it or the collective action benefits that it can facilitate. (36) Judges may have political preferences, but they are constrained in their ability to pursue those preferences, and legal materials may be among those constraints. For historical new institutionalists, the law also may matter in socializing judges and creating new normative commitments (or preferences) that they will seek to realize. For attitudinalists, preferences are sincerely expressed. For rational choice new institutionalists, preferences often may be frustrated by external constraints. (37) For historical new institutionalists, preferences often may be constituted by contextual forces. (38) Judicial understandings of the Constitution grow out of a particular social, political, and intellectual environment. Although attitudinalist research can be very useful in identifying the preferences of judges, it generally is not very illuminating as to why those preferences developed or under what conditions they may be expressed and successfully realized in outcomes. (39)

II. NO POTTED PLANT: JUDICIAL AGENCY AND CONSTITUTIONAL CHANGE

Identifying and explaining constitutional change is no easy task. There is a deep jurisprudential and normative resistance to recognizing constitutional "change" outside the formal amendment process, and once constitutional change is detached from formal constitutional amendment then it becomes an empirical challenge to recognize the timing, form, and substance of such change. (40) One notable approach to understanding constitutional change is Bruce Ackerman's theory of constitutional moments, in which judges articulating constitutional law faithfully follow the constitutional transformations rendered in the external political arena. (41) Although Ackerman's theory is extremely useful and stimulating, the recent federalism offensive suggests the limits of his theory as a comprehensive approach to constitutional change.

Assessing and applying Ackerman's theory is complicated by the fact that it is both positive and normative in its structure and aspirations. Ackerman not only wants to construct a positive theory that can account for constitutional change in American history, he also wants a normative theory that can justify and delimit those changes and guide the exercise of judicial review. Ackerman's interpretation of American constitutional history largely accomplishes both objectives at once, but more recent history, and in particular the possibility of "transformative appointments" to the Court, (42) calls attention to the tensions between these two strands of the theory. (43) For present purposes, we can lay aside the normative dimension of Ackerman's theory and simply consider how well it works as a positive theory of constitutional change.

As Professor Schroeder notes, it is hard to argue that the recent string of federalism cases is simply an evolutionary extension of earlier precedents. (44) Although in some instances the Court has been careful to emphasize some continuity with prior doctrine, (45) there is little question that the Court's assertiveness on federalism over the past decade is quite distinct from its deference during earlier decades and that the hurdles that the Court is now throwing up against congressional action were not recognized as even existing ten years ago. Regardless of whether we characterize this as a change in the Constitution itself, it is at least true that there has been a significant discontinuity in the judicial interpretation and effective law of an important aspect of the Constitution. It is precisely such discontinuities in constitutional law that Ackerman's theory of constitutional change seeks to address. Substantively, we seem to have passed into a new "constitutional regime." (46)

At the same time, we seem to have, at best, imperfectly experienced the procedural requirements of constitutional change that Ackerman's theory envisions. (47) Most importantly, Ackerman posits that the Court is not the active agent of constitutional change. (48) The Court follows, and eventually codifies, the constitutional changes initiated elsewhere. Within Ackerman's constitutional moment, political actors signal their discontent with the Constitution as it is understood and enforced by the Court and mobilize popular support on behalf of a proposal to alter the inherited Constitution. (49) Encountering a constitutional impasse, political actors sharpen their point of contention with the obstructionist institution and seek greater authority from the people. (50) Receiving an electoral mandate, newly empowered actors then challenge the dissenting institution until the latter switches and the new position is consolidated through subsequent elections. (51) Although in recent elections some political actors have talked about constitutional issues, (52) including federalism, (53) it is difficult to identify any broad and deep popular (or even elite) deliberation on specific constitutional proposals or any decisive electoral acceptance of those proposals. The 2000 presidential election even may have helped continue, if not exactly consolidate, the Court's slim federalism majority, (54) yet even to the extent that the campaigns touched on the Supreme Court they did not focus on federalism. The Court seems to be leading the constitutional charge relating to federalism, rather than following a prior clear and authoritative expression of the popular will on the subject.

As an explanation for these constitutional changes, the Ackerman model seems inadequate. As Professor Schroeder notes, Ackerman's positive model of constitutional change must be incomplete: "[i]f revolutionary constitutional change has occurred, and if that change is legitimate,.... [t]here must be a causal process at work that is materially different from the one Ackerman posits." (55) At the same time, however, Ackerman's rich historical narrative indicates that his model is useful for explaining at least some constitutional changes in the past. It is worth pausing to consider, therefore, why the model does not seem to work in this case.

Ackerman's model of constitutional moments ushering in new constitutional regimes is closely linked to political science theories of "critical elections," with the similar notion of extraordinary elections initiating significant political change and new political regimes. (56) At one level, this connection is clearly an advantage. "Realignment," or critical election, theory is a major contender in studies of American political development, and Ackerman has opened a very fruitful interdisciplinary dialogue by looking to such theories and grounding constitutional theory within positive models of American politics and history. At another level, the theoretical convergence creates difficulties, as it exposes Ackerman's theory to many of the criticisms leveled at realignment theory while also raising concerns about the points at which Ackerman diverges from traditional theories of critical elections.

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Publication information: Article title: Taking What They Give Us: Explaining the Court's Federalism Offensive. Contributors: Whittington, Keith E. - Author. Journal title: Duke Law Journal. Volume: 51. Issue: 1 Publication date: October 2001. Page number: 477+. © 2009 Duke University, School of Law. COPYRIGHT 2001 Gale Group.

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