Constitutional Law as "Normal Science"

By Massaro, Toni M. | Constitutional Commentary, Summer 2004 | Go to article overview

Constitutional Law as "Normal Science"


Massaro, Toni M., Constitutional Commentary


An enduring feature of equal protection and substantive due process review of government action is being lost in much contemporary discourse: these challenges usually fail. Claims that the current Court is exceptionally activist are belied by its track record in this arena. The Justices interpret substantive due process and equal protection rights very narrowly, and protect citizens only from exceptionally egregious, biased, intrusive, or irrational government action. (1) Most government follies easily withstand equal protection and substantive due process review. Although the Court plainly does intervene in important contexts, actual cases are unusual, emerge slowly, and hew to settled principles as far as possible.

The 2002 Term displayed this pattern beautifully. The Court decided several substantive due process and equal protection cases and--characteristically--upheld the government's action in most of them, despite impressive evidence of irrationality. (2) In two of the decisions, it did so unanimously and unceremoniously. (3) It allowed doctrine to evolve with the times in three other decisions, but these modifications were predictable and within the plausible reach of settled principles.

The Court decided the equal protection and substantive due process cases through a hybrid mixture of formulas and pragmatism--not with pure formulas or pure pragmatism. The method is formulaic at its core and cautiously dynamic and non-formulaic on its periphery. The doctrine moves incrementally with evolving social, political, and philosophical shifts in American culture, and contains very few surprises. Although the Court occasionally reaches decisions that effect a significant change in the application of fundamental principles, the Court makes no quantum leaps and rarely modifies the fundamental principles themselves. As Dan Farber has observed, constitutional law is "normal science," (4) not radical science. Simulating the common law process of decision-making, the Justices invoke available doctrinal support for shifts. They seek to cabin the impact of any changes, and they emphasize the limited role that the Court realistically can, and constitutionally should, play in shaping public policy. When a Court decision proves to be a tipping point for a new cultural trend, this is because the conditions for such change are ripe, not because the Court alone effects, in parthenogenetic bursts, extreme cultural reforms.

When outrage erupts over Court decisions--as it did in 2003 over the same-sex sodomy and affirmative action cases--it is because the issues are vigorously contested, have great emotional content, and could go either way under applicable doctrinal standards. It is not because the Court forges doctrine willy nilly. A Court run so amuck, mindful of no doctrinal tethers, would inspire impeachment efforts or demands that we pitch judicial review altogether--steps that very few serious commentators believe are justified. In sum, the sky is not falling over our democratic institutions; nor are the heavens opening for individual liberty.

The 2002 term offered a perfect illustration of how this modest, incrementalist approach to doctrinal evolution can spark angry howls of judicial activism. In Grutter v. Bollinger (5) and Gratz v. Bollinger, (6) the Court reviewed two race-conscious university admissions policies. (7) The Court upheld one of them and struck down the other, sparking acid reactions in some corridors and jubilation in others.

The split outcomes, though, were both predictable and reasonably supportable as a matter of precedent and public policy. The Court had suggested, before Grutter and Gratz that only very narrowly tailored remedial measures or "social emergencies" justify race-conscious measures. The Court had been particularly hostile to racial "quotas" or "set-asides," (8) but it also had insisted that strict scrutiny is not necessarily fatal. (9) Moreover, the case law denouncing quotas had always been tempered by other official practices--including practices of the federal government--that continued to underscore the significance of race-conscious goals, to stress the importance of diversity, and to use race-sensitive statistics to achieve these goals. …

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