Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique
Frickey, Philip P., Smith, Steven S., The Yale Law Journal
Following the lead of Alexander Bickel's The Least Dangerous Branch: The Supreme Court at the Bar of Politics, (1) legal scholars have been obsessed with the countermajoritarian aspects of judicial review. (2) Much of the literature is normative--how can the dilemma of judicial review in a democracy be reconciled theoretically? (3) In this vast, important, and sometimes self-important literature, one might, in the whimsical manner of William Prosser, find examples of arguments ranging from the philosophical to the lawyerly. (4) In contrast, political scientists who study judicial behavior generally take a descriptive tack, contending that judicial review is best understood as simply correlating with the political values of the Justices (5) or as representing the strategic behavior of self-interested actors in a complex institutional setting. (6) One would be hard-pressed in academe to find many other scholarly areas with so much overlap and so little congruence.
Generally speaking, judges are probably untroubled by these conflicts, finding them, if you will, academic. Recently, however, the Supreme Court has operationalized judicial review in cases concerning congressional authority to invade state prerogatives, not so much by normative articulation of constitutional standards as by descriptive evaluation of the nature and quality of the congressional process underlying the enactment of the statute. In this respect, the Court has invited a new intersection of legal scholarship and political science, one concerning the judicial capacity to evaluate and to control congressional processes under our constitutional system of separated national powers.
In this Essay, we combine our mutual perspectives to analyze the Court's performance at this new juncture of constitutional law and political science. We demonstrate that the Court's intrusion into congressional processes is not simply too rigorous, but institutionally wrongheaded in a variety of ways. Whatever might be said about the outcomes in these federalism cases--and for purposes of this Essay, we remain agnostic on that score--some of the techniques of judicial review exercised in them are contrary to any plausible scholarly understanding of Congress as an institution. Whatever might be said, whimsically or otherwise, about the Court as philosopher or lawyer, it has flunked political science.
We are not the first commentators to criticize the methodology of the new federalism cases. Several articles have examined the trend in the case law, complaining that it, among other things, is contrary to precedent, wrongly transplants to constitutional statutory review the model of judicial review of administrative decisionmaking, unfairly retroactively imposes procedural obligations upon Congress at the expense of the constitutionality of important legislation, constitutes impermissible judicial interference with Congress contrary to the separation of powers, and improperly translates congressional questions of legislative fact into judicial questions of law. (7) There is much to admire in these commentaries, and our analysis necessarily overlaps with them in many more ways than can be demonstrated productively by citation within the confines of the essay format. Our goals are to use our interdisciplinary partnership to advance this literature in two important ways. First, largely from the perspective of public-law theory, we situate the federalism cases within broader jurisprudential frames of reference, examining theories of due process of lawmaking and the intersection of judicial review and statutory interpretation. We ask not only whether the theories undermine the cases, but also whether the cases undermine the theories. Second, largely from the perspective of social science, we present a focused and detailed interdisciplinary evaluation of the legislative deliberation model based on a more complete understanding of congressional decisionmaking processes. …