Enchanted by their own work, judges, like poets, are sometimes tempted to turn back to switch on the lights in the tunnel of creation. To their annoyance they find the place already occupied by a crew of professors busily painting the walls and putting up signposts. What are these people doing there? Who should know judging better than a judge? Impatient to put things straight and to bring us the inside story, Justice Neely of West Virginia, like other judges before him, has set out to rescue us from what he calls the “meanderings of academic lawyers.”
One of the troubles with such an undertaking is that those who do things well are not always best at describing the nature of their work. Judicial writing about adjudication has often been little more than a genteel recitation of what judges seem to believe people would like to think of them as doing. Detachment, time for systematic reflection and acquiring theory and learning outside the law are hard to wring out of a life of deciding cases.
Happily, there is nothing at all genteel about Richard Neely’s bright, perceptive, and informative book. Although he is only forty, Justice Neely writes from long experience. He was for several years a member of the state legislature, and for eight years has been a judge on West Virginia’s court of appeals. His book offers nothing less than an analysis of the nature of constitutional law in America and of judicial decision-making at the highest level.
Constitutional law, he tells us, is hardly law at all in the usual understanding of that term. It rarely provides standards of sufficient precision to evoke agreement among a clear majority of lawyers over the right answer. The application of “constitutional law” by the courts is rather a political arrangement that we have worked out to curb the abuses that would otherwise be inflicted upon us by the institutions that are the leading emblems of our democracy—the legislature and the executive.
Neely’s legislative experience has convinced him that untempered democracy is both unbearably unfair and cripplingly inefficient. Elected representatives want to be reelected or to ascend to greater things and dare not spend their time on matters that fail to attract the interest either of well-organized voting blocs or of powerful businesses or organizations that can supply campaign money or get out the vote. Addressing issues not thrust before them by such groups will bring either little notice or the excessive notice that makes enemies. When Neely served in the legislature, he tells us, five times as much attention was devoted to dog and horse racing as to all the problems of state institutions, including those dealing with prisons and physical and mental health. In defense against the importunings of the rapacious and the selfish, American legislators have erected elaborate procedural barriers that snugly permit them to accomplish very little at all. This at least fends off the worst excesses demanded by lobbyists but also virtually ensures repeated failure to act on important matters.
If Americans are neglected by the legislature we get no lack of attention from our imperial bureaucracy. Legislative timidity contrasts with the regulatory hyperactivity of young functionaries ensnared by the belief that the activities they are regulating exist for the greater glory of the regulators. From these power-maddened uncivil servants and do-nothing legislators who shall deliver us? The British have the House of Lords, a monarchy, a different legislative process, and (even under Labour governments) a humbler bureaucracy. Lacking these ancient protections we have courts armed (thanks to the prescience of the Framers) with loose concepts like “equal protection” and “due process of law” that can mean, so Neely suggests, just about anything judges want them to. When courts apply constitutional law we should not think of them as extracting inescapable meanings from the text of the Constitution but rather as imposing the judges’ views of public policy to repair the harm done by legislative inertia, administrative stupidity, or self-interest.
Isn’t this undemocratic? Very much so, but, in Neely’s view, only professors of law and political science worry about that. Ordinary Americans deeply distrust politicians, legislators, and administrators but have much more faith in the courts, whose actions they generally welcome except during occasional whipped-up flurries of concern over criminal procedure.
Neely claims that he is not arguing that constitutional adjudication is unprincipled but rather that the principles actually used are not to be found in a constitutional text; they derive instead from standards and guides for intervention that judges have fashioned from their knowledge of the relation between the organs of government. So, he argues, courts should take positive action when a particular group or constituency does not have real access to the legislature or when procedural hurdles make it virtually impossible to place a matter on the legislative agenda.
Up to a point this is an attractive theory, and Neely, by his strong and revealing analysis of the limited capacities and vices of the legislative and administrative processes, does much to help us appreciate how the experienced lawyers who become judges have come to rely on them. But he is in error in believing that his emphasis on the connections between institutions will come as news to constitutional scholars. Ronald Dworkin has argued in several places that the foundation of a constitutional legal system, such as ours, is the identification by the courts of a fundamental set of principles of political morality.1 These principles would certainly include a received tradition of the appropriate function of the courts, a tradition derived both from the text and structure of the Constitution and from the limitations on legislative capacity of which Neely makes so much. John Hart Ely of Harvard has suggested that judicial intervention on constitutional grounds becomes proper when democracy falters because the rights of a minority are diminished, either with respect to their participation in the process or in the actual distribution of benefits or imposition of burdens.2 The difficult question is not whether a judge’s views on the successes and failures of the legislature or the bureaucracy count for anything (everyone agrees that they do) but rather how much they count and what is the relation between them and the development of moral principles set out in the Constitution.
American legal theorists have been possessed by this question, no doubt in large part because of the open language of our potent constitutional clauses and the great social effects of judicial decisions. From the turn of the century pragmatic jurists, owing much to Dewey and James, emphasized the importance of the policies and the discretion of the individual judge. In the 1920s and 1930s a “realist” movement flourished that, in its more extreme statements, treated legal rules as merely false fronts behind which judges hid their politics or policies or sense of fairness or malice or whatever—a position not very far from Neely’s. A recent expression of this tradition is the study of judicial “attitudes” using bloc analysis, cumulative scaling, and small-group analysis to describe and predict what are referred to as the “voting patterns” of Supreme Court and other judges.3
At times Neely appears wholeheartedly to adopt this “watch what we do not what we say” approach to the art of judging. “If a majority of the Supreme Court had graduated from Notre Dame or Bob Jones University,” he tells us, “Roe v. Wade [the abortion decision] would have been decided differently.” Who can seriously contend, he asks, that the Framers intended blacks to receive equal treatment when there were slaveowners among them? Or that they meant to outlaw capital punishment when they practiced it? Don’t judges simply yield to crude political pressure? When President Roosevelt proposed to pack the Supreme Court with fifteen judges to smooth the path of New Deal legislation, did not Chief Justice Hughes, a smart politician, have a word with his fellow Welsh-American Justice Roberts? And did not Roberts then change his position in the famous “switch-in-time that saved nine”?4 In Neely’s view, the words of the Constitution don’t take a judge very far and when that particular car runs out of gas he pulls his bicycle out of the trunk and pedals off into policy-land, which is just where he ought to be anyway.
What this analysis ignores is that in deciding hard cases the courts have much more to look at than a laconic constitutional text. Over two hundred years the Constitution has given rise to a veritable Talmud of interpretation and application, a vast accumulation of case law and commentary. If decisions in hard cases are not predictable, still they must be justified persuasively in the shadow of this structure of law, on which any new construction must be built. In this way change can often be seen as development, as a refined expression, stretching over centuries, of the moral principles baldly stated in the Constitution. As new cases are decided, a constitutional clause takes on a firmer shape, like a hand filling out the fingers of a glove.
In the eighteenth century Lord Mansfield, the Scot who sat as an English judge, dropped a magnificent hint when he said that the “common law works itself pure from case to case.” Exercise develops concepts just as it develops muscles. This insight has been picked up by the American jurists Lon Fuller and Ronald Dworkin5 and developed into a theory of constitutional adjudication in which judges are seen as elaborating the purposes or principles that are embedded in constitutional disputes.
The function of law is to try to make conduct conform to a pattern or comply with a principle. For this reason Fuller insisted that we cannot argue helpfully about the application of law in purely textual terms. Argument must be about the best understanding of the law’s purpose, and the meaning of a rule cannot be divorced from an understanding of its purpose. In a famous example, Fuller asked whether the prohibition of the entry of vehicles into a park would forbid bringing in a tank to be set in concrete as a war memorial. The answer is clearly negative because, although a tank is a vehicle, the rule is surely designed to stop noise, pollution, and the danger of accidents which are not substantially created by the single act of bringing in the monument.
But how can such an approach deal with Justice Neely’s argument when he points to the sharp breaks with the past—the school desegregation cases, for example, or the Supreme Court’s turnabout in 1937? Neely invites us to see these decisions as an abandonment of precedent and a demonstration of the hollowness of the legal ideal of consistency. It is true that such critical moments are certainly always confessions of error by a court but it is useful here to distinguish between two senses of “error.” There is, first, a strong sense in which we declare that earlier decisions are now seen to have always been wrong. The belief that blacks are not people who merit equal treatment was always wrong. So was the conclusion that we now see as flowing from that belief, that it is not unconstitutional to maintain segregated institutions. This does not mean that we cannot understand how it was hard for the judges and the public of an earlier time to see the truth, held captive as they were by misinformation, cultural conditioning, and psychic threats whose roots they could not glimpse. But there has been a growth of moral consciousness and, if our predecessors could only perceive racial injustice dimly, we see clearly the intolerable wrong in practices that they thought defensible. We understand what they did not or could not understand.
Most of those who drafted the Constitution suffered from this moral blindness but they nevertheless had the moral vision to supply us with a general commitment to the requirement of equal treatment. That concept has proved to be a morally useful tool in rectifying their misconceptions without abandoning their concepts. In doing so the Supreme Court has not played fast and loose with a text but rather endeavored to be more faithful to its implications. Legislative inertia about civil rights no doubt contributed to the Court’s decision to intervene forcefully in race relations but that intervention could not be understood and justified as legal without the language and history of the Fifth and Fourteenth Amendments. If there is genius in the Constitution it is in this provision of general ideas that have lasted better than the time-bound positions of those who drafted them.
There is a second, weaker, sense of confessing error and striking out on a new course, although Neely does not discriminate between the two senses. During the 1930s when the Court abandoned its constitutional objection to government regulation of business, it was turning its back on a history of judicial activism in this field. Certainly this at least implicitly conceded that many earlier decisions were “wrong.” But, unlike the segregation example, this did not mean that the previous decisions expressed an absolutely immoral principle. The facts of economic life had changed, knowledge of them had expanded, and the economic and social theories through which we viewed them had been revised. Industrialization, the complexity of commerce, and large-scale unemployment gave a sense to government regulation that was not evident at an earlier and different time.
It is true that “due process of law” is a concept that limits the ways in which government may legitimately intrude on our private arrangements, but it must be contingent on urgent needs, and since these will shift with time we may reverse a particular decision without in any way being unfaithful to the governing concept. Concepts are not rendered vacuous because reflection on changed circumstances leads us to revise their application. Justice Neely holds too narrow a notion of the job that concepts do in reasoning. Fidelity to precedent is not exhibited, as he seems to think, by a mechanical reproduction of past decisions. Indeed, such a wooden refusal to change would be a sign of disrespect for the vitality of the constitutional principle involved.
In this process how important are the personal “attitudes” of judges? What can we make of Neely’s hypothetical case about nine Jesuit or fundamentalist Baptist justices—glumly confronting the abortion litigation? One source of difficulty here is that he does not analyze what is meant by “attitudes.” Much of what seems to be subsumed under the notion of attitude can probably be understood as views on the weight that should be given to policies or principles. Neely seems to believe that attitudes are unprincipled but he does not support this position with argument or illustration. Obviously if “attitude” is a synonym for prejudice this conclusion would be true, but those who use the term probably do not often simply mean that a judge is prejudiced.
In any case a judge’s attitudes are likely to be affected by his conception of his role. Neely himself is very good at explaining how the system does a great deal to insulate the judge and educate him about his duties to be fair and neutral, to attempt to deal with problems in a principled fashion, and to look to the storehouse of decisions and commentary in reaching his decision. Neely writes, “Any ambitious young politician who continues to act like an ambitious young politician soon discovers that the antics which brought him accolades and attention from the press when he was in partisan politics bring nothing but scorn and condemnation after he becomes a judge.” This is not to deny that the political and social views of judges are significant elements in illuminating how they will work their way through the corpus of the law to a decision, but it shows that the belief that nothing counts but attitudes may be as naïve as the idea that they count for nothing. The Court’s majority in Roe v. Wade included Justice Brennan, who is of Irish Catholic descent. He also wrote the lead opinion in an earlier case striking down statutes that prohibited the sale of contraceptives. Who can say that even alumni of Bob Jones University, once transfigured by the supreme judicial commission, would have been unanimous on abortion?
Justice Neely offers the best analysis I have seen of the realities of cooperation and tension between courts, legislature, and executive administration. But it is a pity that he finds it necessary to gibe at academic scholars who work in the field of the theory of adjudication. In recent years their product has been rich and suggestive and his discussion is weakened by his failure to take account of it.
November 19, 1981
Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1977). ↩
John Hart Ely, Democracy and Distrust (Harvard University Press, 1980). ↩
These studies are summarized in The Federal Courts as a Political System, edited by Sheldon Goldman and Thomas P. Jahnige (Harper & Row, second edition, 1976). ↩
Roberts himself denied this account. See Felix Frankfurter, “Mr. Justice Roberts,” University of Pennsylvania Law Review, vol. 104(1955),p.311. ↩
Lon Fuller, The Morality of Law (Yale University Press, 1969) and The Anatomy of the Law (Greenwood Press, 1976); Dworkin, Taking Rights Seriously. Many of the comments in this article arise out of a consideration of Professor Dworkin’s work. ↩