Just before Thanksgiving, I had the opportunity to present at the University of St. Thomas Journal of Law & Public Policy‘s fall 2022 symposium on “Constitutionalism.” It was an excellent event–the students were engaged in thoughtful, I learned a great deal from my co-presenters, and Minneapolis is a fun city. I presented a draft paper titled “Justice Kavanaugh’s Institutionalism.” Here is the abstract for my presentation:
Chief Justice John Roberts is often regarded as an institutionalist; a judge who is willing to decide cases in a manner inconsistent with his best and highest view of the law if doing so will help preserve the legitimacy of the Supreme Court. On this view, although he is a conservative judge, Chief Justice Roberts is willing to moderate his opinions and even occasionally change his vote to prevent the Court from being viewed as making decisions for political reasons. Instead, the Chief Justice appears to favor incremental change that gives the appearance that the justices are simply calling balls and strikes.
However, there is reason to question whether an approach to judging that considers the perceived legitimacy of a ruling as a factor in deciding a particular case is itself legitimate. This is because the Constitution charges federal judges with resolving cases and controversies—with deciding only the issues presented to them. By moderating their decisions based on concerns about perceived legitimacy, federal judges take into account a factor the Constitution does not permit them to consider when resolving a case. On this view, Chief Justice Roberts’s institutionalism undermines his goal of preserving the legitimacy of the Supreme Court.
In this presentation, I explore Justice Brett Kavanaugh’s approach to protecting the Court’s legitimacy. In his opinions as a member of the Court—and in particular in his opinions concurring in controversial decisions—Justice Kavanaugh has demonstrated a special sensitivity to the ways in which the Court’s decisions will be perceived. Crucially, however, Justice Kavanaugh does not appear to change his votes or moderate his opinions based on public perception. Instead, he appears to vote his conscience, while taking care to clearly communicate the limits and expected practical effect of the Court’s decisions. Based on this combination of factors—votes that reflect his best and highest view of the law and opinions clearly aimed at preserving the legitimacy of the Court—I argue that Justice Kavanaugh is the true institutionalist of Court’s conservative wing.
The full symposium is now available on YouTube. My presentation begins at about 13:05:
At the end of my panel, there was time for questions from our moderator, Dr. Charles Reid, and from the audience. I got several excellent questions, at least two of which I plan to incorporate into the final version of the paper. The first such question was from Dr. Reid, who asked:
It seems that of the three types of legitimacy, sociological legitimacy is the most important, and therefore the one that we should care about the most. How do you respond to that?
To respond to this question, I need to explain a little more about my presentation. I drew on Professor Richard Fallon’s framework for understanding the legitimacy of the Supreme Court. In his book Law and Legitimacy in the Supreme Court, Professor Fallon argues that there are actually three aspects of the Court’s “legitimacy”:
- Sociological Legitimacy –Whether the public views the Court as worthy of respect and obedience.
- Moral Legitimacy — Whether the Court’s decisions should be treated with respect and obedience.
- Legal Legitimacy — Whether the Court’s interpretive methods are generally accepted within the legal community (and whether they are evenly applied).
As Professor Tara Leigh Grove has observed, however, there are times where the different forms of legitimacy can be in tension with one another. For instance, if a justice were to change his or her vote in a case to avoid a politically contentious outcome, then he or she could be shoring up the Court’s sociological legitimacy at the expense of its legal legitimacy. I argued in my presentation that Justice Kavanaugh, who appears to vote his conscience but takes special care, particularly in his concurring opinions, to emphasize the limits of the Court’s opinions and alternative means of seeking relief, has found an approach to shoring up the Court’s sociological legitimacy that preserves its legal legitimacy. (Though, as I noted in the presentation, there are reasons to question the effectiveness of this approach.)
Dr. Reid was asking me whether I had properly prioritized legal and sociological legitimacy. In his view, since sociological legitimacy will have the greatest impact on the continued influence (and perhaps existence) of the Supreme Court–and thus on the rule of law–it is the form of legitimacy we should be most concerned with.
I take Dr. Reid’s point, but I think the answer to his question depends on what perspective one considers it from. As a member of the general public, I agree that what matters most is the sociological legitimacy of the Court. However, as a matter of constitutional text and structure, federal judges are intentionally limited from political considerations. They are supposed to decide cases based on what they think the law requires, and if they focus too much on sociological legitimacy at the expense of legal legitimacy, then, to paraphrase Benjamin Franklin, I fear that they will lose both and deserve neither.
Moreover, maintaining sociological legitimacy has to do with how the public views the Court. Since that is largely out of the hands of Supreme Court justices, it is far preferable not to have them consider such issues in reaching legal decisions. Judges are not supposed to be politicians, nor is there any reason to believe that they would be particularly good ones. They should keep their focus on the law.
The second helpful question I got came from a student. He asked:
Isn’t one reason that judges should focus on legal legitimacy and not sociological legitimacy that doing so puts them in a position to overturn previous decisions or laws that are popular but clearly wrong (from either a legal or moral perspective)?
This is an excellent point, and something that I intend to emphasize in the final version of the paper. The federal judiciary, insulated as it is from political considerations, serves an important “counter-majoritarian” function. One of the most difficult questions of democratic design is how to prevent majorities from using their sovereign power to repress minorities. In our system, judges play this preventative role by protecting individual (and, in some cases, group) rights. If judges concern themselves too much with sociological legitimacy, they will be unable to effectively protect individual rights, particularly the rights of the political minority.
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I’m grateful to the JLPP editors for giving me the opportunity to present my paper; I think that the questions I got at the symposium are going to help me improve the final version of the paper immensely. If you have questions or thoughts, please share them! I am still working on putting together the final version of the paper, and invite any opportunity to improve it. And, once I have a draft finalized, I’ll share it on my SSRN page, so please check back there in a couple of months if you’re interested in seeing the final version!
Chauvinisms 