• 28 September 2009

Modernization and Lawlessness: A Reply to Professor Mitchell

David A. Strauss - The University of Chicago Law School

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Professor Mitchell’s characteristically thoughtful and incisive comment makes many important points.1 He is right in saying that Atkins v Virginia2 and Thompson v Oklahoma3 fit the modernization model better than Roper v Simmons4 or Kennedy v Louisiana.5 I also agree with Professor Mitchell that a modernization approach gives political actors an incentive to behave strategically in (among others) the way he suggests-to try artificially to create or resist a “trend.” And it is hard to argue with his point that the Court’s initial treatment of the so-called partial birth abortion issue, in Stenberg v Carhart,6 did not seem to reflect sensitivity to popular opinion. More generally, the Court certainly has not been consistent in applying a modernization approach, even in the areas I mention. Modernization remains mostly an unselfconscious approach, I believe, and so it is not surprising that there are many cases that cannot be squared with it.

Professor Mitchell’s main argument, though, is that in many of its capital punishment and substantive due process decisions, the Court is not responding to trends in public opinion but is instead just indulging its own ideological preferences or policy views. This argument, I think, raises some complicated issues. It may be worth distinguishing two questions. The first is: to what extent is the Court ruling according to the law, as opposed to ruling simply according to the justices’ views? In controversial cases, that will often be quite a difficult question to answer, for both empirical and conceptual reasons. The second question is: to whatever extent the justices are ruling according to the law (and not their policy views), where are they getting the law from? Are they getting it from the Framers’ understandings, or precedent, or tradition, or something else?

My objective in my Article on modernization was to answer the second question. My claim was that increasingly, in the areas I discussed, the Court is looking less to sources from the past and more to what it perceives as the current climate, or trend, in public opinion. That does not mean that the Court simply tries to implement public opinion. If the Court were assigned that task, it would either have to develop a conception of public opinion as something different from what the elected branches of government decide-how would it do that?-or else get out of the business of judicial review more or less completely. Probably the best way to understand modernization is that the Court treats trends in public opinion roughly in the way common law courts treat precedents. They limit the Court’s freedom of action and point it in certain directions, but usually there is a significant degree of flexibility and selectivity. Some trends, like some precedents, will be pushed further; others will be honored, but only in a narrow way. Where there is an arguable conflict (among precedents or among trends), the judges will, inevitably, choose the ones that seem better, to them, as a matter of fairness or good policy.

Take Lawrence v Texas,7 for example. It would certainly not be surprising to learn that most of the justices in the majority disapproved of the Texas law as a matter of policy (as did Justice Clarence Thomas, in dissent).8 But it is also hard to believe that they would have ruled the way they did had attitudes toward gays not developed as they did in the last generation. That is the sense in which their freedom of action is limited by public opinion. Of course, as political scientists have been saying for at least half a century, it is no accident that the justices’ own views corresponded with the more general views of the society in which they live.9 But that just means that modernization will come naturally to them (maybe too naturally, as I suggest at the end of the Article).10 The point is that they look to current trends and understandings-rather than some historically based principles-for validation.

By the same token, it is likely that several members of the Court believe that same-sex marriage should be allowed, or that capital punishment should be abolished. None of them will cast a vote for those things now, because the kind of “evolving understanding” that Lawrence described would not support such a vote. A decade from now, the climate of opinion might change to the point where we might see such votes from the justices. I think Professor Mitchell’s response would be that all this shows is that the Court is imposing its own policy views to the extent it believes it can get away with doing so. But one could also characterize common law judging (as described in, for example, Cardozo’s The Nature of the Judicial Process)11 as a matter of judges’ advancing their policy views to the extent that precedent allows them to get away with it. The justices will go only so far not because they fear they will be impeached, or instantly delegitimated, but because they believe that going any further would be inconsistent with the proper judicial role (and perhaps have long-term repercussions for their legitimacy-as would also be true of common law courts). What is distinctive about modernization is that the limits of the judicial role are created by current popular understandings.

Near the end of his comment, Professor Mitchell suggests that modernization presents two particular risks. One is that modernization will provide insufficient protection for national minorities. I think he is right about that; as I tried to say in my original Article, modernization may (and arguably has) caused the Court to drift away from a more principled and appropriate judicial role, such as the protection of minorities that otherwise do not get a fair shake from the political process. (Of course, identifying those minorities, and deciding what constitutes a fair shake, are controversial and problematic tasks.) But Professor Mitchell also raises the possibility that because modernization may undermine the structural protections that the Constitution provides to national minorities, it presents a distinctively great threat of “undermin[ing] the rule of law.” The result, Professor Mitchell says, is that minorities that lose out to supposedly modernizing decisions may seize the opportunity, when they are in power, to manipulate the Constitution for their own political objectives.

Here again I think it is useful to distinguish the two questions I tried to separate at the beginning of this response. I am not sure that modernization-compared to, say, originalism, or precedent-based constitutional interpretation-presents an especially great danger of the kind of problem that Professor Mitchell identifies. The Court’s decisions about, for example, the role of women, or the rights of gays, are pretty obviously efforts to adjust constitutional rights to current understandings-and also, maybe just as obviously even to people who don’t spend their time studying constitutional law, hopelessly at odds with original understandings. But I do not think those decisions are especially likely to precipitate the kind of response that Professor Mitchell describes. Similarly, Brown v Board of Education12 came to be accepted as fully legitimate-an icon, even-because of a recognition that American society needed to move into a new era of race relations. It was accepted because it was in line with popular understandings, not because it came to be seen as consistent with original understandings, or the text of the Constitution, or some other backward-looking source of law.

What creates the kind of danger that Professor Mitchell identifies so well is instead, I think, the perception that the Supreme Court is not “doing law” at all-that it is simply imposing its policy views and manipulating the law to conform to them. That accusation can be leveled at an originalist court, or a Carolene Products13 court, or a common law constitutional court, or a modernizing court. Once it becomes the accepted view among a political or ideological group that the other side does not do law but just does what it wants, then the downward spiral that Professor Mitchell warns against-when we get our turn, we’ll do the same thing-becomes all too probable. The cure for that-and on this point, I am sure that Professor Mitchell and I agree-is to avoid a toxic climate in which measured and responsible criticism (Professor Mitchell’s comment provides a great example) is drowned out by reckless accusations of lawlessness. There are lawless Supreme Court decisions, and we all have our favorite candidates. But it ought to be possible to engage in vigorous criticism, on the merits, of methods, approaches, or normative views, without impugning the other side’s commitment to the rule of law.dingbat



Copyright © 2009 University of Chicago Law Review.

David A. Strauss is Gerald Ratner Distinguished Service Professor of Law at The University of Chicago Law School.

This Legal Workshop Editorial is a response to the following piece:   Jonathan F. Mitchell, Modernization, Moderation, and Political Minorities: A Response to Professor Strauss, LEGAL WORKSHOP (U. CHI. L. REV., May 3, 2009).

I am grateful to Jonathan Mitchell both for his comment on my original Article and for his help with this response.

  1. Jonathan F. Mitchell, Modernization, Moderation, and Political Minorities, Legal Workshop (University of Chicago Law Review May 4, 2009), online at https://legalworkshop.org/2009/05/03/modernization-moderation-and-political-minorities-a-response-to-david-a-strauss (visited Sept 25, 2009).
  2. 536 US 304 (2002).
  3. 487 US 815 (1988).
  4. 543 US 551 (2005).
  5. 128 S Ct 2641 (2008). I am not sure that it would be impossible for states to push back against the holdings of Roper and Kennedy. Prosecutors might be able to appeal a judge’s refusal to allow them to seek the death penalty, either on an interlocutory basis (if state procedures permitted it) or possibly after a final judgment. Professor Mitchell is right to be concerned that there would be an issue, under the Ex Post Facto Clause, about whether the death penalty could be imposed on a defendant who committed his crime at a time when the death penalty was unconstitutional under governing Supreme Court precedent. But by analogy to the treatment of qualified immunity, see Saucier v Katz, 533 US 194 (2001), the Court might overturn that precedent and reinstate capital punishment for future cases, while holding that the Ex Post Facto Clause precluded punishing the defendant before it.
  6. 530 US 914 (2000).
  7. 539 US 558 (2003).
  8. Id at 605-06 (Thomas dissenting).
  9. See, for example, Robert A. Dahl, Decision-making in a Democracy: The Supreme Court As a National Policy-maker, 6 J Pub L 279, 279-81 (1957); Barry Friedman, Dialogue and Judicial Review, 91 Mich L Rev 577, 578-648 (1993) (“Like all the other segments of society, courts simply are, and will remain, participants in American political life.”). For an extended treatment, see Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar, Straus, and Giroux 2009).
  10. David A. Strauss, The Modernizing Function of Judicial Review, 76 U Chi L Rev 859, 908 (2009) (“Perhaps modernization prescribes a too-quick, or at least too-complete, judicial acquiescence in the democratic process.”).
  11. See generally Benjamin N. Cardozo, The Nature of the Judicial Process (Yale 1921).
  12. 347 US 483 (1954).
  13. See United States v Carolene Products, 304 US 144, 152 n 4 (1938) (discussing heightened judicial scrutiny when the political process is not functioning as it should).


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