Monday, June 8, 2009

Institutionalism and Laissez-faire in Caperton v. Massey

The Supreme Court today determined today the circumstances pursuant to which the Due Process Clause requires judges to recuse themselves in Caperton v. Massey. In a 5-4 decision, the Court held that a judge must remove herself from a pending or imminent case if there is a great probability that the average judge would be biased because a person with a personal interest in the case has spent a disproportionate amount of money to get the judge elected. Justice Kennedy wrote the majority opinion and was joined by the four liberals. Chief Justice Roberts wrote the dissent for the four conservatives with Justice Scalia also writing a short dissent for himself. Over at Balkinization NYU Law's Rick Pildes has a very interesting post that I'd like to take a couple steps further.

Rick notes that Caperton is the latest in a long line of cases about the proper role for the Court in regulating the behavior of political institutions and actors. He argues that the Court is divided between the Justices who believe that political institutions must reflect certain democratic/constitutional values even where the Court has to promulgate vague and difficult-to-define standards to enforce those values and those who believe in a limited role for the Court in regulating the behavior of political institutions because bright-line rules cannot be established. This debate presents a tension between what Rick calls the Court's boundary-enforcing wing (defend constitutional values when political institutions have gone too far) and its bright-line wing (only enforce values where bright-line rules can be promulgated). I think this analysis is largely right and I want to use it as a jumping-off point for two observations.

First, notice that the argument in Caperton between what I'll call the institutionalists (Rick's boundary-enforcers) and what I'll call the laissez-fairists (Rick's bright-liners) is explicitly an instrumental one, perhaps more nakedly instrumental than we have seen before. The majority and the dissents are not arguing about the essential meaning of the Due Process Clause. They are not arguing about whether anyone's rights have been violated. Moreover, even though Justice Kennedy's opinion often anthromorphizes the Due Process Clause (see, e.g., all of "the Due Process requires" language), even he betrays that the purpose of his due process analysis is to protect the "integrity of the judiciary." Caperton is a case where the Court is explicitly arguing about structural values.

More tellingly, on the elements that factor into the manner by which judges decide cases, Kennedy pens: "Precedent and stare decisis and the text and purpose of the law and the Constitution; logic and scholarship and experience and common sense; and fairness and disinterest and neutrality are among the factors at work." Perhaps more revealingly, he writes, "to bring some coherence to the process, and to seek respect for the resulting judgment, judges often explain the reasons for their conclusions and rulings." (Emphasis mine). (Consider the preceding in the context of the Sotomayor nomination debate.)

The dissents are even more striking. Their principal argument against the majority is not that the majority has betrayed the text of the Due Process Clause, or precedent, or orginal meaning. There is not even a snide comment about the "logic, scholarship, experience, and common sense" line of the majority. Their major beef is that the majority's utilitarian calculus is wrong. Thus, Roberts complains that the majority opinion "will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case." Scalia concludes, the "relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernible rule. The answer is obvious."

The uninitiated would think that the relevant question is whether we understood the essence of the Due Process Clause or stare decisis, or precedence, or original meaning. No, the relevant question is whether the Court's instrumental interpretation of the Due Process Clause will lead to the majority's desired outcome--an elected judiciary that respects the democratic/constitutional value of judicial impartiality. It is almost as if in a case about judicial bias and the process of judging the Court pulls back the curtain a bit to reveal the actors without their formalistic legal masks.

Second, these two categories--institutionalists and laissez-fairists--do not map at all perfectly onto the media's favorite categories--conservative and liberal. In this case, the liberals are playing the role of institutionalists. But in Shaw v. Reno, the racial gerrymandering case it was the turn of the conservatives. I suspect that if the Court strikes down section 5 of the Voting Rights Act, it will be the conservatives enforcing limits on congressional power on the vague notion that Congress has gone too far.

In addition to the implications for this type of analysis that Rick raises in his post, Caperton intimates that it might be worthwhile in constitutional law scholarship or in the field of law and politics to have more debates about democratic values. It may also be fruitful to engage in the type of empirical analysis that Nate Persily has recently pursued. For example, does it matter for either side's due process analysis if we establish empirically that the public's faith in the judiciary is unaffected (or conversely completely shaken) by large contributions from interested litigants to judges hearing those cases? To paraphrase Scalia, to better understand this debate, we may need to identify the variables that makes the quest quixotic from those that make it worthwhile.

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