Person:

Fallon, Richard

Justice Holmes famously observed that "[g]reat cases . . . make bad law." The problem may be especially acute in the domain of national security, where presidents frequently interpret their own powers without judicial review and where executive precedents play a large role in subsequent interpretive debates. On the one hand, some of the historical assertions of presidential authority that stretch constitutional and statutory language the furthest seem hard to condemn in light of the practical stakes. On the other hand, to credit the authority of executive precedent risks leaving the president dangerously unbound.

To address the conundrum posed by executive precedent, this Article proposes a two-tiered theory for the interpretation of presidential powers. Framed as an analogy to a position in moral philosophy known as "threshold deontology," two-tiered interpretive theory treats rules that restrict executive power as normally inviolable, not subject to a case-by-case balancing analysis. Analogously to threshold deontology, however, two-tiered theory also recognizes that when the costs of adherence to ordinary principles grow exorbitantly high, extraordinary interpretive principles should govern instead and should result in the upholding of broad presidential power. For reasons that the Article explains, resort to extraordinary reliance on second-tier justifications for assertions of sweeping executive authority involves a legal analogue to "dirty-handed" moral conduct and should be labeled accordingly. And executive precedents set in extraordinary, second-tier cases should not apply to more ordinary ones. Through its conjunction of elements, two-tiered interpretive theory furnishes analytical and rhetorical safeguards against executive overreaching, but also allows accommodations for truly extraordinary cases.

The history and practice of strict judicial scrutiny are widely misunderstood. Historically, the modern strict scrutiny formula did not emerge until the 1960s, when it took root simultaneously in a number of doctrinal areas. It did not clearly originate in race discrimination cases, as some have suggested, nor in free speech jurisprudence, as Justice Harlan once claimed. Although strict scrutiny is widely assumed to be “strict in theory, but fatal in fact,” judicial practice in applying it has been complex, even conflicted. There are at least three identifiable versions of strict scrutiny, all subsumed under the same label. The result is uncertainty and sometimes confusion about which version the U.S. Supreme Court will apply in which cases. Some of the confusion arises from the strict scrutiny test’s vague and ambiguous terms, which leave critical questions unanswered. Seeking answers to those questions through normative rather than doctrinal inquiry, this Article argues that the strict scrutiny test is best understood as mandating a proportionality inquiry. At least when challenged regulations would at best reduce risks or incidences of harm, rather than extirpate them completely, courts applying strict scrutiny must ask whether the benefits justify the costs in light of regulatory alternatives that would trench less deeply on constitutional rights but also be less effective in promoting their goals.

The best case for judicial review in politically and morally healthy societies does not depend (as is commonly believed) on the idea that courts are more likely than legislatures to define vague rights correctly. It rests instead on the subtly different ground that legislatures and courts should both be enlisted to protect fundamental rights and, accordingly, that both should have veto powers over legislation that might reasonably be thought to violate such rights.

In developing this case for judicial review, Professor Fallon proceeds by confronting recent, influential, philosophically probing arguments against judicial review by Professor Jeremy Waldron. Professor Fallon concedes arguendo that, as Professor Waldron argues, courts are no better than legislatures at defining rights correctly, but maintains that the crucial question is not whether courts or legislatures are less likely to err, but which kinds of errors are most important to avoid — those that result in rights being overprotected or those that result in rights being infringed. Insofar as judicial review can be designed to prevent errors in just one direction, involving failures to protect rights adequately, then judicial review may be supportable even if courts are no better than legislatures at identifying rights correctly. Professor Fallon also argues, contra Professor Waldron, that judicial review can actually contribute to the political legitimacy of an otherwise democratic scheme of government when the demands of political legitimacy are understood correctly.

Professor Fallon’s revised justification for judicial review, which does not presume courts to be better than legislatures at identifying fundamental rights, has important implications for how judicial review should be practiced. It implies a diminished role for courts in cases in which fundamental rights are pitted against one another, such that the overenforcement of one entails the underenforcement of the other. It also implies that courts should withhold review when legislatures conscientiously seek to protect one fundamental right without plausibly threatening another.

This Article illuminates an important, ongoing debate between “textualist” and “purposivist” theories of statutory interpretation by identifying three separate stages of the interpretive process at which textualists, as much as purposivists, need to make value judgments. The Article’s analysis, which reveals previously unrecognized symmetries between the two theories, is consistent with, but does not depend upon, empirical studies indicating that judicial ideology matters more than methodology in determining interpretive outcomes. It rejects the frequent claim of textualists that their theory much more stringently restrains value-based decision making than does purposivism.

Of the three interpretive stages at which textualists rely on value-based judgments as much as purposivists do, one stands at the threshold when “interpretive dissonance”—reflecting a partly value-based experience of discordance between what a statute at first blush seems to mean and an interpreter’s expectations concerning what well-written legislation would likely direct—triggers an initial resort to interpretive theory. Then, symmetrically, both textualists and purposivists need to specify the context within which a statute should be interpreted. Although textualists emphasize a statute’s “semantic context” and purposivists its “policy context,” making specific determinations of what is contextually relevant and irrelevant frequently draws values into play. Finally, after an interpretive context is specified, textualist as much as purposivist interpreters must make judgments of “reasonableness.” Purposivists inquire what reasonable legislators would have intended. For textualists, the comparable question involves how a reasonable person would understand statutory language in context. The construct of a reasonable interpreter is inherently value laden.

Because both textualist and purposivist theories require partly value-based decision making, there is no escaping the conclusion that good judging requires good judgment—even when reasonable disagreement exists about what good judgment requires. Normative debates about theories of statutory interpretation will remain incomplete until textualists, in particular,reckon adequately with this reality.

In this short Article, I shall express some grounds for respectful skepticism, both about whether Rosenkranz has proven his claims and about whether courts should decide cases on the basis of his arguments, even if judges thought him more likely right than not about the significance that well-informed Americans of the Founding generation would have attached to the “subjects” and “objects” of the Constitution. But, I also hope to train attention on the general methodological challenge—partly for other law professors working in the field and especially for judges and Justices—that work such as Rosenkranz’s poses: How should we appraise, and what significance should we attach to, ingenious, provocatively novel theses that would make constitutional outcomes depend wholly on seemingly plausible, but not clearly proven linguistic and historical claims?