Contestable judgments of social meaning in judicial review

[Mark Tushnet]

Jack Balkin asks a set of questions that require long answers, and I
plan to hit the send button right after completing this reply so my
answers won't be entirely well thought out (and, given the length of the
reply, you might want to hit the delete button right now).

1.  For myself, I don't have a general theory of judicial review that
would specify the kinds of lines Jack asks about.  (On my approach, see
below.)  But, as a matter of clarification, I definitely do not contend
that the provisions of the "thin" Constitution are (distinctively)
suited for judicial enforcement.  If anything (but probably not even
this), the thin-ness of those provisions, the commitment of the American
people to the values they express, and the existence of reasonable
disagreement about how those values are to be realized in particular
settings makes the thin Constitution *less* suitable for judicial
enforcement than the provisions of the thick Constitution.  (In my book,
the only example I can come up with, and it's one I'm ambivalent about,
of a statute that is [almost] unarguably inconsistent with the thin
Constitution is an anti-flag-burning statute.)

2.  For reasons related to the argument about regressiveness I made in
my exchange with Eugene, I don't think it's helpful to ask questions at
the level of, "What does your theories ay judges should do in case X?"
Rather, for me, the question is something like this:  Given that we (or
you, or I) want our constitutional system to accomplish goal A (for me,
realize the values expressed in the thin Constitution, but it could be
something else for someone else), what mix of institutions is most
likely to do so (more often than some other mix of institutions)?  That
requires attention to institutional characteristics, the most important
of which for me are:  political actors act on a mixture of principle and
preference ("politics"); judges act on a somewhat different mixture of
principle and preference; both political actors and judges sometimes
make mistakes of principle (for conservatives, political actors got it
right on abortion and the courts got it wrong, and similarly for
liberals with respect to affirmative action); given the ways in which
judges are chosen, the difference between the mix of "motives" they have
and the mix political actors have is likely to be small.

3.  The choice of institutions is likely to be close to an
all-or-nothing one as to judicial review.  That is, there is no reason
to think that, given the judges' mix of principle and preference, any
antecedent ("academic") theory of judicial review will constrain them in
any practical sense from reaching the results they would otherwise reach
absent such a theory.  (That's the burden of what I now think of as the
first generation of my work.)  So, specifically, the enterprise in which
Jack and most academic theorists is engaged is not sensibly understood
to be directed at constraining the action of judges (it may have other
values, but not that one).  It follows, for me, that there's not much
interest in the question, "What would your theory say about how judges
should decide case X?"

4.  The choice of institutional mix is a complex empirical one.  Wojcech
Sadurski of the EUI has an interesting paper in progress doing a very
careful job of identifying the empirical questions that one would need
to answer to decide whether to "buy" judicial review (in the wholesale
sense I think necessary).  In my view, it is consistent with my analysis
in my book, but others can assess that for themselves.  Frank Michelman
has an article coming out in the Georgetown Law Journal concluding,
again, that the choice has to be made on the basis of empirical
judgments, not normative ones.

5.  Eugene's hypothetical about the public university denying space to a
Communist group on the ground that the public would attribute government
endorsement of the group's views illustrates some of the problems I'm
concerned with.  (It also raises a somewhat different question for
people who think that social meaning approaches are the right way to
go:  Is it sensible to test such approaches by posing hypothetical cases
when the entire point of the approaches is to direct attention to the
way things actually are in the world?)  The structure of Eugene's
analysis, as I understand it, is this:  We have to distinguish between
government speech and private speech.  Government speech is (for present
purposes) essentially unconstrained.  We can distinguish between
government speech and private speech by examining the degree to which
the public attributes government endorsement to the speech.  At some
level, the attribution makes the speech governmental (even if no
government actor actually endorses the speech).  [Note that this is the
issue that divides the plurality in Pinette from --as I count it -- a
majority of their colleagues; the majority would allow endorsement to be
inferred from incorrect attributions, the plurality would not.  More on
this below.]  Now, consider the social setting in which a university
administration says to itself, "Well [or, in Eugene's formulation, Hmm],
if we let this group meet, the public will attribute its views to us."
My hypothesis is that, in a social setting in which that would be a
question that occurred to university administrators, the judgment might
well be correct.  (Recall controversies over non-Communist oaths for
university professors in the 1950s, which, I think, had something of
this structure.)  But, even if the judgment is in some sense incorrect
(not enough people would mistakenly attribute the group's views to the
university), there's an additional step that has to be taken before the
hypothetical raises questions about the position I developed:  Under the
social circumstances in which university administrators would take the
question to be relevant, and gave an answer, what are the chances that
judges would disagree with that answer (given the point, made earlier,
that judges and political actors differ, but not that much)?  Here the
historical experience of the 1950s is not encouraging for someone who
holds views like Eugene's.  (One index, though an imperfect one, is the
contrast between the Frankfurter and Jackson positions in Dennis --
concurring with the majority -- with the Douglas position in dissent.)

6.  One possibility, finally, is to say that what matters is not social
meaning, but actual meaning.  (Again, this is something like the
position taken by the plurality in Pinette.)  I take it that this was
Charles Black's point about laughter being the proper response to
segregationist assertions about the "meaning" (social or otherwise) of
segregation.  But, my guess is that an intellectual history of the rise
of the "social meaning" approaches will show that they arose because of
accurately perceived problems associated with judicial enforcement of
actual meanings in a world of reasonable disagreement about the Good (to
use Rawls's formulation).  That's why I said that the disagreement
between Eugene and me would ultimately be resolved only by what amounted
to a mere assertion by those with sufficient numbers on their side (5 if
we buy judicial review, a hundred million or so if we don't) that the
contrary position is unreasonable.

I apologize for the length of this reply, but in some sense the only
real response would be to say, "read my book," which would be a response
inconsistent with the norms of discussion lists as I understand them.
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