Legal Realism, Innate Morality, and the Structural Role of the Supreme Court in the U.S. Constitutional Democracy

Abstract

"It is emphatically the province of the courts to declare what the law is." So declared Chief Justice Marshall over two hundred years ago in Marbury v Madison, in an affirmative and enduring statement of the structural finality of judicial review in resolving questions of constitutional interpretation in the United States constitutional democracy. Yet Marshall’s use of the definite article – "the law" – reflects a certain deterministic assumption about the nature of law that has not withstood the test of time. While 19th century scholars and jurists may have largely shared this deterministic vision of "the law," either as a result of natural law assumptions underlying the common law processes, or as a matter of the legal formalism prevalent by the late 19th century, the legal realists of the turn of the 20th century provided a key insight into the nature of the judicial process: law, it turns out, was not determinate at all. Impeccable legal reasoning could be used to support more than one outcome in a large proportion of the cases decided by the appellate courts. According to the realists, rather than declaring what "the law" is, courts declare "law," making policy choices in the process. These policy choices are informed more by each individual jurist’s background and sense of fairness than they are by formal reasoning from legal "rules."

While legal realism may never have caught on with academics and philosophers as a coherent theory of jurisprudence, it’s key insights – that "law" is indeterminate in many cases, and that judges make rulings in those cases based on a visceral sense of fairness and justice as applied to the facts of the case – retain wide acceptance among practicing lawyers and legal academics to this day. The legal realists were largely concerned with the practical, lawyerly problem of predicting how a court would rule in a new fact situation. Yet this approach invites a behavioralist inquiry into whether the resolution of indeterminate legal problems might nevertheless be predictable as a matter of human behavior (judges being human, after all). Recent psychological research has posited that a sense of fairness and justice may be innate and evolved in human nature – that certain moral precepts are shared across religions, national boundaries, cultures and ages. The existence of an innate human sense of fairness might seem to support the long abandoned notion of natural law as a source of legal principles and predictability. The rub is that this same research shows that while people generally recognize shared principles of fairness, different people place different relative values on some of these shared principles. In particular, these studies have shown that, across cultures, people who self-identify as “liberals” tend to value the moral precepts of group loyalty and respect for tradition and authority less than people who self-identify as "conservatives." Because these different political identifications place different relative values on these principles, an innate sense of justice common to humans generally seems also to be indeterminate, and an inadequate predictor of judicial decision-making generally. Moreover, the realists’ insight that formal legal reasoning is indeterminate, and that judges make policy choices and apply their subjective sense of fairness in resolving the indeterminate cases casts doubt on the fundamental theoretical basis of judicial review in the United States constitutional system. If judges do not declare "the law," as Chief Justice Marshall articulated it, but rather choose "law" out of an indeterminate range of outcomes supportable by legitimate legal reasoning, basing their choices on idiosyncratic notions of policy and fairness, then are not judges making legislative choices that more properly belong with the legislature? If the justification for judicial review is the inherent judicial function of applying the rule of decision required by a superior legal document (the Constitution, with its supremacy clause) as against an inferior legal document (congressional legislation), doesn’t this theoretical justification fall apart in those cases where accepted constitutional legal reasoning will support more than one outcome, and the judicial choice of outcomes is based on something other than ineluctable legal reasoning? And if this judicial choice of outcomes in those indeterminate cases is based on differing value systems that correlate well with different political alignments, the inherently political nature of this choice of outcomes would seem to argue strongly, also, that these choices be assigned to the more politically responsive branches of government, and not to unelected judges.

Yet these political arguments against judicial review would ignore the judiciary’s (and particularly the Supreme Court’s) structural role as the final arbiter of constitutional limits on governmental action. Even if the Constitution together with accepted modes of constitutional legal reasoning do not provide a determinate answer, and even if the answer a given judge or justice gives in those indeterminate cases may correlate well with her own political proclivities (which may be contrary to a duly elected legislative majority), a constitutional form of government requires some body with final say over the interpretation of the Constitution. The alternative – leaving the legislature as the final judge of its own powers – risks leaving constitutional limits on government unenforceable. While the framers may not have been legal realists, they anticipated judicial review and understood the value of leaving the final interpretation of the Constitution to judges with life tenure, who would not have to run for re-election, thus removing immediate political advantage from the consideration in resolving questions of constitutional interpretation. In doing so, they served a deeply felt social need for neutrality and finality in resolving the inevitable political disputes that would arise from conflicts between sovereign states in a federal system, competing branches of government at the federal level, and an empowered citizenry.