I. Introduction
Jeremy Waldron’s essay, ‘The Rule of Law and the Role of Courts’, is sharp and insightful. Much of what he says is persuasive so, rather than directly critique his argument, I broaden the context of analysis. Applying a more holistic perspective, I offer different responses to two major issues he addresses: the apparent tension between judicial review and democracy, and Hobbes’ skepticism about the rule of law. Building on these responses, I argue that Waldron’s assertion that judges’ desired programs and policies should have no influence on their judicial decisions, while desirable as an aspiration, is too demanding to serve as a standard for the rule of law in judging on the Supreme Court.
II. Tradeoff between judicial review and democracy
Waldron is a champion of the rule of law, and he is the foremost critic of judicial review of legislation.Footnote 1 His essay situates these two positions in tension. On the one hand he recognizes that the rule of law can be invoked to require judicial review to enforce constitutional limits on legislation,Footnote 2 while on the other hand he opposes judicial review, mainly on the grounds that it is anti-democratic.Footnote 3 Thus Waldron writes, ‘to the extent that judicial review of legislation is required by the rule of law, there is the prospect of a trade-off between the rule of law and democracy’.Footnote 4
And I don’t mean that judicial review of legislation, as a rule-of-law requirement, fatally compromises democracy, only that it seems to involve some degree of trade-off between the rule of law and the idea that ultimately important decisions in the polity should be made by the people or their elected representatives.Footnote 5
In his opposition to judicial review, he is willing to accept less rule of law if it results in greater democracy. ‘Does this make me an opponent of the rule of law?’ Waldron asks. ‘Yes and no; certainly it seems to indicate a qualification upon my devotion to that ideal.’Footnote 6
Waldron then tempers this assertion with a counter-observation. If judges are in fact making law, or if judicial decisions are shaped by the personal views of individual justices, this would not be the rule of law, but ‘just another version of the rule of men, albeit men wearing black robes and sitting in a courtroom’.Footnote 7 Judicial review under these circumstances actually detracts from the rule of law. To be consistent with the rule of law, then, justices must render decisions that do not create law based on their preferences for certain programs and policies.
While I agree with the thrust of his observations (with reservations to be noted shortly), framing the analysis in terms of ‘tradeoffs’ between the rule of law and democracy, as he does, creates a misimpression. The rule of law does not require judicial review or any particular institutional arrangement. It is an ideal and social arrangement that means, in essence, government officials and citizens are bound by and abide by the law.Footnote 8 There is no specific formula for achieving a law bound government and social order, and each rule of law society – France, Singapore, Germany, Japan and so on – has a unique complex of institutional arrangements. Accordingly, the rule of law can be instantiated in a multitude of different ways, with or without judicial review. (Waldron correctly does not commit to a necessary link between the two.) England has long achieved the rule of law in the absence of judicial review. One would be hard pressed to demonstrate that England sacrificed some rule of law in exchange for greater democracy – or that the United States has more rule of law but less democracy than England owing to judicial review.
Viewed narrowly, it is true that unelected judges exercising judicial review may strike democratically enacted legislation, but political-legal institutional arrangements come in complexes that cannot be pried apart or pitted as discrete elements inflicting tradeoffs against one another. The interaction between the rule of law and democracy is opaque, with multiple implications across various dimensions.
To better appreciate the overall situation, we should consider whether the US democracy is fully ‘democratic’. There are ample reasons to doubt this. Because each state has two Senators regardless of population, small state voters in the United States have far greater voting power than large state voters. As a result, Republicans currently hold a 53–45–2 majority in the Senate despite the fact that four million more people overall voted for Democratic candidates.Footnote 9 In addition, since Electoral College votes are allocated to each state based on its number of members in the House of Representatives plus two Senators, the same disproportionate voting power also affects presidential elections – which is why both George W. Bush and Donald Trump won the presidency despite losing the popular vote. Furthermore, when Democrats held a majority in the Senate during the first term of the Obama Administration, Republican Senators routinely filibustered to prevent matters from coming to a vote, thwarting actions that a majority of Senators actually supported. Rampant gerrymandering, whereby Republican state legislatures intentionally draw voting districts to dilute votes for Democratic candidates, consolidates Republican legislative control at state and federal levels even when they receive fewer votes overall.Footnote 10 A number of Republican-controlled states have also enacted voter ID laws to disenfranchise poor voters who lack the requisite official documents (mainly African American Democrat supporters). Owing to these factors, two prominent legal scholars observed after the last election, ‘The US is in a state of perpetual minority rule.’Footnote 11 Another significant anti-democratic factor is the billions of dollars that flow into the political system through lobbying and campaign contributions, giving moneyed interests disproportionate access to and influence on lawmakers.
These major anti-democratic elements of our democracy drain some of the rhetorical force from Waldron’s argument that judicial review enables judges to invalidate laws produced by a democratic majority. The reality is that many of the laws produced by (or thwarted by) the Republican Party reflect a minority of views in the country on topics ranging from inadequate gun control, to tax cuts for corporations, to the prohibition of abortion, to universal health care, and more.
The fact that our democracy has significant flaws, of course, is not a justification for judges to add to the less-than-democratic mix by invalidating legislation based on their political preferences. That would make an already problematic situation worse. But it is not clear that judicial review works out that way. For one thing, it is seldom applied. Except during a few brief periods of heightened activism, for most of its history the Supreme Court has invalidated only a couple of federal statutes per year.Footnote 12 Moreover, multiple studies by political scientists have found that ‘most exercises of judicial review – even those that appear counter-majoritarian at first glance – are consistent with the preferences of the governing coalition, or at least the preferences of an important faction within that coalition’.Footnote 13 Waldron’s NYU colleague Barry Friedman has compiled evidence showing that throughout history, across a range of issues, Supreme Court decisions have generally matched public opinion.Footnote 14 Justices are members of the community and are exposed to the media, so it should not be surprising that their views end up mostly in sync with the bulk of public opinion.Footnote 15 These studies indicate that even when justices issue politically influenced legal decisions, they are not necessarily acting anti-democratically, at least in effect.
This is not to say that judicial review is benign. At critical moments, the court has blocked popularly supported legislation that advanced the public good, most notably at the turn of the twentieth century when it invalidated social welfare and pro-labour legislation. Supreme Court rulings are a crucial part of the overall dynamic in the US political system, with a formidable impact on contesting political positions, forcing actions and reactions from the other branches of government and groups within society. Groups on the losing side have a tough hurdle to get around because the decision to strike legislation is constitutionally grounded and hence requires a constitutional amendment to directly overcome (although indirect means of circumvention are available).
Like Waldron, I do not favor judicial review of legislation in the United States. For three main reasons, aside from its anti-democratic tenor, I would prefer that it be abolished or significantly curtailed (for example, by requiring a supra-majority vote of justices to strike legislation). First, judicial review accords too much power to a small group of insulated, unaccountable judges with life tenure, allowing a handful of people to invalidate the actions of elaborate political processes involving many people on matters that turn on political choices. Second, aside from a few exceptional periods, this power historically has been exercised by and large in a reactionary fashion, exhibiting a political skew that favours elite economic interests.Footnote 16 Third, this veto power over legislation has added fuel to the hyper-politicization of judicial appointments, raising the political stakes on who becomes a judge, which threatens to undermine the rule of law within the judiciary.Footnote 17 The refusal of Senate Majority leader Mitch McConnell to move forward on President Obama’s nomination of Judge Merrick Garland to fill a vacant seat on the Supreme Court is a recent example of an escalating battle to control the political composition of the court.
As these comments indicate, my concerns overlap with those expressed by Waldron. My observations are meant to merely clarify that the rule of law does not require judicial review, and judicial review does not entail a trade-off between the rule of law and democracy. It all depends on the mix of interrelated factors and how they play out. Vigorous democracies can function with or without judicial review – and robust rule of law systems can exist with or without judicial review.
III. Hobbes’ two objections
Hobbes was sceptical about the notion that the sovereign could be bound by the law, as Waldron points out, for ‘he that is bound to himselfe only is not bound’.Footnote 18 The sovereign can simply repeal or refuse to enforce an inconvenient law. Waldron raises a second Hobbesian objection: law is not self-enforcing or applying. Someone must carry out the law.Footnote 19 Whether that person is a sovereign or a court, it is a person acting, not law itself. These are formidable objections.
The constitutionalist solution to the first objection, Waldron elaborates, is to empower the court to have the final say while depriving the court of the other sovereign-like powers. ‘The idea is that the court can do nothing except check and restrain the law-makers on various issues; it has no real power of law-making itself.’Footnote 20 This ‘separation of powers’ solution, Waldron goes on to argue, does not provide a satisfactory answer to Hobbes if the court ‘thinks of itself as a law-maker’,Footnote 21 grabbing an undue share of power. Judges must exercise self-restraint, decide issues and rights claims on a case-by-case basis, and not pursue a broad program or policy. Also essential, Waldron continues (moving to the second Hobbesian objection), justices must not render decisions in a fashion that appears driven by their political views: ‘a court whose principles change with every alteration in the voting balance of its personnel can hardly deny that its hegemony represents the rule of men rather than the rule of law’.Footnote 22 To avoid this, Waldron says, justices must suppress the tendency to throw doubt on settled decisions and resist the temptation to make decisions that ‘depend tendentiously on beliefs and conceptions of the law that they know are not shared by their colleagues on the bench’.Footnote 23
Again, Waldron makes good sense. My comments add supportive depth to his account. In the end, though, as I will return to in the final section, Hobbes’ objections identify genuine limitations to the rule of law ideal, which we should acknowledge. The famous insight of Immanuel Kant is relevant: ‘Out of the crooked timber of humanity, no straight thing was ever made.’ At best, the rule of law can be imperfectly achieved.
More fundamental to the rule of law than the familiar constitutionalist solution Waldron identifies is what I would call the ‘institutionalist solution’ – that is, various interlocking and mutually supportive legal institutions are distributed throughout society, resting ultimately on social foundations involving a broadly shared orientation of fidelity to law. The rule of law exists, as stated earlier, when government officials and citizens are bound by and abide by law. To understand how the rule of law works, one must attend to the factors that give rise to and support general obedience to law.
The foundation for the rule of law is a collection of institutions revolving around the creation, effectuation and utilization of law as a body of legal rules, legal knowledge, legal practices, and legal institutions. A robust legal tradition is required, which includes legal academies that educate and train lawyers; jurists in various settings who propose, rationalize and criticize legal regimes to address social problems; Bar associations that maintain professional standards and ethics; and lawyers working in government, private practice and a multitude of other legal settings, writing contracts, effectuating property transactions, protecting rights, bringing cases and so forth. Well-established legal traditions have deep roots and extended sinews that course through society, such that law is a background presence in social, economic and political intercourse.Footnote 24 In all these contexts, people working in relation to law must share a subjective orientation that strives to maintain legality as an ongoing enterprise. Common law theorists often focus on the courts as the apex of the rule of law, and the courts certainly serve a critical role, but absent this broader foundation of functioning legal institutions dispersed throughout society, the rule of law cannot exist.
A truly effective rule of law system requires, at a minimum, autonomy of prosecutors charged with enforcing law and autonomy of judges who hear legal cases. A personal commitment to legality on the part of prosecutors and judges (generated and reinforced by the legal tradition) helps to provide the insularity from external influences necessary for autonomy. To help ensure compliance with this commitment, legal actions take place within institutional practices and bureaucratic structures – training and monitoring by colleagues and superiors, layers of internal and external review and accountability – serving as checks.
Even that is not enough, however. Government officials and citizens will be bound by and abide by the law only if most people within society believe the law does and should rule. This attitude, which becomes habitual and self-perpetuating when entrenched within a society, prevails when people identify with the law, see it as effective, fair and just, and believe that it serves the common good. Ultimately, the rule of law entails a social consensus – among governmental officials, legal officials and the public – that government actions should be conducted in accordance with standing law. A widely shared expectation of law-conforming behaviour is the social cement that holds it all together. Public opinion must condemn perceived abuses of the law by government officials and fellow citizens.
Significantly, in this institutionalist account of the rule of law as complexes of institutions distributed at various levels and contexts throughout society there is no final authority, whether a sovereign, or high court or any other single ultimate locus. Waldron takes Hobbes’ argument to show that, in order to avoid an infinite regress: ‘There must always be somebody – not some scroll or text but some body – who has the final word.’ Seeing law as a matter of distributed institutions undergirded by public views, however, reveals instead a complex interplay of multiple loci of legal actions, some coordinated and hierarchically arranged, but also some competing or coexisting uneasily, with no single institution having the final say. Prosecutors, political officials, executives, administrators and so forth, at federal, state and municipal levels, make innumerable legal decisions that never reach the courts; injured parties can seek civil recourse independently of what occurs in the criminal law system; different courts within different systems or subsystems can issue inconsistent decisions that are not reconciled; public views of what law should require can be effectuated through mass support, backlash or simply disregarding the law.
Through these various processes and their interactions, legislation can be rendered inert or counter to its intended purposes even when it is upheld by a court as constitutionally valid, while conversely, legislation struck as invalid can nevertheless have its objectives achieved in other legal ways. A striking recent instance of the latter is the significant number of states that have made abortions de facto unavailable for the vast bulk of their populace through various regulatory mechanisms that operate to shut down abortion clinics,Footnote 25 effectively circumventing the Supreme Court’s prohibition of legislative bans on abortion. The claim that the final say over law must reside in a single ultimate court might seem correct in theory, but a closer look at the complex, dynamic reality of law and social behaviour shows otherwise.
The rule of law is effectuated within the totality of the social-political-economic-legal dynamic. When President Richard Nixon ordered Justice Department prosecutors to shut down their investigation into illegal conduct by his Administration, they refused and resigned instead, because they had sworn to uphold the law; thereafter, the Supreme Court ruled that he must comply with a subpoena to hand over evidence sought by prosecutors. Ultimately Nixon resigned. That is the rule of law in action, although events played out through political processes as well as legal; and Nixon was not truly held accountable to law, since he was pardoned for all possible crimes by his successor. At present, the resilience of the rule of law in the United States is again being tested at the highest level, with the Administration of President Donald Trump exhibiting a willingness to ignore or circumvent legal restraints on a range of issues, from laws relating to asylum seekers to his own personal actions. There is strong evidence that Trump violated campaign finance laws and engaged in criminal obstruction of justice.Footnote 26 Yet, thanks to steadfast support from Republicans, he remains secure in office and likely will escape criminal prosecution for his actions. The president as sovereign, it appears from this example, is not bound by the law – at least not when protected by other high government officials.
Looking beyond these high-profile examples, focusing on mundane governmental activities, legally constrained actions of officials occur every day throughout the government in all sorts of positions who feel obligated to abide by the constraints of law. Even as we appreciate this achievement, one must not forget the multitude of times at every level in individual contexts when officials stretch, distort or disregard the law. The rule of law is an ongoing achievement through government officials and people acting in a good-faith effort to abide by the law, but it is never fully accomplished and cannot be taken for granted.
Failures of the rule of law cannot be eliminated entirely because law acts through people. Law is subject to all the human failings of passion, bias, whim, greed, ineptitude, laziness, meanness, violence, the will to power and more. The rule of law is a relative achievement: for the most part, government officials and people are bound by and abide by the law. This is the best one can hope for, and it is good enough. A generally functioning rule of law system, even with failings, is far better than blighted societies in which government officials and citizens routinely disregard the law.
IV. Limitations of law, high courts, and judges
It is important to emphasize that the imperfect achievement of the rule of law cannot be blamed entirely on human frailties. Law itself has limitations that stand in the way of the rule of law ideal. Pared to the basics, law consists of general rules stated in advance, supplemented by legal principles and rights, within an encompassing body of legal doctrines. (One might also add legal standards like fairness and reasonableness, balancing tests, canons of interpretation and more, though for simplicity I leave them out here.) Rules suffer from several limitations: their meaning is not always evident; their application to unanticipated or unusual situations raises hard questions; they can produce unjust results; they can be obsolete and dysfunctional. Even a seemingly straightforward law like ‘No vehicles in the park’ leaves open questions – for example, when applied to bicycles (or bicycles with motors), baby carriages, motorized wheelchairs, battery-operated cars for kids and so on.Footnote 27 Legal principles and rights also raise difficulties, including discerning their meaning and determining which are binding when they are not codified; resolving conflicts among coexisting legal principles, rights and rules; and applying general principles and rights to concrete situations when multiple outcomes are possible. For example, what are the sources, content, and implications of equality, or proportionality, or the right to privacy in the countless varied situations to which they might be applied? An irreducible degree of legal indeterminacy and other open questions about the law exist in every legal system.
In its own ways, law is wooden, blunt and incomplete. Earlier, I asserted that human frailties inevitably penetrate law, but law needs human judgement to function properly. The rule of law ideal could not literally mean the law rules as a disembodied presence operating free of human participation because decisions must be made when filling in and applying law.Footnote 28
This conclusion brings me back to the main subject of Waldron’s essay: high courts and the rule of law. Waldron worries whether judges will be ‘able to maintain the impression that it is the law that is in charge, not the competing views about the law of particular individual judges.’Footnote 29 He does not want judges to see themselves as law-makers. He does not want judges to advance programs or policies. He argues for a modest, self-effacing approach to judging, particularly when exercising judicial review.
As I said, I agree a great deal with Waldron, yet I cannot shake the sense that he asks too much of law and of judges, particularly those on the Supreme Court, setting forth an unachievable standard for the rule of law in judging. Judges see the world through ideologically colored lenses that inform their views of law and society, which cannot entirely be effaced. A significant proportion of the cases taken up by the Supreme Court are hard cases in which the law does not provide a singular answer or runs out. When that happens, the law is not ‘in charge’ beyond legally framing the issues, shaping the choices and requiring judges to justify their decision in persuasive, legally supported terms consistent with existing doctrine and legal knowledge.
This is evident in originalism, a constitutional theory with growing momentum among jurists in the United States today, espoused by several conservative Justices on the Supreme Court as well as a host of prominent theorists.Footnote 30 Proponents of originalism advocate that judges should interpret the Constitution through the expected public meaning of clauses at the time they were enacted.Footnote 31 An argument often presented in favour of originalism is that it constrains the influence of the personal ideologies of justices – screening out their preferred programs or policies, and thus restricting their decisions to the law as originally written and understood. This objective coincides with Waldron’s expressed desire for judges (though he does not endorse originalism). Yet there is abundant evidence that the judicial decisions of avowed originalists consistently align with their conservative political views.Footnote 32 This correlation suggests either that originalism has a built in politically conservative bent or that it does not in fact operate to restrict the political views of justices who purportedly adhere to it.Footnote 33 Additional evidence of the latter implication can be seen in recent articulations of progressive versions of originalism,Footnote 34 which indicate that originalism can be constructed in ways that lead to conservative or liberal outcomes, thus hardly functioning as a constraint on personal ideology.
None of this is to say that Waldron is wrong to assert that
if judges want to avoid the problem of judicial sovereignty as a version of rule by men, then as individuals they may have to strain to suppress the all-too-human tendency to question past decisions when they come onto the bench or to make their own decisions depend tendentiously on beliefs and conceptions of the law that they know are not shared by their colleagues on the bench.Footnote 35
This is an aspiration all judges should strive to meet. The point remains, nevertheless, that ultimately the competing views about law of individual judges will have determinative influences in a significant subset of cases involving open or deeply contested legal questions, particularly on salient matters over which people are sharply divided politically. This inevitability lends additional weight to Waldron’s argument that the judicial review of legislation should be eliminated, although this influence extends to all judicial decisions in hard cases, not just judicial review.
Judges in hard cases should still consciously strive to render their decisions in accordance with law, but decisions of this type require the exercise of judgement, which inevitably turns on implicit views judges hold on law, the polity, morals and the public good. Their decisions in effect make law. This reality must be kept in mind in the design and evaluation of a political-legal system, and in the appointment of individual judges. The Supreme Court in particular regularly issues legal decisions influenced by the world-view of individual justices. Absent extraordinary homogeneity among people who staff the Bench – which would be problematic in itself – judges will not share the same views. When the composition of the court changes, decisions will change as a result. No matter how hard judges try, these types of decisions will not look like they are strictly determined by the law – because they are not. Law does not and cannot answer all questions unaided by human input. Subjectivity colours perceptions of the world and judgement, and life and law are too complex. Notwithstanding these unavoidable limitations, the rule of law can still function quite well, for high courts as well as courts generally, as long as judges maintain a primary commitment and determination to rule in accordance with the law.
