Academic

Tribe on the Agency Theory of the Supreme Court

By Lawrence Solum

Lawrence Tribe (Harvard University) has posted Of Agents and Principals: A New Theory of the Supreme Court:

Recent work at the intersection of Positive Political Theory and Law has provided a powerful case for viewing the process of statutory interpretation on the model of an agency relationship.  The legislative branch (the House, the Senate, and the President) issue directives to courts; these directives can be interpreted as bargains struck among coalitions of interest groups.  The correct interpretation of the bargain must recognize that statutes only become law if can they pass through "veto gates," including majority passage in both the House and Senate, possible presidential veto or filibuster in the Senate.  On this theory, the nature of the bargain can be simplified by focusing on the key "veto players" or "pivots," the political actors whose vote is critical to passage, veto override, and cloture in case of a filibuster.  These including the median representative and senator, the veto pivot in the House and Senate, the filibuster pivot in the Senate.  Judicial interpretation of statutes should focus on the nature of the bargain struck among the veto players.

I extend this model to the Supreme Court.  Supreme Court nominees must pass through three veto gates: the President, the median senator, and the filibuster pivot.  By triangulating the three veto gates of the nomination and confirmation process, my model reveals the coalition among the players that constitutes the relevant principal for each Supreme Court nominee.  If confirmed, the nominee then becomes the "agent" of the coalition.  The role of the agent is to decide constitutional cases in accord with the agenda (the consensus political program) of the nomination and confirmation coalition.

My theory is then elaborated by a thought experiment in which a hypothetical judge, Apollo, is nominated and confirmed.  The thought experiment begins with the assumption that Apollo has attributes that meet the minimum competency requiements for the office of Supreme Court Justice: Apollo is a brilliant tenured professor at a top law school, has written a prestigous treatise on constitutional law, and has extensive experience as a Supreme Court advocate.  The hypothetical nominating and confirming coalition is then described as a newly elected Democratic President and a House and Senate with Democratic majorities.  The thought experiment then demonstrates that if Apollo adheres to the agency model, he would decide a variety of controversial cases, including cases involving abortion, the rights of terror suspects, torture, gun control, and affirmative action in such a way that the decisions would constitute an improvement over the constitutional status quo for each of the members of the nomination and confirmation coalition. In other words, because Apollo has principals he is without principles.  As a consequence, the triangulated theory predicts that Apollo would be nominated by the President and confirmed by the Senate without a filibuster.

Full post as published by Legal Theory Blog on April 01, 2008 (boomark / email).