Academic

Strauss on Modernization & Judicial Review

By Lawrence Solum

David A. Strauss (University of Chicago Law School) has posted The Modernizing Mission of Judicial Review on SSRN. Here is the abstract:

Constitutional interpretation usually looks to the past--to an old text, to history, to precedent, to tradition ? in an effort to limit political majorities. But recently, the Supreme Court has taken a different approach to the Constitution: It has tried to anticipate trends in public opinion instead of taking lessons from the past; and, at the same time, instead of facing down popular majorities, the Court has been prepared to give way if it learns that it has misgauged public opinion. This approach ? which might be called modernization ? has characterized the Supreme Court?s recent work in several areas, including the Cruel and Unusual Punishment Clause of the Eighth Amendment and the limits on sex discrimination imposed by the Equal Protection Clause. Perhaps most interesting, the substantive due process decisions of the last 40 years are modernizing decisions, unlike the pre-New Deal substantive due process decisions to which they are often, mistakenly, compared. Modernization is an appealing approach in many ways. Among other things, it holds out the hope of more easily reconciling judicial review with democracy. But modernization also raises serious questions--particularly that the courts may distort the political process and may be too willing to accommodate what they perceive as the demands of popular opinion, at the expense of a principled judicial role.

And from the paper:

In Griswold, however, all of these elements?the lack of enforcement, the trend away from regulation, and the law?s status as an outlier?coincided. That explains why Griswold can comfortably be seen as a modernizing decision. It also explains why the Court did not have to be concerned with the other component of modernization, leaving itself room to retreat if the political branches pushed back. In view of the narrow holding in Griswold?confined explicitly to the use of contraceptives by married couples?the chance of an adverse reaction from state governments was minimal.

If Griswold can be justified as a modernizing decision, then the assertion that Griswold recapitulates Lochner?which was the standard criticism of Griswold, and a concern acknowledged even by its defenders100?seems almost bizarrely wide of the mark. The pre?New Deal Court used substantive due process to resist what it saw as a pernicious trend?on one account, a trend toward what that Court saw as interest group legislation that betrayed both the public interest and the principle of ?free labor? that inspired the antislavery movement.101 The trend was pernicious, in that Court?s eyes, precisely because it was widespread, because laws regulating the employment re- lationship were so popular, and because those laws had an extensive and profound effect on labor markets.102

The Griswold Court, by contrast, was following, not resisting, a trend. The law it invalidated was an isolated outlier that was enforced only in a limited way even in Connecticut. No one suggested that that statute was popular; even the dissenters in Griswold (in notable contrast to some of the dissenters in the pre?New Deal cases) did not have a good word to say for the Connecticut statute as a matter of policy.103 The idea that the repudiation of Lochner shows the error of Griswold should be turned inside out: what Griswold shows is that if the Lochner Court had confined itself to regulatory measures that were isolated, unpopular outliers that were essentially indefensible on policy grounds, its approach might never have been repudiated.10

Highly recommended!

Full post as published by Legal Theory Blog on August 17, 2009 (boomark / email).