The Limits of Process Theories of Judging

Publius writes a lengthy post on Hamdan and process theories of judging, which is worth a read. Publius is a big believer in the premise that liberals must have an answer to the (normative) question, how should judges decide cases? His answer, which is an oldie but a goodie, is that judges should employ judicial review to police the political process rather than its outputs, and that judges should only step in when the political process which arrived at a particular policy is "broken" in some way.

My general take on such macro theories of judging is that few judges, in their natural, wild state, actually employ a consistent macro theory of their role as judges. And that, rather than that being a problem (e.g., "unprincipled decision-making"), it's probably a good thing. I would draw a comparison to moral thinking. Few people employ a consistent, macro theory of their moral obligations. Instead, they follow some form of moral intuitionism. They have a sense, sometimes a vague sense, of what is the right thing to do in a particular situation, and that sense is usually a better guide, certainly a more efficient guide, than a full-blown moral analysis. Indeed, as someone who has thought a great deal about moral theory and has experimented with the idea of applying one theory consistently, I would say that it's either (1) undoable, because it makes one's decision process incredibly difficult, and/or (2) leads to perverse consequences, at least from the perspective of moral intuitionism.

The same with judges: My sense is that most judges arrive at a "sense" of the right outcome in a particular case, based on the facts, the state of the law, the equities, etc., and that that sense of the right outcome strongly influences the judge's decision, despite the fact that lawyers on both sides of the case can make somewhat plausible arguments, at least in a significant percentage of cases.

The same problems with a consistent, macro theory of judging: It's either undoable/unworkable, or it would lead to perverse consequences.

In terms of unworkability: How, exactly, does one know when the political process is "broken"? There are some obvious cases, of course: Publius always reverts to the disenfranchisement of African-Americans, which is the paradigmatic case. But consider the state of Congress today, which has been well documented in the liberal blogosphere. In my opinion, it could be argued that the legislative process today is broken. But does that mean that the courts should step in and force Congress to fix itself? If so, how? Would it be better to simply "pretend" that, for example, Congress is not corrupt, hyper-partisan, and non-deliberative?

It seems to me that, in interpreting new laws, judges applying Publius' perferred theories would have to come to some conclusion on these issues. Say, for example, you were a bankruptcy judge applying the 2005 bankruptcy legislation, which was drafted by the credit card companies. Would it be appropriate to hold that the 2005 bankruptcy legislation was invalid because the "deliberative" function of Congress was short-circuited by lobbyists? Under a particularly vigorous form of the process theory, it might be. But this would require the judge in question (1) to understand the enactment history of the legislation, which was, understandably, hidden from view, and (2) to go way out on that limb. Most judges, most of the time, are not nearly so bold.

So, outside of some pretty extreme cases (disenfranchisement, presidential overreaching), process theories make demands on judges to act, if not as legislators, then as experts in the legislative process and in the enactment history of particular pieces of legislation, of particular provisions. That's probably too much to ask. On the other hand, a default assumption that the political and legislative process is functioning properly will often bear little resemblance to (political) reality.

In terms of perverse consequences, a consistent theory of judging cuts against stare decisis, at least at the highest level, i.e., the Supreme Court. Thus, Justice Scalia has even recognized that originalism must give way before precedent, at least in some cases.

But even worse: Some pretty crummy legislation can be validly enacted by a properly functioning political process. Sometimes the majority will just run roughshod over a minority, even when that minority has full political rights. The Texas redistricting cases might be a good example of this. Sometimes the majority might even run roughshod over a minority by accident. I'm thinking of Shebery v. Verner here, but I'm sure that there are many other examples. In some of these cases, at least, it's probably a bit much to ask certain groups to go back to the legislature and ask for "special legislation" to protect their interests. When those interests receive constitutional protection, it doesn't seem perverse to me to think that the courts have a role in policing the substance of legislative outputs and not just the process.

This is not an argument for judicial activism or judicial maximalism. It's just to say that one theory might not be sufficient to cover all the situations that judges will face. Or, in other words, a little inconsistency may not be a bad thing.