A Stitch in Haste - December 6, 2005 at 6:19 pm

Subway Searches and Korematsu

As I was drafting my previous post critiquing the ruling upholding New York City’s random, suspicionless search program at subway entrances, I was reluctant at first to invoke the da…

Secondary Screening - December 6, 2005 at 8:04 pm

Secondary Screenings on the Subways

There’s a fine debate — ahh, hell, call it a mêlée — going on over at the malapropblog, Concurring Opinions. A recent decision upholding the legality of random searches of New York City subway passengers set off the infighting. Here’s…

Daniel J. Solove - December 7, 2005 at 1:32 am

I believe our dispute ultimately turns on an institutional competence debate. You, in a similar way to Orin Kerr, argue that legislatures (or, in NYC’s case, the executive) is the best rulemaker. I do not necessarily believe that courts are better, but I do believe strongly in multiple branches analyzing the issue and checking each other. I explain this argument in more detail in Fourth Amendment Codification and Professor Kerr’s Misguided Call for Judicial Deference, 74 Fordham Law Review 747 (2005).

The role of the courts isn’t to re-do the work of the legislature or executive. It is to scrutinize that work and ensure that laws are effective and competent enough to outweigh their costs in terms of liberties. Without this function, the courts won’t do all that much. I don’t believe that when constitutional rights are involved courts should be performing their function with just a quick glance-over or a uphold-unless-it-is-really-absurd test.

My criticism of the court was that it seemed to begin with a bias in favor of the government; and it applied plenty of skepticism to the plaintiff’s evidence but not an equal amount to the goverment’s.

I agree that courts are busy, but it is imperative that in today’s world of balancing, the courts do their job. It was easy for the formalist judge of a century ago to decide a case — there were no balancing determinations measuring the effectiveness of particular laws. Laws were constitutional or not regardless of their effectiveness. But balancing, the predominant method of constitutional adjudication today, changed all that. Now, facts about effectiveness matter. Courts have to engage more in the kinds of inquiries social scientists do. (This is, of course, a very impressionistic account of the history).

So an older formalistic style of judicial reasoning might have been much easier, but that’s not what courts are tasked to do today. You’re right that courts are often not up to the task, but the answer is not to have them defer to the very decisionmakers that are under review.

I have written more about this in my article, The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, 84 Iowa L. Rev. 941 (1999). In the conclusion, I wrote:

Judicial balancing is a vast improvement in constitutional adjudication over late nineteenth century formalism. In its virtues, judicial balancing conceives of law as an instrument to achieve human purposes, not as an end unto itself; it remains deeply concerned with the consequences of laws; and it assesses each situation as it arises rather than categorically restricting the exercise of state power in the name of absolute rights. With its greater focus on empirical evidence in issues of constitutional interpretation, it brings law more in tune with contemporary science, social science, economics, and other fields of human knowledge.

Judicial balancing, however, remains primitive in its analysis of facts. Too many instances of constitutional interpretation especially ones under a balancing approach fail to adequately explore and develop the facts. Judicial balancing often is not a detailed exploration into a problem, but an attempt by overworked judges to guess, hypothesize, and make policy from untested assumptions about the facts. While science and other fields advance by careful study of factual and empirical data, by constant experimentation and critical review, modern judicial review does not even begin to approach the task of fact finding with any degree of sophistication. All too often, judicial review is exercised as it was in Lochner, even in strict scrutiny cases, very little scrutiny actually goes on. Very often, the Court quickly strikes down a law without giving careful attention to the facts. The heart of the problem lies in a lack of methods and techniques of critical inquiry. This occurs not just in cases of deference, but in instances of heightened scrutiny as well. It is a problem that runs throughout judicial review.

Liberal theorists of judicial review should turn to the practical problems of the adjudicatory process. Instead of ignoring the justifications for deference, liberal theorists should engage them by exploring the potentialities and possibilities of the judiciary and by charting a course of systematic change. In addition, Congress must also become involved in working on these reforms. Lack of time and resources severely hampers most judges, and many of the tools necessary to grapple with these constraints are in the hands of the Legislative Branch. The time is long overdue for Congress to look to the topic of refashioning the adjudicatory process so that it is more capable of dealing with the complex problems it will face in the twenty first century.

The judiciary must also become actively involved in this endeavor. Although the Constitution is mostly silent on how cases ought to be tried, leaving much room for the judiciary to shape and alter the future of adjudication, fairly little has been done to reform the customs and techniques of adjudication. Change does not have to begin at the systemic level, as a massive all or nothing revamping of the entire structure of the judiciary. Meaningful change can occur quite rapidly if it is fostered in an attitude of pragmatic experimentalism. Individual judges can spearhead these efforts. Meaningful change does not require the unified action of the entire judiciary; it can begin with a small number of visionary and creative judges. For example, Justices Marshall, Cardozo, and Holmes each in their own way exerted a profound influence on the law, more than legions of other judges combined. Indeed, a single judge possesses the power to achieve lasting change — it takes only courage and creativity. Judge Learned Hand was among the first judges to hire law clerks. His idea was so bold and original that he initially experienced difficulty with finding clerks, and he even had to pay them out of his own pocket. It is this type of innovation and creativity that is necessary to achieve a pragmatic reconstruction of judicial review.

The judiciary must take steps to transform itself so that it can engage in a thorough critical inquiry into the complex empirical issues surrounding decisions made by experts in the bureaucratic state. To make such an inquiry, judges do not have to become social scientists. Critical inquiry into factual and empirical judgments does not mean number crunching or pouring over reams of data. Rather, it is a process of intelligent inquiry into the facts. It is developing methods of evaluation, of testing data, and of interacting with experience.

In short, my point is that today, we’re applying empirical, economic, and sociological methods to addressing legal questions. Constitutional adjudication, in the very balancing formulations of review, calls for factual and empirical analysis. And yet, courts seem trapped in the 19th century, with some modifications in the way they decide cases, but with remarkably little change. The answer isn’t deference. It’s to get into the 21st century . . . fast.