Author: David Fontana

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Thank You

My month here has come to an end; thank you to everyone for your interesting comments and questions!

David

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The Supreme Court and Docket Control

Perfect timing! I was going to write a post this morning about the Supreme Court’s docket, and then Linda Greenhouse writes a story in today’s New York Times about the decreasing frequency of 5-4 decisions in the Supreme Court and possible explanations for this decrease. She mentions several explanations, but misses one big one: the changing nature of the Supreme Court’s docket. The Supreme Court takes many fewer cases, and many fewer controversial cases, than it did years ago.

The nature of the Supreme Court’s docket, and what that means for the Court as an institution, is an important issue. In common law jurisdictions such as the United States, it is much more common for the highest court dealing with constitutional matters (e.g., the Supreme Court of Canada, the House of Lords in Britain) to have broad control over its docket–and decide fewer cases as a result–than in civil law jurisdictions.

There are many reasons to explain the difference between docket control in common law and civil law constitutional courts, but of greatest concern to me is what this means for the role of the highest court in a common law system. It means that the highest court can decide what cases to decide, and can do so almost unilaterally, because legislatures have granted more control over dockets to these highest courts, and it does not seem that this will change in a massive way any time soon. When the highest court makes a controverial decision–let’s say Hamdan, for instance–scholars and newspapers cover it, members of Congress debate it and pass legislation in response, and so on. There are practical checks on the Court. But what about when the Court decides not to decide a case? You can only write so many law review articles or op-eds about denials of cert. There are many fewer, if any, practical checks when highest courts decide not to decide.

This is why I have always thought that Frederick Schauer’s Harvard Law Review foreword in 2006 was so compelling. Even apart from whether citizens like what highest courts do, or whether they comply with the decisions of highest courts, it seems just as important that the highest courts of most common law countries only rarely decide issues of great importance because of their ability to duck important cases. This might be as good an explanation as any as to why highest courts remain so popular in so many democracies–they decide very few relevant cases.

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When Political Figures Reject Constitutions

With all of the discussion about the rise of constitutions around the world, we might sometimes forget that political figures reject constitutional options in favor of other forms of entrenchment. In the United States, for instance, we know that the Civil Rights Act and the Administrative Procedure Act are functionally constitutional, but formally statutory, and that there was at least some discussion of pushing for constitutional change in those situations, but the statutory option was considered a better choice. In my research for my government in opposition project, I have found that many political coalitions actually preferred having their relevance ensured not through constitutional provisions, but through legislative or other sorts of rules that guaranteed them certain positions of power in the various branches of government.

One interesting research question is why political figures might reject constitutions in favor of other forms of protection. The obvious answer is that constitutional change is usually harder to achieve, and that certainly explains the strategic decision to pursue change through non-constitutional means in many situations. But what might be some other reasons? My initial reaction based on my research is that some political figures might be skeptical of constitutional rules because they see them as rules to be enforced by judges appointed by triumphant political figures, while the enforcement of other sorts of rules might be less tied to who wins elections.

This is an important question for the study of constitutions. The seemingly universal academic consensus is that constitutions are spreading around the world, but there is also a tide of rejection of constitutions.

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Constitution-Centrism in Positive Theory

Over the past several decades, there have been two central areas of focus for American constitutional scholarship: the singular, written constitutional document, and then the courts that interpret that singular document. The movement widely known as “popular constitutionalism” has started to turn the focus away from the courts part of that equation, either on historical grounds (e.g. Larry Kramer) or normative grounds (e.g. Mark Tushnet, and Kramer too, incidentally). But the move away from having constitutional scholarship focus only on the singular written constitutional document has been slower.

There has been progress in this area recently. The Holmes Lectures that Bruce Ackerman gave at Harvard–which form part of the foundation of Volume 3 of We the People–focus on statutes which might achieve a constitution-like status. William Eskridge and John Ferejohn have turned their article from a few years ago on “super-statutes” into a book. And Ernest Young had an article published this past spring about foundational commitments besides the Constitution–as he calls it, the “constitution outside the constitution.” These are just a few examples

For my latest project, called “Government in Opposition,” though, I have been struck by how little ideas about forms of entrenchment beyond constitutions have made an impact in some areas of scholarship. My article is about how many countries, particularly in the past 40 years or so, have started to mandate that opposition parties occupy governing positions–that they chair legislative committees, occupy cabinet positions, appoint judges, and so on. Part of my project is to explain why and how these government in opposition regimes came to exist. And, naturally, I have been reading much of the literature about the origins of constitutions.

One theory of the origins of constitutions is that constitutions function as a form of insurance to ensure political parties that fear that they will be out of power that their rights and powers will still be protected once they are out of power. There are obvious questions about this theory–why would judges appointed by a new majority protect the rights of the old majority and current minority?–but what I have been writing about is how many declining political factions looked not to constitutions as forms of insurance, but to government in opposition regimes. Constitutions, according to these declining political majorities, were extensions of majorities, enforced by majority-appointed judges–while government in oppositon regimes were self-enforcing, and ensured that even once these declining majorities were out of power they could still be relevant, but without requiring any majority intervention (such as judicial review).

In doing so, these declining majorities that I am writing about often explicitly, if not implicitly, rejected constitutions as insurance, in favor of government in opposition regimes. So why is the focus in so many of these positive, explanatory accounts still on constitutions as almost the sole form of insurance? I suspect that people writing in cognate fields could think of other examples of a still-excessive focus on constitutions to the detriment of other forms of foundational commitments.

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Remember Bush v. Gore

When Bush v. Gore was decided in December of 2000, everyone thought it was a hugely significant case. But was Bush v. Gore a significant case after all?

When the votes were actually counted, after the fact, they showed that Bush would have won anyway. Nearly eight years later, it is safe to say that the case has not generated a jurisprudential revolution, even though a panel of Ninth Circuit judges tried to stop the California recall election by relying on Bush v. Gore, only to be overturned by an en banc panel of the Ninth Circuit. The Supreme Court has not cited the case at all, as far as I know, since Bush v. Gore was decided. Indeed, it is hard to imagine a constitutional law case decided in the past eight years that has been referenced less than Bush v. Gore has been referenced.

Many predicted that Bush v. Gore would undermine public support for the Court. Justice Stevens wrote in his dissenting opinion that “[t]ime will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Most of the studies of which I am aware show that Bush v. Gore has not, over the longer term, affected the Supreme Court’s image in the public eye. Some studies show that there were short-term effects, but other research has demonstrated that over the longer-term the image of the Court has not been affected. If anything, some research has shown that public knowledge of the Court has increased, which is probably a good thing.

There is evidence that, consciously or not, law professors have tended to regard Bush v. Gore as not too big of a deal. As I taught my first Constitutional Law class this past year, I was shocked to see that Bush v. Gore was not even excerpted in the casebook I used, and was only referenced in passing in a few places.

But still, it HAS to be a big deal for the Supreme Court to intervene and essentially decide a presidential election. The case might not have made a big difference in measurable ways–or at least the measurable ways mentioned above–but when a court intervenes in that way, it has enormous symbolic importance in a democracy. So, even though Bush v. Gore does not affect any of the doctrinal issues in the (structural) constitutional law class, I assign excerpts of the case, for reasons of cultural literacy.

What do others do? I have not surveyed all of the casebooks, but my sense is that the casebook I used was not alone in not paying too much attention to the case. Do people assign this case? In what part of the class?

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Princeton and the Behavioral Revolution

What is happening at Princeton University? My sense of this is not exactly systematic, but it is real–Princeton’s political science faculty seems not to have become capture to many of the methodological features of the behavioral revolution that have captured many of the political science departments of other universities, at least when it comes to the study of law and courts.

Consider, first, that Princeton’s political science department is called its Department of Politics rather than its Department of Political Science. At the time when the behavioral revolution (or more exactly, the attitudinal revolution) was initially sweeping political science studies of courts, Princeton had the interdisciplinary but not really deeply attitudinal Walter Murphy (who in many ways followed in the steps of Edward Corwin). Now, Princeton has had on its politics faculty in recent times Gary Bass, Christopher Eisgruber, Kenneth Kersch, Andrew Moravcsik, Kim Lane Scheppele, Anne-Marie Slaughter, Keith Whittington, and Jennifer Widner–all writing about courts and law, one way or another.

All first-rate scholars, but none really behavioralists. Compare this to the approach to courts and law of other elite political science departments, where scholars either ignore courts altogether (if Cindy Skach does not count, then Harvard has not really had a judicial politics scholar since Martin Shapiro left) or study courts as behavioralists. And even departments that have judicial politics scholars do not have as many as Princeton has now and has had in the past.

I cannot admit to as much knowledge about Princeton’s other departments, so I wonder if this is true of their other departments, and what explains these (notable) dissents from behavioralism in their political science department and potentially other departments…..

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The (Contemporary) Godfather of Comparative Constitutional Law?

Everyone probably has their list of most underrated legal scholars. At the top of my list would stand Alec Stone Sweet. I have never met him, never taken a class with him, and wouldn’t recognize him if he walked into the GW faculty lounge on Monday. But I think his work is enormously important, and enormously good.

I say this for two reasons. First, he reestalblished a dormant field of legal scholarship, comparative constitutional law. I have written before about how comparative constitutional scholarship was a vibrant subject of academic writing for much of the history of American scholarship. This was true in the early years of political science, and in the eary years of constitutional scholarship. But in many ways it died down. Stone Sweet’s book on judicial politics in France was published in 1992, right around the time that scholars were becoming interested in comparative constitutional issues again (with the recent collapse of the Soviet Empire and the creation of new constitutions in Central and Eastern Europe), and his other writings around that time serve in many ways as the first generation of recent scholarship on these issues.

Second, his writings are part of increasingly important positive accounts of judicial behavior. He has written pieces about how courts come to exercise power, how they operate in different systems of judicial review, and so on. Again, these articles were part of the first generation of recent scholarship on another important area, positive political theory.

Yet, for some reason, when I mention his articles to many who write on constitutional issues, his name is not known to them. This is a shame.

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What is Comparative Constitutional Law?

Much of my blogging this next month will be about the field of comparative constitutional law. What is the field? What projects are people working on in the field? What does it matter?

For now, though, I wanted to write one brief thought that has occurred to me as I have taught my comparative constitutional law class at GW the past two spring semesters: Is comparative constitutional law just an example of constitutional theory or constitutional design?

Some parts of comparative constitutional scholarship help us understand a particular country more, perhaps. So, if you have something interesting to say about the German Basic Law, that might help us understand Germany a little more than we did previously. This is particularly so if perhaps we compare the German Basic Law and the American Constitution, assess their differences, and through this assessment we gain a better understanding of both countries.

But part of what comparing constitutions does is force us to ask first-order questions about constitutions–what they are and what they should do. If one country uses abstract review, and one country uses concrete review, we can compare their experiences, and see how different systems of judicial review operate, which countries each system works best for, and so on. This is partly about comparing countries, but just as much it is about having more data points about how different constitutional regimes work. There is nothing necessarily “comparative” about this–perhaps, then, there is just something more systematic about it than other forms of scholarship, and that might be what comparative constitutional law can contribute to constitutional scholarship–a more empirically informed version of answering some of the same questions.

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Thank You

Thank you to Dan for his very kind introduction, and for giving me the opportunity to blog here for the next month. I hope to talk about a bunch of things, from the Supreme Court in the war on terror, to a few recent developments in comparative constitutional law, to a host of other topics. I hope it is a fun month!