5.11 Rights: appendages of government structures

(Eleventh in series: The interpretation of statutes and the denial of judges' powers.)

If the drift of constitutional construction conforms to the structural blueprint, then what about protective, as opposed to structural, constitutional doctrines? The constitutional blueprint describes much more than government structure, but if checks and balances lies deep within a constitutional blueprint that emphasizes the division of powers between government branches, then civil rights come to comprise an aspect of the structural division of powers. Regardless of "original intent," interpretation will drift toward a structural alignment between rights and governmental branches, exercise of some rights strengthening one branch and diminishing another; the reverse for other rights. Some easy examples: the writ of habeas corpus strengthens the judicial branch and checks the executive branch; procedural due process checks both the executive and judiciary and strengthens the legislature.

Free speech at first blush seems less amenable to a structural interpretation, but the apparent complexity comes from the two separate free-speech components, each playing a different functional role. Restricting free speech means both regulating the viewpoints expressed (content restriction) and regulating the amount of speech allowed (time-place-and-manner restriction). Power's Congressional exercise depends on public opinion, as monolithic swings enhance the legislature's ability to act. Viewpoint discrimination preserves a monolithic public, as is in the legislative interest. Interpreting the First Amendment as primarily against viewpoint discrimination is encouraged by the First Amendment's targeting Congress for its directive: "Congress shall make no law ... abridging the freedom of speech ..." While Congress instinctively favors viewpoint discrimination, Congress naturally opposes restrictions decreasing the quantity of speech. A huge volume of speech nourishes the swings of unified opinion that empower Congress. The threats to speech quantity come primarily from the executive branch, too much speech upsetting administrative quietude.

A system of checks and balances gives rise to checks nested within other checks, division of the legislature into two houses a high-level example. In smaller grain, the same regulatory system emerges for the exercise of rights themselves, one right checking another. Although First Amendment law isn't cast in the form of a balancing test, the reigning clear-and-present danger test essentially involves balancing.

5.10 Against the writ of certiorari

(Tenth in series: The interpretation of statutes and the denial of judges' powers.)

Let's apply this theory of constitutional interpretation to the modern problem of nonprecedential opinions: oppositionists interpret the judicial power, limited to cases and controversies, as excluding the right to choose which cases make law. To apply the structure-function theory, first evaluate the interpretation for fit with the separation of powers and the system of checks and balances. The separation of powers departmentalizes the major government functions; so the interpretation offered strengthens separation of powers by drawing a firmer line between judicial and legislative functions. Giving government branches certain contrafunctional duties furthers the system of checks and balances, but checks and balances, partly countervailing against separation of powers, is harder to assess. The checking power must facilitate the intruding branch's stymying of other branches but not initiating their functions. The power to choose which cases are precedential is suitable for fostering an independent judicial agenda, not well tailored to block those of other branches: think of the presidential veto or congressional ratification of presidential appointments.

Nonprecedential opinions violate a core structural feature of the U.S. Constitution, but criticism hasn't been influential among most judges. To assess the practice's durability under the structure-function theory, you must also consider how far our other norms depart from constitutional blueprint. If even without the distortion introduced by nonprecedential opinions, the judiciary still assumes legislative functions, the pull toward reforming the practice diminishes. Seemingly unnoticed by the critics of unpublished opinions, the judiciary's usurpation of legislative functions long predated nonprecedenntial opinions. A still more important deviation from norms occurred when the Judges Act of 1925 gave the U.S. Supreme Court the power to choose its cases.

Case selection invokes a legislative function in the same way as nonprecedential opinions; choosing which cases to review is even further removed from deciding cases and controversies than deciding which cases to publish. The legislative nature of nonprecedential cases may seem greater because delaying the decision allows the court to base precedent creation on firmer nonjudicial information. Although the court must decide before hearing the case, and it doesn't know how the case will go, the appellate courts do well in prediction. The U.S. Supreme Court reverses 75% of cases it selects for review, a good percentage if the court wants to make law. When a court selects its cases, it makes a restrictive legislative selection without even hearing the other cases.

Little fanfare accompanied huge change introduced by the Judges Act, which Chief Justice William Howard Taft pushed for efficiency's sake. Lawyers missed the judicial-expansionist nature of the writ of certiorari because the Supreme Court was almost unreservedly popular during this politically reactionary era, and commentators viewed the Judges Act as decreasing the Supreme Court's power, Taft hardly being an "activist." The Judges Act of 1925 gives opponents of the political power of unrepresentative officials today an obstacle and an avenue seldom mentioned. Congress should strip the Supreme Court of its power to select cases. Limiting Supreme Court review to cases which show a conflict between federal circuits is one alternative, provided the Supreme Court must review all conflicting cases where a party appeals from the Court of Appeals. The Supreme Court's power to select cases for review burdens democracy at the same time as it conflicts with constitutionalism. Politicians who tempt Supreme Court justices to exercise legislative power while criticizing them for pursuing a political agenda act as ineffectually or hypocritically as U.S. bank regulators.

5.9 The common law of statutory and constitutional construction

(Ninth in series: The interpretation of statutes and the denial of judges' powers.)

Can we really avoid a deliberative theory? Perplexity comes from the apparent incoherence of interpretation without defined constraints. "What are we searching for when we construe a statute [or a constitutional provision]," asks Justice Scalia in Common-law Courts in a Civil-Law system: The Role of United States Federal Courts in Interpreting the Constitution and Laws. From the perspective of a legal formalist like Justice Scalia, the absence of an ultimate objective — of the whole point of the interpretive enterprise — is deeply disturbing and fatal indictment of contemporary jurisprudence.

Justice Scalia claims that the common law method of developing the law is restricted to certain traditional fields like torts, contracts, and property. The common law has become irrelevant to the bulk of legal rules, and, today, the courts must construe statutes, instead of creating rules of law in common-law fashion. Even assuming the dubious notion of statutory interpretation without rule creation, Justice Scalia refrains from analyzing interpretive-principle creation — whether canonical or local, express or tacit.

Justice Scalia and most theorists ignore the ongoing common-law evolution of interpretive rules because they think interpretive principles and small-scale inference patterns don't bind as precedent, but terming the interpretive methods narrow, fact-specific, and defeasible would be more precise than terming them nonprecedential. Commentators who say interpretive methods lack even subjective precedential force conceive "methods" broadly, as though these must apply with the same scope as deliberative theories of interpretation, like Interpretivism and Originalism: theories that describe process, rather than outcome.

The deliberative theories bear the same relationship to narrow-scope and defeasible principles of interpretation as statutory law bears to the common law. Both replace tentative standards amenable to piecemeal evolution—having determinate rules and a reliable evolutionary mechanism—with a method perfectible in principle and dependent on consciously taken singular acts, which are sometimes broad in impact. Justice Scalia, exponent of codification, is consistent in also embracing the interpretive analog of codification, broad deliberative theory of interpretation; but the principles of statutory and constitutional construction are subject to common-law development because most judges resist interpretive theories.