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Madison Lecture

In this speech delivered for the annual James Madison Lecture, the Honorable Diane Wood tackles the classic question of whether courts should interpret the United States Constitution from an originalist or dynamic approach. Judge Wood argues for the dynamic approach and defends it against the common criticisms that doing so allows judges to stray from the original intent of those who wrote the Constitution or take into consideration improper foreign influences. She argues the necessity of an “unwritten Constitution” since a literalist approach to interpretation would lead to unworkable or even absurd results in the modern context, and since restricting constitutional interpretation to literal readings would mean that the Constitution has outlived its usefulness. Judges may “find” unwritten constitutional rules by using evolving notions of a decent society to interpret broad constitutional language broadly; acknowledging that certain liberties are so fundamental that no governmental entity may deny them; acknowledging that much of the Bill of Rights applies to states through selective incorporation; and inferring principles from the structure of the Constitution and pre-constitutional understandings.

A New Judicial Remedy for Defective Agency Rulemakings

Once the D.C. Circuit has concluded that a rule promulgated by an agency is in some way arbitrary or capricious, the court has at least two options: It can either vacate the rule, or remand it to the agency without vacating it. In the latter case, the agency can continue to implement the challenged rule while revising its explanation to address the defects identified by the court. This Note analyzes the D.C. Circuit’s application of the remand-without-vacatur (RWV) remedy during the decade since the court articulated a generic test for its use. This Note argues that RWV is most justified in cases where the costs of vacating agency rules are particularly high, and where the benefits in terms of improving the agency’s decisionmaking process are minimal or nonexistent. Based on a survey of the rulemaking cases in which the court has applied RWV, this Note argues that while the test that the D.C. Circuit uses to determine the appropriateness of RWV is consistent with the theoretical underpinnings justifying the remedy, the court’s application of that test is frequently flawed. This Note also documents a response to RWV that is less than ideal; agencies generally respond slowly to RWV judgments, and occasionally do not respond at all. The Note concludes that, while the D.C. Circuit possesses adequate tools to counteract agencies’ tendency to ignore judicial decisions in individual cases, it has employed them too sparingly in recent years. This Note then develops a revised approach that would promote the remedy’s beneficial aspects while limiting its negative effects.

There seems to be a public perception that the members of the current, often divided, Supreme Court vote for partisan rather than principled reasons. As recent confirmation hearings have become more heated and polarized, this belief has only crystallized. In Active Liberty: Interpreting Our Democratic Constitution, Justice Stephen Breyer challenges this perception through a thoughtful discussion of the constitutional commitments that inform his decisions. This book does not provide a comprehensive theory of constitutional and statutory interpretation; rather, Active Liberty is important because in it, Justice Breyer gives the American public insight into the constitutional themes and values that he draws on when deciding cases. In particular, Justice Breyer focuses on one constitutional value that he believes has been underappreciated: a commitment to democratic participation and self-government which he calls “active liberty.” Although Justice Breyer recognizes that other constitutional values are important, he believes that active liberty should play a more prominent role in constitutional adjudication.

Madison Lecture

In the New York University School of Law’s annual James Madison Lecture, Judge Pierre N. Leval discusses the increasing failure of courts to distinguish between dictum and holding. Although not opposed to the use of dictum to clarify complicated subject matter and provide guidance to future courts, Judge Levalconsidered precedent. Judge Leval further argues that the Supreme Court’s new command in Saucier v. Katz that, before dismissing a constitutional tort suit by reason of good faith immunity, a court must first declare in dictum whether the alleged conduct violates the Constitution, is particularly ill-advised.

Why does the race of judges matter? This Note argues that racial diversity in the judiciary improves legal decisions about political morality. Judges play a substantial role in regulating our political morality; at the same time, race and ethnicity influence public views on such issues. In cases that involve difficult legal questions of political morality, judges should seriously consider all moral conceptions as potential answers. Racial and ethnic diversity is likely to improve the judiciary’s institutional capacity for openness to alternative views—not because judges of any given race will “represent” a monolithic viewpoint, but because of the likelihood that judges of a particular race or ethnicity will be better positioned to understand and take seriously views held within their own racial or ethnic communities. Judicial dialogue, taking place within appellate panels and across courts, serves to diffuse alternative viewpoints more broadly. Greater judicial willingness to consider disparate moral views should ultimately result in better decisions regarding political morality. Specifically, the judiciary may fashion new compromises to resolve political-moral dilemmas, judges and society may better understand the contours of such dilemmas, and the public may even arrive at new conclusions regarding basic questions of political morality.

Although stare decisis is a firmly established doctrine tracing its roots to fifteenthcentury English common law, the Rehnquist Court developed it in remarkable ways. The Court’s decisions effectively made liberty considerations an important stare decisis factor in constitutional cases. Where prior decisions took an expansive view of the liberty protections of the Constitution, they were more likely to be upheld, and vice versa. This Note analyzes this development, perhaps best exemplified by the differing outcomes in Casey and Lawrence, as well as its implications for the future jurisprudence of the Supreme Court.

What Professor William Eskridge once called “the new textualism” is not so new anymore. Statutory textualism has adherents on the Supreme Court, throughout the federal judiciary, and, increasingly, in academia as well. And almost all of them are politically conservative. Why is that true? This Note contends that it need not be. Taken at face value, textualism serves neither conservative nor liberal ends. However, those most closely identified with textualism—namely, Justice Antonin Scalia and Judge Frank Easterbrook—practice a form of textualism that creates institutional dynamics that tend to reconcile with a preference for limited government. Their textualism, which this Note dubs “clarity-driven textualism,” constrains the functioning of Congress, executive agencies, and judges in ways that make government hard to do: Statutes are hard to write, agencies have tightly circumscribed authority, and judges have few opportunities to exercise discretion. This Note argues that textualism alone will not necessarily produce these outcomes. By identifying how clarity-driven textualism departs from the bare requirements of textualism itself, this Note seeks to rescue textualism’s powerful interpretive approach from its current political entanglements.

This Note explores whether “constitutional default rules,” or judicially crafted constitutional rules designed to spur legislative action, can generate interbranch cooperation in the area of criminal procedure. The Note looks at two types of constitutional default rules—the “model” default rule and the “penalty” default rule—in theory and in practice, examining how the Court has employed such rules to generate a dialogue with Congress in order to implement constitutional rights. The Note argues that while there have been notable failures by the Court in using the default rule to elicit a rights-protective legislative reaction (namely, in the case of Miranda v. Arizona) under the right conditions, the constitutional default rule may still be a viable tool for spurring progressive legislative policy and reform of the criminal justice system.

This Article offers a new understanding of the dynamic between the Supreme Court and Congress. It responds to an important literature that for several decades has misunderstood interbranch relations as continually fraught with antagonism and distrust. This unfriendly dynamic, many have argued, is evidenced by repeated congressional overrides of Supreme Court cases. While this claim is true in some circumstances, it ignores the friendly relations that exist between these two branches of government—relations that may be far more typical than scholars suspect.

This Article undertakes a comprehensive study of congressional responses to Supreme Court tax cases and makes a surprising finding: Overrides, although the main focus of the extant literature, account for just a small portion of the legislative activity responding to the Court. In fact, Congress is nearly as likely to support and affirm judicial decisionmaking through the codification of a case outcome as it is to reverse a decision through a legislative override. To investigate fully the nature of congressional oversight of Supreme Court decisionmaking, this Article undertakes both qualitative and quantitative analyses of different types of legislative review of Supreme Court decisions—examining codifications and citations, as well as overrides, in legislative debates, committees, and hearings. The result is a series of important and robust findings that challenge and build on the Court-Congress literature, identifying the legal, political, and economic factors that explain how and why legislators take notice of Supreme Court cases.

The study reveals a complex and nuanced interbranch dynamic and shows that the Justices themselves affect the legislative agenda to a greater extent than previously understood. This result challenges scholars who have questioned whether the Supreme Court should have jurisdiction over complex issues, such as those in the economic context, in which the Justices may lack sufficient training. This Article argues that scholars have little need to worry about Court decisionmaking in these areas: Not only do legislators routinely review the Court’s decisions, but they also frequently confirm the outcomes as valuable contributions to national policymaking via the codification process.

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over the long term, these same experts (and their like-minded colleagues) hope to appeal to the recent findings of their discipline to embarrass, discredit, and ultimately overthrow retributive justice as a principle of punishment. Taken as a whole, these short- and long-term efforts are ultimately meant to usher in a more compassionate and humane regime for capital defendants.

This Article seeks to articulate, analyze, and provide a critique of this project according to the metric of its own humanitarian aspirations. It proceeds by exploring the implications of the project in light of the mechanics of capital sentencing and the heterogeneous array of competing doctrinal rationales in which they are rooted. The Article concludes that the project as currently conceived is internally inconsistent and would, if implemented, result in ironic and tragic consequences, producing a death penalty regime that is even more draconian and less humane than the deeply flawed framework currently in place.