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Wednesday, Dec. 27, 2000

For roughly the last century, an academic debate has raged over the nature of judicial decision-making. The radicals in this debate argue that there is, at bottom, no distinction between law and politics. They have scored important partial victories — for nearly everyone now concedes that, at least in close cases, a judge's philosophy and values play an important role. However, mainstream legal thinkers have, until now, resisted the effort to collapse the categories of law and politics completely.

The widespread perception that the Supreme Court acted politically in Bush v. Gore appears to be an important victory for the radical position. If the highest court of the land cannot rise above partisan political divisions, then, many observers may conclude, there really is no difference between law and politics; they are one, just as the radicals have always contended.

But that conclusion would be wrong. Ironically, the very fact that the Court's decision in Bush v. Gore appears "political" — indeed, more political than any other decision in recent memory — only confirms the existence of the law/politics distinction. If law were just politics, it would be meaningless to criticize a judicial decision as political, and all the Court's decisions would seem equally "political" to observers.

Of course, many issues that are hotly debated in the political arena also become legal issues for resolution by judges — and many of the arguments made in the political forum are also made in the judicial forum. Yet it hardly follows from this overlap that every judicial decision is simply a political one. Judges are bound by legal texts and their own prior precedents to a degree that political actors are not. And crucially, judges have an obligation to explain their results as the product of legal judgment. Thus, law and politics are neither completely distinct nor indistinguishable.

The Law/Politics Debate Begins: Legal Realism versus Formalism

To understand the likely effect of the Bush v. Gore decision on future understandings of the law/politics distinction, let us consider a very abbreviated summary of the history of the jurisprudential debate about whether such a distinction exists.

Until roughly the beginning of the 20th century, the dominant legal philosophy in the United States was formalism. Formalists believed that the application of legal principles embodied in statutes or prior precedents was a largely mechanical enterprise. The decision in any given case, formalists asserted, was a straightforward matter of discerning the meaning of words, aided by canons of construction (interpretive rules, developed over history, by which legal sources are construed) and other neutral tools.

Formalism still has its champions, the most prominent of whom is Justice Antonin Scalia, who is fond of quoting dictionaries in his quest for the "plain meaning" of statutes and constitutional provisions. And it was formalism's vision of the judge as blank slate that Justice Clarence Thomas invoked when he said during his confirmation hearings that upon taking his seat on the bench, he would "strip down, like a runner, to eliminate ideologies."

But despite these well-placed defenders, formalism has been in decline for nearly a hundred years. In the first half of the 20th century, an alternative philosophy known as legal realism emerged to challenge formalism. One familiar formulation of legal realism asserted that what the judge happened to have for breakfast on any given day was as good a determinant of his decision in a particular case as was anything found in the law books. More generally, legal realists argued that legal interpretation is not a neutral, mechanical process but a subjective, human one in which the judge's beliefs, values, and politics come into play.

Today, this claim may seem obvious to the point of banality, but it was not until roughly the middle of the 20th century that most mainstream legal thinkers accepted the legal realist critique of pure formalism. Accordingly, legal scholars and theorists with widely divergent views now generally acknowledge that constitutional provisions, statutes and precedents typically leave gaps that must be filled by judges, and that judges with different values and philosophies will fill those gaps differently.

Does that acknowledgment imply, as well, that law is simply politics? That was the next hotly debated theoretical question.

The Legal Process School Offers a Resolution to the Debate

Even as mainstream lawyers, judges, and academics accepted legal realism's critique of formalism, they resisted the claim of some radical legal realists that law is just politics. In the 1950s and 1960s, the legal process school of thought attempted a synthesis of the different, warring philosophies.

According to those in the legal process movement, the fact that the law leaves gaps provides a reason to be careful in the allocation of power among the legislative, executive, and judicial branches. Within that careful allocation, the judge's role is to follow the law as best as he or she can — but the "best" interpretation of the law, the legal process school conceded, may vary somewhat from judge to judge.

Like Bismarck or Clinton, mainstream legal thought defeated the radical vision of the opposition by co-opting its most attractive features. The legal process school rang true with experience, as realism had — for it acknowledged that reasonable judicial minds could differ. But it also held out the hope that judges might operate within some degree of constraint, and within a limited sphere of power.

The Debate Continues: Critical Legal Studies Offers an Even Harsher Realism

The debate did not end with the legal process school, however. By the 1970s, the heirs to the radical branch of the legal realist tradition had reformulated their position through the critical legal studies movement (also sometimes referred to by the acronym CLS).

Where legal realism had emphasized the indeterminacy and potential arbitrariness of judicial decision-making, critical legal studies focused on politics. The "crits," as they were known, reveled in demonstrating how throughout American history, judges had resolved ambiguities in the law by rendering decisions that served the interest of the dominant social class — or, at least, the political values held by the particular judges on the bench.

Critical legal studies reached its peak of influence during the 1980s, when several high-profile tenure battles at leading law schools — in which the value of the work of professor who were identified as "crits" was hotly debated — were taken as microcosmic enactments of the larger war over the nature of law. Law schools that denied tenure to (some) crits on the basis of criteria susceptible to manipulation opened themselves to the accusation that they were no different from courts that invoked formally neutral criteria in the service of a political agenda.

But this tendency for self-absorption prevented CLS from attracting adherents outside the academy. And within the academy, the CLS movement waned because the crits never developed an affirmative program of their own, to explain how legal interpretation should be conducted if it really was merely political. As a result, the critical legal studies movement ran out of steam by the late 1980s.

At the same time, though, the CLS movement spawned successor movements like critical race theory and critical feminism, which emphasized the role racial and gender concepts played in the law. In the end, however, these two schools of thought owe more to the civil rights movement and the women's movement, respectively, than they do to critical legal studies.

Indeed, to the extent that critical race theory and critical feminism endorse the idea that rights are meaningful legal concepts that can advance equality, rather than merely the political tools of special interest groups, these schools of thought are in some tension with CLS. Consequently, the crits' most radical claim, that law is simply politics, has remained largely a fringe view.

Will Bush v. Gore Revive the Radical View


So matters stood until the Supreme Court decided Bush v. Gore. In that decision, the Court's most conservative Justices announced an interpretation of the Equal Protection Clause so broad that if generally applied, it would sweep aside election procedures for nearly every office in a majority of American states. At the same time, the Justices refused to consider the consequences of their sweeping decision for any other circumstances, thereby suggesting that the principle announced would not be generally applied, but would be arbitrarily limited to the facts of the Bush-Gore election.

The inconsistencies go on. Most of the conservative Justices' opinions attacked the Florida Supreme Court's interpretation of Florida law, refusing to defer to it. But on the crucial question of whether a recount could proceed beyond December 12, these Justices suddenly, arbitrarily chose to defer to the Florida Supreme Court.

Even worse, the one Florida Supreme Court decision to which the conservative Justices deigned to defer was a decision that court never actually made. According to the anonymously authored 5-4 opinion of the Court, the Florida Supreme Court said that the legislature would prefer meeting the December 12 deadline (for avoiding a challenge to electors in Congress) to obtaining an accurate vote count. Yet the Florida Supreme Court had said no such thing.

The astoundingly unpersuasive reasons given by the Supreme Court for its decision in Bush v. Gore have led many observers to conclude that the Justices were (at least subconsciously) voting on the basis of their political views, rather than the legal arguments. And if that is the best account of this most supremely important Supreme Court decision, then one might wonder if perhaps the crits are right after all — there is no distinction between law and politics.

Bush v. Gore

is Different and in the End, Rebuts CLS

Nonetheless, Bush v. Gore feels different from other cases. For one thing, to even seasoned observers, it feels surprising. If law were really always just politics, as CLS claims, there would be nothing at all surprising about either of the Court's two decisions

— first to stay the manual recount and then to prevent further recounts. Yet many observers quite familiar with the Court's workings (myself included) were stunned by those decisions.

Of course, these subjective reactions do not prove anything. It is possible that prior to Bush v. Gore, we were in a state of denial about the true nature of judicial decision-making. Now that we have been shown the light, will we give up our former delusions, or will we, like Plato's cave dwellers, cling to them and mock those who speak the truth?

In this instance, I shall cast my lot with the troglodytes. Bush v. Gore not only feels different; it is different. To be sure, we have numerous instances of Justices acting inconsistently from case to case. Most prominently, the Court's conservatives attack judicial activism in the service of reproductive rights, gay rights, and church-state separation while practicing judicial activism in the service of states' rights, color-blindness, and associational freedom. And the liberals practice judicial activism in cases involving the first set of issues while attacking it in cases involving the second set.

But it is at least possible to articulate a vision of the Constitution that sanctions greater judicial solicitude for one constellation of values than for another. By contrast, in Bush v. Gore, one senses the Justices straining legal logic not in the service of a larger constitutional vision, but in the service of a particular candidate for office.

Many difficult questions of constitutional law have no single obviously correct answer. Should the limits on Congress's power be enforceable by courts, and if so, what are those limits? Do courts have the power to enforce rights not expressly spelled out in the Constitution's text, and if so, what rights? (The right to choose abortion? The right to exclude homosexuals from private associations?) Does affirmative action remedy violations of the Equal Protection Clause, or violate it? In the wake of legal realism, it would be foolish to suggest that anyone could answer such questions without relying in some measure on his or her own somewhat subjective value judgments.

Yet, as I often tell my students as they are studying for exams, the fact that a question has no single right answer does not mean that it has no wrong answers. In denying the crits' claim that law is just politics, mainstream legal thinkers maintain that constitutional provisions, statutes and precedents rule out certain results, even as they leave open a range of legitimate results. The constitutionality of affirmative action and school vouchers are open questions; the constitutionality of slavery and an official church of the United States are not.

The problem with Bush v. Gore is not that the Court made a poor choice among a range of legitimate options. The problem is that the Court appeared to choose a result from completely outside that range. For this reason, the case will likely stand as an exception to the usual form of judicial decision-making, rather than an archetypal example of it.

Michael C. Dorf is Vice Dean and Professor of Law at Columbia University. He and Charles Sabel are currently working on a book, to be entitled Democratic Experimentalism.

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