Saturday, June 30, 2012

Experts & the Constitution

Last week I promised a post (the post, really) on the interplay between expert opinions and judicial opinions. Here you go.
First, a clarification: I'm not talking about expert witness opinion; I'm talking about expert academic opinion, particularly in matters of constitutional law. This has been on my mind since reading James Fallows's instantly infamous freak-out about how the Supreme Court was on the verge of completing a radical Republican "coup":
[A] Bloomberg poll of 21 constitutional scholars found that 19 of them believe the individual mandate is constitutional, but only eight said they expected the Supreme Court to rule that way. The headline nicely conveys the reality of the current Court: "Obama Health Law Seen Valid, Scholars Expect Rejection." 
How would you characterize a legal system that knowledgeable observers assume will not follow the law and instead will advance a particular party-faction agenda? That's how we used to talk about the Chinese courts when I was living there. Now it's how law professors are describing the Supreme Court of the John Roberts era.
Cynics often claim that the Constitution means whatever five members of the Supreme Court say it means. But Fallows's theory, apparently, is that the Constitution means whatever 19 out of 21 constitutional scholars say it means. In other words, it is emphatically the province and duty of constitutional scholars to say what the law is. This sounds familiar, but somehow not quite right.

The premise underlying Fallows's screed is that the only explanation for this discrepancy between what the scholars say and what the Supreme Court was (supposedly) about to say is that the conservative members of the Supreme Court are partisans whose mission is to "advance a particular party-faction agenda" rather than enforce the law. One wonders, though, about these experts, these constitutional scholars. It would be interesting to know how many of them voted for Barack Obama. Or how many of them have ever voted for a Republican in their lives. The answers to these questions could lead us in a chilling direction: could it be that these "knowledgable observers" prefer a particular party-faction agenda? Could it be that these academics are not actually saying what the law is, but rather opining about what they think or hope the law should be?

Shocking questions, I know. But if so, this could explain the mysterious refusal of the Supreme Court to simply defer to polls of constitutional scholars on questions of constitutional meaning.

Even if these constitutional scholars actually are superhuman neutrals on matter of policy who never engage in motivated reasoning, I question how much deference the Court (or anyone) should give to their "expertise." Exactly what does one do to gain expertise on constitutional law? Basically, you read a lot of Supreme Court cases and then come up with a theory to explain them. Until the Supreme Court comes out with more cases, when you have to adjust or scrap the theory to account for them. That's what the study of constitutional law is—theories to explain what the Supreme Court has done. Any constitutional scholar who claims to have a theory to explain what the Supreme Court will do (or worse, must do) is doing it wrong.  


  1. Question: What about stare decisis? Does not the principle of stare decisis make constitutional law an objective discipline about which a constitutional scholar can have an authoritatie opinion, within limits and without bias?

    As a mere lawyer, I need to have a workable opinion about what the law is, and stare decisis is one of the principles that allows me to have such an opinion. Constitutional scholars also ought to be able to have such objective opinions.

    The Court is not a super legislature. It is a Court of law and thereby ought to be bound by something beyond its own will. That something includes legal precedent.

    St. Thomas, whom I take as an authority, argued that law, to be law, must be rational, not merely an expression of sovereing will. Is not constitutional law also subject to this restraint?

  2. I agree that precedent is law, but:

    As I understand it, stare decisis is a very limited principle. It is expressly limited to holdings, and cannot be used to save doctrines or grand theories. For example, in my most recent post I make fun of Jeffrey Toobin for imagining a "Free Hand Doctrine"—the idea that the court has held that Congress has a free hand to regulate national economic matters under the commerce clause. While this is largely an accurate description of the overall result of a series of cases, there is no case that ever held Congress has a free hand in economic matters. Even if the Court had made such a statement, that statement would be dicta and therefore non-binding. In other words, it would not be precedent and the principle of stare decisis would not apply.

    At the Supreme Court level, stare decisis is a principle that discourages (but does not prohibit) overruling precedent. The Supreme Court is actually very rarely in a position to do overrule its own cases, because holdings can usually be narrowly construed. But precedent is not binding on the Supreme Court in either theory or practice.

    That said, no one seriously argued that any precedent had to be overturned in order to find the individual mandate beyond Congress's power under the commerce clause. And, in fact, five justices did find it beyond the commerce clause without overruling any cases, and Justice Ginsburg's opinion makes no mention of stare decisis or directly contrary precedent.

    Ultimately, resting an academic career solely on stare decisis would be very boring. It would amount to, "This case held this; that case held that." Unsurprisingly, this is not what scholars do. They take these holdings and spin grand, predictive theories out of them. That is a lot more interesting, but I do not think there's any justification for thinking these theories are actually objective law. They may well be, and often are, persuasive about what the law ought to be, but they are not actually explicating the law.

    Perhaps St. Thomas would disapprove of our legal system, but I think it works out alright. I agree with him, and you, that law should be rational. Our written constitution and written opinion give us some decent common ground to reason from, but there is much in reasonable dispute. As long as these decisions are rationally defensible (as they uniformly are) and are decided by rational procedures (as they are), I think they deserve the name law.

  3. Here is an interesting post to consider when thinking about the binding effect of precedent as law:


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