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CONSTITUTIONAL LAW, MORAL JUDGMENT, AND THE SUPREME COURT AS SUPER-LEGISLATURE

Brian Leiter*

[email protected]

February 27, 2015

an earlier version was presented as the 24th Mathew O. Tobriner Memorial Lecture in Constitutional Law,

University of California, Hastings College of the Law, San Francisco, January 12, 2015

I propose to defend and explore three claims in this lecture. First, there is very little actual “law”

in federal constitutional law in the United States, especially with respect to cases that end up at the U.S.

Supreme Court: there, the Court operates as a kind of super-legislature, albeit one with a limited

jurisdiction. The jurisdiction is limited in two important ways: first, the Court can only pass on issues

that are brought before it; and second, the Court is constrained, to some extent, by past decisions of the

Court and by Constitutional and legislative texts. The problem, however, is that the constraints

underdetermine the Court’s decisions in most cases, so the Court essentially makes its final choice

among the legally viable options based on the moral and political values of the justices, and not simply

on the basis of legally binding standards. The latter claim is, in part, a jurisprudential thesis about what

counts as “legally binding standards,” one that I shall defend by reference to the most plausible account

of the nature of law, the legal positivist theory developed by H.L.A. Hart and Joseph Raz. Second, the

absence of law in so many parts of federal constitutional law means that the quality of moral and

political judgment exercised by judges is of decisive importance in how they fulfill their role and thus

should be the overriding factor in the appointment of federal appellate judges, especially Supreme

Court Justices. That brings me to my third claim, namely, that all political actors know that the U.S.

Supreme Court often operates as a super-legislature, and thus that the moral and political views of the

*Karl N. Llewellyn Professor of Jurisprudence and Director of the Center for Law, Philosophy, & Human

Values, University of Chicago. I am grateful to Aziz Huq and Nicholas Stephanopoulos for very helpful and detailed comments on an earlier draft; to Will Baude for additional feedback on that draft; to Mike Seidman for shrewd and illumianting advice on the penultimate draft; and to Phil Smoke, University of Chicago Law School Class of 2015 for excellent research assistance. Finally, my thanks to the audience at the Tobrine Lecture, and especially Judge Joseph Grodin for a helpful correspondence aftewards.

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Justices are decisive criteria for their appointment. This almost banal truth is, however, rarely discussed

in the public confirmation process, but is common knowledge among political and legal insiders. To be

sure there is media speculation about the political predilections of the nominees, but their actual moral

and political views are treated as off limits in the real confirmation process. This anti-democratic

secrecy is, in my view, deeply wrong and must be replaced with a realistic acknowledgment of the role

of the Supreme Court as a political actor of limited jurisdiction. I will illustrate these claims by discussing

a number of important public law cases, recent and not-so-recent.

What does it mean to say there is very little “law” in American constitutional law? That requires

us to have some view about what it means to say law exists, and so I must begin with some discussion of

basic jurisprudential questions. I will here follow the most promising theory about the nature of law,

the legal positivism of H.L.A. Hart and his student Joseph Raz.1 Let us start with some terminology.

Human societies are awash in norms, by which I mean demands of the form, “You ought to do X” or

“You ought not do Y.”2 Some norms are merely norms of etiquette: for example, “You ought not talk on

your cell phone during the lecture” or “You ought not talk with your mouth full at the table.” Others are

norms of prudence or self-interest: “You ought to attend class, lest you fail the exam!” Some are moral

norms: “You ought to consider how your actions will affect the well-being of others.” And some are

norms of the legal system, for example, “You ought not go faster than 55 mph on the highway.” The

categories are not mutually exclusive: sometimes moral norms (e.g., “You ought not murder innocents”)

are also legal norms, and sometimes norms of prudence are too (e.g., “You must wear a seatbelt while

driving”). Norms of etiquette are rarely legal norms, many moral norms are not legal ones, and many

legal norms are not ones we think of as representing moral or ethical obligations (we don’t think the

1On legal positivism, see Brian Leiter, The Case for Legal Positivism as an Account of the Artefact Law, in

[TITLE OF BOOK IN LARGE AND SMALL CAPS] [page number at which your article begins, if available] (L. Barazin & K. Himma eds., forthcoming).

2There are many other kinds of norms, for example permissions: “You may do X.” I use deontic norms as the central case.

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English are immoral for driving on the left rather than the right, but we recognize they have a legal

obligation to do so). The jurisprudential question is: how do we mark the difference? And the legal

positivist answer is: norms are legally valid—that is, norms of the legal system—in virtue of satisfying

criteria in that system’s “rule of recognition” as Hart called it. A rule of recognition specifies the criteria

in virtue of which particular norms are taken to be norms of the legal system. Such criteria can include

legislative enactment, executive orders, judicial decisions, and so on.

Rules of recognition in modern legal systems are, admittedly, complex. Consider: a norm is a

valid norm of the California legal system if it has been enacted by the California legislature and signed by

the Governor, and has not been deemed unconstitutional as a matter of state or federal law by a state

or federal court and has not been preempted by a constitutional federal law; a norm can also be a valid

norm in the California system if it has been enacted by the U.S. Congress and signed by the President,

and has not been deemed unconstitutional by the U.S. Court of Appeals for the 9th Circuit or by the U.S.

Supreme Court; a norm can also be a legally valid norm in the California legal system if it figures in the

holding of a California court that has not been reversed by a higher California or federal court; and so

on. This omits executive orders and administrative rulings, also subject to various kinds of judicial

review.

A good part of legal education is education in the rule of recognition of one’s legal system,

although it is rarely denominated as such in the law school classroom. But what makes it the case that

California’s rule of recognition is what it is? H.L.A. Hart’s great insight was that, at bottom, legal systems

rest upon nothing more than a conventional practice of officials, notably judges. The California

Constitution is a binding norm of the California legal system only because judges in California treat it as

binding on their decisions; so too with the Federal Constitution, and so too with legislative enactments,

administrative decisions and the like. That a rule of recognition exists, and that it has the particular

content it does, depends entirely on officials converging on certain criteria of legal validity and on their

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treating such criteria as obligatory or binding—accepting them from an “internal point of view” as Hart

famously said. That they converge on certain criteria is an empirical question, manifest in their decisions

and sometimes the reasons given for them; that they treat such criteria as obligatory is manifest in their

language and their behavior: for example, in their willingness to criticize other judges who depart from

those criteria, and in the language they use to justify their own conduct.

A wonderful example of Hart’s point comes from the case of Chief Judge Roy Moore of the

Alabama Supreme Court, who in 2003 refused to abide by a decision of the U.S. Court of Appeals for the

11th Circuit that the presence of a statue of the Ten Commandments in the Alabama Supreme Court

building violated the Establishment Clause of the U.S. Constitution.3 There was no doubt that under the

applicable rule of recognition, the 11th Circuit had authority over Judge Moore with regard to the

constitutionality of the placement of that statue. And when Judge Moore defied the 11th Circuit’s

decision, the officials of the Alabama legal system made manifest their acceptance of this aspect of the

rule of recognition from an internal point of view: they not only criticized Judge Moore’s refusal to

comply with the order, they convened the necessary procedures to remove him from office. (Moore

was subsequently reelected, which, alas, says more about the Alabama electorate, than about the

officials of the legal system, who acted appropriately.)

We may imagine a more fanciful example to illustrate Hart’s view that where a rule of

recognition exists, officials of the system accept that rule from an internal point of view, that is, they

treat it as obligatory. Suppose Chief Justice Roberts comes to Hastings, and a student asks, “Justice

Roberts, why are you and the other Justices always worried about whether laws are constitutional? I

mean, who cares? Why not just make a sensible decision?” Once he gets past being surprised, the Chief

Justice, we can be sure, would not give the following answer: “I’ll tell you why we’re always talking

about the Constitution: being Chief Justice is a great job, it’s got prestige, lifetime tenure, a great

3Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003).

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pension too. If I didn’t treat the Constitution as a constraint on what we do, I’m worried I’d get

impeached and have to give up this wonderful sinecure I have.” Instead of averting to crass self-

interested reasons like these for taking the Constitution seriously, the Chief Justice is far more likely to

appeal to the professional oath of office he took as a Justice to uphold the Constitution, as well as to the

moral and political virtues of our Constitutional system as he understands them. I want to be clear: I am

quite sure those are the actual reasons the Chief Justice, like other justices and judges, take the

constitutionality of statutes seriously. Where legal systems exist, officials of the system, including the

judges, really do accept the criteria of legal validity, such as constitutionality, from an internal point of

view.

But this now brings us back to the problem with which we started. Constitutionality is only a

criterion of legal validity in the rule of recognition of the American legal system if judges generally treat

it as such and accept it from an internal point of view. The difficulty is that, while all judges treat the

constitutional document as legally binding, they differ wildly on how to ascertain the meaning of its

provisions. Justice Scalia thinks the original public meaning of the provisions of the Constitution

determines its requirements; Justice Thomas sometimes agrees with him, but no one else does.4 As a

matter of the rule of recognition of American constitutional law, it is obviously false that the original

public meaning of the Constitution is what is legally binding on the courts5: some judges treat the plain

meaning as binding, some appeal to the structure of the Constitution, and almost all defer to past

judicial interpretations of constitutional provisions (whether based on original meaning or not) as

binding, an example of what my colleague David Strauss calls our “constitutional common law.”6 Since

4Other judges will avert to originalist considerations, but do not regard them as decisive the way Justice

Scalia purports to do. 5Cf. Richard H. Fallon, Jr., Constitutional Precedent Viewed Through the Lens of Hartian Positivist

Jurisprudence, 86 N.C. L. REV. 1107 (2008). 6See David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996). In the

lower federal courts, something like the “common law constitutionalism” approach dominates, due to

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federal judges do not converge on a single way of fixing constitutional meaning, it follows, on the

positivist view, that in large parts of so-called “constitutional law” there really is no law because there

are no criteria of legal validity generally accepted and applied by judges.7

Not all areas of what we call constitutional law are so unsettled—unanimous decisions by the

Supreme Court on many constitutional issues are rather good evidence in support of that point. But

even divided decisions can turn out to be. Let us recall the 1989 case Texas v. Johnson,8 in which the

U.S. Supreme Court decided that a law prohibiting desecration of the flag violated the First Amendment,

a decision in which Justices Scalia and Kennedy joined the majority opinion by Justice Brennan. Twenty-

five years later, the case stands as good law: the government cannot, constitutionally, punish burning

the American flag. Lower court judges understand that a Supreme Court decision like Texas v. Johnson

binds them to invalidate any blanket ban on flag-burning, and thus the issue has hardly arisen since.

Then, however, we have an issue like whether the Second Amendment protects an individual

right to own guns. For most of the twentieth-century, it was settled law that it does not; after all the

Amendment reads, “A well-regulated militia being necessary to the security of a free State, the right of

the People to keep and bear arms shall not be infringed.” One natural reading, one that dominated for

most of our constitutional history, was that this protected the right of states to arm their militias. That

the Amendment really protects an individual right to bear arms was famously deemed a “fraud on the

American public” by the late Chief Justice Warren Burger, a Republican appointee.9 The “fraud” is now

the law of the land, thanks to the decision in 2008 by the super-legislature in District of Columbia v.

Heller, which bypassed precedent and received wisdom in favor of the original public meaning as read

convergence among officials on the binding force of Supreme Court decisions. But even there there remains plenty of room for the exercise of quasi-legislative powers.

7This extends beyond constitutional law in some measure in the U.S. See the discussion in Brian Leiter, Explaining Theoretical Disagreement, 76 U. CHI. L. REV. 1215, 1224–32 (2009).

8Texas v. Johnson, 491 U.S. 397 (1989). 9The MacNeil/Lehrer NewsHour: First Freedoms (PBS television broadcast Dec. 16, 1991).

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by Justice Scalia in the majority and disputed at length by Justice Stevens in the dissent.10 The historical

evidence is obviously mixed, and my colleague Judge Richard Posner’s verdict on the decision, in a well-

known New Republic article at the time,11 still seems apt:

Lawyers are advocates for their clients, and judges are advocates for whichever side of the case

they have decided to vote for. The judge sends his law clerks scurrying to the library and to the

Web for bits and pieces of historical documentation. When the clerks are the numerous and

able clerks of Supreme Court justices, enjoying the assistance of the capable staffs of the

Supreme Court library and the Library of Congress, and when dozens and sometimes hundreds

of amicus curiae briefs have been filed, many bulked out with the fruits of their authors' own

law-office historiography, it is a simple matter, especially for a skillful rhetorician such as Scalia,

to write a plausible historical defense of his position.

But it was not so simple in Heller, and Scalia and his staff labored mightily to produce a long

opinion (the majority opinion is almost 25,000 words long) that would convince, or perhaps just

overwhelm, the doubters. The range of historical references in the majority opinion is

breathtaking, but it is not evidence of disinterested historical inquiry. It is evidence of the ability

of well-staffed courts to produce snow jobs.

. . . .

. . . . For more than two centuries, the "right" to private possession of guns, supposedly created

by the Second Amendment, had lain dormant. Constitutional rights often lie dormant, spectral

subjects of theoretical speculation, until some change in the social environment creates a

10District of Columbia v. Heller, 554 U.S. 570 (2008). 11Richard A. Posner, In Defense of Looseness, THE NEW REPUBLIC (Aug. 27, 2008),

http://www.newrepublic.com/article/books/defense-looseness.

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demand for their vivification and enforcement. But nothing has changed in the social

environment to justify giving the Second Amendment a new life discontinuous with its old one: a

new wine in a decidedly old wineskin. There is no greater urgency about allowing people to

possess guns for self-defense or defense of property today than there was thirty years ago,

when the prevalence of violent crime was greater, or for that matter one hundred years ago.

Only the membership of the Supreme Court has changed.

If constitutional decisions are to be determined by the balance between liberals and

conservatives on the Supreme Court, the fig-leafing that we find in Heller--the historicizing glaze

on personal values and policy preferences--will continue to be irresistibly tempting to the

justices, with their large and tireless staffs and their commitment to a mystique of "objective"

interpretation. There is no way to purge political principles from constitutional decision-making,

but they do not have to be liberal or conservative principles. A preference for judicial modesty--

for less interference by the Supreme Court with the other branches of government--cannot be

derived by some logical process from constitutional text or history. It would have to be

imposed. It would be a discretionary choice by the justices. But judging from Heller, it would be

a wise choice. It would go some distance toward de-politicizing the Supreme Court. It would

lower the temperature of judicial confirmation hearings, widen the field of selection of justices,

and enable the Supreme Court to attend to the many important non-constitutional issues that it

is inclined to neglect.

A preference for judicial modesty is, however, also a political choice,12 as Judge Posner recognizes, one

that will serve to immunize from judicial review whatever the prevailing ideology of the other branches

12There is ambiguity in the notion of a “political” choice, though the basic idea is that it is a choice

motivated by adherence to a norm that has no legal status but instead reflects commitments for how the polity as

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of the government is at that time. So the real question is why, when we confirm Justices to the super-

legislature, why do we not have a public discussion of their political principles? That is the question

Judge Posner’s apt critique raises.

The Supreme Court’s role as super-legislature emerges in the recent voting rights case, Shelby

County v. Holder (2013).13 Here a bare majority of the super-legislature invalidated Section 4 of the

Voting Rights Act that the actual legislature, that is, the United States Congress, had evaluated and

extended in 2006.14 The Shelby decision did so based on the finding of five members of the super-

legislature that Section 4—which specified the formula for determining which states with a history of

voting discrimination required federal pre-approval for election law changes—is no longer necessary,

contrary to the view, apparently, of the actual legislature seven years earlier. In an opinion by Chief

Justice Roberts, the five super-legislators explained that while, “Congress compiled thousands of pages

of evidence before reauthorizing the Voting Rights Act,” these did not justify the original 1965 formula

for pre-clearance.15 Why not? According to Chief Justice Roberts, there was “no logical relation” to the

Section 4 requirements, that these requirements are “irrational” given the record, indeed, “played no

role” in the pre-clearance formulas.16 This is all just rhetorical flourish, of course, for a different

legislative judgment: it is obviously not irrational to rectify a wrong with a possibly overinclusive

measure when the wrong is sufficiently serious that one wants to secure its elimination. As Justice

Ginsburg, for the dissenters, observed:

Congress determined, based on a voluminous record, that the scourge of discrimination was not

yet extirpated. The question this case presents is who decides whether, as currently operative,

a whole should be organized—such norms may run the gamut from partisanship for the narrow agenda of a particular party to a vision of the just society.

13Shelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013). 14Note that the fundamental question in Shelby County was a constitutional, not statutory one: namely,

was Section 4 a constitutional (i.e., rational) exercise of Congressional power to enforce the Reconstruction Amendments, i.e., the 14th and 15th Amendments, to the U.S. Constitution?

15Shelby County, 133 S. Ct. at 2629. 16Id. at 2629, 2630–31.

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[pre-clearance in accordance with the Section 4 formula] remains justifiable, this Court, or a

Congress charged with the obligation to enforce the post-Civil War Amendments “by

appropriate legislation.” With overwhelming support in both Houses, Congress concluded that,

for two prime reasons, [the preclearance formula] should continue in force, unabated. First,

continuance would facilitate completion of the impressive gains thus far made; and second,

continuance would guard against backsliding. Those assessments were well within Congress’

province to make and should elicit this Court’s unstinting approbation.17

Alas, a majority of the super-legislature did not offer approbation to the actual legislature’s assessment,

instead substituting its judgment on the policy merits for Congress’s. If Shelby County were anomalous,

this might not be notable, but the point is that it is fairly typical of what happens in the public law

domain.

The problem is exacerbated, of course, because the U.S. Supreme Court selects its docket—it

picks the cases it wants to hear, and unsurprisingly it picks the cases where the federal circuits conflict

or where the law is up for grabs, up for grabs in precisely the sense that the rule of recognition does not

clearly settle what should be done. Of course, the Supreme Court, having claimed for itself—without

any basis in the constitutional text—final authority to adjudicate constitutional questions two centuries

ago in Marbury18 (one of the more successful revisions of the American rule of recognition in our

history) sometimes takes cases that might appear to be settled, a clear indication that the Court intends

to exercise its super-legislative authority. Recall New York v. United States from 1992,19 one of the early

cases20 that signalled the intent of some members of the super-legislature to redraw the boundaries of

federal power after an earlier super-legislature appointed by President Franklin Roosevelt redrew them

17Id. at 2632–33. 18Marbury v. Madison, 5 U.S. 137 (1803). [Note on scholarly controversy about this—cf. Hamilton,

Federalist 78, see also articles by Maiva Marcus, David Currie] 19New York v. United States, 505 U.S. 144 (1992). 20Earlier, see Gregory v. Ashcroft, 501 U.S. 452, 461 (1991).

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in the late 1930s and early 1940s to make the New Deal possible. New York concerned the Low–Level

Radioactive Waste Policy Amendments Act of 1985, which the State of New York now challenged as

betraying federalism values by violating state autonomy. Under what one might have thought the

controlling precedent, Garcia v. San Antonio Metropolitan Transportation Authority21 just seven years

earlier, this should have been an “easy” case, i.e., one in which the law clearly dictated that New York

lose. Garcia, which concerned federal regulations about wages and working hours, held (or so it seemed

at the time!) that the only protection for federalism values, like state autonomy, came from the political

process itself, that is, from the fact that the states were all represented in Congress; only if there were a

breakdown in the political process, so the Garcia court suggested, would the U.S. Supreme Court

intervene. New York v. United States was a clear case from the standpoint of Garcia: the Federal

Radioactive Waste Management Act had been enacted by Congress after being drafted by the various

states: the states, in effect, wanted Congress to bind them to the agreement they had reached among

themselves. This would seem to be a paradigmatic case of federalism values in action: autonomous

states strike a bargain about how to dispose of their radioactive waste, and then ask Congress to enforce

the bargain.

Once the super-legislature known as the Supreme Court granted cert in the matter everyone

was on notice, of course, that the super-legislature planned to act. And act it did: in its majority opinion,

Justice O’Connor took a page from the great American Legal Realist Karl Llewellyn’s explanation of the

malleability of precedent from his 1930 book The Bramble Bush.22 In Llewellyn’s famous rendering,

appellate courts approach precedents in one of two ways: they read “unwelcome” precedents strictly,

that is, they characterize their holding in a way that is highly specific to the facts of the earlier case in

order to distinguish it from the case currently before the court. In Llewellyn’s obviously facetious

example, a strict reading of an earlier court’s holding might be, “This rule holds only of redheaded

21Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). 22KARL N. LLEWELLYN, THE BRAMBLE BUSH 68–71 (11th prtg. 2008).

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Walpoles in pale magenta Buick cars.”23 By contrast, a “loose” reading of a precedent abstracts away

from the particular facts of the case in favor of a generic rule of law that the court would like to treat as

binding in the present instance. Not every “strict” or “loose” reading is going to be plausible, but

Llewellyn, as the smart and experienced lawyer he was, is plainly correct that the doctrine of precedent

affords courts enough latitude in construing the holdings of earlier cases to make precedent a feeble

constraint on present decision in many cases. And that is precisely what happened in New York v.

United States.

Justice O’Connor, in the majority opinion, faced an obvious problem as I mentioned: under

Garcia, the Federal Radioactive Waste Act looked like a clear case of the political process operating to

protect the interests of the states—after all, the states had drafted the Act in negotiations with each

other, and then asked Congress to enact it. Presumably O’Connor lacked the votes to overrule Garcia—

a move that would have been unseemly, in any case, given that Garcia had overruled another case,

National League of Cities,24 from less than a decade before!—and so, taking a page from Llewellyn, she

set out to distinguish Garcia by reading it strictly. According to Justice O’Connor’s majority opinion,25

the rule in Garcia—the rule that the only protection for federalism values comes from the political

process itself—applies only in cases where the federal regulation applies to both public and private

entities, as was true of the wage and hour regulations at issue in Garcia. Garcia itself did not make an

issue out of this, but now, seven years later in New York, Justice O’Connor did: for the Federal

Radioactive Waste Management Act applied only to public entities, namely states, and so according to

Justice O’Connor presented a different issue than in Garcia. With Garcia distinguished, Justice O’Connor

proceeded into an historical analysis and ultimately invalidated a portion of the Act. Those details do

not matter for our purposes.

23Id. at 68. 24Nat'l League of Cities v. Usery, 426 U.S. 833 (1976). 25New York v. United States, 505 U.S. 144, 149–88 (1992).

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The dissenting opinion by Justice White26 also took a page from Llewellyn: he effectively accused

the majority of distinguishing Garcia on the basis of factual differences that did not make a difference—

in effect, Justice White complained, the majority opinion said the rule in Garcia applies only to

“redheaded Walpoles in pale magenta Buick cars.”27 From Justice White’s perspective, the difference

between a federal regulation that reached public and private entities as opposed to only public ones

was irrelevant, New York v. United States was an easy case, and Garcia should have controlled the

result.

I want to be clear that I do not think either majority or dissent was right “as a matter of law” in

this case. Justice O’Connor did a poor job, to be sure, of explaining why the factual difference between

Garcia and New York actually mattered, but an explanation is not hard to come by: surely it is not crazy

to think state autonomy might be more at risk when a federal regulation only applies to the states, as

opposed to regulating public and private actors equally. At the same time, Justice White’s view was

equally plausible as a matter of law: the Garcia rule emphasized the importance of the political process

as a safeguard for state autonomy, and the underlying facts in New York seemed to indicate a political

process functioning well, indeed, driven by the states themselves, until the state of New York had some

buyer’s remorse.

If the preceding is correct, then we should ask what really happened in New York v. United

States? New York, as students of federalism know, was near the beginning of a series of Supreme Court

cases in which, for the first time since the triumph of the New Deal, the Court began placing some limits

on the exercise of federal power. President Reagan, who appointed Justice O’Connor a decade earlier,

ran partly on this issue, the issue of state autonomy from federal overreach. And so for Justice

O’Connor, a new-fangled conservative in the Reagan mold, New York presented an opportunity to state

loud and clear that there really are limits on federal power. By contrast, for Justice White, an old-

26Id. at 188–211. 27LLEWELLYN, supra note 22, at 68.

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fangled conservative, appointed by President Kennedy in the early 1960s, the New Deal revolution had

settled all the questions about the scope of federal power; Justice White was a law-and-order

conservative, skeptical of the expanding rights of criminal defendants, as well as of abortion rights, but

he was fully accepting of the transformation of the constitutional system effected by the New Deal. The

federal legislature voted to bind the states to a proposal for disposing radioactive waste that they

themselves had drafted; in New York v. United States, the super-legislature known as the Supreme Court

voted to overturn part of that plan. In doing so, they did not act as the law requires: only a naif could

believe that. Instead, they exercised moral and political judgment and acted accordingly.

Let us now fast forward to the present, last term’s decision in Burwell v. Hobby Lobby (2014).28

In Hobby Lobby, the Supreme Court upheld a challenge by closely held corporations to a requirement of

the Affordable Care Act—more precisely, the mandate imposed by the Department of Health & Human

Services under that Act—that employers (of a certain size) pay for employee health insurance that

covers, among other things, four kinds of (allegedly) post-conception contraceptive drugs and devices.

The challenge was based on the Religious Freedom Restoration Act (RFRA), a 1993 law which attempted

to restore the constitutional protections for “free exercise” of religion that had existed prior to Justice

Scalia’s majority opinion in Employment Division v. Smith.29 That 1990 decision held that the state need

not grant religious exemptions for neutral laws of general applicability—neutral in the sense that their

purpose was not (facially or otherwise) to substantially burden a particular religious faith. Thus, under

Smith, the federal government did not need to find a less burdensome alternative to a law that imposed

incidental but substantial burdens on free exercise of religion.

The Hobby Lobby decision found, plausibly, that the owners of the closely held corporations

challenging the mandate genuinely believed that life begins at conception, so that they genuinely

28Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). 29Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990). Congress, and many

states, reacted against this decision, and Congress subsequently passed RFRA, which now binds the federal government not to substantially burden religion when alterantives are available.

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believed that post-conception contraception was akin to murder.30 I want to emphasize that three

aspects of the Hobby Lobby decision seem to me fairly banal, given the existence of RFRA: first, that the

free exercise of religion of a closely held corporation is not meaningfully distinguishable from the free

exercise of religion by the individuals who closely own the corporation (in other words, closely held

corporations are “persons” for purposes of RFRA); second, that since the federal government had

already provided an opt-out provision from the mandate for non-profit entities with religious objections

(like the University of Notre Dame), one that did not shift costs to the employees seeking contraceptive

coverage, then it was clear that there were regulatory alternatives available to the federal government

to insure that contraception was available to female employees that did not impose a substantial

burden on religious belief; and third, that under our constitutional regime of religious liberty, courts

must take seriously someone’s religious belief that life begins at conception. I, myself, disagree with this

latter aspect of our constitutional system, just as I also think RFRA is a bad law,31 but that is not at issue

in my doubts about Hobby Lobby. My doubts lie elsewhere.

The crucial legal question presented in Hobby Lobby, granting the points I have just conceded, is

whether requiring a closely held corporation to pay for health insurance that an employee might use to

access medical services of which her employer disapproves constitutes a “substantial burden” on the

free exercise of the employer’s religion in a society which is not a theocracy, that is, in a society in

which, for example, employees need not subscribe to the religion of their employers. The idea that it

would constitute a substantial burden ought to have seemed preposterous on its face. Yet in the

majority opinion of the super-legislature by Justice Alito, we are told that the belief of the owners of the

closely held corporations that their paying for insurance which their employees could use to secure

contraceptive services of which their employers disapprove “implicates a difficult and important

question of religion and moral philosophy, namely, the circumstances under which it is wrong for a

30Hobby Lobby, 134 S. Ct. at 2764–65, 2766, 2775. 31See BRIAN LEITER, WHY TOLERATE RELIGION? (2013).

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person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the

commission of an immoral act by another.”32 It is not for the courts, Justice Alito asserts, to tell “the

plaintiffs that their beliefs are flawed.”33 The job of the courts is only to determine whether the beliefs

are sincere religious beliefs, which everyone, including me, grants that they are.

This sounds reasonable until one considers a scenario in which the religious plaintiffs profess the

following putatively religious belief: “This law substantially burdens our free exercise of religion.” That

looks rather like a legal conclusion masquerading as a religious belief, but now we need to ask how such

a scenario is any different from the position of the challengers in Hobby Lobby? If you believe that

paying for medical insurance that can be used by your employees to access medical procedures of which

you disapprove violates your free exercise rights, that’s a legal question for the courts: the courts can

grant that you really believe this, indeed, that you hold a particular philosophical or religious view about

“the circumstances under which it is wrong for a person to perform an act that is innocent in itself but

that has the effect of enabling or facilitating the commission of an immoral act by another.” But calling

it a “philosophical” or religious view does not change the fact that it states a legal conclusion, namely,

that the law requiring you to pay for the medical insurance substantially burdens your religion.

In short, we can agree with Justice Alito that the Supreme Court has long held that it will not

adjudicate whether religious beliefs are sensible, only whether they are religious and sincerely held. But

that does not mean that the courts must defer to the religious person’s beliefs about whether the law

substantially burdens their religion: that has to be a legal question for the courts, or the courts are out

of business. The super-legislature should have acted like an actual court and found there was no

“substantial burden” on Hobby Lobby.34

32Hobby Lobby, 134 S. Ct. at 2778. 33Id. 34Justice Ginsburg makes this point in dissent. Id. at 2798.

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It is important to notice that the mistake in Justice Alito’s reasoning was, in fact, a legal mistake,

not in the sense that he failed to recognize the relevant sources of law but in the sense that he failed to

understand the conceptual or logical entailments from those sources. More precisely, Justice Alito

failed to correctly distinguish the legal question whether a particular law actually imposes a “substantial

burden” on religious exercise from the non-legal question that courts are not supposed to adjudicate,

namely, whether claimant’s religious beliefs are reasonable. If it were really the case that courts must

defer to claimant’s allegedly religious beliefs about substantial burdens—that is, about whether their

legal rights are violated—then there is nothing for the courts to do. Since that is absurd, Justice Alito

obviously made a serious mistake in his legal reasoning.

Even if the super-legislature’s mistake in Hobby Lobby was a legal mistake, it still calls attention

again to the importance of moral and political judgment by the members of this super-legislature, since

their moral and political values may explain their propensity to make certain kinds of mistakes.

Remember that the Supreme Court, two hundred years ago in Marbury v. Madison, successfully claimed

for itself the power to settle constitutional questions, meaning that the actual legislature cannot easily

undo the mistakes that are motivated by the moral and political beliefs of the Justices—in this case, the

desire of the conservative majority of the super-legislature to signal their fundamental sympathy with

religious conservatives. To be sure, Hobby Lobby concerns RFRA, not the First Amendment, though

RFRA was, at a minimum, purporting to re-establish an earlier constitutional regime. But it is a

reasonable prediction that Congress will not revisit RFRA to undo the Hobby Lobby decision. Thus, even

the plain legal mistakes of the super-legislature give us further reason to want to know the moral and

political views of the Justices before they are appointed, since those views will illuminate precisely the

domains in which they are likely to make errors.

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Alas, the only people who are led to believe that Supreme Court Justices are appointed based

simply on their legal skill and knowledge are the American people, i.e., the electorate.35 Every American

President, from at least Roosevelt to Reagan to the present, understands that the U.S. Supreme Court

often acts as a super-legislature, and therefore one had better try to appoint legislators, that is Justices,

who share the moral and political views of the appointing President. Let me share an amusing, but

revealing, story my colleague, Judge Richard Posner, told me, and which he has shared with many others

so I am not betraying any secrets here. Posner was appointed to the U.S. Court of Appeals for the

Seventh Circuit in 1981 when, as he has said to my jurisprudence class one year, people didn’t realize

Reagan was “stacking” the courts with “right-wingers like me.” Those are Judge Posner’s words, though

as all lawyers know, he has proven to be far less of a right-winger than the current Republican Party

might have hoped. In any case, Judge Posner’s point was that the media did not pay much attention to

Senate confirmation hearings then. Posner’s hearing was presided over by Senator Strom Thurmond of

South Carolina, even then (in the early 1980s) a nearly octogenarian segregationist trying to pass as a

member of the modern world. Senator Thurmond, reading from his prepared script, asked, “Mr. Posner,

if appointed to the Court, will you regard it as your obligation to apply the law as written rather than

make new law?” Posner, being a smart lawyer and scholar, explained that the choice was a false one:

appellate courts are repeatedly asked to decide cases in which the law is not settled—that is one reason

the cases are litigated through the stage of appellate review, after all—and in those cases, the courts

must provide authoritative resolution, essential to a civilized society. So, of course, appellate judges

must sometimes make new law, since no legislature—as H.L.A. Hart observed a half-century ago—could

35The public is not wholly ignorant, to be sure. A CBS News poll in 2012 found that three quarters of

Americans believe that Supreme Court justices “sometimes let their personal or political views influence their decisions.” See http://www.pollingreport.com/court.htm. The Public Religion Institute in 2013 found that 55% of those surveyed thought Supreme Court Justices were influenced by their own political views “a lot, while 32% though they were influneced only “a little,” and 8% “not at all.” Despite these suspicions, when Supreme Court Justices are confirmed in public by the Senate, inquiry into their personal or political views is treated as off-limits. (Thanks to Mike Seidman for help on this topic.)

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possibly anticipate all the problems that will arise. In other words, appellate judges must exercise moral

and political judgment, an unavoidable part of their job. Senator Thurmond, already well into his

dotage, did not respond to the actual answer, but moved on to the next question in his script. Now we

come to the punchline of this curious story: when Judge Posner received the transcript of his

confirmation hearing several weeks later, Senator Thurmond’s initial question was correctly recorded,

namely, “Mr. Posner, if appointed to the Court, will you regard it as your obligation to apply the law as

written rather than make new law?” But instead of Posner’s actual answer, the transcript read that

Posner simply replied, “Yes.”

Now this is America in 1981, not Stalinist Russia, yet a federal judicial nominee’s actual answer

to a silly question by a political hack was erased from the historical record in order to comport with the

political agenda of a President—Ronald Reagan—who liked to claim that he only wanted to appoint

judges who apply the law, rather than make the law. But Reagan and his advisors knew this was

nonsense, just like Judge Posner: they knew that appellate judges must inevitably exercise moral and

political judgment beyond the issues settled by the law in order to resolve the actual disputes that come

before the appellate courts. How, in a democratic society, can such secrecy be justified?

In my view, it cannot. We should tell the truth to the electorate: law makers cannot anticipate

all problems that will arise, but in a civilized society, we need courts to provide authoritative resolutions

of disputes which are left unsettled by the existing sources of law. Courts play that role, and the

“higher” the court, the more likely it is that court will be asked to exercise circumscribed moral and

political judgment, akin to what we expect from honest legislators, assuming that term is not an

oxymoron in America these days. Therefore, when such judges are to be appointed, the nominal

representatives of the people should evaluate the quality of moral and political judgment the nominee

would exercise. Will the nominee reflexively side with markets against state regulation, with majorities

against minorities, with the religious against the non-religious, with color-blindness against sensitivity to

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the pernicious role of race in society, with the police against criminal defendants, with the current

ideological fixations of the Republican Party against the current ideological fixations of the Democratic

Party? Is the nominee sensitive to injustice, to the powerless, to the losers in the political process, or

does he or she side reflexively with those in power, with the status quo? These questions should be

central to the confirmation process of members of the super-legislature—or rather, they should be

central in public to that process, since they are obviously central to the actual nominators. They are

also, to be sure, the subject of speculation, rumors and gossip, but that is not the same as making them

central to the actual proceedings in which the Senate confirms a nominee. There are, certainly, many

issues in which legal expertise is essential, but there is no shortage of candidates with the requisite

expertise to parse technical points of law and it is rare indeed that a President puts forward a candidate

for the super-legislature lacking that competence. What is not rare, unfortunately, is for Presidents to

put forward candidates for the super-legislature whom they choose based on their moral and political

views, but then fail to acknowledge that fact to the rest of the polity, indeed, to object when the Senate

even asks about those views.

There is, one must acknowledge, a genuine worry about encouraging candor on these matters.

The worry, simply put, is that it will embolden judges to overreach the legal limits even more than they

already do. Perhaps so, but the status quo is that elected officials appoint super-legislators because of

their moral and political views, but no one is permitted to discuss that fact in public. If, in fact, we had a

public discussion of what all the insiders know—namely, that appellate judges at the highest levels must

exercise moral and political judgment—then perhaps those judges who actually survive the process will

be those whose moral and political judgments comport more closely with those of the polity at large?36

A polity that might welcome a liberal one decade might not welcome her a decade later, and so that is

36I assume, for the sake of argument here, that majority approval suffices to “legitimate” the moral and

political views of the judges. For independent reasons, this strikes me as dubious, but that would require a separate argument.

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yet another reason to abolish lifetime tenure for federal judges in favor of fixed term appointments, as

other scholars have proposed.37 But even before that happens, I do not see how in a democratic society

where transparency in the exercise of public power (outside a select realm of areas, such as national

security) is a fundamental value we can continue to tolerate the current charade of nominating lawyers

to the United States Supreme Court without vetting, fully and in public, their moral and political views

which will determine their decisions in a range of momentous constitutional matters, and sometimes

not only there.

37See, e.g., REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES (Roger C. Cramton & Paul D.

Carrington eds., 2006); Letter from Paul Carrington, Professor, Duke Univ. Sch. of Law, et al. to Vice President Joseph Biden et al. (Feb. 2009) (available at http://www.scotusblog.com/2009/02/groups-proposals-for-supreme- court-reform).