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How Judicial Review Improves the Legislative Process

Judicial review is typically conceived as a zero-sum game between judges and legislatures. Legislatures enact laws, and judges strike them down. Use of the judicial veto can only deny legislators of the laws they want. This, the canonical “separation-of-powers” view of the relationship between courts and legislatures, is true enough much of the time. But it’s not always true. The judicial veto can also, at times, accomplish legislative purposes in a more-efficient manner than the legislature can achieve them itself.

Americans in general think constitutional review of legislation in an entirely aprioristic fashion; as wholly a matter of applying abstract principle and never as a matter of assessing empirical conditions. And decisions often are seemingly based on aprioristic commitments. Indeed, the U.S. Supreme Court’s modern 14th Amendment jurisprudence has proven controversial because the Court’s majorities so often appears simply to prefer their naked policy judgments over those of the legislature that enacted the challenged law.

Yet it’s a mistake to boil down every judicial decision to aprioristic judgment. Indeed, much of the reason the doctrine of economic substantive due process received criticism for legal “indeterminacy” occurred because critics thought the Court to be applying a priori principles (“freedom of contract”) when it was in fact basing decisions on more-contingent, empirical judgments.

Even in Lochner the Court did not hold that liberty of contract was inviolable. The question was whether New York state’s imposition on freedom of contract was “reasonable” or not, and reasonability was a matter of empirical determination. That is, a judgment of whether the facts, the empirical reality, supported the legislature’s judgment. The empirical determination sat at the center of the Court’s judgment. As the majority opinion stated:

[The] mere assertion that the subject relates though but in a remote degree to the public health does not necessarily render the enactment valid.  . . . In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear as healthy as some other trades, and is also vastly more healthy than still others.  . . .  There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty.  . . .  [T]here must be some fair ground, reasonable in and of itself, to say that there is material danger to the public health or to the health of the employees, if the hours of labor are not curtailed.

While Lochner is notorious, it is often forgotten the Court upheld more laws than it struck down when reviewing laws challenged as violations of substantive due process. The “indeterminacy” criticism of Lochnerian jurisprudence resulted largely because the Court made determinations based on reviewing empirical judgments underlying legislation and regulations. Whether a law “reasonably” imposed on liberty was a matter of contingent empirical circumstances, not a priori principle.

To be sure, many critics would respond that the empirical bases for legislation are solely a matter for legislative decision; it is an intrusion on the legislative task for courts to involve themselves with adjudicating rival empirical claims.

Of course, courts regularly pass on empirical matters. Just think of well-known standards of proof such as “by a preponderance of the evidence” or “beyond a reasonable doubt.” More generally, however, it is here that we see judicial review of the empirical bases for legislation providing unique value to the legislative task.

The nature of the information provided to courts differs qualitatively from the information considered by legislatures, and necessarily so.

First and foremost, temporally, judicial determinations almost always occur after the enactment of legislation. The impact of legislation can be more definitively observed when legislation is implemented than when legislation is proposed. As Hans Linde observed in a 1976 law review article, prior to a law’s enactment, “the lawmaking hypothesis … deals with prediction, with causes and effects in the world of physical and social reality.” Similarly, a student Note in the Harvard Law Review observed that courts can serve as agencies “of sober thought which review in the light of experience under the statute the determination of policy made by the legislature and executive at a time when the effects of the statute could only be predicted.”

Indeed, judicial standing and ripeness doctrines induce this type of concrete information in litigation, they require actual or imminent injury for litigation, not the mere prediction of future harm.

Secondly, the nature of the legislation invites legislators to focus on general, or average, results. Judicial process acquires a different type of evidence, that pertaining to specific individuals. Legislation focuses on classifying groups; litigation focuses on how reasonably those classifications fit with individual members of the population. Again, a complementary function.

Finally, courts below the level of the Supreme Court hear cases asserted by litigants as a matter of right, while legislative jurisdiction is purely a matter of discretion. Even if facts educing a law’s failure are known to legislators subsequent to enactment, legislation, including repealing legislation, is a collective action. To enact or to repeal legislation some legislators need to take up the mantle and persuade other legislators to take collective action. Judges don’t face the collective action problem, and the parties themselves receive judicial attention as a matter of right, and both sides are motivated to provide pertinent information to the court.

If the outcome of legislation turns out differently of what a legislature anticipated, judicial review can provide legislators with an efficient means of legislative brush clearing, perhaps taking action it might takes years for the legislature itself to take, if ever.

This is not at all to deny the existence of a zero-sum game in many instances of judicial-legislative interaction in separation-of-power systems. It is only to observe that the separation-of-powers game is not always a zero-sum process. Even the judicial veto itself, the epitome of judicial naysaying to the legislature, can actually to promote legislative objectives rather than merely stymie them.

Reader Discussion

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on August 17, 2018 at 15:08:34 pm

"Even the judicial veto itself, the epitome of judicial naysaying to the legislature, can actually to promote legislative objectives rather than merely stymie them."

Nonsense!

A *bad* law may still be constitutional and it is not the province of the Judicial to "correct" for (what the Judges perceive to be) bad laws.

Rogers, once again, appears willing to give warrant to our Black Robed masters to actively legislate.

No, the cure for *bad* laws is to work with the PEOPLE's duly elected representatives to correct the error in the law.
Indeed, Rogers supine approach to the Black Robes ONLY encourages the Legislative to continue their cowardice in legislating and to avoid exercising their duly constituted institutional interests and prerogatives.

Ain't buying, boyos!!!!

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gabe
on August 17, 2018 at 15:55:36 pm

Usually I would agree with you. But there are rare circumstances where it might be warranted. (1) An area where the legislature has explicitly tried to empower the judiciary in a common law way, such as current federal antitrust law. (2) Where the facts that the legislature believed to be true, that would have made it constitutional, turn out to not be true. Look at what the Supreme Court and the legislature thought concerning filled milk in United States v. Carolene Products Company, 304 U.S. 144 (1938). And yet, today filled milk is commonly sold throughout the country with no problems. Courts often struck down these laws after it was shown that the factual basis upon which the Supreme Court and the legislature relied in Carolene Products was simply false. Carolene Products. Milnot Co. v. Richardson, 350 F. Supp. 221, 223 (N.D. Ill. 1972).

Strehlow v. Kan. State Bd. of Agric., 659 P.2d 785, 791 (Kan. 1983) (striking down the Kansas Filled Dairy Products Act as applied to imitation milk because of “changed conditions in the food industry”) Defiance Milk Prods. Co. v. Du Mond, 132 N.E.2d 829 (N.Y. 1956) (striking down absolute ban on evaporated skim milk because “[t]ime has certainly disproved completely” the assertion that filled milk was injurious to health)

Estate of McCall v. United States, 134 So. 3d 894, 913 (Fla. 2014) (“Conditions can change, which remove or negate the justification for a law, transforming what may have once been reasonable into arbitrary
and irrational legislation.”);

If a completely irrational restriction on a person's liberty is prohibited, then something that is believed to be rational based on specific facts once those facts are proven false, must be struck down by the Courts. Otherwise you must reject the premise that it is unlawful for there to be completely irrational restrictions on a person's liberty by the legislature. Maybe under the old systems of Parliament this could be allowed (as parliament was the ultimate sovereign), but we have never allowed that in the United States.

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Devin Watkins
on August 17, 2018 at 17:52:38 pm

Yep, allow me a little literary hyperbole for effect.

Mea culpa, mea culpa, mea maxima culpa!

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gabe
on August 17, 2018 at 19:03:13 pm

Rogers makes a good point re the judiciary's limited flexibility to respond to changing circumstances. It seems, however, that that narrow exception to the judicial rule must be distinguished from Gabe's essential point, that judges too often improperly apply their subjective judgments as to constitutional (not factual) meaning. Holmes' point in his Lochner dissent, which is generally correct, was that judges must not substitute their judgments for those of the legislature on matters of fact. (Rogers and EK agree with that generally.) But Holmes dissent was wrong in the circumstances of Lochner because the Court was not substituting its judgment of the facts; it was stating that the facts did not rise to the constitutionally-requisite standard, a determination which appellate courts and the Supreme Court routinely and properly make in constitutional adjudication.

The “indeterminacy” criticism of Lochnerian jurisprudence resulted largely because the Court made determinations based on reviewing empirical judgments underlying legislation and regulations. Whether a law “reasonably” imposed on liberty was a matter of contingent empirical circumstances, not a priori principle.

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Pukka Luftmensch
on August 18, 2018 at 12:10:43 pm

If I may, allow me to edit my previous comment by removing the "maxima" from my mea culps.

It strikes me that the concept of "contingent empirical circumstances' works best (only?) at the extremes.

E.G.

Washington State constitution mandates that "It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, ...." and "The legislature shall provide for a general and uniform system of public schools."

Paramount ( a not unreasonable definition): "adjective. chief in importance or impact; supreme; preeminent: a point of paramount significance. above others in rank or authority; superior in power or jurisdiction."

What precisely does this mean for education funding in Washington State?

Does it mean that the Washington State Legislature (WSL) must place education at the top of its priorities/ must it provide the greater portion of its tax revenues to education? must it provide a majority of its revenues to education even if such action would undermine law enforcement, welfare, etc?

The WSL has made what it considered sufficient funding to State School systems. Teachers and others brought suit alleging that WSL failed to meet its duty to provide "paramount" support to education.

McCleary decision, State Supreme court ruled that WSL had failed to do so. Citing some deficiencies in certain school districts, funding shortfalls, etc the Court ordered the WSL to increase funding (and modify education funding) or face fines of $100,000 per day.

For purposes of argument only:

Let us suppose that WSL in 1920 had allocated $1,000 per pupil per annum.
Let us further suppose that WSL had never increased that per capita funding level.

Clearly, the WSL may be said to have failed to fulfill its constitutional responsibility to assure the pre-eminence of education among Legislative goals.

However, the WSL has, over the years, consistently increased funding and did so during periods of economic downturn and in the face of ever proliferating new demands upon state funds. The State was not ranked at the bottom of the various school funding studies.

What was to be done?

In the 1920 example above, one can present a strong case that "contingent empirical circumstances" ought to be a major consideration of the Judiciary as nine decades of inflation would have significantly impacted the State School systems.

However, given that the WSL had consistently increased funding while balancing other priorities, can these "contingent circumstances" provide SUFFICIENT information to the Judiciary, whose expertise is neither to be found in budgeting nor political compromise, to reach a determination that the WSL has failed to fulfill its constitutional obligations? Ought we to allow the Judiciary to, in effect, determine what levels must be attained in order to meet the requirement of "paramountcy"? Is the Judiciary to be entrusted with a) funding decisions?, b) legislative compromise, c) the determination of what shall be funded (schools) at the expense of others (police, roads, welfare, etc).

It would appear that over the years, once the Judiciary has stuck its nose under the tent, it soon presumes to sit at the table and partake of the feast, all the while its flowing Black Garments cover over the dishes and utensils of the other feast-goers.

Yet, we did allow them into the tent. How do we keep them at the threshold and away from the utensils?
(Forgive the Fractured fairy Tale version of an important case in Washington State but i did not wish to rehash the entire debacle).

As always, some moderating mechanism must be developed and employed against the infringements of *rude8 guests.

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gabe
on August 18, 2018 at 13:25:09 pm

In my prior comment I quoted from Rogers' commentary but neglected to explain why. My intention was to cite the quoted Rogers' passage in support of Gabe's proposition that improper judicial intrusion into legislative affairs is too often disguised by the court as mere tinkering with "contingent circumstances" when in reality what's going on is the judge's "presumption of the inherent judicial power of assumption" of whatever authority is felt (by the judge) to be necessary to remedy injustice under the "contingent circumstances," with the consequence being that incrementally there is an accretion of absolute power to the judges, the very negative process and destructive consequence which led the Founders (looking at the history of monarchy) to adopt the separation of powers.

To quote Phillip Hamburger, "Conceptually, there were three central elements of this (monarchical) absolutism: extra-legal power, supra-legal power, and the consolidation of power. It was extra-legal or outside the law in the sense that it bound the public not through laws or statutes, but through other means. It was supra-legal or above the law in the sense that kings expected judges to defer to it—notwithstanding their duty to exercise their own independent judgment. And it was consolidated in the sense that it united all government powers—legislative, executive, and judicial—in the king or in his prerogative courts. And underlying these three central elements was the usual conceptual justification for absolute power: necessity. Necessity, it was said, was not bound by law."

It's unclear to me, but Gabe is suspicious that Rogers thinks that that crypto-command and control judicial process is appropriate when a case presents the court with"contingent necessities." I say that such creeping crypto-command and control is precisely what has transpired for the past 78 years in Article III courts and that it's constitutionally-impermissible if Article III courts are to be, as intended, both "judicial" in nature and the "least dangerous branch" so far as limiting government to (what the Founders saw as) its proper end, the preservation of individual liberty in community (ordered liberty.)

Here is the portion of Rogers' commentary which I quoted in my last comment while neglecting to explain why I did so:
"The “indeterminacy” criticism of Lochnerian jurisprudence resulted largely because the Court made determinations based on reviewing empirical judgments underlying legislation and regulations. Whether a law “reasonably” imposed on liberty was a matter of contingent empirical circumstances, not a priori principle."

That's NOT what happened in Lochner as I see it, but it is what Gabe is complaiming about.

Slight editing of the Rogers' paragraph captures what I suspect is Gabe's point (edits/changes in all caps.)

"The “indeterminacy” criticism of LIVING CONSTITUTION jurisprudence result(S) largely because the Court TOO OFTEN MAKES determinations based on reviewing empirical judgments underlying CONSTITUTIONAL CASES AND CONTROVERSIES. Whether a law “reasonably” impose(S) on liberty THUS BECOMES a CONSTITUTIONAL matter of contingent empirical circumstances, not a priori principle."

No maxima mea culpa, not even a mea culpa when rightly understood:)

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Pukka Luftmensch
on August 18, 2018 at 14:20:25 pm

Pukka:

Yep, and thanks for the clarification of your comment.

And yep, again - that ain't what happened in Lochner.

And I love the revised formulation of much current jurisprudence:

..."THUS BECOMES a CONSTITUTIONAL matter of contingent empirical circumstances, not a priori principle.”"

Then again, I suspect that our "bete noire" (softer definition), nobody is quite taken with this novel construct of empirical "data" / "statistics" becoming the underpinning of Constitutional interpretation and thus replacing principle.

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.