Why Judicial Deference?

Judges do not treat all constitutional rights the same. U.S. judges typically apply “two-tiered” judicial review when reviewing the constitutionality of legislation. Judges apply some form of heightened scrutiny when reviewing legislation that trenches on fundamental rights, like free speech, or when reviewing legislation directed, in the famous language of Carolene Products footnote 4, at “discrete and insular” minority groups. Judges apply deferential “rationality review” to almost all ordinary, run-of-the-mill socio-economic legislation. The late Gerald Gunther famously quipped that deferential rationality review is deferential in theory but “non-existent in fact,” meaning that judges only very rarely strike down legislation when they apply rationality review. He added that strict scrutiny is strict in theory but “fatal in fact,” meaning that judges rarely uphold the constitutionality of legislation subject to strict scrutiny.

This judicial practice raises at least two puzzles. The first puzzle pertains to what justifies judges in picking and choosing certain rights to privilege over others. This question has spawned a huge literature among legal scholars and political scientists, and, indeed, among judges themselves. What supporters of two-tiered review are at pains to avoid is the seemingly obvious, yet damning, conclusion that two-tiered judicial review exists because judges decided, based on their own political preferences, to allow legislatures freer hands when regulating economic activity than when legislation touches on rights judges consider more important than economic rights.

That’s an important puzzle. So important that it sometimes overshadows a second puzzle, which is why courts ever deferentially review the constitutionality of any legislative enactment? The simple idea being that constitutional designers presumably crafted every provision in a constitution with the expectation that it guide future decision makers, whether allowing the exercise of power or limiting that exercise.

There are numerous arguments advanced to justify judicial deference to ordinary legislative enactments: informational advantages of legislatures over courts, functional arguments that the legislative process works only if judges enforce legislative bargains when the majorities enacting them are no longer in office, that heightened judicial review invites lazy legislating, and others.

Perhaps the best-known argument for judicial deference to the constitutionality of legislative enactments, an argument heard from both the political left and from the political right (depending on whose ox is getting gored), is that, in republican political systems, unelected parts of the government should defer to elected parts of the government. So judges should defer to legislators.

Gerald Gunther summarized the common take on the argument: “[Non-deferential judicial review] allowed unelected, politically unaccountable judges to decide whether a particular legislative purpose was or was not legitimate. Courts [are] not super-legislatures: they exceeded their legitimate powers unless they deferred to elected legislatures on debatable issues.”

While an oft-repeated justification for judicial deference, I think there are weaknesses to the argument that the non- republican character of the judiciary requires courts to review ordinary legislation deferentially.

First, there is the implicit assumption in the argument that judges in the U.S. lack the republican bona fides of legislators. This assumption would have surprised the Constitution’s framers, who nonetheless considered unelected judges as fully republican creatures. James Madison observed in The Federalist #39,

[W]e may define a republic to be . . . a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.  . . .  It is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified . . . On comparing the Constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it.

The argument here, however, relies on more than mere formalism. The purpose of immunizing judges from electoral pressures is to make courts a better republican institution. The goal is not to make them non-republican institutions. Even the most ardent democrat admits the distinction between short-term preferences and long-run interests. Protecting the people in general from legislative overreach, and protecting minorities from majoritarian overreach (which logically extends to protecting economic minorities as well as other classes of minorities), are republican-enhancing roles of the judiciary, not republican-detracting roles.

There is profound irony in the argument that judiciaries in republican polities should defer to legislatures because of the countermajoritarian task of courts. I made the point in a book chapter a few years ago:

[T]he articulated purpose of immunizing judges from direct electoral pressures is precisely to free them to apply their best independent judgment when reviewing legislation. If that is true, it critically undermines the argument that judges should defer to the democratic branches of government. It makes no sense to immunize judges from direct electoral pressures in order to encourage them to exercise their independent judgment when reviewing legislation, and then turn around and argue that because they are immune from direct electoral pressures, they therefore should not employ their best independent judgment when reviewing legislation but should instead defer to the legislature’s policy judgment because legislators are elected.

Finally, there is an irony in arguments about judicial deference being obsessively focused on the national government’s judiciary. Most judicial action in the U.S. occur in state courts. Of the fifty state judiciaries, some forty-three have some sort of elections associated with their judiciaries, either through direct election of at least some of their judges or through retention elections. Nonetheless, state courts generally followed the national judiciary in adopting deferential rationality review when reviewing ordinary socio-economic legislation.

It should go without saying, but apparently doesn’t, that when voters vote on judges as well as on legislators, arguments about the need of “unelected” judges to defer to elected legislators are inapplicable. The observation, however, presses the puzzle: Given that most state-level judges apply the same deferential behavior toward legislation, despite judicial elections, that national-level judges do while not having judicial election, suggests that, in actuality, the fact of judicial deference must rely on something other than the absence of those elections to justify the deference.

To be sure, there are other arguments forwarded to justify judicial deference. Nonetheless, the ostensibly countermajoritarian nature of the judiciary is one of the most oft-used arguments, and an argument employed on both sides of the political spectrum. Despite its popularity, it has serious weaknesses. Those weaknesses suggest something else must be motivating deferential judicial behavior beyond institutional humility of unelected judges toward elected branches of the government.

Reader Discussion

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on November 01, 2017 at 10:48:09 am

I suspect that Mr. Roger's "damning conclusion" in the 2nd paragraph may have obviated the need for the rest of the essay. Having arrived at their own "First Principles" the Judicial may simply be granting themselves an imprimatur for these *principles* by allowing the "non-fundamental" (as they envision them) liberties to be effectively regulated by the Legislative. However, dare the Legislative to "trench" upon the (now newly divined) fundamental rights, i.e., transgender recruitment into the Armed Forces, and the Legislative will soon be afforded a swift upbraiding by the Judicial Branch.

Also, I am not so certain that State level voting for the Judicial is anything more than mere formalism and may not support the essayists assertion that it evidences proof that elected v non-elected Judiciary will, for some unexplained reason, still practice deference. Most State level Judicial elections garner well less than 15% of Legislative / executive Office voting; electoral debates (such as they are) are scarce and generally unavailable to the voting population; the Judicial records of the candidates are obscure, at best, and more often than not are unintelligible to the average voter; and lastly, many are deemed "non-partisan." Thus, the usual signal posts to guide voters are unavailable. Seeking reelection, the Jurist may count on a similar lack of information among the voters to assure his / her re-election.

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on November 01, 2017 at 12:01:25 pm

In Packingham, the court said that first amendment rights apply to ex-felons, whereas when the court upheld the 1968 gun-control act, they said second amendment rights don't apply to ex-felons.

The first amendment gets strict-scrutiny, whereas normal legislation like the second amendment gets rational-basis scrutiny.

Why? Only the first amendment is a fundamental right, whereas the rest of the amendments are run-of-the-mill rights.

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Packing it in
on November 01, 2017 at 12:19:18 pm

In 1936, in Grosjean, the court said you can't tax fundamental rights like the first amendment. In 1937, in Sonzinsky, the court said you can tax non-fundamental rights like the second amendment.

Why? Since the second amendment rights only "shall not be infringed", they obviously must not be fundamental; you can make laws respecting those rights as long as those laws don't infringe the rights. Whereas first amendment rights "congress shall make no law respecting" whether the rights are infringed or not.

That's why when the courts uphold laws about speech they always make clear that it's speech that's outside the bounds of the first amendment (like in New York v. Ferber), that way the laws aren't really respecting the first amendment at all.
They never say that a gun-control law is constitutional because those guns are outside the bounds of the second amendment (see Sonzinsky, U.S. v. Powell, Barrett v. U.S., Lewis v. U.S., Dickerson v. New Banner, Beecham v. U.S., etc.), so long as the gun-control law doesn't infringe the right it is automatically upheld--even when it wouldn't be under the first amendment, like the taxes at issue in Grosjean and Sonzinsky.

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Taxing the amendments
on November 01, 2017 at 12:34:33 pm

Since 1787, life tenure for Article III judges coupled with the fundamentally aristocratic way federal judges are appointed and then protected under the Constitution and the rules of the Senate have been recognized as a problem. Indeed, the more active the federal judiciary becomes the more problems it causes. During the Federalist period, the federal judiciary simply ignored the Bill of Rights and threw people in jail for criticizing the Adams Administration. Taney's decision in Scott v. Sanford made civil war inevitable. The Court's decision in Plessy v. Ferguson introduced 60 years of segregation and the Court's mania for discovering individual rights and enlarging the power of the federal government in the mid-20th Century laid the foundation for the empire that are at the root of our current problems.

Life tenure for federal judges is the most innovate thing about the Constitution of 1789 and it was recognized as a problem by the anti-Federalists. As the anti-Fedralists predicted it has proven to be the machine by which sovereignty has been transferred from the governed to the institutions of government.

Here's a link to an interesting paper on life tenure. http://epstein.wustl.edu/research/courses.judpol.Calabresi.pdf

On its face, it is absurd that a drunken, senile or criminal district court judge, who was appointed by the president and confirmed by the Senate, can only be removed by formal impeachment in the House and after trial by the Senate.

Less drastic action by the House aimed at curbing the judiciary, such as limiting certain courts' jurisdiction, are certain to be frustrated by the Senate's filibuster rules and the Senate's "blue slip" rule limits a new president's ability to re-shape the judiciary after an election.

There has to be a better way.

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on November 01, 2017 at 12:50:08 pm

We all differentiate the rights we believe we have into fundamental and non-fundamental rights.

I believe it was Martin Luther King upon acceptance of the Nobel Peace Prize who said, we do not demand the U.S. government recognize our non-fundamental rights--for we are not whiners who complain about every little injustice--no, we only demand the U.S. government recognize our fundamental rights, for we do demand that we be treated like men and not animals.

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JK Roe Wade
on November 01, 2017 at 13:07:00 pm

I believe it was Rosa Parks who famously quipped, "i will not need my non-fundmental rights to prove my innocence, my fundamental rights will be enough".

So yes, we all believe we are due certain rights that we don't consider fundamental--the things we consider to be rights we don't automatically consider fundamental.

As Rodney King said, "yes, they violated my rights, but those were the non-fundamental ones, so it wasn't a big deal. It was only when they violated my fundamental rights that I resisted."

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Rodney Kind and I
on November 01, 2017 at 13:07:57 pm

Nice link: Interesting proposal, especially if it serves to reduce the "rock star" status of SCOTUS judges.

"There has to be a better way."

Perhaps, one way would be for the Executive and the Legislative to make plain that the Judicial IS NOT, nor was it INTENDED to be the final voice on COTUS.

Then again, that may be asking too much of the Legislative who deploys the Judicial as a cover for it's own ineptitude, cowardice and lack of constitutional virtue.

But good link!

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on November 01, 2017 at 14:11:57 pm

Rodney WAS Kind - after all, did he not implore us to all get along (and not worry about non-fundamental rights, I suppose). Ha!

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on November 01, 2017 at 15:24:47 pm

Very interesting piece.

Those who suggest the Judiciary is a non-republican, unelected branch denies the operation of the ‘majoritarian will’ at work when a popularly elected executive nominates, and a popularly (directly or indirectly) elected Senate confirms the appointment of a judge or justice.

In my view, a popularly and directly elected Senate has already undermined the framers intended, anticipated and prominent role of the states in erecting and constraining the federal, and in its (the states) own role of checking and balancing, and this would appear to apply most especially in the arrangement of the judiciary, one that would have a heightened awareness of the feds proper, and not necessarily proportionate or prominent relation to the states.

Furthermore, a deferring judiciary is a submissive judiciary, and an unconstitutional judiciary, in as much as it is not fully performing its co-equal duty of checking and balancing the other two branches in which the framers set it against. This type of Judiciary is little more than a rubber-stamp, and as contemptible to the framers as King George's judiciary.

The great distrust the framers had for pure democracy and a tyrannical executive is likely enough evidence as to how they would receive this run-away (give-away) practice of judicial deference. This is to say, as a body highly skeptical of factional majoritarianism; it is almost intuitive that they would have envisioned, as a firewall insulating, or moat separating, the constitution and the states’ rights, an equally skeptical judiciary.

In Legislative delegation we have the (unconstitutional) granting of Article I powers to the Article II branch. With Judicial deference, we have the (unconstitutional) granting of Article III powers to the Article I branch.

In the end, the independence of the judiciary is weakened by deference, and a judiciary weakened in this manner not only becomes submissive to the other two branches, but to the influence and will of factional majorities; the politicizing of the so-called, non-political branch. Thereby undermining the very integrity that its construction was intended to protect and ensure.

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Paul Binotto
on November 01, 2017 at 17:34:46 pm

Let us remember that dependent upon the*controversies* at issue we may find that EITHER deference or "judicial activism" (aka judicial legislating)is our preferred epithet.

Let us not seek to remedy one particular judicial trespass in the false hope that it will suffice to right the constitutional ship. In the current instance, we appear to condemn the Judicial for its' apparent practice of allowing for the infringement of certain economic rights, and properly so, while seemingly ignoring the Judicial's predilection for discovering a cornucopia of heretofore unknown individual liberties - and all this in opposition to the general majoritarian impulse of the citizenry and the "express" intent of the Legislative.

Are we to both praise and simultaneously condemn the Judicial for its rather asymmetrical *deference* toward majoritarian impulse AND Legislative supremacy. As the essayists alludes above - much would appear to depend upon whose ox is being gored.

There is no simple solution; no unified Judicial stance with respect to upholding or overturning a specific piece of legislation (never mind EO's, Agency findings, etc) that will address the propriety of all possible legislative enactments.

At times,the Black Robes SHOULD overturn legislation; at times, they ought NOT TO overturn it - all depending upon the text of the Constitution AND the text of the legislation. This is called the exercise of judicial duty to be faithful to the Constitution NOT their own, or others views of what is the proper policy prescription.

Therein lies the intent of the Framers and the only true guarantor of judicial independence.

BTW: The link provided by EK above is worth a good scan.

I also think the Black Robes could do with a "break" from 20+ years of *ministering* to their poor flock. Ha!

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on November 02, 2017 at 09:26:04 am

Good points, Mr. Gabe.

Invariably justice must seek some balance, some equilibrium, where the wielding gavel must be as much carrot, as stick, and sometimes, croupier's rake.

Much deference, (& discretion) of course, takes place before SCOTUS even takes a case; which plea to hear, which to deny, which to remain unchecked - And, again and again, at each stage up to an including any eventual hearing.
The wheels of justice, at this stage, while they may seem more the roulette wheel, spun out in opposing direction to the ball by the croupier's hand; doesn’t the ball really land, less by fate, but by deference, by plan?

Certainly it seems that the vast majority of cases are turned away at the door – rightfully so. And, the rejection of Chevron or Auer shouldn’t disrupt the vast majority of legislation that receives the benefit of deference.

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Paul Binotto

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