by Ronald Den Otter. Cambridge: Cambridge University Press, 2009. 346pp. Hardcover. $94.99. ISBN: 9780521762045. E-book.72.00. ISBN: 9780511601903
Reviewed by Christopher Malone, Department of Political Science, Pace University. Email: cmalone [at] pace.edu.
While serving as Governor of New York State in the opening decade of the twentieth century, Charles Evan Hughes remarked, “We are under a Constitution, but the Constitution is what the judges say it" (quoted in Shesol 2009, p.171). He was summing up volumes of constitutional theory in one succinct phrase. It is that rather parsimonious assertion, in all of its complexity, which provides the backdrop to Ronald Den Otter’s JUDICIAL REVIEW IN AN AGE OF MORAL PLURALISM, an abstruse but nonetheless provocative work intended to provide a normative and legal guide for judges as they navigate through the sober process of judicial review.
Den Otter’s treatise should be read as a meditation on a fundamental problem in American constitutional democracy, which can be stated somewhat unsophisticatedly as follows. The Constitution erects a republican form of government – a system of representation in the legislative and executive branches generally built around the principle of majoritarianism. The person with the most votes wins; the people who voted for the winner expect preferable laws and policies as the spoils of their victory. Except for some vague notion of “civic duty,” why else would anyone vote? But the Constitution also creates a judiciary whose fundamental job is to ensure that those laws and policies protect and provide for more than just the victors, no matter how “right’ the victors think they are. While federal judges may be ideological, they are not supposed to be political; their decisions are meant to be just and fair, not popular. For this reason, judges are insulated from political pressure inherent in a majoritarian democracy by serving what is essentially a lifetime tenure.
So a system which allows for the possibility of the majority of people to “win” through the democratic process also allows for the possibility that what legislatures give them when they do win could actually be “wrong” – constitutionally, morally, or maybe both. It is the job of the judiciary to make that “call,” as Chief Justice John Roberts might put it – to right a wrong wrought by the very majoritarian system of government the Constitution constructs.
With the legitimacy of the judiciary in particular (and constitutional democracy in general) riding on every decision, judges need to get “it” right. But what exactly does a judge need to do in order to get it right? Enter Den Otter’s theory of judicial review, or what Hughes wisely described as the process by which judges tell us what the Constitution is (Hughes knew something about that, since it was his court that stymied FDR’s New Deal for the first two years of his presidency by striking down many of its [*352] important laws). Den Otter’s stated aim is to provide judges with a “better theory of constitutional adjudication” which would “include an independent normative standard to help the electorate decide which of those underlying reasons was most plausible and thus most likely to lead to the right answer in a particular constitutional controversy” (p.6). The standard Den Otter puts forth that would allow judges to determine good constitutional arguments from bad ones is what he calls “public justification.” For Den Otter, public justification renders a decision legitimate when it is based on the strongest public reasons. “[J]udges must accept only certain sorts of reasons and justification for statutes and must render a law unconstitutional when voters or legislators have failed to limit themselves to those reasons” (p.7).
A public reason is one that an ideal reasonable dissenter – “a person who is willing to be persuaded by the better argument” – would consider “good enough” (pp.10-11). Hence, “judges must cast their constitutional arguments in ways that might appeal to reasonable dissenters” (p.11). Den Otter makes it clear that his approach to judicial review is in many ways a radical departure from traditional theories of constitutional adjudication. In fact, according to Den Otter, judges “have to look outside of the law for normative guidance” (p.3). If the judiciary, which is anti-democratic by definition, intends to maintain its public legitimacy when it thwarts the will of the people through the constitutional process of judicial review, “judges cannot simply discern constitutional meaning from the words of the text, from constitutional structure, from authorial intent, from the original linguistic context, from the case law, or from a combination of these factors” (p.3). Put differently, every theory of judicial review known to American constitutional law has in one way or another proven inadequate for what a constitutional democracy demands.
It is indeed a bold claim. Which perhaps explains why Den Otter spends the vast majority of his time elucidating – or perhaps we should call it “justifying” – the theoretical basis upon which his concept of public justification rests. The first seven chapters are devoted to clarifying public justification by situating it in the various debates found in contemporary political and legal theory, and deliberative democracy. Den Otter ultimately locates his theory of public justification in John Rawls’ idea of public reason, a term first introduced by Immanuel Kant in WHAT IS ENLIGHTENMENT? in 1784. Rawls appropriates the term and argues in his work POLITICAL LIBERALISM that something like a “common reason” exists in a pluralist society despite the fact that its citizens might not share similar moral or political backgrounds. What connects the members of a pluralist society to its common reason is a “commitment to the freedom and equality of all persons” (p.202). A Rawlsian concept of public reason undergirds Den Otter’s theory of public justification, then. Both are premised on the notion that the political members of a constitutional democracy, while not legally or theoretically sophisticated, will have some minimal or basic understanding of what encompasses and defines the freedom and equality of all persons. If the arguments given by judges in certain cases hew to this standard of public justification, the [*353] public will go along – and the judiciary will maintain its legitimacy in a constitutional democracy.
In chapters eight and nine, Den Otter takes this principle of public justification and applies it rather narrowly it to four areas of constitutional law: religious freedom, same-sex marriage, affirmative action, and abortion. For Den Otter, religious freedom and same-sex marriage are “easier” cases – the standard of public justification requires that judges overturn laws which restrict religious freedom in most cases, and marriage to heterosexuals in all cases. Affirmative action and abortion are a bit more difficult: public reasons can be given on both sides of these debates which the “reasonable dissenter” might accept as the better argument. On affirmative action, Den Otter concludes, in rather unsatisfying fashion:
I believe that courts should defer to legislative judgments about the need for most race-conscious affirmative action plans in higher education, which is not to say that a particular affirmative action could not fall short of the standard of public justification. These days, politically, the question is almost moot, but a reasonable person could have reached either conclusion concerning the constitutionality of most affirmative action plans (p.275).
Den Otter understands that the process of public justification in these “harder” cases will certainly not satisfy those who effectively lose the court battle any more than any other theory of judicial review. But as long as the legislature in question gives sound public reasons, the legitimacy of the courts and the legislatures remains intact – which, after all, is paramount in a constitutional democracy.
JUDICIAL REVIEW IN AN AGE OF MORAL PLURALISM is a work which takes the reader deep into debates concerning liberalism, normative legal theory, deliberative democracy, and judicial review. At its base, it is a work of political theory, and a pretty good one at that. But clearly Den Otter has ambitions for the practical application of public justification to constitutional adjudication. And this begs the question: when the rubber hits the road, will it work? Is public justification a “better theory of constitutional adjudication” than all the others Den Otter discusses as lacking, as he claims?
Herein lies the provocative nature of Den Otter’s book. Space does not permit a full analysis of some of the points where JUDICIAL REVIEW needs further probing. But let me mention a few in passing; hopefully the following will facilitate more dialogue and debate around the intriguing qualities of Den Otter’s work.
In arguing that public justification should only be applied to cases involving privacy and equal protection, Den Otter is right to avoid biting off more than he can chew. But that still leaves hanging the issue of whether public justification can [*354] be applied to other areas of the law successfully – or even to areas of the law surrounding privacy and equal protection outside of abortion, affirmative action, same sex marriage and religious freedom. The vast majority of JUDICIAL REVIEW is spent laying out the theory; the reader (this reader, at least) is left wanting more analysis on how public justification can be applied to real world cases and issues. Den Otter acknowledges that the book grew out of his dissertation. At times, the work has the feel of one, in the sense that much time and energy is first spent summarizing the debates in the literature, after which Den Otter situates his own views within them. Granted, this is a work of theory. But Den Otter’s stated goal is also to apply that theory to the real world problem of judicial review. It would be nice to see more of that application (perhaps in the next work of his).
Second, one wonders what adopting public justification as the standard in many cases would do to a system of constitutional law that rests largely on the concept of stare decisis – which, for good or for bad, has brought order to the entire judiciary. To his credit, Den Otter brings up judicial activism; but it is not clear what public justification will or will not allow judges to do (especially since he believes that judges MUST go outside the law for normative guidance). Does that mean the concept of “settled law” has no value whatsoever? Would lower courts be allowed to accept a different standard of public justification in certain cases that might be similar to past Supreme Court cases, even if it meant overturning the latter? Or do they follow the precedent? If they don’t, will they be allowed to rule differently than the high court because the judges believe the Supreme Court did not give sufficiently public reasons applicable to that particular case? If they do, are they violating the very concept of public justification because they are bound by precedent? Further, what happens if courts reach different public justifications in similar cases just a few years removed from one another? Will this actually undermine the legitimacy of the courts because a certain level of stability is removed from the system?
Third, and related, there are at once deeply anti-historical and historicist elements embedded in the concepts of public justification and public reason. On the one side, public reason has a zeitgeist quality to it – a culmination of culture, ethics, intellect, power, institutions, norms, politics, and history, without a real acknowledgment of what led to its creation in a given moment. It just seems to be there, hanging in the ether, for judges and legislatures to discover. Since Den Otter believes that judges need to look outside the law for normative guidance, one wonders if public reasons are too amorphous – similar to the way “societal discrimination” was too amorphous for the Court in many affirmative action cases.
At the same time, public reason is not static: what counts as public reasons today will certainly change tomorrow, because the present is more than likely biased over the past. Herein lies the historicist element to the theory. No one would doubt, for instance, that today’s decisions surrounding equal protection are more correct than the one handed down in PLESSY v. FERGUSON (1896). However, it should be recalled that Justice Brown firmly believed “separate but equal” train cars were a “reasonable” accommodation “enacted in good faith for the promotion of the public good.” Whether we take Justice Brown at face value or not, he did in fact make a “public justification” argument concerning segregation – and one which probably was considered “reasonable” by many at the time. It is easy to say that [*355] the case was wrongly decided, as we all admit today. It is much harder to make the case that, at the time, the justification for separate train cars was not one based on a legitimate “public reason” given the prevailing views of the day. The consequences of such a conclusion could be devastating to Den Otter’s theory. It would mean, in essence, that the standard of public justification is no standard at all – something much more fleeting, something ostensibly solid today that melts into air tomorrow.
Could the concept of judicial review, the courts – our constitutional democracy – withstand such turbulence? Would we be replacing bedrock with shifting sands? Would public justification really be an improvement over existing theories of judicial review? No one knows. But it is clear that Den Otter’s work has raised some fascinating questions about how judicial review operates, and whether what judges are doing is actually what they ought to be doing.
Kant, Immanuel. 1991. “An Answer to the Question: What is Enlightenment?” in Immanuel Kant, Political Writings, edited by H.S. Reiss. Cambridge: Cambridge University Press, pp.54-61.
Rawls, John. 2005. POLITICAL LIBERALISM. Second Edition. New York: Columbia University Press.
Shesol, Jeff. 2009. SUPREME POWER: FRANKLIN ROOSEVELT v. THE SUPREME COURT. New York: W.W. Norton Press.
PLESSY v. FERGUSON. 163 U.S. 537 (1896).
© Copyright 2010 by the author, Christopher Malone.