I have recently come to the view that one of the most profound and pervasive issues beneath the surface of most cases in constitutional and public law is how the Court approaches the task of evaluating the actions of other institutions of government. Put briefly, the question is whether the Court should take into account its own view of how the relevant institutions “realistically” function in fact — or whether the Court should rely only on the way the law presumes these other institutions to act, without regard to how the institution is likely to exercise (or fail to exercise) those powers in reality. How much should the Court blind itself or open its eyes to the way these institutions actually function at the time the Court is deciding cases? I call this the choice between “institutional formalism versus institutional realism” in how the Court approaches evaluating the actions of other governmental institutions.
Because so much of constitutional and public law involves judicial review of the actions of other government institutions (rather than the actions of individuals), this issue turns out to be present, but largely unnoticed, in a vast amount of what the Court does. It is present whenever the Court reviews actions of Congress, the president, federal agencies, state legislatures, and state courts. Moreover, I believe a great deal of controversy about Court decisions is, at bottom, conflict about whether the Court should be more “realist” or “formalist” about how other institutions function. Many cases this Term – and in any other Term – can be understood more deeply through this perspective.
I seek to demonstrate how widely present this issue is, and how schizophrenic both legal doctrine and academic commentary are about how to handle it, in a new piece in The Supreme Court Review entitled Institutional Formalism and Realism in Constitutional and Public Law. To make these issues concrete, let me start the discussion by grounding it in a recent high-profile case: the Court’s decision in McCutcheon v. Federal Election Commission, striking down aggregate limits on campaign contributions.
In reaching that result, the majority addressed many of the fears the dissenters and critics expressed about the possible consequences of removing the aggregate caps by relying on the fact that other public institutions — namely, Congress and/or the FEC — have the power to fill any potential regulatory gaps. Congress and the FEC, for example, have full power to prohibit funds given to one entity from being “earmarked” for actual use by some other specific candidate or entity. Yet some critics leap on these passages to excoriate the Court for being disingenuous or dishonest: it is “obvious” that neither a polarized Congress nor a gridlocked FEC will in fact do anything at all – and therefore, taking this realism into account, the Court should have upheld the aggregate limits.
The Court in McCutcheon thus takes an institutionally formalist view: Congress and the FEC have the powers to address these potential regulatory problems. The critics instead demand that the Court take an institutionally realist view: what is the Congress of today, and the FEC of today, actually likely to do? Hence, the more fundamental question, which is not directly engaged, is which of these stances toward other institutions the Court ought to be taking as a general matter in constitutional adjudication. Should the Court generally be institutionally formalist and not try to predict how other institutions will act (or fail to act)? In that case, these criticisms should be viewed as little more than expressions of frustrations with the outcome, rather than legal indictments. Or should the Court be obligated to base its decisions on institutionally realistic judgments on how other institutions act and are likely to act?
Last Term’s decision in Shelby County v. Holder¸ in which the Court invalidated the Voting Rights Act’s pre-clearance coverage formula, is another prominent example. The Court left open the power of Congress to craft a new formula, but many critics attack the Court for not being “realistic” about the (presumed) fact that a partisan, polarized Congress isn’t likely to do anything. Should Court decisions on the constitutionality of statutes like the VRA be affected by how likely it is that Congress will respond to the Court’s decisions?
I’ve suggested this issue is pervasive throughout constitutional and public law. To demonstrate that, I’ll allude in brief, telegraphic form here to examples in five other areas:
1. State and federal courts. The entire “myth of parity” debate is one manifestation of the institutional formalism/realism conflict. The central question here is how much the Supreme Court should treat state courts as a black-box equivalent to federal courts or open up that black box more “realistically” to judgments about how state courts actually function in practice.
2. The presidency. Since the eighteenth and nineteenth centuries, the presidency has experienced a vast array of changes that has turned into a more dominant and powerful institution than originally envisioned. Some of the changes affecting the actual powers of the office are technological, such as the advent of television in the mid-twentieth century, which gave the president a powerful new capacity. Similarly, with the rise of political parties – and the president then assuming the role of the dominant leader of his party – Congress is less likely to provide the checks and balances originally envisioned in times when the president’s party controls the House and Senate as well (and government will be more paralyzed when divided). Should constitutional doctrine on the scope of presidential powers change to reflect this new “reality” concerning the leverage the president has over his party’s members?
One of our most experienced presidential advisors on the Court thought so. Hence, Justice Jackson, in a neglected passage in his famous Steel Seizure concurrence:
[T]he rise of the party system has made a significant extra-constitutional supplement to real executive power. No appraisal of his necessities is realistic which overlooks that he heads a political system as well as a legal system. Party loyalties and interests, sometimes more binding than law, extend his effective control into branches of government other than his own and he often may win, as a political leader, what he cannot command under the Constitution.
Many other issues in the area of presidential powers and separation of powers similarly can look very different depending on whether the Court is prepared to be formalist or realist about the actual powers and functioning of the presidency in different eras.
3. Congress. The extent to which the Court should view Congress more “realistically” or “formally” influences constitutional law, statutory interpretation, and a host of other issues. In the constitutional sphere, the formalist/realist institutional divide is the debate over the “political safeguards of federalism.” The crux of that controversy is how well the national political process actually protects state interests, and how much the Court should take a more “realistic” or “formalist” view of that question. The more state-protective Justices have argued, for example in footnote 9 of Garcia v. San Antonio Metropolitan Transit Authority, that “‘a variety of structural and political changes occurring in this century have combined to make Congress particularly insensitive to state and local values.’” This is a plea for a stance of institutional realism (and a particular view of what that means) that is offered to justify a more aggressive Court role in enforcing constitutional limits on Congress’s powers.
In the statutory area, many issues and cases turn on whether the Court should view Congress formally or realistically (and if the latter, what that means). In some areas, such as tax, it is well-known that the relevant congressional committees constantly update the tax code, including in response to judicial decisions. Does this mean courts ought to stick much more closely to the literal text in tax cases, compared to areas involving other statutes – such as labor law – where it is similarly well known that Congress almost never legislates? To take one more example, when the Court interprets an ambiguous statute, should it take into account its view of the realistic likelihood that Congress will respond if the Court’s interpretation if “wrong”? Formalism would argue no, but this institutionally realist view would lead the Court to decide such cases against the most well-organized, politically powerful actors – such as against the government in criminal cases, where the Court does exactly that through the rule of lenity.
4. Administrative agencies. Administrative law in various eras has indeed taken a stance of “institutional realism” toward administrative agencies. Perhaps the starkest example is the rise of agency capture theory in the 1970s and 1980s, which challenged the prior faith in technocratic expertise for explaining how agencies functioned, with the resulting doctrinal shift to more aggressive “hard-look” judicial review. From the original vision of agencies reflected in the APA, the courts became willing to penetrate the black box of “the agency” and make assessments of how interest-group dynamics affected agency action – and to shift legal doctrine accordingly.
Should analogous doctrinal shifts take place today to reflect institutional realities concerning how Congress now functions (or fails to function?). Or should the Court adopt a more institutionally formalist stance toward agencies? For example, in numerous policy arenas in which agencies act, Congress has not revisited the issues in many decades, despite dramatic technological, economic, scientific, and other changes. The episodic nature of congressional action in these areas is now exacerbated by the hyperpolarized partisan context, combined with divided government, which cripples the capacity of Congress to act in general. In these areas, such as energy or environmental policy, should courts be more deferential to the relevant regulatory agencies in light of the institutional reality that they alone are likely to be practical capable of actively updating statutory regimes? Perhaps the Court’s expansive reading of the Clean Air Act in Massachusetts v. EPA, which permitted/required the EPA to regulate greenhouse-gas emissions, already evinces this realist view about the Congress of our era. Again, the foundational question here is whether the Court should blinker itself to these underlying realities of how Congress and agencies function or instead shift doctrine to reflect (the Court’s) perceptions of how these institutions are likely to function?
5. State legislatures. The most obvious way in which the formalist/realist tension has played out doctrinally is the Court’s reapportionment revolution. For decades, the Court adopted an essentially formalist legal stance toward state legislatures – and Congress – in refusing to find malapportionment claims justiciable: if there was a problem, those were the institutions to fix it. But eventually, after further decades of legislative inaction, the Court shifted frameworks and decided it had to adopt a more institutionally realist view: sitting legislators elected under the existing system of massive malapportionment, in the states and Congress, had little incentive to change to the system under which they had gained and maintained power. Once the Court shifted to institutional realism, constitutional doctrine forced the restricting of every state legislature in the country. Similarly, when the Court reviews laws regulating the democratic process, such as voter-identification, early-voting, or same-day registration laws, should the Court take into account whether these laws have been enacted on straight party-line votes (a realist’s view) or simply evaluate the laws without regard to facts about the legislative process (a formalist’s view)?
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The main aim of Institutional Formalism and Realism in Constitutional and Public Law is to show that the tension between more formalist and realist institutional conceptions is a profound, inescapable, and irresolvable one throughout constitutional and public law. In my view, focusing more directly on this tension illuminates public law and its controversies but cannot suggest that any final resolution of this tension can be had. Too much institutional formalism defeats the purposes that animate the constitutional order in the first place; too much institutional realism is perceived to pose a threat to the rule of law. Yet so many of the controversies concerning Supreme Court decisions – both within the Court, among Justices, and in academic and more general public debate – turn out, at the deepest level, to be about whether the Court should be taking a more institutionally formalist or realist approach when Congress, the president, agencies, state courts, and state legislatures act.