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Law in Contemporary Society
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Federalism as a Pretext-- By PrashantRai - 16 Feb 2012 In “The Path of the Law” by Oliver Wendell Holmes, Holmes argues that the goal of a practitioner of the law is to predict outcomes. The reason is that lawyers argue before the court not for the pursuit of a more perfect system of rules, but because they serve clients who want the best possible outcome in terms of their own personal interest. This creates an incentive for lawyers to choose what arguments to make not based on what they truly think the relevant values in play are, but rather based on predictions about how they think the court will rule. That is, a predictive model for argument selection will by its very nature serve the interests of the client better than a normative model based on the lawyer’s assessment of what the doctrine should be because, in many cases, the normative model will suggest arguments that have a lower chance of winning the day because of their incompatibility with the judge’s beliefs. Unfortunately, following a predictive model leads lawyers to choose the path of least resistance. This prevents positive change in the law and reinforces status quo doctrine. Additionally, a predictive model will often encourage lawyers to appeal to ideological commitments of the judge. The reason is that judges do not rule entirely, if at all, based on logic or ethics. Rather, while judges couch their decisions in the language of reason, there is always a lurking dogma that remains unspoken. There is no view from nowhere; while a judge may claim that his decision flows from a perfect deduction, there is always a missing premise – a belief that lacks rational justification. Says Holmes, “But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.” Holmes, “The Path of the Law” The most obvious example of this is when courts appeal to the values of federalism in justifying decisions that are difficult to classify as anything other than ideological. Federalism as a pretext for the advancement of dogma is best seen in a series of three Supreme Court cases from the last 20 years. In 1995, in US v. Lopez, the Supreme Court ruled that the Gun-Free School Zones Act of 1990 was unconstitutional because it was not within Congress’ commerce power. The justification provided was that a ban on guns in school zones does not substantially affect interstate commerce. The fear was that if the court ruled that such a ban was within Congress’ commerce power, then the commerce power “lacks any real limits because, depending on the level of generality, any activity can be looked upon as commercial.” Then, in 2000, in US v. Morrison, the Supreme Court found that the civil remedy provision of the Violence Against Women Act was unconstitutional because “gender-motivated crimes of violence are not [economic] activity […] Thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.” Chief Justice Rehnquist penned both decisions, which is ironic given that in Morrison the court adopted a fundamentally different test for evaluating a statute in light of the commerce power than that of Lopez. The court constructed the Lopez test, a pragmatic test of effects, as a response to the inadequacy of formalist distinctions between essentially “economic” and “noneconomic” activity in protecting a balance between federal and state powers. Yet, not five years later the same Chief Justice wrote that evaluating a statute in terms of its effects risks the destruction of federalism. Justice Breyer notes in his dissent in Morrison that the Chief Justice’s appeal to formalist distinctions disconnects federalism from its functional purposes. This kind of transcendental nonsense, as noted by Felix Cohen, is ever-present in American jurisprudence, and separates judicial opinion from the pragmatic impact that decisions have on our lives. The coup de grace, however, came in 2005 when in Gonzalez v. Raich the Supreme Court found that the Controlled Substances Act is a valid exercise of federal power because intrastate medicinal marijuana distribution in California substantially affects interstate commerce. Gone were the fears of an all-powerful federal government overreaching into pockets of regulation traditionally carved out as distinctly state governed. The majority opinion stressed the importance of the Supremacy Clause; the risk of an imbalance between federal and state powers was conspicuously absent from the discussion. Note also that the court again flip flops back to the substantial affects test from Lopez and ignores the above quoted language from Morrison. Nevertheless, what is common among the three cases is that in Morrison and Lopez, the court struck down legislation backed by Democrats in Congress, and then in the Gonzalez, in what seemed like a case for a straightforward application of the doctrine established by Morrison and Lopez, the court upholds legislation advanced by President “I am not a crook” Nixon. The upshot is that federalism matters when progressive legislation is under scrutiny, but is of secondary concern to the Supremacy Clause when conservative policy is in play. Frank Cross argues in “Realism about Federalism” that these and similar decisions use federalism concerns “as mere stalking horses for an anti-regulatory ideological agenda.” The broader point, however, is that judicial opinions are often backwards reasoning in the sense that the court picks the outcome it wants and then produces a rationalization to make it look as though the court reasoned to its conclusion instead of from it. Holmes concludes, “Judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious.”
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