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Copyright (c) 2007 California Law Review, Inc., a California Nonprofit Corporation

California Law Review

Fall, 2007
95 Calif. L. Rev. 1619
LENGTH: 20420 words
ARTICLE: The Dimensions of Law: Judicial Craft, Its Public Perception, and the Role of the Scholar
NAME: Amnon Reichman +




The premise is by now familiar: constitutional adjudication - an integral feature of a constitutional scheme legally committed to the protection of rights and the separation of powers - pits one governmental branch against another and carries the risk of seriously deepening existing social divides over values n1 and symbols n2 in heterogeneous societies. n3 The c [*1620] omplex role of the Supreme Court as a co-equal branch of government, n4 whose duty it is to enforce the Constitution, n5 places the Court itself - supposedly the "umpire" n6 - in an adversarial position vis-a-vis other [*1621] branches and/or social movements enjoying popular support. n7 Since the Supreme Court lacks control of the sword or purse, for its words to bind - for it to be able to carry out its duty to protect constitutional rights n8 and the separation of powers n9 - it must maintain public confidence in its performance as a court of law. n10 While the premise is clear, the question [*1622] remains: given that the law is a complex notion, n11 what does public confidence in a court demand? Surely, it cannot be reduced to a matter for public relations experts, for that would imply that judicial performance is but a show. n12 Nor does it mean that judges should engage in popularity contests. n13 Does it demand a meticulously articulated decision that is doctrinally sound and supported by precedent? n14 A just result - namely, a result aimed at ameliorating severe social injustices as understood in [*1623] reference to prevailing social values or principles of reason? n15 A result that is sensitive to clashing social symbols, including symbols associated with the judicial role? n16 A result reached through a fair process, anchored in accepted notions of institutional roles? n17 All of the above?

In his influential writings, Paul Mishkin put forward a cogent position: public confidence in the Court demands at least that it acts according to professional standards and adheres to principled reasoning in its decisions. n18 By that he meant the "demands of generality and fidelity - requiring sincere efforts to reason in terms of precepts that transcend the individual case and that are conscientiously seen as governing in all cases within their stated terms." n19 Mishkin acknowledged that sometimes - and these times are not necessarily rare - the very same considerations of maintaining public confidence constrain the Court's ability to meet this standard, prompting it to devise a doctrine that cannot be justified as a [*1624] matter of principled reasoning. n20 This is because the various expectations from the Court are sometimes in conflict with one another. n21 The public may expect adherence to professional standards of legal reasoning premised on fidelity to the rationale underlying governing precedents, but they may also expect a just result and/or adherence to accepted institutional boundaries and/or respect for identity-forming symbols. n22

Thematically, conflicts surrounding the notion of judicial legitimacy n23 could be understood as stemming, at least in part, from the friction between law and politics. Mishkin saw this cluster of conflicts as a prevailing element that goes to the root of constitutional adjudication, or more specifically, as embedded in the position of the Supreme Court as operating amidst a political context. n24 Some have suggested that these tensions between professional standards and popular expectations could be recast differently. I read Professors Post and Siegel n25 as suggesting that these tensions may be diffused significantly by re-conceptualizing professional standards, shifting the focus from the articulation of doctrine and adherence to role-related symbols to the underlying social values at the core of the judicial resolution of cases. n26 It then becomes a tension of social [*1625] values (or, more accurately, a tension relating to the purposes of law regarding social values), and not a tension between law and public perception. Christopher Schroeder addresses the problem from an empirical perspective, referring to the scholarship that tracks public support of the Court and its decisions. n27 He suggests that at the end of the day it is judicial attitude that matters: neutrality and empathy play a key role is preserving judicial legitimacy. n28

This Article suggests another way to think about the problem, one that looks closer at the concept of "the public" whose confidence is at issue. In a nutshell, this Article suggests that the tension is indeed unavoidable, because "the public" to which the Court is writing is not monolithic but multidimensional. Rather than approaching "the public" as a cluster of the different organic communities that comprise a given polity, this Article suggests that properly conceived, "the public" consists of different practices and professions (i.e., knowledge-based communities) that evaluate judicial performance according to their language and set of constitutive values and symbols. Since a judicial decision is an "event" in each of these systems, and since the systems' standards of excellence diverge, the Court must maneuver between its different audiences n29 in order to maintain public confidence. Such maneuvering entails a permanent tension between the different standards to which the Court is expected to adhere.

Part I will reexamine notions of public confidence and judicial legitimacy, given the countermajoritarian premise. Part II, will put forward a paradigm with which to analyze the tension between law, politics, and public confidence and its effect on the judicial craft. This paradigm - Luhmann's "system analysis" of society - allows us to appreciate the different practices that form "the public," whose confidence the Court seeks to maintain. I will argue that since a judicial decision "occurs" not only in law but also in neighboring systems (or practices) as well, the [*1626] legitimacy-generating audiences of the Supreme Court pull in different directions. Such pulls, in turn, are reflected back into the practice of constitutional adjudication (since the law views the possible reaction of the different systems as a legally-relevant information). The tensions identified by Mishkin are inevitable in a complex society. I will then elaborate on the salient "systems" or practices with which the law and specifically constitutional law intersects: the media, party-politics, the administrative realm, and ethics. This Part will conclude with revisiting the practice of constitutional adjudication, in light of its intersection with the aforementioned practices. Finally some words will be written about the legal profession and its role in maintaining public confidence.


"Maintaining Public Confidence" - Indeed?

Taking as a given that if perceived as exercised illegitimately, judicial authority in a democracy stands to depreciate, and that legitimacy, at least in part, is a function of public confidence, it is not surprising that judges directly address the issue of maintaining public confidence. For example, in cases like Planned Parenthood v. Casey, n30 Bush v. Gore, n31 and Roper v. Simmons, n32 the Supreme Court brings the question of public confidence in its decisions to the fore. Under the Court's analysis, public confidence considerations may serve as a limiting factor - barring the Court from a certain course of action n33 - or may be a prompting factor - calling upon the Court to either withdraw from an erroneous precedent or revisit its interpretation in light of new public perceptions and attitudes. n34 Yet the [*1627] countermajoritarian nature of judicial review suggests that judges should not bow to popular sentiments. n35 The very structure of insulating federal judges from elections n36 and granting them lifetime tenure n37 with compensation n38 call for judges to uphold the law - whatever that may mean n39 - and not to engage in assessing what the public may wish them to do (result-wise or reasoning-wise, assuming the public reads the opinion or is aware of the nuances of the result). n40 Governance through ascertaining public preferences (or will) is left, under conventional wisdom, to the elected branches. Of course, there could be rare occasions when the very fabric of society may be at risk and judicial power may reach its limit and bend before the high gales of politics. n41 Yet aside from such unique crises, what role should public perception, and consequently, public confidence, play in judicial decision-making?

Some would say none. Judges should stick to the legal craft - understood as consistency with doctrine and underlying principles. n42 Realists would argue that judges are politicians with robes, promoting [*1628] values and policies, whether they like to or not, and should keep doing so to the best of their abilities. n43 Proponents of the latter approach would hail an explicit recognition by the Court that public perception matters because they believe that it is the truth and that such recognition would allow the Court to relate directly to social values and work towards their promotion. n44

Implicit in Mishkin's approach is the rejection of the strong countermajoritarian position according to which judges ought to fully detach themselves from popular demands and proceed as if totally removed from widely held convictions. Mishkin acknowledged that the Court's legitimacy may suffer if it does not factor in popular attitudes, structural expectations, and strongly held beliefs and symbols. n45 Nevertheless, Mishkin submitted that relaxing the commitment to professionalism (understood as reflective consistency and coherency of doctrine and reasoning) while understandable, cannot be embraced. n46 Principled reasoning is the Court's ultimate refuge against the public outcry expected, at least on some occasions, as a consequence of the nullification of popular will. While the public may accept a decision invalidating the will of the majority on account of the majoritarian policy being contra legem, the public would be hard pressed to accept such a decision by an institution that is unprincipled in reasoning or outcome.

Yet, principled reasoning comes with a price. At times it constrains the Court's ability to promote (or at least not interfere with) an otherwise beneficial (and publicly demanded) state action. It prevents the Court from reaching decisions that the judges, the legal profession or the polity as a whole would have liked to reach had the Court been free from commitment to principled reasoning. While the Court may have certain room to maneuver between reasoning and outcome, and while the Court may on rare occasions sacrifice principled reasoning for a highly desired result [*1629] without loosing its standing as a principled institution, n47 resort to these techniques is not without risks. In sacrificing reasoning for result, the Court may preserve its short-term legitimacy, but undercut its overall standing as a principled institution, a standing essential for cases in which the Court invalidates the popular will. n48

Mishkin thus realized that the commitment to professional standards of reasoning and doctrine does not ease the tension associated with the exercise of countermajoritarian judicial review. In fact, in some cases the reasoning, not the result, may trigger conflicts over values and symbols. The Court may experience pressure to refrain from a certain line of reasoning - even if this line fits best with the rationale underlying existing case law - because that very line might be perceived as threatening or otherwise insensitive to some core identity-related values or symbols of the groups involved in the dispute: such was the case in Bakke. n49 In Bakke, the Court upheld the constitutionality of higher-education affirmative action schemes that grants minority applicants a "plus" and invalidated a quota-based system. n50 The latter seemed to treat race more rigidly, even though, result-wise, the system of "pluses" cannot be rationally administered without reference to the desired weight such pluses should have, and ultimately to the desired representation of the minority group in class. n51 At [*1630] the end of the day, the Court was sensitive to the political message embedded in its decision, and apparently sought to preserve a semblance of individualism (i.e., the plus assigned to an individual) by rejecting deterministic group-affiliation and collective benefits (i.e., the quota). In so doing, the Court did not act in a fully principled manner. According to Mishkin, such a tension is inherent in constitutional decision-making. Legitimacy demands that judges adhere in principle to principled reasoning, yet such adherence cannot be fully principled because legitimacy demands that judges take into account the political context, the relevant symbols associated with the political and the judicial realms, and the possible reaction to the judicial craft as part of practicing it. n52

In order to further understand the complexity of these seemingly "ambivalent" n53 positions, it is worth examining the law/politics distinction from a different perspective, one that looks closer at the law, the polity, and the structure of the relationship between them.


"Dimensions of Law": A Conceptual Framework of the Legal Layers

Anyone who had the privilege of studying under Paul Mishkin would no doubt remember the Socratic experience of pealing away layer after layer of the case under consideration, trying to reconcile the case with previous ones and predicting how future cases would come out under different set of facts. The process of reconciliation demands attention to the principles underlying the doctrine, to structural elements like the separation of powers, to institutional capacities, and to other aspects within which the law resides. Appreciation of both legal rules and their limits is thus gained. Yet such a revelation is achieved not by direct annunciation, but through developing a certain sensitivity to the multiple dimensions within which the judicial craft is exercised.

If forced to zoom-out - though Mishkin himself might squint at the prospect of ascending to the metaphysical spheres of law - the student of the Mishkinian approach would discover that this approach is closely aligned with the Luhmann-Teubner "system analysis" of society. n54 This [*1631] approach, which has not gained much traction in United States' jurisprudential writings, understands society as if it was a living organism, organized into "systems" or meta-practices. n55 These social practices are sites of meaning (where information is processed and knowledge generated) and normativity (where the purposes of the practice, the purposes of those operating within the practice, and its dialect of popular culture, values, and beliefs are formed). n56 Each practice is constituted around defining core elements (such as its self-proclaimed raison d'etre and the methodology with which it processes information); these core elements are viewed as the practice's genetic makeup. n57

Practices develop a web of self-references by cross-linking core elements into "circuits": each core element may be validated by other core elements and may serve as a link in the chain that validates other elements. n58 Sophisticated practices thus enable us to challenge each and every core element, but not all elements at once. At any given moment, at least some aspects of the practice must be taken as a given, and thus other elements may be validated relative to the given. By constantly "rotating" the fixed elements and by establishing the network of self-references, practices avoid deep challenges to their foundations (since establishing foundations is beyond our ability) n59 while presenting themselves - to the practitioners and, to an extent, to outsiders - as if foundations do exist. n60

[*1632] Operationally, the practice constructs social roles (players): "office holders" are created, their "function" designated and their relationship with other participants - other office holders or individuals interacting with the office holders - is routinized. n61 An institutional framework within which the system self-governs is established, and a structure of functional authority emerges. n62 The practice also generates bases for what counts as a convincing reason (or justification) for the various moves available to the various players and sets procedures that regulate interactions among the players. Conventions, symbols and codes of behavior emerge. n63 All these, of course, are not static, as sophisticated practices contain conventions regarding the amendment of conventions, including the amendment of the emending conventions. Yet as dynamic as the practice may be, at any given moment within each practice, there exist "ideal types" n64 and "best ways" of practicing, which generate standards for "excellent" performance within the practice. n65 These standards define craftsmanship. They also establish a structure of authority, sometimes referred to as "professional" authority. n66 [*1633] Sometimes this structure of authority corresponds with the practice's institutional fabric (i.e., its functional authority), and thus those in charge of governing the practice are also recognized as its leading experts. In any event, professional expertise and authority are, under this paradigm, forms of social capital. n67

Equally importantly, each practice establishes and sustains entrance-and-exit rules to and from the practice. Substantively, they regulate the initiation of practitioners into the practice (and their suspension or expulsion). They also regulate the entrance and exit of information (and norms) from other practices. n68 This may be referred to as the degree of "openness" or "closeness" of the system. By "guarding" the system's outer boundaries, n69 these exit and entrance rules sustain the operative independence of the system - the system controls the flow of information according to its core language and values - and at the same time these rules ensure that the system remains responsive to claims communicated from other systems. A system that erects strict barriers to the flow of information into the system (by instituting stringent procedures that determine "relevancy") is relatively closed (and vise versa). The same applies for codes governing the incorporation, assimilation or rejection of norms (or [*1634] values) originating in neighboring practices. n70 A system may be relatively open to knowledge (or information) gained in other practices (or systems) and relatively close to values grounded in (or emanating from) other systems (or vise versa). Sometimes these rules of engagement are explicit - such as rules governing the admissibility of social evidence. n71 Other times, the rules are implicit. n72 In most cases, both explicit and implicit rules of import and export are at play. Practitioners thus not only correspond with their fellow practitioners within the practice, but also converse with other practices (and their practitioners) using the practices' modes of translation and communication. Ideas migrate from one system to the others, and facts and norms are exchanged between systems. n73

Finally, according to this paradigm, some practices intersect, and therefore some social activities occur in several practices simultaneously. In such a case, the event is likely to have a slightly different meaning and/or effect in each practice, given the practice's internal logic and system of references. As will be elaborated below, it is this intersection of practices - where an event occurs in several practices simultaneously - that lies at the heart of the judicial dilemma regarding public confidence; it is this feature of the social world that sheds light on Mishkin's "ambivalence." n74

At this stage, eyes slightly glazed, most lawyers would either lose interest or reaffirm their choice to engage in law, not social philosophy. Our legal craft resists grand theories about life, truth, method, meaning, reason, or language. We are in the business of analyzing legal problems (grounded in facts) and assessing the performance of legal institutions relative to these problems. Insofar as we do conceptualize, it is about legal concepts such as property, tort, or remedy. In other words, the previous paragraphs belong more to a neighboring practice - social theory [*1635] perhaps - than to legal practice. Although theorizing about the "furniture" or "building blocks" of the social world is not what legal professionals do - "Legal Process" aficionados certainly avoid over-stepping the boundaries of law - such theory is nonetheless relevant for legal analysis, precisely because it sets the stage for what we do. It provides us with an unspoken and assumed structure, so that we can concentrate on analyzing cases and figuring out the scope, force, and limits of legal principles in actual litigation.

In light of the above construction of the social world, it is clear that we cannot simply talk about "public" perception. The public is, in fact, shorthand for members engaged in the various social practices that comprise society, not only the sum total of members in a certain polity, or the sum of organic communities, (Irish, Italian, Jewish, Southerners, Northerners, etc.), that comprise that polity. Because, as mentioned above, the law is not hermetically closed n75 - it communicates with other practices, and legal "events" radiate to other practices (and vice versa, non-legal events radiate into law) - a serious study of the law would require that we examine the relevant meta-practices that "intersect" n76 - or directly communicate - with the practice of constitutional adjudication. Five such "layers" stand out as salient because they intersect directly with the law or, put differently, because all legal events (in constitutional law) are events - or potential events - in these practices as well. More will be said about these practices below. n77

Other less salient practices intersect with the law only to the extent that the law regulates activities within those practices. For example, religion and the defense system are impacted by Supreme Court decisions, but primarily by those decisions that pertain to matters of import to religion or to national security, respectively. Other systems may cross path with the [*1636] law on even narrower grounds; while legal institutions are prevalent in all social systems, the intersection between the law and these systems is limited to the subject matters around which these systems are organized. For example, the law plays a role in regulating the medical system, but the intersection is of a limited scope (and therefore many areas of the law, and consequently, most Supreme Court decisions, fall outside the overlap between the two systems). In that respect, systems such as the medical system are situated more remotely from the law. As concerned citizens, members of these practices may have strong convictions regarding the various social issues decided by the courts (and therefore may be sensitive to the message embedded in judicial decisions to the extent that such a message relates to their identity or values), but for their manifested conviction to be captured by judicial legal lenses it must be put forward as part of a concrete legal case or controversy n78 or be communicated via the systems situated in greater proximity to the law--i.e., systems whose degree of intersection with the law is more comprehensive--such as party-politics or the media. Members of the more remote practices may thus loosely be termed "the general public," although there is nothing "general" about these "publics." The various social systems that comprise the polity are merely remote; it is assumed that there is little distinction between the practices of medicine, education, sports, architecture, agriculture, and the like as far as the evaluation of the judicial performance that does not directly regulate these practices is concerned.

If the paradigm sketched above aptly describes the organization of the social world, then the public is a rather complex entity, and its confidence is no less so. Its engagement with the judicial craft is multifaceted. Much like the processes by which chemicals produced in one biological system "travel" to neighboring systems, judicial decisions traverse different social systems, each a site of public confidence. With respect to some systems, however, the travel is instantaneous, since these systems directly intersect with the law. I now turn to a brief overview of these salient systems, using both Bakke and Nixon to bring them to life.

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