Research Matters: Brian Leiter on "Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature"

Research Matters is a regular feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Professor Brian Leiter, the Karl N. Llewellyn Professor of Jurisprudence and the Director of the Center for Law, Philosophy, and Human Values, wrote “Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature,” which he presented on January 12, 2015, as the 24th Mathew O. Tobriner Memorial Lecture in Constitutional Law at the University of California Hastings College of Law in San Francisco. In the piece, he argues that in the absence of actual law, the Supreme Court acts as a super-legislature — and that the American public has the right to know more about the justices’ moral and political views.

Q. Why did you choose this as the topic of your Tobriner Lecture?
A. I think of myself primarily as a jurisprudence/legal philosophy person, not specifically a constitutional lawyer. But the subject of this particular lecture was something I’d thought about off and on, and talked about, and occasionally blogged about. Whether there is any actual law in constitutional law is something that often comes up when I teach Jurisprudence. But I’d never written systematically about this, and this seemed like a good opportunity. It also strikes me as a matter of public import, since the way we currently confirm Supreme Court justices is a fraud on the public.

Q. Before we get to that last piece about the Supreme Court confirmation process, let’s go through the three primary claims you make in the paper. The first is that there is little actual law in the U.S. Constitution. What do you mean by that?
A. The jurisprudential background for that argument is the theory of law known as legal positivism that is associated with the English legal philosopher H.L.A. Hart. His basic idea is that where a legal system exists, there has to be a convergent practice of behavior by officials or judges on certain criteria of legal validity — the criteria they rely on in deciding what counts as law. He calls this a “rule of recognition.” One aspect of our rule of recognition in the United States is that judges all agree that the Constitution matters. The problem, especially at the Supreme Court level, is that, while the justices agree that the Constitution is important, they have very different views about what the constitutional provisions mean. There isn’t enough convergence to really say there is law there.

Q. Your second and third claims stem from the first: the absence of law means the moral and political values of the justices are highly relevant — but although this is common knowledge among insiders and is undoubtedly a factor in their appointments, it is treated as off-limits in the confirmation process. Can you talk a bit about that?
A. The Supreme Court operates as a super-legislature, though one of limited jurisdiction. It only gets to pass on questions that are brought before it, and it can’t “legislate” on a blank slate; there are constraints, maybe a couple of possible outcomes that are available to be chosen and defended. But it operates as a super-legislature because the law runs out, particularly in the constitutional domain and particularly in the kinds of cases that make it to the Supreme Court. The more vexed a question is as a matter of settled law, the more likely it is to be appealed. What this means, at the end of the day, is that judges have to exercise judgment. Their moral and political values have to inform their decisions when the law runs out.

I want to be clear: I don’t think that’s a bad thing. I’m not objecting to that. It seems to me that, in any complicated legal system, that kind of decision making is unavoidable. Lawmakers can’t anticipate all the problems that will arise, and it is actually a virtue in a complex society to have courts that can provide authoritative resolutions to new problems. But we ought to own up to it. We ought to be evaluating candidates for the Court in part based on their moral and political judgment.

Q. Why don’t we? Why aren’t the moral and political values of Supreme Court nominees part of the discussion during the confirmation process?
A. Well, it is at the margins — people speculate, there’s gossip, there’s rumor. But it is treated as off-limits for the actual confirmation process. The nominees will answer no questions about their moral and political views, or even their views about particular legal questions that might come before the Court. How did it get this way? I think politicians became very invested in the idea that there was a difference between judges who merely follow the law and those who are activists.

Q. So, ideally, what should the confirmation process look like?
A. There should be concrete questions about contentious political and moral issues. The candidates should be invited to explain their general moral outlooks. They should be asked to explain what they would do if there were a conflict between their religious commitments, for example, and what the law seems to require. We are entitled to know this. The presidents are picking these people with these values in mind, so there is information to be had. Let it be heard in public.

Q. What are the potential pitfalls to this approach?
A. The main risk is that the appointments process would devolve into party-line votes. I don’t know that that’s a terrible thing; the nominees are already being picked for political reasons.

Q. Why does this matter? Why should the average American be concerned about the lack of explicit, formal discussion about the values of Supreme Court nominees?
A. We’re supposed to be a democracy, and part of democratic decision making is that accurate information should be available to the electorate. Right now, the confirmation process is predicated on anti-democratic secrecy. The insiders know what is really going on, they know why the nominees were really picked — but the public doesn’t. We would be quite astonished if someone running for the actual legislature declined to answer any questions about their views. The public needs to realize that the Supreme Court performs a quasi-legislative function, that it is inevitable that they will do so, and that, therefore, the moral and political views of the justices are of enormous importance.