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Article Excerpt
Much is expected from the judicial power of the United States. Expected to possess neither force nor will, (1) it must serve as a bulwark for discrete and insular minorities. (2) At the same time, it is expected to give effect to the will of the legislature. (3) The demands on the federal judiciary are far from homogenous, and at times, they are conflicting. (4) A court is expected to do justice yet receives public criticism for engaging in "activism." (5) Yet, American law finds its roots in a tradition of adjudication that is evolving and flexible: the common law. (6) At the heart of its charge is the obligation to safeguard the will of the legislature, (7) to ensure the protection of the minority, (8) and resolve particular disputes and redress particular injuries. (9)
It is difficult to imagine a philosophy of law that accommodates such a tension. (10) Jurisprudence compatible with the conflicting demands on the American judiciary must seek minimalism without impotence. (11) Pluralism creates a great amount of political tension (12) and must be confronted with a steadfast rule of law predicated on unshakable principles of adjudication. (13) Yet, such jurisprudence has never emerged. (14) Nor would such jurisprudence obviate the need to confront the very heart of conflict--the clash of human will. One party's will must displace another's. (15) The less a court pronounces, the less the displacement. (16) Minimalism thus alleviates the tension inherent in adjudication. Nevertheless, a judiciary that employs minimalism to arrive at its decision decides and substitutes its will for that of the parties before it. The extent to which the decision binds the future depends on the scope of the theoretical underpinnings of its decisions. A narrow decision will be relied on far less than a decision that announces a broad principle.
The manner and scope in which a court theorizes is critical. When a court decides a case, it binds future courts and litigants to its decision--but to what extent? Professor Cass Sunstein, recognizing the questionable democratic pedigree of an appointed judiciary, (17) offers a jurisprudence of minimalism to fill the breach. Sunstein's mechanism for theoretical modesty is the "incompletely theorized agreement," the notion that individuals can agree on less theorized principles to resolve cases at hand without resorting to high-level theoretical pronouncements. (18)
This Comment addresses Sunstein's minimalist regime within the context of the Supreme Court's adjudication of constitutional matters. This Comment argues that the less a court is held accountable to precedent, the less viable incompletely theorized agreements become as a means of fostering agreement.
Unfettered by the constraints of inductive comparison, a court is free to theorize. Once theorization has begun, no clear rules exist to terminate the process. Incompletely theorized agreements are, therefore, less viable when the Supreme Court adjudicates constitutional issues because the doctrine of stare decisis is particularly weak when a court is not subject to review by a higher court and is interpreting a foundational document.
Section I describes the derivation and nature of incompletely theorized agreements and the role of analogical reasoning. Section II discusses the weak effect of stare decisis when a high court interprets a supreme constitution. In such cases, the decision whether or not to apply the doctrine of stare decisis requires a fair amount of theorization, and such a decision must be made upon every analogical endeavor. The low-level and mid-level principles that Sunstein urges should replace ambitious theorization often require a fair amount of theorization to apply. The alternative of strengthening the doctrine of stare decisis would confound one of the advantages of incompletely theorized agreements--flexibility. Section II concludes by noting that the stare decisis required to facilitate incompletely theorized agreements results in defeating the benefits of such a regime.
Section III addresses the assumption that minimal theorization comports with traditional notions of judicial restraint and Ronald Dworkin's criticism of this theory. A logical effect of this problem is that deferring theorization until necessary means that at some point a court will be justified in engaging in more ambitious theorization. Once the court has begun theorizing, it is difficult to tell at what point the justification ceases and a court has over-theorized. This, in turn, may lead to even broader theorization rather than the minimalism sought in employing incompletely theorized agreements.
In other words, creating a gap between precedent and the point of application will invite a court seeking to create a point of analogy between precedent and a set of given facts to fill the theoretical void. Since it is difficult to determine to what extent theorization is more or less complete, a court will find it quite easy to overstep its bounds once it has begun the process.
While incompletely theorized agreements may not be viable when applied within the context of the Supreme Court's constitutional jurisprudence, the project of judicial restraint is not indefensible. This Comment contends that neither incompletely theorized agreements nor aggressive legal theorization alone are capable of ensuring judicial minimalism and restraint. It is instead precision in theorization rather than the degree of theorization that governs the appropriate role of theorization in matters of constitutional import.
The demands placed on the federal judiciary conflict because the institution was designed to operate in the midst of conflict. (19) Ideas must be able to compete for control of particular cases and controversies until one idea proves more meritorious than the next. (20) Theoretical modesty diminishes the vitality of this process of competition and experimentation. (21) Members of multi-member panels must face the political costs of divergent decisions, (22) and it is the province of a court to constantly question our society's most closely held beliefs. (23) These seemingly negative properties are in fact the cornerstones of our adjudicative process and should neither be dampened nor constrained.
I. THE INCOMPLETELY THEORIZED AGREEMENT AND TUE ROLE OF ANALOGICAL REASONING
Incompletely theorized agreements involve reaching a consensus on more theoretically modest grounds to avoid conflict on broader and more contentious issues. (24) For example, a court can choose to agree that the speech in a given case is not incitement without deciding on a general theory of First Amendment law. (25) Such agreements are incompletely theorized because they need not develop an expansive theory of constitutional law to resolve cases. (26) Borrowing and inverting John Rawls' overlapping consensus, (27)
that is, the notion that individuals can find agreement at higher levels of theoretical abstraction when agreements about particulars are untenable, (28) Sunstein conceives of an agreement that is fueled by theoretically modest principles to reach consensus about particulars, rather than seeking an untenable agreement about broad abstract and often controversial principles. (29) Instead of creating a broad theory about the law prior to application, Sunstein's incompletely theorized agreements allow resolutions to develop through "casuistical judgments at the point of application." (30)
One such form of "casuistry" (31) is the process of analogical reasoning. (32) In analogical reasoning, precedent is compared to the case at hand to determine if the two cases deserve like treatment. (33) Ordinarily the process of analogy requires a starting point, especially when two or more judges or justices must agree on what facts are relevant for comparison. Sunstein points to the doctrine of stare decisis as the starting point for the process of analogical reasoning. Precedent also binds lower courts to their superiors, leaving them little discretion to deviate from the rules of decision that must be inferred from precedent.
High courts, on the other hand, are far less restrained. The United States Supreme Court discretionarily selects its caseload, (34) and its decisions are unreviewable, (35) including its decisions about whether or not to adhere to precedent. There is limited institutional structure, primarily the constitutional amendment process, to police the doctrine of stare decisis. This limited structure weakens the doctrine. Stare decisis further erodes with more heated and controversial issues. (36)
Sunstein argues that incompletely theorized agreements are well suited for multi-member institutions because they allow a "convergence on particular outcomes by people unable to reach anything like an accord on general principles," (37) without questioning each other's closely held values. This reduces the political cost of arriving at a consensus on controversial constitutional issues. (38)
The United States Supreme Court regularly reexamines its precedent. (39) While "incompletely theorized agreements are well adapted to a system that should or must take precedents as fixed points," (40) a high court interpreting the supreme law of the land is under no such obligation and is less likely to be compatible with incompletely theorized agreements. (41)
Sunstein also favors a presumption against high-level theories in light of the federal judiciary's lack of democratic accountability. (42) Sunstein assumes that a system of low-level and mid-level principles will be more advantageous "over more ambitious methods, since ambitious thinkers, in order to reach horizontal and vertical coherence, will probably be forced to disregard many decided cases." (43) Low-level and mid-level principles, however, may simply defer theorization until deferral is no longer possible and invite an ascent in theoretical ambition. Once this process has begun, it is difficult to determine whether a court has over-theorized.
II. THE FLAWED ROLE OF STARE DECISIS IN INCOMPLETELY THEORIZED AGREEMENTS
Professor Sunstein asserts that incompletely theorized agreements thrive when there is preexisting consensus on the value of prior cases as precedent. (44) By accepting prior cases as unrevisable, a court can employ low-level principles such as analogical reasoning to resolve the case at hand without requiring the court to develop a broader theory or reinvent the wheel by examining the theoretical underpinnings of prior case law. (45) A preexisting consensus that Brown v. Board of Education (46) was rightly decided renders the court free to concentrate on whether a similar case is adequately analogous to receive the same treatment. Apart from agreeing on the correctness of precedent, Sunstein notes that courts often take prior cases as correct under the doctrine of stare decisis, (47) thereby providing the beginnings of an incompletely theorized agreement and paving the way for the use of analogical reasoning. (48) For example, one could disagree with the Court's decision in Lawrence v. Texas, (49) but nevertheless afford the case stare decisis effect.
Utilizing precedent as a starting point for consensus, however, depends on the existence of either an institutional constraint that forces a judge to accept precedent as a fixed point of validity or a strong stare decisis effect to force a judge to defer to precedent despite her beliefs about its correctness. (50) Constraints that facilitate analogical reasoning or other low-level means of resolving a dispute become anemic when a judge is the final expositor of the law and the law being interpreted is foundational. The Supreme Court, for example, is bound by no other institution when interpreting the Constitution and need not treat adherence to precedent as an "inexorable command." (51)
When stare decisis is weakened even slightly, Professor Sunstein's incompletely theorized agreements face a profound barrier because analogical reasoning would require both a consensus on whether a given precedent is analogous and whether the precedent should be given stare decisis effect at all. Sunstein depends on stare decisis to render analogical reasoning a viable means of achieving incompletely theorized agreements. (52) He notes that analogical reasoning "depends on a degree of commonality." (53) To begin comparing one case to another, one must agree on the facts relevant for comparison and which cases are analogous. (54) Sunstein notes that because the "[l]aw imposes greater constraints on the analogical process," (55) individuals are likely to agree that precedent should be respected despite their disagreement with its correctness. Sunstein urges that this phenomenon will occur because "the principle of stare decisis so requires." (56)
Because Professor Sunstein relies on the doctrine of stare decisis to provide the starting point for proceeding by analogy towards an incompletely theorized agreement, (57) such agreements are vulnerable to criticism on four grounds within the context of constitutional law. First, stare decisis is particularly weak in the Supreme Court because supremacy of an interpreting institution prevents its choice to depart from adherence to precedent from being reviewed. (58) Second, without a strong stare decisis effect, the lower court faces the decision to overrule precedent every time it encounters precedent, (59) which, in turn, requires a consensus on whether the doctrine should be invoked. The decision whether to apply precedent in itself requires a guiding principle. (60) Third, even if the court can establish...
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