The Law as it Could Be

Owen Fiss

• Publisher: NYU Press
• Year: 2003
• ISBN:
  9780814728376
• Topic: Law
• Subtopic: Courts
• Index: Law

The Law As It Could Be gathers Fiss’s most important work on procedure, adjudication and public reason, introduced by the author and including contextual introductions for each piece—some of which are among the most cited in Twentieth Century legal studies. Fiss surveys the legal terrain between the landmark cases of Brown v. Board of Education and Bush v. Gore to reclaim the legal legacy of the Civil Rights Movement. He argues forcefully for a vision of judges as instruments of public reason and of the courts as a means of shaping society in the image of the Constitution.

In building his argument, Fiss attends to topics as diverse as the use of the injunction to restructure social institutions; how law and economics have misunderstood the role of the judge; why the movement seeking alternatives to adjudication fails to serve the public interest; and why Bush v. Gore was not the constitutional crisis some would have us believe. In so doing, Fiss reveals a vision of adjudication that vindicates the public reason on which Brown v. Board of Education was founded.

1
The Forms of Justice

After having worked for two years in the Civil Rights Division of the Department of Justice, in September 1968 I began my teaching career at the University of Chicago. I was asked to teach what was then the traditional course on equity. Not surprisingly, I responded to this first teaching assignment by trying to make sense of my rather extraordinary professional experience at the Department of Justice.

The teaching material for this first course consisted of five volumes of photocopied material (one of the many excesses of a brand-new teacher). By 1972 I had managed to cull the best of that material, and Foundation Press published the first edition of Injunctions. In this book, as well as in its earlier temporary editions, I explored the injunction in a wide variety of contexts—antitrust, labor, nuisance, and ordinary commercial litigation—but it was the civil rights cases of the 1960s that formed the heart of the book. These cases provided the most demanding test of traditional equity jurisprudence.

A casebook is a luxury. It allows a new teacher to collect material that he or she senses is important but does not fully understand. This was true for Injunctions. Although I made choices in the way I organized the material and decided what to include, and spoke to the substance in my scattered textual notes, for the most part my thoughts about the role of the judiciary in civil rights litigation only took shape as I prepared each day for the next class and reflected on the previous class.

In 1974 I moved to Yale. This exploratory process continued there, and in 1974 took a dramatic turn when I delivered the Addison C. Harris lectures at Indiana University. These lectures were published in 1978 as The Civil Rights Injunction. The process continued when I published “Dombrowski” in the 1977 Yale Law Journal (volume 86, page 1103), which drew heavily on my classes at Yale. Following the publication of “Dombrowski,” I was invited to write the foreword to the Supreme Court issue of the 1979 Harvard Law Review, and I used the opportunity to theorize even further. The result was “The Forms of Justice” (volume 93, page 1).

In the course of the decade in which my thoughts were developing, the use of the injunction took new and varied forms and achieved increasing prominence. The scope of school desegregation remedies became more ambitious, and lower federal judges broadened the scope of their injunctions to reform all manner of state institutions. It was a period of time in which, just to mention two examples discussed in the chapter, Judge Jack Weinstein announced his bold plans to desegregate the Coney Island schools and Judge J. Smith Henley began his program to restructure the Arkansas prisons.

Oddly enough, during this very same period the Supreme Court launched its attack on the civil rights injunction, particularly its structural variant. The decisive turn occurred in the 1976 decision of Rizzo v. Goode, which set aside lower court orders that sought to curtail the abuses suffered by blacks at the hands of the Philadelphia police. The Supreme Court opinion was written by William Rehnquist, who was then only an Associate Justice but already clearly a driving force among the group of Justices that had recently been appointed by President Richard Nixon. See “The Rehnquist Court,” published in The New Republic, March 10, 1982, and written with Charles Krauthammer.

THE Constitution establishes the structure of government. It creates the agencies of government, describes their functions, and determines their relationships. The Constitution also identifies the values that will inform and limit this governmental structure. The values that we find in our Constitution—liberty, equality, due process, freedom of speech, no establishment of religion, property, no impairments of the obligation of contract, security of the person, no cruel and unusual punishment—are ambiguous. They are capable of a great number of different meanings, and they often conflict. There is a constitutional need to give them specific meaning, to give them operational content, and, where there is a conflict, to set priorities.

All of us, both as individuals and institutional actors, play a role in this process. In modern society, where the state is all-pervasive, these values determine the quality of our social existence—they truly belong to the public; as a consequence, the range of voices that give meaning to these values is as broad as the public itself. The legislative and executive branches of government, as well as private institutions, have a voice; so should the courts. Judges have no monopoly on the task of giving meaning to the public values of the Constitution, but neither is there reason for them to be silent. They, too, can contribute to the public debate and inquiry.

Adjudication is the social process that enables judges to give meaning to public values. Structural reform—the subject of this essay—is one type of adjudication, distinguished by the constitutional character of the public values and, even more important, by the fact that it involves an encounter between the judiciary and the state bureaucracies. The judge tries to give meaning to our constitutional values in the operation of these organizations. Structural reform truly acknowledges the bureaucratic character of the modern state, adapting traditional procedural forms to the new social reality.

Structural reform is premised on the notion that the operation of large-scale organizations, not just individuals acting either beyond or within these organizations, affects the quality of our social life in important ways. It is also premised on the belief that our constitutional values cannot be fully secured without basic changes in the structures of these organizations. The structural suit is one in which a judge, confronting a state bureaucracy over values of constitutional dimension, undertakes to restructure the organization to eliminate a threat to those values posed by the present institutional arrangements. The injunction is the means by which these reconstructive directives are transmitted.

As a genre of constitutional litigation, structural reform has its roots in the Warren Court era of the 1950s and 1960s and the extraordinary effort to translate the rule of Brown v. Board of Education ¹ into practice. This effort required the courts to radically transform the status quo, in effect to reconstruct social reality. The courts had to overcome the most intense resistance, and, even more problematic, they had to penetrate and restructure large-scale organizations, namely, public school systems. The imagery was rural and individualistic—the black child walking into an all-white school—but the reality, especially by the mid-1960s as the focus shifted to the urban centers and the nation at large, was decidedly bureaucratic.

Brown was said to require nothing less than the transformation of “dual school systems” into “unitary, nonracial school systems,” and that entailed thorough organizational reform. It required new procedures for the assignment of students; new criteria for the construction of schools; reassignment of faculty; revision of the transportation systems to accommodate new routes and new distances; reallocation of resources among schools and among new activities; curriculum modification; increased appropriations; revision of interscholastic sports schedules; new information systems for monitoring the performance of the organization; and more.² In time it was understood that desegregation was a total transformational process in which the judge undertook the reconstruction of an ongoing social institution. Desegregation required a revision of familiar conceptions about party structure in litigation, new norms governing judicial behavior, and new ways of looking at the relationship between rights and remedies.

No one had a road map at the outset. No one had a clear vision of all that would be involved in trying to eradicate the caste system embedded in a state bureaucracy, or how the attempt would transform the form of adjudication. Having received their mandate from the Supreme Court, lower federal judges discovered what the task required and adjusted traditional procedural forms to meet these requirements. Legitimacy was equated with need, and, in that sense, procedure became dependent on substance. It was the overriding commitment to racial equality that motivated the procedural innovation and that was seen as the justification for the departures from tradition.

At critical junctures the Warren Court stepped in. The Justices emphasized their continuous commitment to Brown and acknowledged the comprehensiveness of the reform required: The dual school system would have to be eradicated “root and branch.”³ The process continued and, in time, the lessons of school desegregation were transferred to other contexts: to protect the security of the person and home from police abuses, to realize the ideal of humane treatment in prisons and mental hospitals, to ensure procedural due process in the welfare administration, and to equalize expenditures in state educational systems. In that way, school desegregation became a vitally important occasion for procedural innovations that transcended the substantive claim, for the emergence of a whole new conception of adjudication, one that was particularly suited to cope with a new unit of constitutional law—the state bureaucracy.

By the mid- and late 1970s, however, a new position had formed on the Supreme Court, led by Chief Justice Warren Burger. A strong bloc of Justices, sometimes obtaining support from the center of the Court, sought to reverse the processes that were still afoot in the lower courts. The major assault occurred, ironically enough, in the school desegregation cases of the mid-1970s. In other cases, in racial areas and elsewhere, the pattern was mixed: In a police case the Burger Court was sharply critical of structural reform;⁴ in a prison case it was strongly supportive;⁵ and so on.⁶ In most cases the Court was deeply divided; even when structural reform survived, there was usually a high-pitched dissent.

The Burger Court counterassault—sniping is probably a more accurate description—changed our vision of structural reform. In the midst of the Warren Court era, the procedural innovations implicit in structural reform were almost invisible. Each step was small and incremental; each seemed unquestionably correct—and in the 1970s that confidence was destroyed. The counterassault brought into focus the changes in adjudication that had occurred in the 1960s and called them into question. We were forced, as perhaps we should have been, to examine the legitimacy of those changes.

Adjudication and Public Values

As a type of adjudication, structural reform is distinguished by the effort to give meaning to constitutional values in the operation of large-scale organizations. This organizational aspiration has important consequences for the form of adjudication, raising new and distinct problems of legitimacy. But much of the criticism of structural reform, and what I begin with, focuses on that characteristic common to all forms of injunctive litigation: the fact that so much power is vested in judges.

The great charter for ordering the relation between judges and other agencies of government is Footnote Four of the Carolene Products case.⁷ The greatness derives not from its own internal coherence, nor any theoretical insight, but from its historical position. The footnote codified the hard-fought victory of the Progressives and seemed to provide a framework for the judicial activism about to transpire. The Progressives, and their 1930s successors, the New Dealers, fought their battles in the legislature, and the footnote reflected the terms of their victory: It posited the supremacy of the legislature. The role of the courts, even on constitutional questions, was defined in terms of “legislative failure”: The courts should defer to the legislative branch, the footnote proclaimed, unless there is some reason for assuming that the processes of the legislature are inadequate. The footnote identified two instances of legislative failure: abridgment of the right to vote and victimization of a discrete and insular minority, a group disabled from forming coalitions and thus from effectively participating in majoritarian politics.

Although Carolene Products involved a challenge to a statute, it has been taken, as perhaps it was intended, to be a more general statement on the role of courts in our political system. The theory of legislative failure should be understood as a general presumption in favor of majoritarianism: The legislature should be seen as standing for those agencies of government, whether the chief executive of the polity or the local school board or the director of corrections, that are more perfectly tied to majoritarian politics than the courts are. Carolene Products and the theory of legislative failure thus have important implications for structural reform; they provide a basis, invoked with increasing frequency since the 1970s, for criticizing the strong judicial role implicit in that mode of adjudication.

Structural reform arose in a context that did not test the limits of the theory of legislative failure. The early school desegregation cases, concentrated as they were in the South, could be conceptualized as a compounded type of legislative failure. The normal presumption in favor of majoritarianism clearly did not apply. The group being victimized was a discrete and insular minority; indeed, it was the paradigmatic discrete and insular minority. Blacks were unable to form coalitions and, at the time of Brown, were also denied formal participation in the electoral process. They were denied the ballot. It should be recognized, however, as a first attempt to assess the theory of legislative failure, and to understand its implications, that by the 1970s the politics of race changed, and, as a consequence, Carolene Products and its commitment to majoritarianism today pose significant challenges to structural reform even when it seeks to secure the value of racial equality.

By the 1970s the disenfranchisement of blacks had been brought to an end. In some communities throughout the nation, particularly the large cities, blacks today represent a sizable portion of the electorate. On a national level blacks represent a numerical minority, but that circumstance alone would not entitle us to assume that the legislative process has failed. The footnote does not entitle any group to have a voice that exceeds its numbers—quite the contrary. Account must also be taken of the fact that blacks are now in a position to form coalitions. They are no longer insular, and their discreteness, their cohesiveness, may, in fact, give them a certain edge in forming coalitions, especially compared to other groups of their size. True, poverty, or more precisely the absence of large concentrations of wealth in the black community, stands as a barrier to effective political participation of that group. But poverty was not identified by Footnote Four as a category of legislative failure, and for good reason. The absence of wealth is so pervasive a handicap and is experienced by so many groups in society, even the majority itself, that to recognize it as a category of legislative failure would stand the theory of the Carolene Products footnote on its head—it would undermine the premise of majoritarianism itself.

I might also add that it seems increasingly important for structural reform to move beyond the bounds of racial justice, and in these new domains the usefulness of Footnote Four in explaining and justifying the judicial role is also unclear. Structural reform of total institutions—institutions such as prisons and mental hospitals that house and take control of every aspect of an individual’s life—may be understood in terms of legislative failure or, more aptly, legislative neglect.⁸ These institutions are intended to remove people from the body politic, and judicial intervention might be seen as the catalyst of majoritarianism rather than its enemy. Similarly, a few of the other state bureaucracies—for example, the public housing authority and the welfare department—might be seen as posing threats to distinct subgroups that are politically powerless. But when the focus shifts to the broad-based bureaucracies that typify the modern state—the police, the state university, the taxing authorities, the health maintenance organizations, the state-owned industries, and so forth—the theory of Footnote Four is of little use. The victim of these organizations is the citizenry itself.

With respect to these broad-based organizations, majoritarianism and judicial intervention might seem reconcilable on the theory that bureaucratization causes unique distortions of the legislative process; bureaucrats have special incentives and means for insulating their practices from public scrutiny.⁹ But such an approach would expand Footnote Four far beyond its original scope and, given the large role of these broad-based state bureaucracies in our social life today, would undermine the premise of legislative supremacy itself. The commitment to majoritarianism would be a sham. Alternatively, the emphasis may be on egalitarian values and the threat posed to those values by these broad-based organizations. Yet the relevant subgroup invoking the claim of equality against these organizations—women, the aged, or the lower and middle classes—is not likely to be one that is disadvantaged in terms of majoritarian politics. Footnote Four can be twisted and turned, and expanded, to accommodate these groups and their claims¹⁰ but only at a price: incoherence. Such an accommodation would require us virtually to assume that whichever group happens to lose the political struggle or fails to command the attention of the legislature or executive is—by that fact alone—a discrete and insular minority.

It is not just a question of usefulness; it now seems clearer than ever that Footnote Four is radically incomplete, as is the theory of legislative failure it announces. The incompleteness derives from two sources. First, the footnote gives no account of the judicial function even in the acknowledged cases of legislative failure. It never explains why legislative failure is to be corrected by judicial action. Second, the footnote never justifies its major normative premise, the one positing the supremacy of the majoritarian branches even when constitutional values are at stake. I believe that at the root of both failings is a denial of the special character of our constitutional values.

The theory of legislative failure identifies occasions for a strong independent use of judicial power, but it does not prescribe what should be done with that power. If there is an abridgement of the right to vote, the judicial function may be clear enough: restore the vote. Majoritarianism is thereby perfected. But there is no simple way to understand the judicial function when failure arises from other causes, say, from the fact that a discrete and insular minority is being victimized. In such a situation the legislative decision may not be entitled to any presumption of correctness, at least as it affects that group, but the task still remains to determine, as an affirmative matter, what the group is entitled to, either by way of process rights or substantive rights.¹¹ Even if the legislative resolution is not entitled to a presumption of correctness, there is no reason to assume that the opposite resolution would prevail if the legislative process were working perfectly or that the discrete and insular group would win rather than lose. Nor would it make much sense in terms of professional norms to view the judge as a representative of, or as a spokesperson for, the otherwise voiceless minority. The judge is not to speak for the minority or otherwise amplify its voice. The task of the judge is to give meaning to constitutional values, and he or she does that by working with the constitutional text, history, and social ideals. The judge searches for what is true, right, o...