The Darkest Domain: Deference, Judicial Review, and the Bill of Rights

Iowa Law Review

Volumn 84, Issue 5, 1999, Pages 941-1022

  Solove, Daniel J ^a  

^a NONE

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EID: 0033262726     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (437)

1. See Eugene V. Rostow, The Japanese American Cases - A Disaster, 54 YALE L.J. 489, 492-502 (1945) (describing the developments leading up to, and including, the Japanese internment).
2. 323 U.S. 214 (1944).
3. Id. at 216.
4. See PERSONAL JUSTICE DENIED: REPORT OF THE COMMISSION ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS (1982).
5. Deference is sometimes used interchangeably with the term "judicial self-restraint." Judicial self-restraint is a broad term encompassing many distinct judicial practices. For example, Alexander Bickel, one of the chief proponents of judicial restraint, did not advocate deference. In his book The Least Dangerous Branch, Bickel suggested an uncompromising judicial review - with the caveat that it be used very sparingly. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962). Judicial restraint has been identified with several judicial practices, including a focus on principles rather than ideology or results, a respect for precedent, and avoidance of political questions. See Daniel Novak, Economic Activism and Restraint, in SUPREME COURT ACTIVISM AND RESTRAINT 77 (Stephen C. Halpern & Charles M. Lamb eds., 1982).
6. Deference is sometimes used interchangeably with the term "judicial self- restraint." Judicial self-restraint is a broad term encompassing many distinct judicial practices. For example, Alexander Bickel, one of the chief proponents of judicial restraint, did not advocate deference. In his book The Least Dangerous Branch, Bickel suggested an uncompromising judicial review - with the caveat that it be used very sparingly. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962). Judicial restraint has been identified with several judicial practices, including a focus on principles rather than ideology or results, a respect for precedent, and avoidance of political questions. See Daniel Novak, Economic Activism and Restraint, in SUPREME COURT ACTIVISM AND RESTRAINT 77 (Stephen C. Halpern & Charles M. Lamb eds., 1982).
7. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 138 (1978) [hereinafter DWORKIN, TAKING RIGHTS SERIOUSLY].
8. RICHARD A. POSNER, THE FEDERAL COURTS 314 (1996).
9. Seth Harris, Permitting Prejudice to Govern: Equal Protection, Military Deference, and the Exclusion of Lesbians and Gay Men from the Military, 17 N.Y.U. REV. L. & SOC. CHANGE 171, 208 (1990).
10. C. Thomas Dienes, When the First Amendment Is Not Preferred: The Military and Other "Special Contexts," 56 U. CIN. L. REV. 779, 819 (1988).
11. Block v. Rutherford, 468 U.S. 576, 593 (1984) (Blackmun, J., concurring).
12. Rostker v. Goldberg, 453 U.S. 57, 112 (1981) (Marshall, J., dissenting).
13. Brown v. Glines, 444 U.S. 348, 369 (1980) (Brennan, J., dissenting).
14. See Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. REV. 181, 197 (1962); Kelly E. Henriksen, Note, Gays, the Military, and Judicial Deference: When the Courts Must Reclaim Equal Protection as Their Area of Expertise, 9 ADMIN. L.J. AM. U. 1273, 1280 (1996).
15. See Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. REV. 181, 197 (1962); Kelly E. Henriksen, Note, Gays, the Military, and Judicial Deference: When the Courts Must Reclaim Equal Protection as Their Area of Expertise, 9 ADMIN. L.J. AM. U. 1273, 1280 (1996).
16. See Barney F. Bilello, Note, Judicial Review and Soldiers' Rights: Is the Principle of Deference a Standard of Review?, 17 HOFSTRA L. REV. 465, 467 (1980).
17. Discussions of deference have surfaced primarily in debates concerning deference to administrative agencies, especially after the seminal case of Chevron, U.S.A. Corp. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Chevron only constitutes a small part of the vast geography of deference. The issue that I am concerned about in this Article is the interaction between deference and constitutional rights.
18. See generally Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron, 6 ADMIN. L.J. 187 (1992); John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 COLUM. L. REV. 621 (1996); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969 (1992).
19. See generally Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron, 6 ADMIN. L.J. 187 (1992); John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 COLUM. L. REV. 621 (1996); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969 (1992).
20. See generally Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron, 6 ADMIN. L.J. 187 (1992); John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 COLUM. L. REV. 621 (1996); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969 (1992).
21. On deference and the military, see Dienes, supra note 9; John Nelson Ohlweiler, The Principle of Deference: Facial Constitutional Challenges to Military Regulations, 10 J.L. & POL. 147 (1993); Bilello, supra note 14. On deference and prisons, see Daniel J. Solove, Note, Faith Profaned: The Religious Freedom Restoration Act and Religion in the Prisons, 106 YALE L.J. 459 (1996).
22. On deference and the military, see Dienes, supra note 9; John Nelson Ohlweiler, The Principle of Deference: Facial Constitutional Challenges to Military Regulations, 10 J.L. & POL. 147 (1993); Bilello, supra note 14. On deference and prisons, see Daniel J. Solove, Note, Faith Profaned: The Religious Freedom Restoration Act and Religion in the Prisons, 106 YALE L.J. 459 (1996).
23. Henry P. Monaghan, Marbury and the Administrative State, 83 COLUM. L. REV. 1, 4 (1983).
24. I have limited my inquiry to opinions explicitly implicating fundamental constitutional rights, for this is where deference is at its most problematic. Deference occurs in a variety of other contexts, and its rhetoric and practice are quite similar across these various contexts. I will touch upon these other contexts only when necessary to illuminate the deferential review in cases involving fundamental rights.
25. 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).
26. E.g., Pell v. Procunier, 417 U.S. 817, 827 (1974) ("[C]ourts should ordinarily defer to [prison officials'] expert judgment in such matters.").
27. E.g., Youngberg v. Romeo, 457 U.S. 307, 322 (1982) ("[I]nterference by the federal judiciary with the internal operations of [state medical] institutions should be minimized.").
28. See, e.g., Browning-Ferris Indus, of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278 (1989) ("It is not our role to review directly the award for excessiveness [of punitive damages], or to substitute our judgment for that of the jury."); Rostker v. Goldberg, 453 U.S. 57, 68 (1981) (stating that the Court must "not substitute our judgment of what is desirable for that of Congress"); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) ("The court is not empowered to substitute its judgment for that of the agency.").
29. See, e.g., Heller v. Doe, 509 U.S. 312, 319 (1993) ("[R]ational-basis review in equal protection analysis 'is not a license for courts to judge the wisdom, fairness, or logic of legislative choices'") (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993)); INS v. Chadha, 462 U.S. 919, 944 (1983) ("We begin, of course, with the presumption that the challenged statute is valid. Its wisdom is not the concern of the courts . . . ."); Connick v. Myers, 461 U.S. 138, 147 (1983) ("[A] federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."); Young v. American Mini Theatres, Inc., 427 U.S. 50, 71 (1976) ("It is not our function to appraise the wisdom of [the City of Detroit's] decision to require adult theatres to be separated rather than concentrated in the same areas.").
30. See, e.g., Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 (1989) ("[W]e must defer to 'the informed discretion of the responsible federal agencies.'") (citing Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976)); Bell v. Wolfish, 441 U.S. 520, 547 n.29 (1979) ("[C]ourts should defer to the informed discretion of prison administrators . . . ."); id. at 548 ("[T]he operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial."); Pell v. Procunier, 417 U.S. 817, 827 (1974) (stating that courts defer to the judgment of officials on matters "peculiarly within the province and pro-fessional expertise of corrections officials").
31. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
32. See MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 9 (1992).
33. THE FEDERALIST No. 78, at 526 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
34. Id. at 526-27.
35. United States v. Butler, 297 U.S. 1, 79 (1936) (Stone, J., dissenting).
36. Letter from Oliver W. Holmes to Harold J. Laski (Mar. 4, 1920), in 1 HOLMESLASKI LETTERS, 1916-1935, at 248-49 (Mark D. Howe ed., 1953).
37. Several recent works of scholarship attempt to debunk many of the myths that persist about the Lochner era. See, e.g., BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT (1998); Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994).
38. Several recent works of scholarship attempt to debunk many of the myths that persist about the Lochner era. See, e.g., BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT (1998); Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891 (1994).
39. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 8.2, at 567 (2d ed. 1988).
40. 198 U.S. 45 (1905).
41. See, e.g., Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936) (invalidating the New York minimum wage law for females); Ashton v. Cameron County Water Dist., 298 U.S. 513 (1936) (invalidating the Municipal Bankruptcy Act); Carter v. Carter Coal Co., 298 U.S. 238 (1936) (holding the Bituminous Coal Act of 1935 unconstitutional); United States v. Butler, 297 U.S. 1 (1936) (invalidating the Agricultural Adjustment Act); Hopkins Fed. Sav. & Loan v. Cleary, 296 U.S. 315 (1935) (invalidating parts of the Home Owners Loan Act); Louisville Joint Stock Land Bank v. Randford, 295 U.S. 555 (1935) (invalidating the Federal Farm Bankruptcy Act); Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (invalidating a section of the NIRA as beyond congressional power); Retirement Bd. v. Alton R.R. Co., 295 U.S. 330 (1935) (invalidating the Railroad Retirement Pension Act as not within the powers of the Commerce Clause); Perry v. United States, 294 U.S. 330 (1935) (ruling that the joint resolution is a direct violation of Section 4 of the Fourth Amendment); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (finding a section of the NIRA unconstitutional).
42. The beginning of the demise of the Lochner era has been pinpointed to the 1937 case of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (reversing Adkins v. Children's Hosp., 261 U.S. 525 (1923)). This was followed by a series of other opinions upholding New Deal legislation. See, e.g., United States v. Darby, 312 U.S. 100 (1941) (ruling that the Fair Labor Standards Act is a constitutional exercise of the Commerce Clause); Helvering v. Davis, 301 U.S. 659 (1937) (upholding provisions of the Social Security Act); Wright v. Vinton Branch, 300 U.S. 440 (1937) (holding unanimously that the second Federal Farm Bankruptcy Act, similar to the first one invalidated in Radford, was constitutional). The traditional legend has it that the Lochner era ended because the Court buckled under the pressure of Roosevelt's well-known Court-packing plan. However, as Barry Cushman points out in his excellent study on the New Deal Court, there were a flurry of proposals to weaken the Court's judicial review throughout the entire span of the Lochner era, none of which seemed to have much effect on the Court. The Court-packing plan was far from becoming a guaranteed success. CUSHMAN, supra note 32, at 12. Further, West Coast Hotel was actually voted on long before the Court-packing plan was known to the Court, and Chief Justice Hughes deliberately withheld its release to prevent "the false impression that the Court was capitulating to political pressure." Id. at 18; see also Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620, 637 (1994); Friedman, supra note 32, at 1949.
43. JOHN HART ELY, DEMOCRACY AND DISTRUST 14 (1980).
44. Lochner, 198 U.S. at 75 (Holmes, J., dissenting).
45. Id. at 75-76 (Holmes, J., dissenting).
46. See Morton J. Horwitz, The Warren Court and the Pursuit of Justice, 50 WASH, & LEE L. REV. 5, 6 (1993) ("The legal thinkers who justified the New Deal constitutional revolution after 1937 explained their triumph not as a constitutional revolution but as a restoration of neutral constitutional principles."). Professor Ackerman argues that post-New Deal jurisprudence views the Lochner Court as straying from preexisting principles of constitutional interpretation, established since the Marshall Court era. He dubs this view "the myth of rediscovery": Modern lawyers are taught to dismiss as essentially worthless the interpretive effort of the Supreme Court during the long period of Republican ascendancy between 1869 and 1932 . . . . Only if the Old Court of the 1930's was completely wrong can the Rooseveltian Revolution be presented as merely requiring the Justices to rediscover the ancient wisdom of the Marshall Court. BRUCE ACKERMAN, WE THE PEOPLE I: FOUNDATIONS 62 (1991) [hereinafter ACKERMAN, FOUNDATIONS].
47. See Morton J. Horwitz, The Warren Court and the Pursuit of Justice, 50 WASH, & LEE L. REV. 5, 6 (1993) ("The legal thinkers who justified the New Deal constitutional revolution after 1937 explained their triumph not as a constitutional revolution but as a restoration of neutral constitutional principles."). Professor Ackerman argues that post-New Deal jurisprudence views the Lochner Court as straying from preexisting principles of constitutional interpretation, established since the Marshall Court era. He dubs this view "the myth of rediscovery": Modern lawyers are taught to dismiss as essentially worthless the interpretive effort of the Supreme Court during the long period of Republican ascendancy between 1869 and 1932 . . . . Only if the Old Court of the 1930's was completely wrong can the Rooseveltian Revolution be presented as merely requiring the Justices to rediscover the ancient wisdom of the Marshall Court. BRUCE ACKERMAN, WE THE PEOPLE I: FOUNDATIONS 62 (1991) [hereinafter ACKERMAN, FOUNDATIONS].
48. 372 U.S. 726 (1963).
49. Id. at 730.
50. E.g., JEROME FRANK, LAW AND THE MODERN MIND 118 (1935).
51. LAURA KALMAN, LEGAL REALISM AT YALE: 1927-1960, at 229 (1986).
52. See J.M. Balkin, Ideological Drift and the Struggle Over Meaning, 25 CONN. L. REV. 869, 871 (1993) ("Ideological drift in law means that legal ideas and symbols will change their political valence as they are used over and over again in new contexts.").
53. See Baker v. Carr, 369 U.S. 186, 217 (1962) (holding that the Court will not consider an issue when there is a "textually demonstrable constitutional commitment of the issue to a coordinate political department," a "lack of judicially discoverable and manageable standards for resolving" the issue, or other factors relating to separation of powers).
54. See John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U. PA. L. REV. 477, 477 (1988) ("Once heretical, the belief that empirical studies can influence the content of legal doctrine is now one of the few points of general agreement among jurists."). For a series of examples of Supreme Court Justices using social science research in their opinions, see id. at 477 n.2.
55. See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 943-44 (1987).
56. Id.
57. Id. at 945.
58. These formulas can be traced back to footnote four in United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938); see infra Part III.A.4; see also Aleinikoff, supra note 48, at 963-72.
59. Sable Communications, Inc. v. FCC, 492 U.S. 115, 126 (1989) (holding that a total ban on indecent dial-a-porn services was invalid under strict, scrutiny).
60. United States v. O'Brien, 391 U.S. 367, 376 (1968) (upholding the conviction of a defendant who burned a draft registration certificate in order to express anti-war beliefs).
61. Heller v. Doe, 509 U.S. 312, 320 (1993) (holding that involuntary commitment of mentally retarded individuals did not violate equal protection or due process).
62. John Dewey articulated an alternative approach to valuation that avoided the pitfalls of looking for some intrinsic or a priori value. See generally 13 JOHN DEWEY, Theory of Valuation, in THE LATER WORKS (Jo Ann Boydston ed., 1991) (1939) [hereinafter DEWEY, Theory of Valuation]. Dewey criticized existing theories of valuation for failing "to make an empirical analysis of concrete desires and interests as they actually exist." Id. at 217. According to Dewey, ends were never fixed; they were merely "ends-in-view or aims," which were constantly subject to revision and change as the individual strove toward them. JOHN DEWEY, HUMAN NATURE AND CONDUCT 155 (Jo Ann Boydston ed., 1988) (1922) [hereinafter DEWEY, HUMAN NATURE]. "Ends are foreseen consequences which arise in the course of activity and which are employed to give activity added meaning and to direct its further course." Id. Ends guided present activity, preventing it from being "blind and disorderly" or "mechanical"; however, ends were never fixed. In the course of action, old ends were modified and new ends would come into being. Id. at 156, 159.
63. John Dewey articulated an alternative approach to valuation that avoided the pitfalls of looking for some intrinsic or a priori value. See generally 13 JOHN DEWEY, Theory of Valuation, in THE LATER WORKS (Jo Ann Boydston ed., 1991) (1939) [hereinafter DEWEY, Theory of Valuation]. Dewey criticized existing theories of valuation for failing "to make an empirical analysis of concrete desires and interests as they actually exist." Id. at 217. According to Dewey, ends were never fixed; they were merely "ends-in-view or aims," which were constantly subject to revision and change as the individual strove toward them. JOHN DEWEY, HUMAN NATURE AND CONDUCT 155 (Jo Ann Boydston ed., 1988) (1922) [hereinafter DEWEY, HUMAN NATURE]. "Ends are foreseen consequences which arise in the course of activity and which are employed to give activity added meaning and to direct its further course." Id. Ends guided present activity, preventing it from being "blind and disorderly" or "mechanical"; however, ends were never fixed. In the course of action, old ends were modified and new ends would come into being. Id. at 156, 159.
64. 468 U.S. 288 (1984).
65. The National Park Service acted pursuant to 36 C.F.R. § 50.19(e)(8) (1983).
66. Clark, 468 U.S. at 293.
67. Id. at 293.
68. Id. at 300.
69. Id. at 298.
70. 475 U.S. 503 (1986).
71. Id. at 507.
72. Id. at 508.
73. Id. at 509.
74. Id.
75. Goldman, 475 U.S. at 509.
76. Recently, the D.C. Circuit used Clark to uphold a regulation by the National Park Service that banned the sale of message-bearing T-shirts on the National Mall. Although the T-shirts often contained political messages, espousing causes such as raising public awareness for POW/MIAs, urging action to combat global warming, and advocating statehood for the District of Columbia, the Park Service banned their sale to reduce commercialism on the Mall. The vendors of the T-shirts complained that the T-shirt was the primary source of funds that enabled them to continue to engage in First Amendment activities. The district court found that the ban was not narrowly tailored because the goal of reducing commercialism could be reached short of a complete ban by designating certain areas for the T-shirt sales. See Friends of the Vietnam Veterans Mem'l v. Kennedy, 899 F. Supp. 680, 686-87 (D.D.C. 1995). The D.C. Circuit reversed, claiming that it would not consider "what the Park Service could have done" to limit its regulation so that it would be less restrictive, and stated that it did not have "'the authority to replace the Park Service as manager of the Nation's parks or . . . the competence to judge how much protection of parklands is wise and how that level of conservation is to be attained.'" Friends of the Vietnam Veterans Mem'l v. Kennedy, 116 F.3d 495, 498 (D.C. Cir. 1997) (quoting Clark, 468 U.S. at 299).
77. 482 U.S. 342 (1987).
78. See id. at 353.
79. Id. at 348.
80. Id.
81. Id. at 349.
82. O'Lone, 482 U.S. at 353 (quoting Block v. Rutherford, 468 U.S. 576, 588 (1984)) (citation omitted).
83. Id. at 352-53.
84. Id.
85. See id.
86. See id.
87. O'Lone, 482 U.S. at 353 (quoting Shabazz v. O'Lone, 595 F. Supp. 928, 932 (D.N.J. 1984)).
88. See Shabazz v. O'Lone, 595 F. Supp. 928, 932 (D.N.J. 1984).
89. O'Lone, 482 U.S. at 353.
90. Id. (quoting from transcript).
91. See, e.g., Owen M. Fiss, The Bureaucratization of the Judiciary, 92 YALE L. J. 1442, 1442 (1983) ("The history of the twentieth century is largely the history of increasing bureaucratization."); Gerald E. Frug, The Ideology of Bureaucracy in American. Law, 97 HARV. L. REV. 1276, 1295 (1984) ("Bureacracy is the primary form of organized power in America today . . . .").
92. See, e.g., Owen M. Fiss, The Bureaucratization of the Judiciary, 92 YALE L. J. 1442, 1442 (1983) ("The history of the twentieth century is largely the history of increasing bureaucratization."); Gerald E. Frug, The Ideology of Bureaucracy in American. Law, 97 HARV. L. REV. 1276, 1295 (1984) ("Bureacracy is the primary form of organized power in America today . . . .").
93. MAX WEBER, FROM MAXWEBER: ESSAYS IN SOCIOLOGY 196-98 (H.H. Gerth & C. Wright Mills eds., 1946).
94. Id. at 216.
95. See U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 217 (1995).
96. See JERRY L. MASHAW ET AL., ADMINISTRATIVE LAW 6 (3d ed. 1992).
97. See HENRY STEELE COMMAGER, THE AMERICAN MIND 339 (1950).
98. See STEVEN BRINT, IN AN AGE OF EXPERTS: THE CHANGING ROLE OF PROFESSIONALS IN POLITICS AND PUBLIC LIFE 130 (1994).
99. See infra note 367.
100. Fiss, supra note 83, at 1442.
101. See Ferguson v. Skrupa, 372 U.S. 726, 730 (1963).
102. See Turner Broad. Sys., Inc. v, FCC, 512 U.S. 622, 665 (1994) ("[C]ourts must accord substantial deference to the predictive judgments of Congress.").
103. E.g., Gregg v. Georgia, 428 U.S. 153, 176 (1976) (stating that courts owe deference to state legislatures).
104. E.g., Chevron, U.S.A. Corp. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (deferring to agency interpretations of law); United States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963) (deferring to agency factfinding).
105. E.g., Goldman v. Weinberger, 475 U.S. 503, 507-08 (1986) (holding that courts "must give great deference to the professional judgment of military authorities").
106. E.g., O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (holding that courts must "afford appropriate deference to prison officials").
107. E.g., Youngberg v. Romeo, 457 U.S. 307, 323 & n.30 (1982) (holding that decisions made by a "professional" - "a person competent, whether by education, training or experience, to make the particular decision at issue" - are presumptively valid).
108. E.g., Wayte v. United States, 470 U.S. 598 (1985) (holding that courts must be very deferential to prosecutors when reviewing claims of selective prosecution).
109. E.g., Strickland v. Washington, 466 U.S. 668, 689 (1984) ("Judicial scrutiny of counsel's performance must be highly deferential.").
110. E.g., Waters v. Churchill, 511 U.S. 661, 673 (1994) ("[W]e have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large.").
111. E.g., Clark v. Community for Creative Nonviolence, 468 U.S. 288, 299 (1984) (holding that the judiciary must defer to the Park Service's judgment of "how much protection of park lands is wise and how that level of conservation is to be attained").
112. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971).
113. See Chevron, U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). In Rust v. Sullivan, 500 U.S. 173 (1991), an agency interpreted a statute that prohibited the use of federal funds in programs where abortion was a method of family planning to apply not only to performing abortions but also to any counseling concerning abortions. The Court, noting that the statute was ambiguous as to this issue, deferred under Chevron to the agency's interpretation. See id. at 184 (according "substantial deference" to agency's interpretation).
114. See, e.g., Waters v. Churchill, 511 U.S. 661, 673 (1994) ("[W]e have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large."); Connick v. Myers, 461 U.S. 138, 152 (1983) ("[A] wide degree of deference to the employer's judgment is appropriate."). For a good analysis of Waters v. Churchill, see Kermit Roosevelt, Note, The Cost of Agencies: Waters v. Churchill and the First Amendment in the Administrative State, 106 YALE L.J. 1233 (1997).
115. 457 U.S. 307 (1982). For a critique of the Court's deferential standard of review in Youngberg, see Susan Stefan, Leaving Civil Rights to the "Experts": From Deference to Abdication Under the Professional Judgment Standard, 102 YALE L.J. 639 (1992).
116. Youngberg, 457 U.S. at 319.
117. Id. at 322.
118. Id.
119. Id. at 323.
120. E.g., Hirabayashi v. United States, 320 U.S. 81, 99 (1943) (deferring to the government's predictions as to the likelihood of espionage and sabotage by Japanese-Americans during World War II).
121. E.g., Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 102-03 (1973) (examining the legislative and administrative development of the broadcast system).
122. 512 U.S. 622 (1994). In this case the Court articulated the deferential standard and then remanded to a three-judge panel for consideration of the facts in light of that standard. The Court then affirmed the decision of the three-judge panel. See Turner Broad. Sys. Inc. v. FCC, 520 U.S. 130 (1997).
123. Turner, 512 U.S. at 665. For a critique of the Turner cases, see Note, Deference to Legislative Fact Determinations in First Amendment Cases After Turner Broadcasting, 111 HARV. L. REV. 2312 (1998).
124. Solem v. Helm, 463 U.S. 277, 290 (1983).
125. 466 U.S. 668 (1984).
126. See id. at 688.
127. Id. at 689.
128. 428 U.S. 153 (1976).
129. See Birt v. Montgomery, 725 F.2d 587 (11th Cir. 1984).
130. See Romero v. Lynaugh, 884 F.2d 871, 875 (5th Cir. 1989) (reversing a finding of ineffective assistance of counsel by the district court).
131. 762 F.2d 886 (11th Cir. 1985).
132. Mitchell v. Kemp, 483 U.S. 1026, 1026 (1987) (Marshall, J., dissenting from denial of certiorari).
133. 517 U.S. 456 (1996). See also Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting the discriminatory use of preemptory challenges); Wayte v. United States, 470 U.S. 598 (1985) (rejecting a selective prosecution claim).
134. Armstrong, 517 U.S. at 463.
135. Id. at 464 (quoting United States v. Chemical Found., Inc., 272 U.S. 1, 14-15 (1926)) (first alteration in original).
136. 470 U.S. 598 (1985).
137. For a good analysis of First Amendment rights and the military, see Dienes, supra note 9.
138. See supra Part II.A (discussing Goldman).
139. 453 U.S. 57 (1981).
140. See, e.g., Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) (en banc); BenShalom v. Marsh, 881 F.2d 454 (7th Cir. 1989). See generally Harris, supra note 8; Henriksen, supra note 13 (discussing numerous cases involving deference to the military).
141. See, e.g., Brown v. Glines, 444 U.S. 348 (1980) (upholding Air Force regulation requiring prior approval of all petitions circulated); Greer v. Spock, 424 U.S. 828 (1976) (upholding regulations barring political speech at a military base by civilians); see also Stephanie A. Levin, The Deference That Is Due, Rethinking the Jurisprudence of Judicial Deference to the Military, 35 VILL. L. REV. 1009 (1990).
142. For a more detailed examination of prisoners' First Amendment rights, see Solove, supra note 17. See also MICHAEL B. MUSHLIN, RIGHTS OF PRISONERS (2d ed. 1993); Ira P. Robbins, The Prisoners' Mail Box and the Evolution of Federal Inmate Rights, 144 F.R.D. 127 (1993); Geoffrey S. Frankel, Note, Untangling First Amendment Values: The Prisoners' Dilemma, 59 GEO. WASH. L. REV. 1614 (1991).
143. For a more detailed examination of prisoners' First Amendment rights, see Solove, supra note 17. See also MICHAEL B. MUSHLIN, RIGHTS OF PRISONERS (2d ed. 1993); Ira P. Robbins, The Prisoners' Mail Box and the Evolution of Federal Inmate Rights, 144 F.R.D. 127 (1993); Geoffrey S. Frankel, Note, Untangling First Amendment Values: The Prisoners' Dilemma, 59 GEO. WASH. L. REV. 1614 (1991).
144. For a more detailed examination of prisoners' First Amendment rights, see Solove, supra note 17. See also MICHAEL B. MUSHLIN, RIGHTS OF PRISONERS (2d ed. 1993); Ira P. Robbins, The Prisoners' Mail Box and the Evolution of Federal Inmate Rights, 144 F.R.D. 127 (1993); Geoffrey S. Frankel, Note, Untangling First Amendment Values: The Prisoners' Dilemma, 59 GEO. WASH. L. REV. 1614 (1991).
145. 417 U.S. 817 (1974).
146. 433 U.S. 119 (1977).
147. 441 U.S. 520 (1979).
148. 42 U.S.C. § 2000bb-1 to -4 (1994).
149. See Solove, supra note 17, at 460.
150. Pub. L. No. 104-208, § 614, 110 Stat. 3009 (1996).
151. Amatel v. Reno, 975 F. Supp. 365, 369 (D.D.C. 1997).
152. Amatel v. Reno, 156 F.3d 192, 199 (D.C. Cir. 1998).
153. Id. at 205-06.
154. Id. at 206.
155. Liberalism is a broad term, encompassing a wide variety of philosophical viewpoints. For some classic statements of liberalism, see JOHN DEWEY, Liberalism and Social Action, in 11 THE LATER WORKS, 1925-1953, at 1 (Jo Ann Boydston ed., 1991); JOHN LOCKE, SECOND TREATISE OF GOVERNMENT (C.B. Macpherson ed., 1980) (1690); JOHN STUART MILL, ON LIBERTY (David Spitz ed., 1975) (1859).
156. Liberalism is a broad term, encompassing a wide variety of philosophical viewpoints. For some classic statements of liberalism, see JOHN DEWEY, Liberalism and Social Action, in 11 THE LATER WORKS, 1925-1953, at 1 (Jo Ann Boydston ed., 1991); JOHN LOCKE, SECOND TREATISE OF GOVERNMENT (C.B. Macpherson ed., 1980) (1690); JOHN STUART MILL, ON LIBERTY (David Spitz ed., 1975) (1859).
157. Liberalism is a broad term, encompassing a wide variety of philosophical viewpoints. For some classic statements of liberalism, see JOHN DEWEY, Liberalism and Social Action, in 11 THE LATER WORKS, 1925-1953, at 1 (Jo Ann Boydston ed., 1991); JOHN LOCKE, SECOND TREATISE OF GOVERNMENT (C.B. Macpherson ed., 1980) (1690); JOHN STUART MILL, ON LIBERTY (David Spitz ed., 1975) (1859).
158. For a detailed examination of the debates about liberalism among legal thinkers, see LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM (1996).
159. In legal and political scholarship, proponents of liberalism have generally embraced judicial review, even in the face of the countermajoritarian difficulty. See, e.g., ACKERMAN, FOUNDATIONS, supra note 40; BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998) [hereinafter ACKERMAN, TRANSFORMATIONS]; RONALD DWORKIN, LAW'S EMPIRE (1986) [hereinafter DWORKIN, LAW'S EMPIRE]; DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 6; ELY, supra note 37; TRIBE, supra note 33. Even Alexander Bickel, who best described the problem of the countermajoritarian difficulty, did not advocate for the abolition of judicial review. In The Least Dangerous Branch, Bickel argued that judicial review should still remain highly principled; however, because the court was countermajoritarian yet dependent upon the respect of the people for its power, it had to be extremely cautious about the exercise of judicial review. See BICKEL, supra note 5.
160. In legal and political scholarship, proponents of liberalism have generally embraced judicial review, even in the face of the countermajoritarian difficulty. See, e.g., ACKERMAN, FOUNDATIONS, supra note 40; BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998) [hereinafter ACKERMAN, TRANSFORMATIONS]; RONALD DWORKIN, LAW'S EMPIRE (1986) [hereinafter DWORKIN, LAW'S EMPIRE]; DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 6; ELY, supra note 37; TRIBE, supra note 33. Even Alexander Bickel, who best described the problem of the countermajoritarian difficulty, did not advocate for the abolition of judicial review. In The Least Dangerous Branch, Bickel argued that judicial review should still remain highly principled; however, because the court was countermajoritarian yet dependent upon the respect of the people for its power, it had to be extremely cautious about the exercise of judicial review. See BICKEL, supra note 5.
161. In legal and political scholarship, proponents of liberalism have generally embraced judicial review, even in the face of the countermajoritarian difficulty. See, e.g., ACKERMAN, FOUNDATIONS, supra note 40; BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998) [hereinafter ACKERMAN, TRANSFORMATIONS]; RONALD DWORKIN, LAW'S EMPIRE (1986) [hereinafter DWORKIN, LAW'S EMPIRE]; DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 6; ELY, supra note 37; TRIBE, supra note 33. Even Alexander Bickel, who best described the problem of the countermajoritarian difficulty, did not advocate for the abolition of judicial review. In The Least Dangerous Branch, Bickel argued that judicial review should still remain highly principled; however, because the court was countermajoritarian yet dependent upon the respect of the people for its power, it had to be extremely cautious about the exercise of judicial review. See BICKEL, supra note 5.
162. REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 5-7 (1990).
163. See Neil K. Komesar, Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis, 51 U. CHI. L. REV. 366, 377 (1984).
164. See POSNER, supra note 7, at 53-192.
165. See Judge Patricia M. Wald, Some Thoughts on Judging as Gleaned from One Hundred Years of the Harvard Law Review and Other Great Books, 100 HARV. L. REV. 887, 904-05 (1987).
166. POSNER, supra note 7, at 176.
167. Stefan, supra note 106, at 643.
168. Id.
169. JUDGE JEROME FRANK, COURTS ON TRIAL 14 (1949).
170. For discussions of the Court's explicit use of empirical evidence, see generally THOMAS B, MARVELL, APPELLATE COURTS AND LAWYERS: INFORMATION GATHERING IN THE ADVERSARY SYSTEM (1978); Kenneth Culp Davis, Facts in Lawmaking, 80 COLUM. L. REV. 931 (1980); David L. Faigman, "Normative Constitutional Fact-Finding": Exploring the Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541 (1991); Geoffrey C. Hazard, Jr., The Supreme Court as a Legislature, 64 CORNELL L. REV. 1 (1978); Kenneth L. Karst, Legislative Facts in Constitutional Litigation, 1960 SUP. CT. REV. 75 (1960); Charles M. Lamb, Judicial Policy-Making and Information Flow to the Supreme Court, 29 VAND. L. REV. 45 (1976); Arthur Selwyn Miller & Jerome A. Barron, The Supreme Court, the Adversary System, and the Flow of Information to the Justices: A Preliminary Inquiry, 61 VA. L. REV. 1187 (1975); Ann Woolhandler, Rethinking the Judicial Reception of Legislative Facts, 41 VAND. L. REV. 111 (1988).
171. For discussions of the Court's explicit use of empirical evidence, see generally THOMAS B, MARVELL, APPELLATE COURTS AND LAWYERS: INFORMATION GATHERING IN THE ADVERSARY SYSTEM (1978); Kenneth Culp Davis, Facts in Lawmaking, 80 COLUM. L. REV. 931 (1980); David L. Faigman, "Normative Constitutional Fact-Finding": Exploring the Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541 (1991); Geoffrey C. Hazard, Jr., The Supreme Court as a Legislature, 64 CORNELL L. REV. 1 (1978); Kenneth L. Karst, Legislative Facts in Constitutional Litigation, 1960 SUP. CT. REV. 75 (1960); Charles M. Lamb, Judicial Policy-Making and Information Flow to the Supreme Court, 29 VAND. L. REV. 45 (1976); Arthur Selwyn Miller & Jerome A. Barron, The Supreme Court, the Adversary System, and the Flow of Information to the Justices: A Preliminary Inquiry, 61 VA. L. REV. 1187 (1975); Ann Woolhandler, Rethinking the Judicial Reception of Legislative Facts, 41 VAND. L. REV. 111 (1988).
172. For discussions of the Court's explicit use of empirical evidence, see generally THOMAS B, MARVELL, APPELLATE COURTS AND LAWYERS: INFORMATION GATHERING IN THE ADVERSARY SYSTEM (1978); Kenneth Culp Davis, Facts in Lawmaking, 80 COLUM. L. REV. 931 (1980); David L. Faigman, "Normative Constitutional Fact-Finding": Exploring the Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541 (1991); Geoffrey C. Hazard, Jr., The Supreme Court as a Legislature, 64 CORNELL L. REV. 1 (1978); Kenneth L. Karst, Legislative Facts in Constitutional Litigation, 1960 SUP. CT. REV. 75 (1960); Charles M. Lamb, Judicial Policy-Making and Information Flow to the Supreme Court, 29 VAND. L. REV. 45 (1976); Arthur Selwyn Miller & Jerome A. Barron, The Supreme Court, the Adversary System, and the Flow of Information to the Justices: A Preliminary Inquiry, 61 VA. L. REV. 1187 (1975); Ann Woolhandler, Rethinking the Judicial Reception of Legislative Facts, 41 VAND. L. REV. 111 (1988).
173. For discussions of the Court's explicit use of empirical evidence, see generally THOMAS B, MARVELL, APPELLATE COURTS AND LAWYERS: INFORMATION GATHERING IN THE ADVERSARY SYSTEM (1978); Kenneth Culp Davis, Facts in Lawmaking, 80 COLUM. L. REV. 931 (1980); David L. Faigman, "Normative Constitutional Fact-Finding": Exploring the Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541 (1991); Geoffrey C. Hazard, Jr., The Supreme Court as a Legislature, 64 CORNELL L. REV. 1 (1978); Kenneth L. Karst, Legislative Facts in Constitutional Litigation, 1960 SUP. CT. REV. 75 (1960); Charles M. Lamb, Judicial Policy-Making and Information Flow to the Supreme Court, 29 VAND. L. REV. 45 (1976); Arthur Selwyn Miller & Jerome A. Barron, The Supreme Court, the Adversary System, and the Flow of Information to the Justices: A Preliminary Inquiry, 61 VA. L. REV. 1187 (1975); Ann Woolhandler, Rethinking the Judicial Reception of Legislative Facts, 41 VAND. L. REV. 111 (1988).
174. For discussions of the Court's explicit use of empirical evidence, see generally THOMAS B, MARVELL, APPELLATE COURTS AND LAWYERS: INFORMATION GATHERING IN THE ADVERSARY SYSTEM (1978); Kenneth Culp Davis, Facts in Lawmaking, 80 COLUM. L. REV. 931 (1980); David L. Faigman, "Normative Constitutional Fact-Finding": Exploring the Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541 (1991); Geoffrey C. Hazard, Jr., The Supreme Court as a Legislature, 64 CORNELL L. REV. 1 (1978); Kenneth L. Karst, Legislative Facts in Constitutional Litigation, 1960 SUP. CT. REV. 75 (1960); Charles M. Lamb, Judicial Policy-Making and Information Flow to the Supreme Court, 29 VAND. L. REV. 45 (1976); Arthur Selwyn Miller & Jerome A. Barron, The Supreme Court, the Adversary System, and the Flow of Information to the Justices: A Preliminary Inquiry, 61 VA. L. REV. 1187 (1975); Ann Woolhandler, Rethinking the Judicial Reception of Legislative Facts, 41 VAND. L. REV. 111 (1988).
175. For discussions of the Court's explicit use of empirical evidence, see generally THOMAS B, MARVELL, APPELLATE COURTS AND LAWYERS: INFORMATION GATHERING IN THE ADVERSARY SYSTEM (1978); Kenneth Culp Davis, Facts in Lawmaking, 80 COLUM. L. REV. 931 (1980); David L. Faigman, "Normative Constitutional Fact-Finding": Exploring the Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541 (1991); Geoffrey C. Hazard, Jr., The Supreme Court as a Legislature, 64 CORNELL L. REV. 1 (1978); Kenneth L. Karst, Legislative Facts in Constitutional Litigation, 1960 SUP. CT. REV. 75 (1960); Charles M. Lamb, Judicial Policy-Making and Information Flow to the Supreme Court, 29 VAND. L. REV. 45 (1976); Arthur Selwyn Miller & Jerome A. Barron, The Supreme Court, the Adversary System, and the Flow of Information to the Justices: A Preliminary Inquiry, 61 VA. L. REV. 1187 (1975); Ann Woolhandler, Rethinking the Judicial Reception of Legislative Facts, 41 VAND. L. REV. 111 (1988).
176. For discussions of the Court's explicit use of empirical evidence, see generally THOMAS B, MARVELL, APPELLATE COURTS AND LAWYERS: INFORMATION GATHERING IN THE ADVERSARY SYSTEM (1978); Kenneth Culp Davis, Facts in Lawmaking, 80 COLUM. L. REV. 931 (1980); David L. Faigman, "Normative Constitutional Fact-Finding": Exploring the Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541 (1991); Geoffrey C. Hazard, Jr., The Supreme Court as a Legislature, 64 CORNELL L. REV. 1 (1978); Kenneth L. Karst, Legislative Facts in Constitutional Litigation, 1960 SUP. CT. REV. 75 (1960); Charles M. Lamb, Judicial Policy-Making and Information Flow to the Supreme Court, 29 VAND. L. REV. 45 (1976); Arthur Selwyn Miller & Jerome A. Barron, The Supreme Court, the Adversary System, and the Flow of Information to the Justices: A Preliminary Inquiry, 61 VA. L. REV. 1187 (1975); Ann Woolhandler, Rethinking the Judicial Reception of Legislative Facts, 41 VAND. L. REV. 111 (1988).
177. For discussions of the Court's explicit use of empirical evidence, see generally THOMAS B, MARVELL, APPELLATE COURTS AND LAWYERS: INFORMATION GATHERING IN THE ADVERSARY SYSTEM (1978); Kenneth Culp Davis, Facts in Lawmaking, 80 COLUM. L. REV. 931 (1980); David L. Faigman, "Normative Constitutional Fact-Finding": Exploring the Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541 (1991); Geoffrey C. Hazard, Jr., The Supreme Court as a Legislature, 64 CORNELL L. REV. 1 (1978); Kenneth L. Karst, Legislative Facts in Constitutional Litigation, 1960 SUP. CT. REV. 75 (1960); Charles M. Lamb, Judicial Policy-Making and Information Flow to the Supreme Court, 29 VAND. L. REV. 45 (1976); Arthur Selwyn Miller & Jerome A. Barron, The Supreme Court, the Adversary System, and the Flow of Information to the Justices: A Preliminary Inquiry, 61 VA. L. REV. 1187 (1975); Ann Woolhandler, Rethinking the Judicial Reception of Legislative Facts, 41 VAND. L. REV. 111 (1988).
178. See PAUL W. KAHN, LEGITIMACY AND HISTORY: SELF-GOVERNMENT IN AMERICAN CONSTITUTIONAL THEORY (1992).
179. Theorists of constitutional law have focused much of their energy on the legitimacy of judicial review. See ACKERMAN, FOUNDATIONS, supra note 40 (stating that legitimate judicial review occurs when the Court locates principles from past "constitutional moments" when the people were most engaged in public discourse and lawmaking); BICKEL, supra note 5 (stating that judicial review cannot be legitimate because it is inherently countermajoritarian); ELY, supra note 37 (stating that legitimate judicial review depends upon the Court preventing stoppages in the processes of representative democracy).
180. I have explored this problem in more depth in an earlier article. See Daniel J. Solove, Postures of Judging: An Exploration of Judicial Decisionmaking, 9 CARDOZO STUD. IN L. & LITERATURE 173 (1997).
181. DWORKIN, LAW'S EMPIRE, supra note 146, at 11, 73.
182. See HORWITZ, supra note 27, at 13, 15.
183. See id. at 16. For a more detailed account of the epistemological tradition in philosophy, shaped in large part from Enlightenment thought, see RICHARD RORTY, PHILOSOPHY AND THE MIRROR OF NATURE (1979).
184. See NEIL DUXBURY, PAITERNS OF AMERICAN JURISPRUDENCE 9 (1995) (observing that formalists employed "a narrower, deductive approach to decision-making whereby legal relationships were treated as somehow subsumed under a small collection of fundamental legal principles").
185. See South Carolina v. United States, 199 U.S. 437, 448 (1905) ("The Constitution is a written instrument. As such its meaning does not alter."); THOMAS COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWERS OF THE STATES OF THE AMERICAN UNION 124 (Carrington's 8th ed. 1927) ("The meaning of the Constitution is fixed when it is adopted and is not different at any subsequent time.").
186. See, e.g., Morgan Cloud, The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory, 48 STAN. L. REV. 555, 558 (1996) ("In this article, I use the label 'formalism' to describe the body of ideas about law that encompassed these attributes of Lochner era jurisprudence, ideas that were part of the fundamental legal consciousness of the time."); Laura Kalman, Eating Spaghetti With a Spoon, 49 STAN. L. REV. 1547, 1559 (1997) ("Judicial formalism, meanwhile, reflecting 'the entrenched faith in laissez faire,' emerged in cases such as Lochner v. New York and Coppage v. Kansas."); R. Randall Kelso, Styles of Constitutional Interpretation and the Four Main Approaches to Constitutional Interpretation in American Legal History, 29 VAL. U. L. REV. 121, 191 (1994) ("The formalist-era approach to economic rights is best seen in Lochner v. New York, and its progeny.") (citation omitted); Molly S. McUsic, Looking Inside Out: Institutional Analysis and the Problem of Takings, 92 NW. U. L. REV. 591, 633 (1998) ("The jurisprudence of the Lochner-era Court was formalistic and categorical. The New Deal Court rejected this analysis and developed balancing tests to determine when a regulation crossed the constitutional line."); Frederick Schauer, Formalism, 97 YALE L.J. 509, 511 (1988) ("Few decisions are charged with formalism as often as Lochner v. New York."); Steve Sheppard, The State Interest in the Good Citizen: Constitutional Balance Between the Citizen and the Perfectionist State, 45 HASTINGS L.J. 969, 972 n.12 (1994) ("No more notorious banner for this phenomenon [formalism] flies in constitutional education than does Lochner v. New York . . . ."); Tom Stacy, What's Wrong With Lopez, 44 U. KAN. L. REV. 243, 244 (1996) ("The doctrinal categories of 'noncommercial activities' and 'areas of traditional state regulation' constructed by the majority resurrect the mindless formalism of the Lochner Court. These categories enforce a blindness to the obvious national economic consequences of education, family structure, and tort liability, and otherwise disregard federalism's underlying values."). For a list of numerous additional sources that condemn the Lochner era as formalistic, see Schauer, supra, at 511 n.2.
187. See, e.g., Morgan Cloud, The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory, 48 STAN. L. REV. 555, 558 (1996) ("In this article, I use the label 'formalism' to describe the body of ideas about law that encompassed these attributes of Lochner era jurisprudence, ideas that were part of the fundamental legal consciousness of the time."); Laura Kalman, Eating Spaghetti With a Spoon, 49 STAN. L. REV. 1547, 1559 (1997) ("Judicial formalism, meanwhile, reflecting 'the entrenched faith in laissez faire,' emerged in cases such as Lochner v. New York and Coppage v. Kansas."); R. Randall Kelso, Styles of Constitutional Interpretation and the Four Main Approaches to Constitutional Interpretation in American Legal History, 29 VAL. U. L. REV. 121, 191 (1994) ("The formalist-era approach to economic rights is best seen in Lochner v. New York, and its progeny.") (citation omitted); Molly S. McUsic, Looking Inside Out: Institutional Analysis and the Problem of Takings, 92 NW. U. L. REV. 591, 633 (1998) ("The jurisprudence of the Lochner-era Court was formalistic and categorical. The New Deal Court rejected this analysis and developed balancing tests to determine when a regulation crossed the constitutional line."); Frederick Schauer, Formalism, 97 YALE L.J. 509, 511 (1988) ("Few decisions are charged with formalism as often as Lochner v. New York."); Steve Sheppard, The State Interest in the Good Citizen: Constitutional Balance Between the Citizen and the Perfectionist State, 45 HASTINGS L.J. 969, 972 n.12 (1994) ("No more notorious banner for this phenomenon [formalism] flies in constitutional education than does Lochner v. New York . . . ."); Tom Stacy, What's Wrong With Lopez, 44 U. KAN. L. REV. 243, 244 (1996) ("The doctrinal categories of 'noncommercial activities' and 'areas of traditional state regulation' constructed by the majority resurrect the mindless formalism of the Lochner Court. These categories enforce a blindness to the obvious national economic consequences of education, family structure, and tort liability, and otherwise disregard federalism's underlying values."). For a list of numerous additional sources that condemn the Lochner era as formalistic, see Schauer, supra, at 511 n.2.
188. See, e.g., Morgan Cloud, The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory, 48 STAN. L. REV. 555, 558 (1996) ("In this article, I use the label 'formalism' to describe the body of ideas about law that encompassed these attributes of Lochner era jurisprudence, ideas that were part of the fundamental legal consciousness of the time."); Laura Kalman, Eating Spaghetti With a Spoon, 49 STAN. L. REV. 1547, 1559 (1997) ("Judicial formalism, meanwhile, reflecting 'the entrenched faith in laissez faire,' emerged in cases such as Lochner v. New York and Coppage v. Kansas."); R. Randall Kelso, Styles of Constitutional Interpretation and the Four Main Approaches to Constitutional Interpretation in American Legal History, 29 VAL. U. L. REV. 121, 191 (1994) ("The formalist-era approach to economic rights is best seen in Lochner v. New York, and its progeny.") (citation omitted); Molly S. McUsic, Looking Inside Out: Institutional Analysis and the Problem of Takings, 92 NW. U. L. REV. 591, 633 (1998) ("The jurisprudence of the Lochner-era Court was formalistic and categorical. The New Deal Court rejected this analysis and developed balancing tests to determine when a regulation crossed the constitutional line."); Frederick Schauer, Formalism, 97 YALE L.J. 509, 511 (1988) ("Few decisions are charged with formalism as often as Lochner v. New York."); Steve Sheppard, The State Interest in the Good Citizen: Constitutional Balance Between the Citizen and the Perfectionist State, 45 HASTINGS L.J. 969, 972 n.12 (1994) ("No more notorious banner for this phenomenon [formalism] flies in constitutional education than does Lochner v. New York . . . ."); Tom Stacy, What's Wrong With Lopez, 44 U. KAN. L. REV. 243, 244 (1996) ("The doctrinal categories of 'noncommercial activities' and 'areas of traditional state regulation' constructed by the majority resurrect the mindless formalism of the Lochner Court. These categories enforce a blindness to the obvious national economic consequences of education, family structure, and tort liability, and otherwise disregard federalism's underlying values."). For a list of numerous additional sources that condemn the Lochner era as formalistic, see Schauer, supra, at 511 n.2.
189. See, e.g., Morgan Cloud, The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory, 48 STAN. L. REV. 555, 558 (1996) ("In this article, I use the label 'formalism' to describe the body of ideas about law that encompassed these attributes of Lochner era jurisprudence, ideas that were part of the fundamental legal consciousness of the time."); Laura Kalman, Eating Spaghetti With a Spoon, 49 STAN. L. REV. 1547, 1559 (1997) ("Judicial formalism, meanwhile, reflecting 'the entrenched faith in laissez faire,' emerged in cases such as Lochner v. New York and Coppage v. Kansas."); R. Randall Kelso, Styles of Constitutional Interpretation and the Four Main Approaches to Constitutional Interpretation in American Legal History, 29 VAL. U. L. REV. 121, 191 (1994) ("The formalist-era approach to economic rights is best seen in Lochner v. New York, and its progeny.") (citation omitted); Molly S. McUsic, Looking Inside Out: Institutional Analysis and the Problem of Takings, 92 NW. U. L. REV. 591, 633 (1998) ("The jurisprudence of the Lochner-era Court was formalistic and categorical. The New Deal Court rejected this analysis and developed balancing tests to determine when a regulation crossed the constitutional line."); Frederick Schauer, Formalism, 97 YALE L.J. 509, 511 (1988) ("Few decisions are charged with formalism as often as Lochner v. New York."); Steve Sheppard, The State Interest in the Good Citizen: Constitutional Balance Between the Citizen and the Perfectionist State, 45 HASTINGS L.J. 969, 972 n.12 (1994) ("No more notorious banner for this phenomenon [formalism] flies in constitutional education than does Lochner v. New York . . . ."); Tom Stacy, What's Wrong With Lopez, 44 U. KAN. L. REV. 243, 244 (1996) ("The doctrinal categories of 'noncommercial activities' and 'areas of traditional state regulation' constructed by the majority resurrect the mindless formalism of the Lochner Court. These categories enforce a blindness to the obvious national economic consequences of education, family structure, and tort liability, and otherwise disregard federalism's underlying values."). For a list of numerous additional sources that condemn the Lochner era as formalistic, see Schauer, supra, at 511 n.2.
190. See, e.g., Morgan Cloud, The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory, 48 STAN. L. REV. 555, 558 (1996) ("In this article, I use the label 'formalism' to describe the body of ideas about law that encompassed these attributes of Lochner era jurisprudence, ideas that were part of the fundamental legal consciousness of the time."); Laura Kalman, Eating Spaghetti With a Spoon, 49 STAN. L. REV. 1547, 1559 (1997) ("Judicial formalism, meanwhile, reflecting 'the entrenched faith in laissez faire,' emerged in cases such as Lochner v. New York and Coppage v. Kansas."); R. Randall Kelso, Styles of Constitutional Interpretation and the Four Main Approaches to Constitutional Interpretation in American Legal History, 29 VAL. U. L. REV. 121, 191 (1994) ("The formalist-era approach to economic rights is best seen in Lochner v. New York, and its progeny.") (citation omitted); Molly S. McUsic, Looking Inside Out: Institutional Analysis and the Problem of Takings, 92 NW. U. L. REV. 591, 633 (1998) ("The jurisprudence of the Lochner-era Court was formalistic and categorical. The New Deal Court rejected this analysis and developed balancing tests to determine when a regulation crossed the constitutional line."); Frederick Schauer, Formalism, 97 YALE L.J. 509, 511 (1988) ("Few decisions are charged with formalism as often as Lochner v. New York."); Steve Sheppard, The State Interest in the Good Citizen: Constitutional Balance Between the Citizen and the Perfectionist State, 45 HASTINGS L.J. 969, 972 n.12 (1994) ("No more notorious banner for this phenomenon [formalism] flies in constitutional education than does Lochner v. New York . . . ."); Tom Stacy, What's Wrong With Lopez, 44 U. KAN. L. REV. 243, 244 (1996) ("The doctrinal categories of 'noncommercial activities' and 'areas of traditional state regulation' constructed by the majority resurrect the mindless formalism of the Lochner Court. These categories enforce a blindness to the obvious national economic consequences of education, family structure, and tort liability, and otherwise disregard federalism's underlying values."). For a list of numerous additional sources that condemn the Lochner era as formalistic, see Schauer, supra, at 511 n.2.
191. See, e.g., Morgan Cloud, The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory, 48 STAN. L. REV. 555, 558 (1996) ("In this article, I use the label 'formalism' to describe the body of ideas about law that encompassed these attributes of Lochner era jurisprudence, ideas that were part of the fundamental legal consciousness of the time."); Laura Kalman, Eating Spaghetti With a Spoon, 49 STAN. L. REV. 1547, 1559 (1997) ("Judicial formalism, meanwhile, reflecting 'the entrenched faith in laissez faire,' emerged in cases such as Lochner v. New York and Coppage v. Kansas."); R. Randall Kelso, Styles of Constitutional Interpretation and the Four Main Approaches to Constitutional Interpretation in American Legal History, 29 VAL. U. L. REV. 121, 191 (1994) ("The formalist-era approach to economic rights is best seen in Lochner v. New York, and its progeny.") (citation omitted); Molly S. McUsic, Looking Inside Out: Institutional Analysis and the Problem of Takings, 92 NW. U. L. REV. 591, 633 (1998) ("The jurisprudence of the Lochner-era Court was formalistic and categorical. The New Deal Court rejected this analysis and developed balancing tests to determine when a regulation crossed the constitutional line."); Frederick Schauer, Formalism, 97 YALE L.J. 509, 511 (1988) ("Few decisions are charged with formalism as often as Lochner v. New York."); Steve Sheppard, The State Interest in the Good Citizen: Constitutional Balance Between the Citizen and the Perfectionist State, 45 HASTINGS L.J. 969, 972 n.12 (1994) ("No more notorious banner for this phenomenon [formalism] flies in constitutional education than does Lochner v. New York . . . ."); Tom Stacy, What's Wrong With Lopez, 44 U. KAN. L. REV. 243, 244 (1996) ("The doctrinal categories of 'noncommercial activities' and 'areas of traditional state regulation' constructed by the majority resurrect the mindless formalism of the Lochner Court. These categories enforce a blindness to the obvious national economic consequences of education, family structure, and tort liability, and otherwise disregard federalism's underlying values."). For a list of numerous additional sources that condemn the Lochner era as formalistic, see Schauer, supra, at 511 n.2.
192. See, e.g., Morgan Cloud, The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory, 48 STAN. L. REV. 555, 558 (1996) ("In this article, I use the label 'formalism' to describe the body of ideas about law that encompassed these attributes of Lochner era jurisprudence, ideas that were part of the fundamental legal consciousness of the time."); Laura Kalman, Eating Spaghetti With a Spoon, 49 STAN. L. REV. 1547, 1559 (1997) ("Judicial formalism, meanwhile, reflecting 'the entrenched faith in laissez faire,' emerged in cases such as Lochner v. New York and Coppage v. Kansas."); R. Randall Kelso, Styles of Constitutional Interpretation and the Four Main Approaches to Constitutional Interpretation in American Legal History, 29 VAL. U. L. REV. 121, 191 (1994) ("The formalist-era approach to economic rights is best seen in Lochner v. New York, and its progeny.") (citation omitted); Molly S. McUsic, Looking Inside Out: Institutional Analysis and the Problem of Takings, 92 NW. U. L. REV. 591, 633 (1998) ("The jurisprudence of the Lochner-era Court was formalistic and categorical. The New Deal Court rejected this analysis and developed balancing tests to determine when a regulation crossed the constitutional line."); Frederick Schauer, Formalism, 97 YALE L.J. 509, 511 (1988) ("Few decisions are charged with formalism as often as Lochner v. New York."); Steve Sheppard, The State Interest in the Good Citizen: Constitutional Balance Between the Citizen and the Perfectionist State, 45 HASTINGS L.J. 969, 972 n.12 (1994) ("No more notorious banner for this phenomenon [formalism] flies in constitutional education than does Lochner v. New York . . . ."); Tom Stacy, What's Wrong With Lopez, 44 U. KAN. L. REV. 243, 244 (1996) ("The doctrinal categories of 'noncommercial activities' and 'areas of traditional state regulation' constructed by the majority resurrect the mindless formalism of the Lochner Court. These categories enforce a blindness to the obvious national economic consequences of education, family structure, and tort liability, and otherwise disregard federalism's underlying values."). For a list of numerous additional sources that condemn the Lochner era as formalistic, see Schauer, supra, at 511 n.2.
193. The Justices include: John Harlan (1877-1910); Horace Gray (1881-1902); Melville Fuller (1888-1910); Henry Brown (1890-1906); George Shiras (1892-1903); Edward White (1894-1921); Rufus Peckham (1895-1909); Joseph McKenna (1898-1925); Oliver Wendell Holmes (1902-1932); William Day (1903-1922); William Moody (1906-1910); Horace Lurton (1909-1914); Charles Evans Hughes (1910-1916, 1930-1941); Willis Van Devanter (1910-1937); Joseph Lamar (1910-1916); Mahlon Pitney (1912-1922); James McReynolds (1914-1941); Louis Brandeis (1916-1939); John Clarke (1916-1922); William Taft (1921-1930); George Sutherland (1922-1938); Pierce Butler (1922-1939); Edward Sanford (1923-1930); Harlan Stone (1925-1946); Owen Roberts (1930-1945); and Benjamin Cardozo (1932-1938).
194. Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1, 4 (1991).
195. Pragmatism, a distinctively American movement in philosophy, developed in the thoughts of Charles Sanders Peirce, William James, John Dewey, Josiah Royce, George Santayana, and George Herbert Mead. The birth of pragmatism can be traced to around 1870, and it flourished until shortly after WWII. See JOHN J. STUHR, CLASSICAL AMERICAN PHILOSOPHY 5 (1987); CORNELL WEST, THE AMERICAN EVASION OF PHILOSOPHY: A GENEALOGY OF PRAGMATISM 235-38 (1989).
196. Pragmatism, a distinctively American movement in philosophy, developed in the thoughts of Charles Sanders Peirce, William James, John Dewey, Josiah Royce, George Santayana, and George Herbert Mead. The birth of pragmatism can be traced to around 1870, and it flourished until shortly after WWII. See JOHN J. STUHR, CLASSICAL AMERICAN PHILOSOPHY 5 (1987); CORNELL WEST, THE AMERICAN EVASION OF PHILOSOPHY: A GENEALOGY OF PRAGMATISM 235-38 (1989).
197. Of course, pragmatism is a far more nuanced and complex philosophy than the very attenuated discussion here, which is merely intended to point out certain aspects of pragmatism.
198. WILLIAM JAMES, PRAGMATISM 25 (PrometheusBooks ed., 1991) (1907).
199. JOHN DEWEY, EXPERIENCE AND NATURE 9 (Jo Ann Boydston ed., 1988) (1929) [hereinafter DEWEY, EXPERIENCE).
200. See JOHN DEWEY, HOW WE THINK (Jo Ann Boydston ed., 1978) (1910).
201. See DEWEY, EXPERIENCE, supra note 170, at 123.
202. Id. at 34.
203. JOHN DEWEY, INDIVIDUALISM OLD AND NEW 115-16 (Jo Ann Boydston ed., 1984) (1929).
204. See MORTON G. WHITE, SOCIAL THOUGHT IN AMERICA: THE REVOLT AGAINST FORMALISM (1957) (arguing that legal realism can be understood as part of a larger revolt against formalism in American thought).
205. See KENNETH CULP DAVIS, 4 ADMINISTRATIVE LAW TREATISE § 30.01, at 189 (1958) (discussing Lord Mansfield's recognition of mixed fact-law questions).
206. See Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, 25 HARV. L. REV. 489 (1912).
207. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 23 (1921) (quoting MUNROE SMITH, JURISPRUDENCE 21 (1909)).
208. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 23 (1921) (quoting MUNROE SMITH, JURISPRUDENCE 21 (1909)).
209. Letter from Holmes to Pollock (May 26, 1919), in 2 MARK DEWOLFE HOWE, HOLMES-POLLOCK LETTERS, 1874-1932, at 13-14 (1941).
210. Id.
211. Oliver Wendell Holmes, Codes and the Arrangement of the Law, 5 AM. L. REV. 1, 4 (1870).
212. OLIVER WENDELL HOLMES, The Path of The Law, in COLLECTED LEGAL PAPERS 167, 187 (1920).
213. OLIVER WENDELL HOLMES, THE COMMON LAW 100-01 (1881).
214. Oliver Wendell Holmes, Law in Science and Science in Law, 12 HARV. L. REV. 443, 457 (1899).
215. See, e.g., FRANK, supra note 43; KALMAN, supra note 44, at 3 (stating that realism was "an attempt to understand law in terms of its factual context and economic and social consequences"); Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 TEX. L. REV. 267, 275 (1997) (stating that realists argued that judges respond to the stimulus of facts).
216. As Professor Singer observes about the realists: "The legal realists wanted to replace formalism with a pragmatic attitude toward law generally. This attitude treats law as made, not found. Law therefore is, and must be, based on human experience, policy, and ethics, rather than formal logic." Joseph William Singer, Legal Realism Now, 76 CAL. L. REV. 465, 474 (1988) (book review).
217. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 814 (1935).
218. KARL N. LLEWELLYN, THE BRAMBLE BUSH: SOME LETFERS ON LAW AND ITS STUDY 2 (1930).
219. 261 U.S. 525 (1923).
220. Id. at 546.
221. 236 U.S. 1 (1915).
222. Id. at 29.
223. 291 U.S. 502 (1934).
224. Id. at 525.
225. 290 U.S. 398 (1934).
226. Id. at 428.
227. Id. at 442.
228. Id. at 449 (Sutherland, J., dissenting).
229. Id. at 451 (Sutherland, J., dissenting).
230. Lochner v. New York, 198 U.S. 45, 53 (1905).
231. Id.
232. Id. at 56.
233. There are, of course, a few exceptions. In the most notable example, Coppage v. Kansas, 236 U.S. 1, 19 (1915), the Court seemed to imply that police powers only existed during emergencies.
234. Lochner, 198 U.S. at 56-57.
235. Id. at 61.
236. Id.
237. See Siegel, supra note 166, at 19 n. 77.
238. Lochner, 198 U.S. at 59.
239. Id.
240. Id.
241. See id. at 69 (Harlan, J., dissenting) ("[W]hether or not this be wise legislation it is not the province of the court to inquire.").
242. Id. at 71.
243. WIGMORE ON EVIDENCE § 2555d (2d ed. 1923).
244. Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 519-20 (1924) (Brandeis, J., dissenting).
245. See PHILIPPA STRUM, BRANDEIS: BEYOND PROGRESSIVISM 66 (1993).
246. John Dewey, Mr. Justice Brandeis, 33 COLUM. L. REV. 175, 175 (1933) (book review).
247. 208 U.S. 412 (1908).
248. See GERALD GUNTHER, CONSTITUTIONAL LAW 450 n.1 (12th ed. 1991) ("Muller was the first major case to resort to a fact-filled brief . . . submitted by the defenders of the legislation.").
249. See Alpheus Thomas Mason, The Case of the Overworked Laundress, in QUARRELS THAT HAVE SHAPED THE CONSTITUTION 200-01 (John A. Garraty ed., 1987) (discussing the oral argument in Muller).
250. See id. at 201.
251. 243 U.S. 426 (1917).
252. Brandeis drafted the brief, which was over 1,000 pages consisting mostly of statistics and data. See Seigel, supra note 166, at 20 n.83.
253. Bunting, 243 U.S. at 432.
254. See Seigel, supra note 166, at 20 n.83 (quoting from Frankfurter's oral argument); see also STRUM, supra note 215, at 185 n.47 (discussing the preparation of the Brandeis brief).
255. 296 U.S. 176 (1935).
256. Id. at 185 (quoting Borden's Farm Prods. Co., Inc. v. Baldwin, 293 U.S. 194, 209 (1934)).
257. E.g., O'Gorman & Young, Inc. v. Hartford Fire Ins. Co., 282 U.S. 251, 257 (1931) ("As underlying questions of fact may condition the constitutionality of legis" lation of this character, the presumption of constitutionality must prevail in the ab" sence of some factual foundation for overthrowing the statute.").
258. See Henry Wolf Biklé, Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action, 38 HARV. L. REV. 6 (1924).
259. Note, The Presentation of Facts Underlying the Constitutionality of Statutes, 49 HARV. L. REV. 631, 632 (1936).
260. Note, The Consideration of Facts in "Due Process" Cases, 30 COLUM. L. REV. 360, 371 (1930).
261. 293 U.S. 194 (1934).
262. Id. at 209.
263. Id.
264. 282 U.S. 251 (1931).
265. Id. at 269.
266. 261 U.S. 525 (1923).
267. Id. at 560.
268. 298 U.S. 587 (1936).
269. Id. at 627 (Hughes, C. J., dissenting).
270. Note, supra note 229, at 633.
271. Interestingly, this mysterious doctrine has been practiced only sporadically. It still is practiced in contemporary cases, such as Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995) and New York Times v. Sullivan, 316 U.S. 254 (1964). See also Edwards v. South Carolina, 372 U.S. 229, 235 (1963) (overturning state trial court's factual conclusions regarding threat of violence and police protection in African-American student protest because "it remains our duty . . . to make an independent examination of the whole record"); Feiner v. New York, 340 U.S. 315, 316 (1951) (reversing conviction of disorderly conduct by conducting independent review of evidence to "ascertain independently whether the right has been violated"); Niemotko v. Maryland, 340 U.S. 268, 271 (1951) (reversing conviction of Jehovah's Witnesses for disorderly conduct for giving Bible talks in public park). For further information about the constitutional fact doc" trine, see, for example, Henry Wolf Biklé, Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action, 38 HARV. L. REV. 6 (1924); George C. Christie, Judicial Review of Findings of Fact, 87 Nw. U. L. REV. 14 (1992); John Dickinson, Crowell v. Benson: Judicial Review of Administrative Determinations of Questions of "Constitutional Fact," 80 U. PA. L. REV. 1055 (1932); Richard D. Friedman, Standards of Persuasion and the Distinction Between Fact and Law, 86 Nw. U. L. REV. 916 (1992); Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229 (1985); Note, The Consideration of Facts in "Due Process" Cases, 30 COLUM. L. REV. 360 (1930); Note, The Presentation of Facts Underlying the Consti" tutionality of Statutes, 49 HARV. L. REV. 631 (1936).
272. Interestingly, this mysterious doctrine has been practiced only sporadically. It still is practiced in contemporary cases, such as Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995) and New York Times v. Sullivan, 316 U.S. 254 (1964). See also Edwards v. South Carolina, 372 U.S. 229, 235 (1963) (overturning state trial court's factual conclusions regarding threat of violence and police protection in African-American student protest because "it remains our duty . . . to make an independent examination of the whole record"); Feiner v. New York, 340 U.S. 315, 316 (1951) (reversing conviction of disorderly conduct by conducting independent review of evidence to "ascertain independently whether the right has been violated"); Niemotko v. Maryland, 340 U.S. 268, 271 (1951) (reversing conviction of Jehovah's Witnesses for disorderly conduct for giving Bible talks in public park). For further information about the constitutional fact doc" trine, see, for example, Henry Wolf Biklé, Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action, 38 HARV. L. REV. 6 (1924); George C. Christie, Judicial Review of Findings of Fact, 87 Nw. U. L. REV. 14 (1992); John Dickinson, Crowell v. Benson: Judicial Review of Administrative Determinations of Questions of "Constitutional Fact," 80 U. PA. L. REV. 1055 (1932); Richard D. Friedman, Standards of Persuasion and the Distinction Between Fact and Law, 86 Nw. U. L. REV. 916 (1992); Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229 (1985); Note, The Consideration of Facts in "Due Process" Cases, 30 COLUM. L. REV. 360 (1930); Note, The Presentation of Facts Underlying the Consti" tutionality of Statutes, 49 HARV. L. REV. 631 (1936).
273. Interestingly, this mysterious doctrine has been practiced only sporadically. It still is practiced in contemporary cases, such as Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995) and New York Times v. Sullivan, 316 U.S. 254 (1964). See also Edwards v. South Carolina, 372 U.S. 229, 235 (1963) (overturning state trial court's factual conclusions regarding threat of violence and police protection in African-American student protest because "it remains our duty . . . to make an independent examination of the whole record"); Feiner v. New York, 340 U.S. 315, 316 (1951) (reversing conviction of disorderly conduct by conducting independent review of evidence to "ascertain independently whether the right has been violated"); Niemotko v. Maryland, 340 U.S. 268, 271 (1951) (reversing conviction of Jehovah's Witnesses for disorderly conduct for giving Bible talks in public park). For further information about the constitutional fact doc" trine, see, for example, Henry Wolf Biklé, Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action, 38 HARV. L. REV. 6 (1924); George C. Christie, Judicial Review of Findings of Fact, 87 Nw. U. L. REV. 14 (1992); John Dickinson, Crowell v. Benson: Judicial Review of Administrative Determinations of Questions of "Constitutional Fact," 80 U. PA. L. REV. 1055 (1932); Richard D. Friedman, Standards of Persuasion and the Distinction Between Fact and Law, 86 Nw. U. L. REV. 916 (1992); Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229 (1985); Note, The Consideration of Facts in "Due Process" Cases, 30 COLUM. L. REV. 360 (1930); Note, The Presentation of Facts Underlying the Consti" tutionality of Statutes, 49 HARV. L. REV. 631 (1936).
274. Interestingly, this mysterious doctrine has been practiced only sporadically. It still is practiced in contemporary cases, such as Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995) and New York Times v. Sullivan, 316 U.S. 254 (1964). See also Edwards v. South Carolina, 372 U.S. 229, 235 (1963) (overturning state trial court's factual conclusions regarding threat of violence and police protection in African-American student protest because "it remains our duty . . . to make an independent examination of the whole record"); Feiner v. New York, 340 U.S. 315, 316 (1951) (reversing conviction of disorderly conduct by conducting independent review of evidence to "ascertain independently whether the right has been violated"); Niemotko v. Maryland, 340 U.S. 268, 271 (1951) (reversing conviction of Jehovah's Witnesses for disorderly conduct for giving Bible talks in public park). For further information about the constitutional fact doc" trine, see, for example, Henry Wolf Biklé, Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action, 38 HARV. L. REV. 6 (1924); George C. Christie, Judicial Review of Findings of Fact, 87 Nw. U. L. REV. 14 (1992); John Dickinson, Crowell v. Benson: Judicial Review of Administrative Determinations of Questions of "Constitutional Fact," 80 U. PA. L. REV. 1055 (1932); Richard D. Friedman, Standards of Persuasion and the Distinction Between Fact and Law, 86 Nw. U. L. REV. 916 (1992); Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229 (1985); Note, The Consideration of Facts in "Due Process" Cases, 30 COLUM. L. REV. 360 (1930); Note, The Presentation of Facts Underlying the Consti" tutionality of Statutes, 49 HARV. L. REV. 631 (1936).
275. Interestingly, this mysterious doctrine has been practiced only sporadically. It still is practiced in contemporary cases, such as Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995) and New York Times v. Sullivan, 316 U.S. 254 (1964). See also Edwards v. South Carolina, 372 U.S. 229, 235 (1963) (overturning state trial court's factual conclusions regarding threat of violence and police protection in African-American student protest because "it remains our duty . . . to make an independent examination of the whole record"); Feiner v. New York, 340 U.S. 315, 316 (1951) (reversing conviction of disorderly conduct by conducting independent review of evidence to "ascertain independently whether the right has been violated"); Niemotko v. Maryland, 340 U.S. 268, 271 (1951) (reversing conviction of Jehovah's Witnesses for disorderly conduct for giving Bible talks in public park). For further information about the constitutional fact doc" trine, see, for example, Henry Wolf Biklé, Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action, 38 HARV. L. REV. 6 (1924); George C. Christie, Judicial Review of Findings of Fact, 87 Nw. U. L. REV. 14 (1992); John Dickinson, Crowell v. Benson: Judicial Review of Administrative Determinations of Questions of "Constitutional Fact," 80 U. PA. L. REV. 1055 (1932); Richard D. Friedman, Standards of Persuasion and the Distinction Between Fact and Law, 86 Nw. U. L. REV. 916 (1992); Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229 (1985); Note, The Consideration of Facts in "Due Process" Cases, 30 COLUM. L. REV. 360 (1930); Note, The Presentation of Facts Underlying the Consti" tutionality of Statutes, 49 HARV. L. REV. 631 (1936).
276. Interestingly, this mysterious doctrine has been practiced only sporadically. It still is practiced in contemporary cases, such as Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995) and New York Times v. Sullivan, 316 U.S. 254 (1964). See also Edwards v. South Carolina, 372 U.S. 229, 235 (1963) (overturning state trial court's factual conclusions regarding threat of violence and police protection in African-American student protest because "it remains our duty . . . to make an independent examination of the whole record"); Feiner v. New York, 340 U.S. 315, 316 (1951) (reversing conviction of disorderly conduct by conducting independent review of evidence to "ascertain independently whether the right has been violated"); Niemotko v. Maryland, 340 U.S. 268, 271 (1951) (reversing conviction of Jehovah's Witnesses for disorderly conduct for giving Bible talks in public park). For further information about the constitutional fact doc" trine, see, for example, Henry Wolf Biklé, Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action, 38 HARV. L. REV. 6 (1924); George C. Christie, Judicial Review of Findings of Fact, 87 Nw. U. L. REV. 14 (1992); John Dickinson, Crowell v. Benson: Judicial Review of Administrative Determinations of Questions of "Constitutional Fact," 80 U. PA. L. REV. 1055 (1932); Richard D. Friedman, Standards of Persuasion and the Distinction Between Fact and Law, 86 Nw. U. L. REV. 916 (1992); Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229 (1985); Note, The Consideration of Facts in "Due Process" Cases, 30 COLUM. L. REV. 360 (1930); Note, The Presentation of Facts Underlying the Consti" tutionality of Statutes, 49 HARV. L. REV. 631 (1936).
277. Interestingly, this mysterious doctrine has been practiced only sporadically. It still is practiced in contemporary cases, such as Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995) and New York Times v. Sullivan, 316 U.S. 254 (1964). See also Edwards v. South Carolina, 372 U.S. 229, 235 (1963) (overturning state trial court's factual conclusions regarding threat of violence and police protection in African-American student protest because "it remains our duty . . . to make an independent examination of the whole record"); Feiner v. New York, 340 U.S. 315, 316 (1951) (reversing conviction of disorderly conduct by conducting independent review of evidence to "ascertain independently whether the right has been violated"); Niemotko v. Maryland, 340 U.S. 268, 271 (1951) (reversing conviction of Jehovah's Witnesses for disorderly conduct for giving Bible talks in public park). For further information about the constitutional fact doc" trine, see, for example, Henry Wolf Biklé, Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action, 38 HARV. L. REV. 6 (1924); George C. Christie, Judicial Review of Findings of Fact, 87 Nw. U. L. REV. 14 (1992); John Dickinson, Crowell v. Benson: Judicial Review of Administrative Determinations of Questions of "Constitutional Fact," 80 U. PA. L. REV. 1055 (1932); Richard D. Friedman, Standards of Persuasion and the Distinction Between Fact and Law, 86 Nw. U. L. REV. 916 (1992); Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229 (1985); Note, The Consideration of Facts in "Due Process" Cases, 30 COLUM. L. REV. 360 (1930); Note, The Presentation of Facts Underlying the Consti" tutionality of Statutes, 49 HARV. L. REV. 631 (1936).
278. 285 U.S. 22 (1932).
279. Id. at 36-37.
280. Id. at 54.
281. Id. at 56-57.
282. Monaghan, supra note 241, at 249.
283. Crowell, 285 U.S. at 60.
284. 294 U.S. 587 (1935).
285. Id. at 589 (emphasis added).
286. Id. at 590.
287. Id.
288. 298 U.S. 38 (1936).
289. Id. at 51-52.
290. Id. at 52.
291. Id. at 73 (Brandeis, J., concurring).
292. Id.
293. Samt Joseph Stock Yards, 298 U.S. at 77.
294. Id. at 83.
295. Id. at 84.
296. See PAUL BREST & SANFORD LEVINSON, PROCESSES OF CONSTITUTIONAL DECISIONMAKING 299 (3d ed. 1992).
297. See, e.g., Morehead v. New York, 298 U.S. 587, 628 (1936) (Hughes, C.J., dissenting); id. at 632 (Stone, J., dissenting); Nebbia v. New York, 291 U.S. 502, 526-28 nn.24-29 (1934).
298. See the extensive citations in the footnotes to Barry Cushman, The Secret Lives of the Four Horsemen, 83 VA. L. REV. 559, 605-16 nn. 56-58 (1997).
299. See, e.g., Concordia Fire Ins. Co. v. State of Illinois, 292 U.S. 535, 547 (1934) ("By reason of the presumption of validity which attends legislative and official action one who alleges unreasonable discrimination must carry the burden of showing it."); Nebbia, 291 U.S. at 537-38 ("Times without number we have said that the Legisla" ture is primarily the judge of the necessity of such an enactment, that every possible presumption is in favor of its validity, and that though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power."); Adkins v. Children's Hosp., 261 U.S. 525, 544 (1923) ("This court, by an unbroken line of decisions from Chief Justice Marshall to the present day, has steadily adhered to the rule that every possible presumption is in favor of the validity of an act of Congress until overcome beyond rational doubt."); Buttfield v. Stranahan, 192 U.S. 470, 492 (1904) ("In examining the statute in order to determine its constitutionality we must be guided by the well-settled rule that every intendment is in favor of its validity. It must be presumed constitutional unless its repugnancy to the Constitution clearly appears.").
300. See ACKERMAN, TRANSFORMATIONS, supra note 146, at 314.
301. 304 U.S. 144, 152 (1938).
302. 5 U.S. (1 Cranch) 137 (1803). Footnote Four has been hailed as "the most celebrated footnote in constitutional law." See Justice Lewis P. Powell, Jr., Carolene Products Revisited, 82 COLUM. L. REV. 1087, 1087 (1982). It has also been called "[t]he great and modern charter for ordering the relation between judges and other agencies of government." Owen M. Fiss, The Supreme Court, 1978 Term - Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 6 (1979). Initially, Footnote Four was virtually ignored by constitutional theorists. For example, in the first five years following the opinion, there was little mention of Footnote Four or Carolene Products in the pages of Harvard Law Review or the Yale Law Journal.
303. 5 U.S. (1 Cranch) 137 (1803). Footnote Four has been hailed as "the most celebrated footnote in constitutional law." See Justice Lewis P. Powell, Jr., Carolene Products Revisited, 82 COLUM. L. REV. 1087, 1087 (1982). It has also been called "[t]he great and modern charter for ordering the relation between judges and other agencies of government." Owen M. Fiss, The Supreme Court, 1978 Term - Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 6 (1979). Initially, Footnote Four was virtually ignored by constitutional theorists. For example, in the first five years following the opinion, there was little mention of Footnote Four or Carolene Products in the pages of Harvard Law Review or the Yale Law Journal.
304. Carotene Prods., 304 U.S. at 152.
305. Id. at 153.
306. Id.
307. Id. at 154.
308. 7 HARV. L. REV. 129 (1893).
309. See id. at 144 ("[T]he constitution often admits of different interpretations . . . [and] there is often a range of choice and judgment . . . . [T]he constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional.").
310. Id. at 148.
311. Monaghan, supra note 18, at 9.
312. The full text of Footnote Four provides: There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Carolene Prods ., 304 U.S. at 152 n.4 (citations omitted).
313. Id. at 152.
314. See J.M. Balkin, The Footnote, 83 Nw. U. L. REV. 275, 284 (1989) ("Indeed, not only do the most famous claims of Carolene Products appear in a lowly footnote, but the footnote does not even assert them directly. It merely raises them tentatively, deferentially (in the manner that the body of the opinion tells us the judiciary ought to behave).").
315. Carolene Prods., 304 U.S. at 152-53 n.4.
316. See Balkin, supra note 277, at 298; Miriam Galston, Activism and Restraint: The Evolution of Harlan Fiske Stone's Judicial Philosophy, 70 TUL. L. REV. 137, 139-40 (1995) (describing the "traditional interpretation" of the Court's post-New Deal jurisprudence as "a hybrid jurisprudence" minimally reviewing property and contract rights while strongly protecting "freedoms associated with political and civil rights").
317. See Louis Lusky, Footnote Redux. A Carolene Products Reminiscence, 82 COLUM. L. REV. 1093, 1096 (1982).
318. Letter to Chief Justice Stone (Apr. 21, 1938) quoted in Lusky, supra note 280, at 1109.
319. FELIX FRANKFURTER, REMINISCES 299 (H. Phillips ed., 1960).
320. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 649 (1943) (Frankfurter, J., dissenting).
321. It is important to note that Frankfurter was not inimical to balancing. Indeed, he supported the balancing over the more absolutist approach of Justice Black. Yet, Frankfurter's conception of balancing differed significantly from the type of balancing the Court conducted. For Frankfurter, the balancing should be done by the legislature, not the Court. See Dennis v. United States, 341 U.S. 494, 525 (1951) (Frankfurter, J., concurring).
322. See ELY, supra note 37, at 75-77.
323. See KALMAN, supra note 145, at 14.
324. ALAN BRINKLEY, THE END OF REFORM: NEW DEAL LIBERALISM IN RECESSION AND WAR 9 (1995).
325. HORWITZ, supra note 27, at 224.
326. Id. at 216-17.
327. 319 U.S. 624 (1943).
328. Id. at 640.
329. 310 U.S. 586 (1940).
330. See Barnette, 319 U.S. at 629 nn. 3-4.
331. Id. at 630-31.
332. See HANNAH ARENT, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL (1963).
333. See Richard Primus, Note, A Brooding Omnipresence: Totalitarianism in Postwar Constitutional Thought, 106 YALE L.J. 423, 437-50 (1996) (discussing the effect of anti-totalitarianism on Supreme Court jurisprudence).
334. HORWITZ, supra note 27, at 241.
335. Louis Jaffe, The Effective Limits of the Administrative Process: A Reevaluation, 67 HARV. L. REV. 1105, 1106 (1954).
336. 347 U.S. 483 (1954).
337. Id. at 495 n. 11.
338. 320 U.S. 81 (1943).
339. Id. at 92.
340. Id. at 93.
341. Id.
342. Id.
343. Himbayashi, 320 U.S. at 94.
344. See id. at 95.
345. Id. at 97.
346. Id. at 99.
347. Id.
348. Hirabayashi, 320 U.S. at 102.
349. Eugene Rostow's analysis of the Recommendations concludes that they merely recorded "conclusions, not evidence" and that they exhibited significant prejudice against the Japanese. See Eugene V. Rostow, The Japanese American Cases - A Disaster, 54 YALE L.J. 489, 520-21 (1945).
350. 323 U.S. 214 (1944).
351. Id. at 214.
352. Id. at 218 (quoting Hirabayashi, 320 U.S. at 99).
353. See ACKERMAN, FOUNDATIONS, supra note 40, at 107-08.
354. The Court's ineffective assistance doctrine also seems to parallel this shift. Before Gideon v. Wainright, 372 U.S. 335 (1963), the provision of defense counsel for indigent defendants was controlled at the state and local level. After Gideon, the competence of counsel was recognized as a constitutional right, and the Court, in Strickland v. Washington, 466 U.S. 668 (1984), declared that the effectiveness of counsel would be reviewed deferentially. In sum, like the military and prisons, there was a shift in terms of the recognition of rights, but a corresponding declaration of weak deferential review for these rights.
355. 39 U.S. (14 Pet.) 497 (1840).
356. 219 U.S. 296 (1911).
357. Chappell v. Wallace, 462 U.S. 296, 304 (1983) (quoting Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. REV. 181, 188 (1962)).
358. See, e.g., WILLIAM L. SELKE, PRISONS IN CRISIS 28-29 (1993); see also Note, Beyond the Ken of the Courts: A Critique of Judicial Refusal to Review the Complaints of Convicts, 72 YALE L.J. 506 (1963) (critiquing the "hands off" doctrine).
359. See, e.g., WILLIAM L. SELKE, PRISONS IN CRISIS 28-29 (1993); see also Note, Beyond the Ken of the Courts: A Critique of Judicial Refusal to Review the Complaints of Convicts, 72 YALE L.J. 506 (1963) (critiquing the "hands off" doctrine).
360. Stroud v. Swope, 187 F.2d 850, 851-52 (9th Cir. 1951).
361. See SELKE, supra note 321, at 28-29.
362. 441 U.S. 520 (1979).
363. Id. at 562.
364. 405 U.S. 319 (1972).
365. Id. at 321.
366. Id.
367. Throughout this Part, when speaking about the current practice of deference, I often refer to it simply as "deference" for the sake of readability.
368. 482 U.S. 342 (1987). For a detailed discussion of O'Lone, see supra Part II.A.
369. O'Lone, 482 U.S. at 349-50 (citation omitted) (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974)).
370. 457 U.S. 307 (1982).
371. Id. at 322.
372. 468 U.S. 288 (1984). For a detailed discussion of Clark, see supra Part II.A.
373. Clark, 468 U.S. at 299.
374. See Bell v. Wolfish, 441 U.S. 520, 562 (1979).
375. 475 U.S. 503 (1986). For a detailed discussion of Goldman, see supra Part H.A.
376. Goldman, 475 U.S. at 507 (quoting Chappell v. Wallace, 462 U.S. 296, 305 (1983)).
377. Clark, 468 U.S. at 299.
378. Wayte v. United States, 470 U.S. 598, 607 (1985). For similar justifications, see Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989) ("[T]he judiciary is ill equipped to deal with the difficult and delicate problems of prison management."); Procunier v. Martinez, 416 U.S. 396, 405 (1974) ("[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.").
379. Oregon v. Mitchell, 400 U.S. 112 (1970).
380. 457 U.S. 307 (1982).
381. Id. at 322.
382. Id. at 323 n.30.
383. Id. at 323.
384. 400 U.S. 112 (1970).
385. Id. at 248.
386. E.g., Indus. Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607 (1980) (discussing agency record of 105,000 pages).
387. 194 U.S. 106 (1904).
388. Id. at 107-08.
389. See Dickinson, supra note 241, at 1060.
390. See Davis, supra note 155, at 940-41.
391. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665-66 (1994) (quoting Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 331 n.12 (1985)).
392. See FCC v. Nat'l Citizens Comm. for Broad., 436 U.S. 775, 814 (1978) (quoting FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 29 (1961))
393. 320 U.S. 81 (1943). For a detailed discussion of Hirabayashi, see supra Part III.B.
394. Hirabayashi, 320 U.S. at 101.
395. Id. at 104.
396. See Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).
397. Hirabayashi, 320 U.S. at 107 (Douglas, J., concurring).
398. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994). The Legal Process existed in manuscript form for most of its history and was published only recently. Bruce Ackerman declares that The Legal Process was "undoubtedly the most influential unpublished work in recent legal history." BRUCE A. ACKERMAN, RECONSTRUCTING AMERICAN LAW 38 n.9 (1984). In addition to Hart and Sacks, thinkers in this school included Justice Frankfurter, Lon Fuller, Alexander Bickel and Herbert Weschler.
399. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994). The Legal Process existed in manuscript form for most of its history and was published only recently. Bruce Ackerman declares that The Legal Process was "undoubtedly the most influential unpublished work in recent legal history." BRUCE A. ACKERMAN, RECONSTRUCTING AMERICAN LAW 38 n.9 (1984). In addition to Hart and Sacks, thinkers in this school included Justice Frankfurter, Lon Fuller, Alexander Bickel and Herbert Weschler.
400. William N. Eskridge, Jr. & Philip P. Frickey, An Historical and Critical Introduction to HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW at li, c (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).
401. E.g., Edward L. Rubin, The New Legal Process, the Synthesis of Discourse, and the Microanalysis of Institutions, 109 HARV. L. REV. 1393, 1396 (1996) (arguing that institutional competence was the central idea of the legal process school).
402. See Eskridge & Frickey, supra note 361, at ix.
403. ACKERMAN, supra note 360, at 39-40 (noting that mistakes of bureaucracies and legislatures are treated as isolated blunders, not systemic failures).
404. See id. Neil Duxbury appropriately labels Hart and Sacks's "idea that legal institutions have their own specialist areas of competence beyond which they ought not to stray" as "institutional formalism" rather than "institutional competence." DUXBURY, supra note 162, at 263.
405. For a description of Roosevelt's "Brain Trust" and the influence of its members on the President's policies, see ALAN BRINKLEY, LIBERALISM AND ITS DISCONTENTS 13-14 (1998).
406. E.g., Marianne Lavelle, Public Works Go Private: When Government Sells Off Its Services, Does Public Law Still Govern?, NAT'L L.J., Sept. 25, 1995, at A1. Recently, states have been allowing private companies to build and run prisons for profit. See, e.g., Joan M. Cheever, Cells for Sale: Critics Say Private Jails Cut Corners, Lose Money, NAT'L L.J., Feb. 19, 1990, at 32 ("Nationwide, private companies have built about 100 prisons holding about 50,000 inmates."); Robert B. Gunnison, Privately Run Prison Planned for Mojave: Firm Says It Can House Inmates Cheaper, S.F. CHRON., Aug. 1, 1997, at A22. There have been several reported abuses at private prisons. Missouri brought 415 prisoners home from private rented jail cells in Texas. Kim Bell, Other States Have Trouble with Texas Jail System But Missouri Is First to Pull Inmates for Abuse Concerns, ST. LOUIS POST DISPATCH, Aug. 18, 1997, at 1A. In one prison, a videotape revealed private prison guards beating inmates, using stun guns on them, allowing dogs to attack them, and kicking them in the groin. Ironically, the video was shot for training purposes. Videotaped Beating in Texas Spurs FBI Probe, L.A. TIMES, Aug. 20, 1997, at A15.
407. E.g., Marianne Lavelle, Public Works Go Private: When Government Sells Off Its Services, Does Public Law Still Govern?, NAT'L L.J., Sept. 25, 1995, at A1. Recently, states have been allowing private companies to build and run prisons for profit. See, e.g., Joan M. Cheever, Cells for Sale: Critics Say Private Jails Cut Corners, Lose Money, NAT'L L.J., Feb. 19, 1990, at 32 ("Nationwide, private companies have built about 100 prisons holding about 50,000 inmates."); Robert B. Gunnison, Privately Run Prison Planned for Mojave: Firm Says It Can House Inmates Cheaper, S.F. CHRON., Aug. 1, 1997, at A22. There have been several reported abuses at private prisons. Missouri brought 415 prisoners home from private rented jail cells in Texas. Kim Bell, Other States Have Trouble with Texas Jail System But Missouri Is First to Pull Inmates for Abuse Concerns, ST. LOUIS POST DISPATCH, Aug. 18, 1997, at 1A. In one prison, a videotape revealed private prison guards beating inmates, using stun guns on them, allowing dogs to attack them, and kicking them in the groin. Ironically, the video was shot for training purposes. Videotaped Beating in Texas Spurs FBI Probe, L.A. TIMES, Aug. 20, 1997, at A15.
408. E.g., Marianne Lavelle, Public Works Go Private: When Government Sells Off Its Services, Does Public Law Still Govern?, NAT'L L.J., Sept. 25, 1995, at A1. Recently, states have been allowing private companies to build and run prisons for profit. See, e.g., Joan M. Cheever, Cells for Sale: Critics Say Private Jails Cut Corners, Lose Money, NAT'L L.J., Feb. 19, 1990, at 32 ("Nationwide, private companies have built about 100 prisons holding about 50,000 inmates."); Robert B. Gunnison, Privately Run Prison Planned for Mojave: Firm Says It Can House Inmates Cheaper, S.F. CHRON., Aug. 1, 1997, at A22. There have been several reported abuses at private prisons. Missouri brought 415 prisoners home from private rented jail cells in Texas. Kim Bell, Other States Have Trouble with Texas Jail System But Missouri Is First to Pull Inmates for Abuse Concerns, ST. LOUIS POST DISPATCH, Aug. 18, 1997, at 1A. In one prison, a videotape revealed private prison guards beating inmates, using stun guns on them, allowing dogs to attack them, and kicking them in the groin. Ironically, the video was shot for training purposes. Videotaped Beating in Texas Spurs FBI Probe, L.A. TIMES, Aug. 20, 1997, at A15.
409. E.g., Marianne Lavelle, Public Works Go Private: When Government Sells Off Its Services, Does Public Law Still Govern?, NAT'L L.J., Sept. 25, 1995, at A1. Recently, states have been allowing private companies to build and run prisons for profit. See, e.g., Joan M. Cheever, Cells for Sale: Critics Say Private Jails Cut Corners, Lose Money, NAT'L L.J., Feb. 19, 1990, at 32 ("Nationwide, private companies have built about 100 prisons holding about 50,000 inmates."); Robert B. Gunnison, Privately Run Prison Planned for Mojave: Firm Says It Can House Inmates Cheaper, S.F. CHRON., Aug. 1, 1997, at A22. There have been several reported abuses at private prisons. Missouri brought 415 prisoners home from private rented jail cells in Texas. Kim Bell, Other States Have Trouble with Texas Jail System But Missouri Is First to Pull Inmates for Abuse Concerns, ST. LOUIS POST DISPATCH, Aug. 18, 1997, at 1A. In one prison, a videotape revealed private prison guards beating inmates, using stun guns on them, allowing dogs to attack them, and kicking them in the groin. Ironically, the video was shot for training purposes. Videotaped Beating in Texas Spurs FBI Probe, L.A. TIMES, Aug. 20, 1997, at A15.
410. E.g., Marianne Lavelle, Public Works Go Private: When Government Sells Off Its Services, Does Public Law Still Govern?, NAT'L L.J., Sept. 25, 1995, at A1. Recently, states have been allowing private companies to build and run prisons for profit. See, e.g., Joan M. Cheever, Cells for Sale: Critics Say Private Jails Cut Corners, Lose Money, NAT'L L.J., Feb. 19, 1990, at 32 ("Nationwide, private companies have built about 100 prisons holding about 50,000 inmates."); Robert B. Gunnison, Privately Run Prison Planned for Mojave: Firm Says It Can House Inmates Cheaper, S.F. CHRON., Aug. 1, 1997, at A22. There have been several reported abuses at private prisons. Missouri brought 415 prisoners home from private rented jail cells in Texas. Kim Bell, Other States Have Trouble with Texas Jail System But Missouri Is First to Pull Inmates for Abuse Concerns, ST. LOUIS POST DISPATCH, Aug. 18, 1997, at 1A. In one prison, a videotape revealed private prison guards beating inmates, using stun guns on them, allowing dogs to attack them, and kicking them in the groin. Ironically, the video was shot for training purposes. Videotaped Beating in Texas Spurs FBI Probe, L.A. TIMES, Aug. 20, 1997, at A15.
411. See Louis L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 580-81 (1965) (arguing that only rarely is the expert's judgment based "purely" on technical considerations and that "power drives" as well as "legal attitudes" influence expert judgment).
412. Iron Eyes v. Henry, 907 F.2d 810, 821-22 (8th Cir. 1990) (Heaney, J., dissenting).
413. Clark v. Community for Creative Nonviolence, 468 U.S. 288, 315 (1984) (Marshall, J., dissenting).
414. O'Lone v. Estate of Shabazz, 482 U.S. 342, 356 (1987) (Brennan, J., dissenting).
415. See Stefan, supra note 106, at 655-61.
416. SHEILA JASANOFF, SCIENCE AT THE BAR: LAW, SCIENCE, AND TECHNOLOGY IN AMERICA 209 (1995).
417. Hearings on H.R. 30 Before the Subcomm. of the House Comm. on Naval Affairs, 78th Cong. 739-40 (1974).
418. MICHEL FOUCAULT, DISCIPLINE AND PUNISH 257 (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1978).
419. See Rhodes v. Chapman, 452 U.S. 337, 358 (1981) (Brennan, J., concurring) ("Public apathy and the political powerlessness of inmates have contributed to the pervasive neglect of the prisons.").
420. See, e.g., Solove, supra note 158, at 218.
421. One example is the repeated outbreaks of police brutality. See, e.g., A Beating in Brooklyn: New York's Finest Come Under Fire After a Haitian Man Is Sexually Assaulted, Allegedly by Cops, TIME, Aug. 25, 1997, at 38; Pierre Thomas, Police Brutality: An Issue Rekindled, WASH. POST, Dec. 6, 1995, at A1 (describing numerous cases of police brutality). The FBI is currently under scrutiny for abuses of power in several cases, such as Ruby Ridge. See Jim McGee, The Rise of the FBI, WASH. POST MAG., July 20, 1997, at 11.
422. One example is the repeated outbreaks of police brutality. See, e.g., A Beating in Brooklyn: New York's Finest Come Under Fire After a Haitian Man Is Sexually Assaulted, Allegedly by Cops, TIME, Aug. 25, 1997, at 38; Pierre Thomas, Police Brutality: An Issue Rekindled, WASH. POST, Dec. 6, 1995, at A1 (describing numerous cases of police brutality). The FBI is currently under scrutiny for abuses of power in several cases, such as Ruby Ridge. See Jim McGee, The Rise of the FBI, WASH. POST MAG., July 20, 1997, at 11.
423. One example is the repeated outbreaks of police brutality. See, e.g., A Beating in Brooklyn: New York's Finest Come Under Fire After a Haitian Man Is Sexually Assaulted, Allegedly by Cops, TIME, Aug. 25, 1997, at 38; Pierre Thomas, Police Brutality: An Issue Rekindled, WASH. POST, Dec. 6, 1995, at A1 (describing numerous cases of police brutality). The FBI is currently under scrutiny for abuses of power in several cases, such as Ruby Ridge. See Jim McGee, The Rise of the FBI, WASH. POST MAG., July 20, 1997, at 11.
424. See Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676, 679-84 (D. Mass. 1973) (describing prison as run-down, vermin-infested, filthy, and overcrowded). For a history of the conditions of this nation's penal facilities, see LARRY E. SULLIVAN, THE PRISON REFORM MOVEMENT: FORLORN HOPE (1990); THE OXFORD HISTORY OF THE PRISON 111-29, 169-97 (Norval Morris & David J. Rothman eds., 1995).
425. See Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676, 679-84 (D. Mass. 1973) (describing prison as run-down, vermin-infested, filthy, and overcrowded). For a history of the conditions of this nation's penal facilities, see LARRY E. SULLIVAN, THE PRISON REFORM MOVEMENT: FORLORN HOPE (1990); THE OXFORD HISTORY OF THE PRISON 111-29, 169-97 (Norval Morris & David J. Rothman eds., 1995).
426. For a brief history of the Black Muslim cases, which spurred the judiciary away from its previous "hands-off" policy toward the judicial review of prison administration, see Solove, supra note 17, at 466-67.
427. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886); Ex parte Virginia, 100 U.S. 339 (1879); TRIBE, supra note 33, §§ 16-17, at 1482-88.
428. 475 U.S. 503 (1986).
429. See id. at 505.
430. WEBER, supra note 84, at 224.
431. DEWEY, supra note 174, at 81.
432. I say "failure" because of the recent Supreme Court decision that invalidates the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb-1 to -4 (1999). See City of Boerne v. Flores, 521 U.S. 507 (1997). RFRA had been passed in response to the Supreme Court's decision in Employment Division v. Smith, 494 U.S. 872 (1990), in which the Court refused to apply strict scrutiny to protect religious liberties under the Free Exercise Clause. See id. at 890. Without RFRA, Free Exercise rights fall back into the regime created by Smith, which provides a very minimal protection for religious liberty.
433. See, e.g., Employment Div. v. Smith, 494 U.S. 872 (1990) (concerning government employment); O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987) (concerning prisons); Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 141 (1987) (concerning unemployment system); Goldman v. Weinberger, 475 U.S. 503 (1986) (concerning military); Wisconsin v. Yoder, 406 U.S. 205 (1972) (concerning schools).
434. DEWEY, EXPERIENCE, supra note 170, at 164.
435. See supra Part III.A.3.
436. Alexander Bickel aptly observed, following Charles Black, Jr., that when the Court affirms a government law or regulation, it does not have a neutral effect. By affirming legislation, the Court is legitimating it. See BICKEL, supra note 5, at 69.
437. See GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE 140-41 (1994).