The practice of dissent in the supreme court

Yale Law Journal

Volumn 105, Issue 8, 1996, Pages 2235-2259

  Stack, Kevin M ^a  

^a NONE

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EID: 27844538553     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797288     Document Type: Article

References (173)

1. See, e.g., Earl M. Maltz, The Concept of the Doctrine of the Court in Constitutional Law, 16 GA. L. REV. 357, 402 (1982);
2. cf. Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. ECON. & ORGANIZATION 81, 86 (1985) ("A consistent strain of our constitutional politics asserts that legitimacy flows from 'the rule of law.'"). The Supreme Court's own discussion of the relation between the Court's association with the ideal of the rule of law and the Court's legitimacy in the joint opinion in Planned Parenthood v. Casey, 505 U.S. 833, 864-69 (1992) (O'Connor, Kennedy, and Souter, JJ.), may also support this view of the Court's legitimacy. In Casey, the plurality opinion reasoned that overruling Roe v. Wade, 410 U.S. 113 (1973), would be inconsistent with the commitment to the rule of law and would threaten the Court's legitimacy. "A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law." Casey, 505 U.S. at 869. It is not entirely clear, however, whether this claimed convergence between the commitment to the rule of law and the Court's legitimacy results from the view that the Court's legitimacy principally is a product of its connection with the rule of law, see id. at 865-66, or the view that the Court's connection to the ideal of the rule of law is a necessary condition of the Court's legitimacy.
3. The practice of "dissent," as I use the term, includes concurring opinions that offer reasoning different from the reasoning of the Court's majority opinion. See, e.g., CBS v. Democratic Nat'l Comm., 412 U.S. 94, 148 (1973) (Douglas, J., concurring). For a similar definition of dissenting opinions, see Antonin Scalia, The Dissenting Opinion, 1994 J. SUP. CT. HIST. 33, 33.
4. The practice of the highest judicial tribunal permitting the public statement of dissent from its members is far from universal. In many of the civil law countries of continental Europe, particularly those influenced by French judicial practice, courts almost always proceed without public dissent from their members. See JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA 121-22 (1985);
5. Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. REV. 1185, 1189 (1992);
6. Kurt H. Nadelmann, The Judicial Dissent: Publication v. Secrecy, 8 AM. J. COMP. L. 415, 422-29 (1959).
7. For a discussion of the French practice, see JOHN P. DAWSON, THE ORACLES OF THE LAW 406 (1968). "It is improper, and a violation of the oath of judicial office, for a member of the court to disclose the votes or the divergent reasons of individual judges," Dawson writes. "All doubts, hesitations or preferences for alternative forms of statement disappear in the single voice with which the courts speak." Id.
8. For the characterization of deliberative process, see infra text accompanying notes 80-93.
9. For discussion of these aspects of the practice of dissent in the Supreme Court, see generally ALAN BARTH, PROPHETS WITH HONOR: GREAT DISSENTS AND GREAT DISSENTERS IN THE SUPREME COURT (1974) (commenting on dissenting opinions later adopted by Court majority);
10. William J. Brennan, Jr., In Defense of Dissents, 37 HASTINGS L.J. 427, 429-31, 436-38 (1986) (discussing reasons to dissent and to repeat dissent);
11. Maurice Kelman, The Forked Path of Dissent, 1985 SUP. CT. REV. 227 (focusing on practice of repeated dissent);
12. Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV. 1371, 1412-15 (1995) (commenting on reasons to dissent and tone of dissents).
13. See PAUL W. KAHN, Forthcoming Book on the Rule of Law (forthcoming 1996) (manuscript on file with Yale University Press) (especially Chapter Five, "The Rule of Law and the Suppression of the Subject").
14. The institutional and interpretive approaches ultimately cannot be kept apart because a complete theory of the Supreme Court's connection to the ideal of the rule of law would have to attend to the Court's interpretive task within the context of its institutional existence (and likewise understand its institutional life in relation to its interpretive task). But this ultimate overlap does not undermine the usefulness of holding them apart for the purpose of examining the relation between the practice of dissent and the Court's connection to the ideal of the rule of law.
15. RONALD DWORKIN, LAW'S EMPIRE (1986).
16. See KAHN, supra note 5, at V-6 to V-7.
17. Of course, a complete theory of the Supreme Court's connection to the rule of law would have to attend to the Court's interpretive task within the context of its institutional existence. But the ultimate interconnections between the Court's institutional life and interpretive task do not undermine the usefulness of holding them apart for the heuristic purpose of examining the relation between the practice of dissent and the Court's connection to the ideal of the rule of law.
18. Id. at V-6; see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646 (1952) (Jackson, J., concurring) ("[O]urs is a government of laws, not of men . . . . "); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) ("The government of the United States has been emphatically termed a government of laws, and not of men.").
19. Karl M. ZoBell, Division of Opinion in the Supreme Court: A History of Judicial Disintegration, 44 CORNELL L.Q. 186, 192-93 (1959);
20. see, e.g., Georgia v. Brailsfors, 2 U.S. (2 Dall.) 402 (1792). For a historical account of the contribution of law reporters of the Supreme Court to the institutional transformation of the Court under Chief Justice Marshall, see Craig Joyce, The Rise of the Supreme Court Reporter: An Institutional Perspective on Marshall Court Ascendancy, 83 MICH. L. REV. 1291 (1985).
21. For a concise account of law reporting in the United States in the first few decades after independence, see John H. Langbein, Chancellor Kent and the History of Legal Literature, 93 COLUM. L. REV. 547, 571-84 (1993).
22. ZoBell, supra note 11, at 193. The case was Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 25 (1801). For a historical account of the delivery of individual and collective opinions in the early Supreme Court see also Meredith Kolsky, Note, Justice William Johnson and the History of the Supreme Court Dissent, 83 GEO. L.J. 2069, 2070-82 (1995).
23. ROBERT L. STERN ET AL., SUPREME COURT PRACTICE 2 (7th ed. 1993).
24. Talbot, 5 U.S. at 25. Similar language had been used in a few brief memoranda before Marshall became Chief Justice. ZoBell, supra note 11, at 193 n.41.
25. At the time, this new institutional appearance of the Court raised suspicions. For instance, Thomas Jefferson bitterly attacked the use of the opinion of the Court and its originator. In an often-quoted letter, Jefferson wrote: "An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his own mind, by the turn of his own reasoning." Letter from Thomas Jefferson to Thomas Richie (Dec. 25, 1820), in 10 THE WRITINGS OF THOMAS JEFFERSON 1816-1826, at 169, 171 (Paul L. Ford ed., New York, G.P. Putnam's Sons 1899).
26. KAHN, supra note 5, at V-8.
27. See id. at V-12 to V-13. The Court occasionally acknowledges the author of the Court's opinion as if that Justice did have a special claim on its meaning. For instance, in Hudgens v. NLRB, 424 U.S. 507 (1976), Justice Stewart, for the Court, wrote: "There were three dissenting opinions in the Logan Valley case, one of them by the author of the Court's opinion in Marsh, Mr. Justice Black." Id. at 516 (citing Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968), and Marsh v. Alabama, 326 U.S. 501 (1946)). Since Logan Valley had relied upon a reading of Marsh, Stewart pointed to Justice Black as a dissenter in Logan Valley to reinforce the Court's decision in Hudgens to overrule Logan Valley. Mentioning Justice Black's dissent with respect to the Court's subsequent reading of Marsh was only relevant if Justice Black, as author of the opinion, had a special claim upon its meaning and scope.
28. KAHN, supra note 5, at V-31. In Kahn's own view, the separation of the opinion of the Court from the authorship of individual Justices is a necessary but not a sufficient condition for the Court's connection with the rule of law. See id. at VIII-28.
29. Id. at V-12.
30. See, e.g., DWORKIN, supra note 7, at 266; Jules L. Coleman & Brian Leiter, Determinacy, Objectivity, and Authority, 142 U. PA. L. REV. 549 (1993);
31. Owen M. Fiss, Objectivity and Interpretation 34 STAN. L. REV. 739 (1982).
32. Some writers would object to invoking a theory of determinacy in legal interpretation, such as Dworkin's, to construct a connection between the Court and the rule of law. For instance, Christopher Kutz argues that the kind of rational justification required by the rule of law does not require determinacy, and so judicial disagreement is compatible with the rule of law. See Christopher L. Kutz, Note, Just Disagreement: Indeterminacy and Rationality in the Rule of Law, 103 YALE L.J. 997, 999-1020 (1994). I do not dispute Kutz's argument that rational justification is compatible with indeterminacy. My difference with Kutz concerns whether such a conception of rational justification is better accommodated within the ideal of the rule of law or the political commitment to deliberation discussed in Part II.
33. Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. REV. 781, 793 (1989).
34. Id. (footnote omitted).
35. See Kutz, supra note 21, at 1017.
36. See DWORKIN, supra note 7, at 266.
37. Dworkin uses the phrase "the rule of law" to refer to what he takes to be the basic concept of a legal system about which different conceptions can be offered. See id. at 93-94. For Dworkin, the concept of law, or the "rule" of law, "insists that force not be used or withheld . . . except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified." Id. at 93. This definition closely parallels the justificatory aspect of the ideal of the rule of law identified above. See supra text accompanying notes 7-8.
38. See id. at 115.
39. As Dworkin acknowledges, for some versions of conventionalism, principles of morality are not necessarily extralegal sources. See id. at 125, 431 n.4. For explication of such a view, see Jules Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139 (1982),
40. reprinted in JULES L. COLEMAN, MARKETS, MORALS & THE LAW 3 (1988).
41. DWORKIN, supra note 7, at 117, 128-29.
42. Id. at 115.
43. Id. at 129.
44. Id. at 165.
45. Id. at 167.
46. See id. at 179-84.
47. Id. at 179.
48. Paul W. Kahn, Community in Contemporary Constitutional Theory, 99 YALE L.J. 1, 70 (1989) (interpreting Dworkin).
49. DWORKIN, supra note 7, at 225.
50. Id. at 227.
51. Id. at 223-28.
52. Id. at 239.
53. Id. at 245.
54. Id. at 255.
55. Id. at 256.
56. See supra note 28.
57. DWORKIN, supra note 7, at 249.
58. Id. at 256.
59. Id. at 264.
60. See id. at 11-15.
61. Id. at 264.
62. Id.
63. Id.
64. "Law as integrity," Dworkin writes, "requires a judge to test his interpretation of any part of the great network of political structures and decisions of his community." Id. at 245.
65. Id. at 380-81.
66. Frank I. Michelman, Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 76 (1986)
67. [hereinafter Michelman, Traces];
68. see also Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1625 (1986) ("The rules and principles that locate authoritative voices for the purposes of action point to the defect in a model of judicial interpretation that centers around a single coherent and consistent mind at work. .. . [W]henever any judge sits on the court of last resort on a significant legal issue, that judge does not sit alone.").
69. For criticism of the practice of dissent, see, e.g., LEARNED HAND, THE BILL OF RIGHTS 72 (1958) ("[The lack of unanimity] cancels the impact of monolithic solidarity on which the authority of a bench of judges so largely depends.");
70. Robert W. Bennett, A Dissent on Dissent, 74 JUDICATURE 255, 258-60 (1991) (arguing that current levels of use of dissent drain dissent of force and neglect rule-of-law virtues);
71. R. Dean Moorhead, Concurring and Dissenting Opinions, 38 A.B.A. J. 821, 821 (1952) (noting that dissenting opinions are criticized as undermining "public confidence in the certainty of the law").
72. For discussion of such criticism, see Edward C. Voss, Dissent: Sign of a Healthy Court, 24 ARIZ. ST. L.J. 643, 649-52 (1992).
73. For two defenses (from very different perspectives) of the practice of dissent in the face of the uncertainty it generates, see Lawrence Douglas, Constitutional Discourse and Its Discontents: An Essay on the Rhetoric of Judicial Review, in THE RHETORIC OF LAW 225, 257-60 (Austin Sarat & Thomas R. Kearns eds., 1994);
74. William O. Douglas, The Dissent: A Safeguard of Democracy, 32 J. AM. JUDICATURE SOC'Y 104, 104-07 (1948).
75. The Court's legitimacy undoubtedly depends in part on the practice of dissent by virtue of the fact that dissent is an established element of the Court's institutional life; as such, eliminating dissent would undermine the Court's legitimacy. My argument is that the Court's legitimacy depends in part on the practice of dissent for other reasons.
76. "There are some who think it desirable that dissents should not be disclosed as they detract from the force of the judgment," Charles Evans Hughes writes. "Undoubtedly, they do. When unanimity can be obtained without sacrifice of conviction, it strongly commends the decision to public confidence." CHARLES EVANS HUGHES, THE SUPREME COURT OF THE UNITED STATES: ITS FOUNDATION, METHODS AND ACHIEVEMENTS 67 (1928). To choose a well-worn example, the unanimity of the decision in Brown v. Board of Education, 347 U.S. 483 (1954), is generally viewed as important to the force of the judgment. See, e.g., Brennan, supra note 4, at 432; Scalia, supra note 2, at 35.
77. That Bickel, Ely, and Ackerman all take the political legitimacy of the Court to depend on its consistency with democracy is apparent from their theories of judicial review. Each of these scholars views the problem of justifying the legitimate exercise of judicial review as the problem of rendering it consistent with a conception of democracy. With the idea "that the majority has the ultimate power to displace the decision-makers and to reject any part of their policy," Bickel writes, "judicial review must achieve some measure of consonance." ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 27 (1962).
78. Following Bickel, Ely charges that "the central function . . . is at the same time the central problem, of judicial review: a body that is not elected or otherwise politically responsible in any significant way is telling the people's elected representatives that they cannot govern as they'd like." JOHN HART ELY, DEMOCRACY AND DISTRUST 4-5 (1980).
79. And Ackerman too, while denying the conception of American democratic principles that Bickel and Ely share, still strives to link the Court with democracy. With the legitimate exercise of judicial review, Ackerman writes, "[r]ather than threatening democracy by frustrating the statutory demands of the political elite in Washington, the courts serve democracy by protecting the hard-won principles of a mobilized citizenry against erosion by political elites who have failed to gain broad and deep popular support for their innovations." 1 BRUCH ACKERMAN, WE THE PEOPLE: FOUNDATIONS 10 (1991).
80. Bickel and Ackerman have different views about what is the relevant majority. For Bickel, the Court should vindicate those principles that will gain acceptance by the present majority. This position is apparent from Bickel's comments on the legitimacy of government. Bickel writes: Legitimacy, being the stability of a good government over time, is the fruit of consent to specific actions or to the authority to act; the consent to the exercise of authority, whether or not approved in each instance, of as unified a population as possible, but most importantly, of a present majority. BICKEL, supra note 58, at 30. If judicial review, and thus the Court, are to be legitimate, the Court must defend principles that the present majority will accept. Simply put, "the Court should declare as law only such principles as will - in time, but in a rather immediate foreseeable future - gain general assent." Id. at 239. While Ackerman shares the idea that the legitimacy of the Court, and its exercise of judicial review, depend on its connection to the will of a majority, he believes that the relevant majority is the majority that prevails during periods of successful constitutional transformation. See 1 ACKERMAN, supra note 58, at 6-19. For Ackerman, the crucial question for the exercise of judicial review is whether it preserves those constitutional principles that the mobilized citizens succeeded in making into higher law. See id. at 9-10. Specifically, according to Ackerman, insofar as the Court preserves the principles adopted by those past majorities - namely, the people during the Founding, Reconstruction, and the New Deal - it acts consistently with American democratic principles. See id. at 58-80.
81. Ely urges the Court to defend, among other things, conditions of the democratic process, such as freedom of expression, freedom of association, voting rights, and a revived nondelegation doctrine, which would prohibit legislators from abdicating important policy questions to unelected administrators. See ELY, supra note 58, at 105, 117, 131-33. These rights and processes must be protected, Ely argues, because "they are critical to the functioning of an open and an effective democratic process." Id. at 105. In particular, without strong protections of freedom of speech and freedom of association, without universal suffrage and equal weight of votes, and without legislative accountability for policy, representative democracy falters. Ely aims to establish a connection between the Court and democracy, then, by identifying a class of principles that the Court can vindicate while remaining consistent with the basic principles of democracy.
82. Michelman, Traces, supra note 54, at 75.
83. See id. at 76-77.
84. Id. at 16.
85. Id. at 57 (citation omitted); see also id. at 75.
86. Id. at 17.
87. For an early use of the term "deliberative democracy" in the contemporary discussion, see Joseph M. Bessette, Deliberative Democracy: The Majority Principle in Republican Government, in HOW DEMOCRATIC IS THE CONSTITUTION? 102 (Robert A. Goldwin & William A. Schambra eds., 1980)
88. [hereinafter Bessette, Deliberative Democracy].
89. See 1 ACKERMAN, supra note 58, at 197-98; JOSEPH M. BESSETTE, THE MILD VOICE OF REASON: DELIBERATIVE DEMOCRACY AND AMERICAN NATIONAL GOVERNMENT (1994)
90. [hereinafter BESSETTE, MILD VOICE];
91. CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION (1993)
92. [hereinafter SUNSTEIN, PARTIAL CONSTITUTION];
93. Bessette, Deliberative Democracy, supra note 66;
94. Michelman, Traces, supra note 54, at 17-55;
95. Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988);
96. Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988)
97. [hereinafter Sunstein, Republican Revival];
98. Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29 (1985)
99. [hereinafter Sunstein, Interest Groups];
100. Cass R. Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689 (1984)
101. [hereinafter Sunstein, Naked Preferences].
102. See, e.g., BESSETTE, MILD VOICE, supra note 67, at 1-2, 41-46;
103. Bessette, Deliberative Democracy, supra note 66, at 104-06;
104. Sunstein, Interest Groups, supra note 67, at 40-43; see also 1 ACKERMAN, supra note 58, at 181-88.
105. See Sunstein, Interest Groups, supra note 67, at 41.
106. Sunstein, Naked Preferences, supra note 67, at 1694.
107. BESSETTE, MILD VOICE, supra note 67, at 1-2.
108. See id. at 35.
109. See id.; THE FEDERALIST No. 52, at 327 (James Madison) (Clinton Rossiter ed., 1961) ("As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the . . . [House of Representatives] should have an immediate dependence on, and an intimate sympathy with, the people.");
110. THE FEDERALIST No. 63, at 383-84 (James Madison) (Clinton Rossiter ed., 1961) (discussing connection between six-year election terms of Senators and rule of "the cool and deliberate sense of the community").
111. THE FEDERALIST No. 10, at 82 (James Madison) (Clinton Rossiter ed., 1961);
112. see BESSETTE, MILD VOICE, supra note 67, at 3, 36 (citing Madison);
113. Sunstein, Interest Groups, supra note 67, at 41 (same).
114. THE FEDERALIST No. 10, at 82 (James Madison) (Clinton Rossiter ed., 1961).
115. THE FEDERALIST No. 42, at 268 (James Madison) (Clinton Rossiter ed., 1961);
116. see BESSETTE, MILD VOICE, supra note 67, at 3 (citing Madison).
117. THE FEDERALIST No. 71, at 432 (Alexander Hamilton) (Clinton Rossiter ed., 1961);
118. see BESSETTE, MILD VOICE, supra note 67, at 3, 34 (citing Hamilton);
119. Sunstein, Interest Groups, supra note 67, at 46 (same);
120. see also THE FEDERALIST No. 71, at 432 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse . . . .").
121. THE FEDERALIST No. 71, at 432 (Alexander Hamilton) (Clinton Rossiter ed., 1961);
122. see BESSETTE, MILD VOICE, supra note 67, at 3.
123. See, e.g., David M. Estlund, Who's Afraid of Deliberative Democracy? On the Strategic/ Deliberative Dichotomy in Recent Constitutional Jurisprudence, 71 TEX. L. REV. 1437 (1993);
124. David Gauthier, Constituting Democracy, in THE IDEA OF DEMOCRACY 314 (David Copp et al. eds., 1993);
125. Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation, 56 TENN. L. REV. 291, 293 (1989)
126. [hereinafter Michelman, Conceptions];
127. Sunstein, Interest Groups, supra note 67, at 31-35;
128. Sunstein, Naked Preferences, supra note 67, at 1690-95.
129. For a more theoretical discussion of this distinction, see Jon Elster, The Market and the Forum: Three Varieties of Political Theory, in FOUNDATIONS OF SOCIAL CHOICE THEORY 103 (Jon Elster & Aanund Hylland eds., 1986);
130. Bernard Manin, On Legitimacy and Political Deliberation, 15 POL. THEORY 338 (1987).
131. For criticism of the turn in contemporary constitutional theory to the idea of discursive community, see PAUL W. KAHN, LEGITIMACY AND HISTORY: SELF-GOVERNMENT IN AMERICAN CONSTITUTIONAL THEORY 171-223 (1992)
132. [hereinafter KAHN, LEGITIMACY AND HISTORY].
133. Michelman, Conceptions, supra note 79, at 293.
134. Id.
135. Id.
136. Id.
137. Id. While a strategic mode of politics is clearly consistent with either a simple majority or a unanimity voting rule, see JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY 96 (1962), there is some disagreement about whether the deliberative view requires unanimity.
138. Joshua Cohen, Jon Elster, and David Gauthier all make consensus a condition for deliberative democratic process. See Joshua Cohen, Deliberation and Democratic Legitimacy, in THE GOOD POLITY: NORMATIVE ANALYSIS OF THE STATE 17, 23 (Alan Hamlin & Philip Pettit eds., 1989);
139. Elster, supra note 79, at 103, 112 (interpreting Habermas); Gauthier, supra note 79, at 320. In contrast, Manin argues that unanimity is not a condition for deliberation, see Manin, supra note 79, at 359, and Sunstein assumes that majority rule is consistent with deliberative democracy. See SUNSTEIN, PARTIAL CONSTITUTION, supra note 67, at 134-35.
140. To be sure, a requirement of unanimity would help to encourage the participants in the decisionmaking process to convince one another through the exchange of reasons. But the fact that the conclusion of a process of political choice will be a vote in which the majority prevails does not eliminate the possibility of persuasion through the exchange of reasons, as opposed to bargaining, preceding the vote. See Cohen, supra, at 23. As long as an exchange of reasons and argument takes place in advance of the vote, so that the vote represents, in Michelman's phrase, a "pooling of judgments," Michelman, Conceptions, supra note 79, at 293, deliberative democracy is consistent with a majority voting rule.
141. See Sunstein, Interest Groups, supra note 67, at 32.
142. The strategic and deliberative views of politics rely on different conceptions of rationality. The strategic view relies on an instrumental conception of rationality, in which reasoning is concerned with the means to fixed ends, whereas the deliberative view relies on a conception of rationality in which ends are also taken to be objects of rational consideration. For discussion of the distinction between these two conceptions of rationality, see MARTHA C. NUSSBAUM, THE FRAGILITY OF GOODNESS 102, 296-97 (1986);
143. MARTHA C. NUSSBAUM, LOVE'S KNOWLEDGE 60-66 (1990);
144. see also DAVID WIGGINS, Deliberation and Practical Reason, in ESSAYS ON ARISTOTLE'S ETHICS 221 (Amélie Oksenberg Rorty ed., 1980).
145. See BESSETTE, MILD VOICE, supra note 67, at 218 ("This [legislators'] deliberative imperative, this duty to deliberate, is an intrinsic element of the American constitutional order.").
146. Sunstein, Interest Groups, supra note 67, at 58.
147. Id. at 49.
148. Nor is this ideal capable of furnishing a complete explanation of constitutional doctrine. See id. at 56. As Sunstein writes, "[t]he Constitution creates a shield of 'rights' on which government may not intrude even if the legislative process is genuinely deliberative." Id. Rather, the deliberation is "a necessary though not a sufficient condition for validity." Id.
149. Sunstein, Republican Revival, supra note 67, at 1548.
150. See ELY, supra note 58, at 73-77.
151. See BICKEL, supra note 58, at 16-17.
152. Sunstein notes that the deliberative conception of representation has a close parallel to the justification of the Supreme Court's power of judicial review as providing "a disinterested second look at legislation," and then cites Bickel's The Least Dangerous Branch, supra note 58.
153. See Sunstein, Interest Groups, supra note 67, at 46 n.73. My aim here is to make explicit a connection between the view of representation employed in the deliberative conception of democracy and a ground of the Supreme Court's legitimacy, including the legitimacy of judicial review. In contrast to Bickel, my focus is on the deliberative process of the Supreme Court's decisionmaking, not simply on its outcomes having a principled character.
154. Sunstein also considers the importance of deliberation in administrative law. See Sunstein, Interest Groups, supra note 67, at 59-68.
155. Cf. BESSETTE, MILD VOICE, supra note 67, at 31 ("[Deliberation calls for a collegial institution in which those of roughly equal rank voice a variety of contrasting views as they argue and reason together to identify and promote common interests.").
156. See Estlund, supra note 79, at 1469.
157. For a defense of the contemporary Congress as a deliberative institution in important respects, see BESSETTE, MILD VOICE, supra note 67, at 67-181.
158. See DWORKIN, supra note 7, at 380-81.
159. See Michelman, Traces, supra note 54, at 76.
160. Cf. Manin, supra note 79, at 352. Discussing public deliberation, Manin writes, "a legitimate decision does not represent the will of all, but is one that results from the deliberation of all." Id.
161. Cf. KAHN, LEGITIMACY AND HISTORY, supra note 79, at 179-84 (criticizing judicial dialogue as source of Court's legitimacy).
162. See STERN ET AL., supra note 13, at 6-7 & n.22; Tom C. Clark, The Supreme Court Conference, reprinted in 19 F.R.D. 303, 305 (1956) ("Only the Justices are present at conference.
163. There are no clerks, no stenographers, no secretaries, no pages."); Lewis F. Powell, What Really Goes on at the Supreme Court, 66 A.B.A. J. 721, 722 (1980) (stating same);
164. Byron R. White, The Work of the Supreme Court, 54 N.Y. ST. B.J. 346, 383 (1982) (stating same).
165. See Powell, supra note 103, at 722.
166. Occasionally, the number of opinions that the Justices have written for a particular sitting of the Court combined with the timing of the issuing of the opinions can suggest to a careful observer of the Court that there has been a shift in the views of a Justice in the opinion-writing process, see Linda Greenhouse, Telling the Court's Story: Justice and Journalism at the Supreme Court, 105 YALE L.J. 1537, 1547-48 (1996), but without the practice of dissent, attention to these facts would provide only the barest view into the process by which the Court reaches its judgments; alone they certainly would not expose its deliberative character.
167. Michelman, Conceptions, supra note 79, at 293.
168. Cf. HUGHES, supra note 57, at 68 ("A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.").
169. For a conceptual explication of the implications of the temporality of the state for constitutional theory, see KAHN, LEGITIMACY AND HISTORY, supra note 79.
170. See Singleton v. Commissioner of Internal Revenue, 439 U.S. 940, 946 (1978) (Stevens, J., separate opinion respecting denial of certiorari) ("The traditional view, which I happen to share, is that confidentiality makes a valuable contribution to the full and frank exchange of views during the decisional process."); Powell, supra note 103, at 722 ("There must be candid discussion, a willingness to consider arguments advanced by other justices, and a continuing examination and re-examination of one's views. The confidentiality of this process assures that we will review carefully the soundness of our judgments.").
171. For a recent discussion of the secrecy of jury deliberations, see Abraham S. Goldstein, Jury Secrecy and the Media: The Problem of Postverdict Interviews, 1993 U. ILL. L. REV. 295, 295 ("It is now assumed that jurors must deliberate in secret so that they may communicate freely with one another . . . .").
172. See BESSETTE, MILD VOICE, supra note 67, at 221-27.
173. See Michelman, Traces, supra note 54, at 36-37.