Vol. 11 No. 2 (February 2001) pp. 61-63.

CONSTITUTIONAL PROCESS: A SOCIAL CHOICE ANALYSIS OF SUPREME COURT DECISION MAKING by Maxwell L. Stearns. Ann Arbor, MI: University of Michigan Press, 2000. 420 pp. Cloth $65.00. ISBN 0-472-11130-2.

Reviewed by Christopher Zorn, Department of Political Science, Emory University.

The integration of "public choice" perspectives into legal scholarship has been one of the hottest growth industries in the legal academy over the past two decades or so. Prodigious in volume and highly variable in quality, the majority of this work is nonetheless united in its fundamental pessimism about political and legal institutions. Its recurring theme is often that something, somewhere, is broken, and the concluding pages of these essays are littered with proposals for reforms of various kinds. So when I began searching for precisely the right literary analogue to use in my review of Max Stearns' CONSTITUTIONAL PROCESS, the choice was a natural one.

Early in the text, Stearns reveals that, "(M)y own view is that social choice, perhaps uniquely as a discipline, provides a profound normative basis for restoring our faith in the very institutions the legitimacy of which it is most often relied upon to attack" (p. 53). Stearns' most original contribution is to use the tools of "social choice analysis" to show how a number of institutional characteristics of the U. S. Supreme Court -- including outcome voting, the narrowest grounds rule, and standing doctrine - - reflect the Court's evolution in response to the larger problem of aggregating preferences into collective decisions. Thus, "social choice"
provides a lens through which the outwardly problematic, even irrational, behavior of the Court in areas such as standing can be seen in fact to be an adaptive (or, more accurately, exaptive) institutional response to the sticky problems of preference aggregation and path manipulation.

[NB: My use of scare quotes around terms like "social choice" reflects the somewhat ambiguous manner in which the term is used throughout the book. It is not quite synonymous with "game theory", and readers of a less mathematical bent have nothing to fear from Stearns' presentation, in Chapter 2, of the "social choice" approach. However, it also goes beyond a simple rationality assumption, and also beyond the rather limited concerns with economic efficiency championed by many in the law and economics camp. Instead, it emphasizes the Condorcet paradox, Arrow's Theorem, and the more general problem of the incoherence of collective choice as a means of understanding legal and public policy decision making. It thus passes over somewhat more recent developments in positive political theory (e. g. Calvert 1986); for this reason, I suspect that the book will be of greater interest to legal scholars than to many political scientists. Similarly, those of us
who cut our professional teeth on the likes of Murphy, Spaeth and their ilk will find Stearns' equating of standing doctrine and the narrowest grounds rule with "Supreme Court decision making" something of a departure.]

Page 62 begins here

Stearns' view is thus a fundamentally optimistic one. By his own admission Chapter 3 "demonstrates that Supreme Court decision-making rules evolve in piecemeal and complementary fashion to ensure fair and rational outcomes" (p. 156). Outcome voting, for example, prevents justices from engaging in cycle-promoting issue expansion and all but guarantees a collective outcome; it is therefore the "least-bad alternative" (at least vis-a-vis issue voting). Taken in combination with the narrowest-grounds doctrine, the result is that "more persuasive, and more stable, statements of issues, as opposed to statements dominated by strategic concerns, ultimately inure to the benefit of the legal system as a whole" (p. 124). Similarly, the practice of stare decisis operates to limit the occurrence of cycling
preferences across cases, while rules governing justiciability -- including those relating to mootness, ripeness, and especially standing -- limit the ability of strategic litigants to take advantage of the path-dependence that results. In so doing, these mechanisms "greatly improve the overall fairness of constitutional decision making" (p. 198). More broadly, by forcing individuals to seek redress in the other branches of government, Supreme Court institutions operate in creative tension with those of the Congress, yielding a system in which the relative advantages of both are best exploited. Indeed, on reading Stearns' work we might be tempted to declare
that, in the words of another celebrated rationalist, "preestablished harmony is the finest aspect of the universe" (Voltaire 1972, 107).

However, to characterize CONSTITUTIONAL PROCESS as a too-idealistic view of the Supreme Court's decision making process is both an oversimplification and, to a lesser degree, an inaccuracy. Unlike Voltaire's implicit critique of Leibniz -- that his abstract vision failed to comport with empirical reality (Vyverberg 1958) -- Stearns provides us with mountains of evidence in support of his assertions. Chief among these is his analysis of standing doctrine, which constitutes the book's most prominent ongoing case study. Nor is it the case that Stearns' portrayal of the Court's work is uniformly positive; he is, for example, quick to point out difficulties with the Court's recent decisions on standing, e.g. in the LUJAN (1992) and BENNETT (1997) cases, as well as in cases involving the line-item veto.
Those difficulties arise, however, not so much from any intrinsic irrationality or bad faith on the part of the Court itself. Instead, they are the result of the Court's too-literal application of its standing jurisprudence, and its corresponding failure to recognize those doctrines as "metaphors intended to capture the conditions under which the federal courts should presume for or against shifting the burden of legislative inertia" (p. 297). The absence of the best of all possible standing doctrines is thus the consequence of a form of false consciousness among the justices, rather than of any ex ante institutional deficiency.

At the same time, it bears noting that Stearns' portrayal of the mechanism by which standing limits the actions of strategic and minority (in the legislative sense) litigants are in reality two different things. Stearns' argument -- that heterogeneous (and thus potentially cycle-prone) Courts raise standing barriers, while homogenous ones lower them -- is compelling from a purely institutional perspective. Normatively, however, its desirability rests in the convergence of popular and judicial
preferences. Stearns recognizes as much, and notes that divergence "may well have been the situation in the Warren Court for those ideological litigants seeking to further an ambitious liberal agenda" (p. 257).

Page 63 begins here

(Interestingly, Stimson's (1999) data on public mood indicates that Americans were more liberal in the early 1990s than they had been at any time since the early 1960's, suggesting that perhaps Rehnquist's, not Warren's, Court should be faulted as being out of step with contemporary public opinion). Such a Court would presumably act to encourage litigation by non- Condorcet winners in order to write its preferences into law; moreover, such behavior is entirely consistent with Stearns' model of Supreme Court decision making.

Stearns is also keenly aware that his broader claim about the relative policy making capacities of Congress and the Court is also freighted with normative baggage. In particular, it turns critically on the notion that Congress is better suited, institutionally, for making positive law than is the Court. Although cast in terms of institutional capacity (e. g., Congress' greater ability to control the timing of issues before it), his position is also an implicitly a majoritarian one. All else equal, Congress
is more likely than the Court to make the policies most Americans want and to refrain from making those they do not. Moreover, Stearns signals that the Court is both aware and supportive of this distinction (p. 201), a fact which may come as a surprise to the losing parties in PRINTZ (1997), LOPEZ (1995), SEMINOLE TRIBE (1996) and the like.

If all this sounds like grist for the empirical mill, it should. CONSTITUTIONAL PROCESS is brimming with statements ripe for further investigation. Moreover, Stearns' optimism is, in the end, less metaphysical than structuralist/functionalist: constitutional processes evolve when and because doing so is in the collective interest (broadly defined) of their participant institutions. This conditional brand of optimism is more modest in its claims but also more compelling. In the end, Stearns does a far better job than most of melding traditional case analysis with insights from social choice theory. The result is a work that should draw the attention of
lawyers, economists and political scientists interested in American constitutional processes.

REFERENCES:

BENNETT v. SPEAR, 520 U.S. 154 (1997).

Calvert, Randall. 1986. MODELS OF IMPERFECT INFORMATION IN POLITICS. Chur,
Switzerland: Harwood Academic Publishers.

LUJAN v. DEFENDERS OF WILDLIFE, 504 U.S. 555 (1992).

PRINTZ v. UNITED STATES, 521 U.S. 98 (1997).

SEMINOLE TRIBE OF FLORIDA v. FLORIDA, 517 U.S. 44 (1996).

Stimson, James A. 1999. PUBLIC OPINION IN AMERICA: MOODS, CYCLES, AND SWINGS,
2nd Ed. Boulder, CO: Westview Press.

UNITED STATES v. LOPEZ, 514 U.S. 549 (1995).

Voltaire. 1972 (1759). CANDIDE. Paris: Didier.

Vyverberg, Henry. 1958. HISTORICAL PESSIMISM IN THE FRENCH ENLIGHTENMENT.
Cambridge: Harvard University Press.