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.]
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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).
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(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.
Copyright 2001 by the author, Christopher Zorn.