Christopher J. Peters

Legal Formalism, Procedural Principles, and Judicial Constraint in American Adjudication

American proponents of legal formalism, such as Supreme Court Justice Antonin Scalia, worry (quite reasonably) that unfettered judicial discretion poses a threat to democratic legitimacy, and they offer formalism—the mechanical implementation of determinate legal rules—as a solution to this threat. I argue here, however, that formalist interpretive techniques are neither sufficient nor necessary to impose meaningful constraint on judges. Both the text and the “original meaning” of legal rules are endemically under-determinate, leaving much room for judicial discretion in the decision of cases. But meaningful judicial constraint can and does flow from other sources in American adjudication. Judges are constrained by the dispute-resolving posture of their task, which requires that they be impartial as between the litigants and responsive to the litigants’ participatory efforts. And they are constrained by the need to be faithful to the substantive principles that justify legal rules, even when those rules themselves are indeterminate. Judicial constraint in the American system thus stems not primarily from formalist interpretative methods, but rather from largely unwritten procedural principles of judicial impartiality, responsiveness, and faithfulness.

Precedent in the United States Supreme Court

Contributors.- Introduction Christopher J. Peters.- 1 The Dialectic of Stare Decisis Doctrine Colin Starger.- 2 Did Casey Strike Out? Following and Overruling Constitutional Precedents in the Supreme Court Larry Alexander.- 3 An Epistemic Defense of Precedent Deborah Hellman.- 4 Private-Rights Litigation and the Normative Foundations of Durable Constitutional Precedent Maxwell L. Stearns.- 5 Group Formation and Precedent Neal Devins.- 6 Stare Decisis and the Selection Effect Frederick Schauer.- 7 Methodological Stare Decisis and Constitutional Interpretation Chad M. Oldfather.- 8 Constitutional Method and the Path of Precedent Randy J. Kozel.- 9 Originalism, Stare Decisis, and Constitutional Authority Christopher J. Peters.- Index.

PARTICIPATION, REPRESENTATION, AND PRINCIPLED ADJUDICATION

A central concern of theories of adjudication is the question of whether that form of decision-making is more a matter of existing entitlements or of prospective rules. Sometimes the question is stated in terms of “principle” versus “policy”: Must a judge decide on the basis of existing principles, or may she take into account the best policy for the future? See, e.g. , Ronald Dworkin, L AW’S E MPIRE 27–29 (1986) (hereinafter Dworkin, L AW’S E MPIRE ); Ronald Dworkin, Hard Cases, in Ronald Dworkin, T AKING R IGHTS S ERIOUSLY 81, 82–84 (1978). Sometimes the question is put in terms of “individual rights” versus “the common good”: Must a judge render only the decision that best implements the existing rights of the parties, or may she consider what impact her decision will have on the good of the community as a whole? It is this dichotomy, I think, that Lon Fuller had in mind when he wrote that “whatever [courts] decide, or whatever is submitted to them for decision, tends to be converted into a claim of right or an accusation of fault or guilt.” Lon L. Fuller, The Forms and Limits of Adjudication , 92 H ARV . L. R EV . 353, 369 (1978).

Slouching Towards Equality

Drawing on his work in two previous articles, Christopher Peters contends that uncertainty about substantive moral norms cannot justify a presumption of equal treatment. Arguments for equal treatment in the face of uncertainty are types of consequentialist claims; they are not claims of what Peters calls prescriptive equality, that is, for treating likes alike merely because they are alike. Peters contends that the consequentialist case for equal treatment as a response to uncertainty fails in two respects. First, it fails to demonstrate that equal treatment is likely to be a more satisfactory response to moral uncertainty than unequal treatment. Second, it is logically incoherent because it simultaneously relies upon and denies the possibility of confidence in moral judgment. Peters concludes that no valid case can be made for defaulting to equal treatment in the face of moral uncertainty.