CHAPTER ONE
THE VALUE OF LAW: MORE THAN JUST A NUISANCE
[T]he supremacy of the law is essential to the existence of the Nation.…
Dwight D. Eisenhower1
Karl Marx thought the workers’ paradise would have no lawyers.2 The lawyerless utopia was nothing new, though most visionaries sidestepped the question of what would happen to attorneys during the revolutionary Rapture. Marx’s novel contribution was to predict that the legal class would not disappear as the violent precondition of revolution, but as a peaceful result. In Marx’s view, legal systems existed to impose the will of the bourgeoisie on the proletariat, i.e., to transfer limited resources from labor to capital. As socialism would abolish both scarcity and the bourgeoisie, it followed that lawyers and, by implication, most law, would be superfluous. There would be nothing to argue about in the dictatorship of the proletariat—in dictatorships, there never is.
The belief that law was merely an exploitative and dispensable stage in social evolution revealed a crucial limit to Marx’s theory, just as it reveals the limits of other schemes that would eliminate or radically curtail law, whether espoused by Marxists, anarcho-libertarians, or small-state ultraconservatives. Law is civilization’s essential technology; there is no complex society without it. The hammer and sickle, fire and the wheel, get humanity only so far—perhaps to the level of large tribes. But New York c. 2020 AD, or even Mesopotamia c. 1800 BC, requires a legal system. Marx was absurdly well-positioned to know this, not just as a lawyer (for he was that) but also as a social historian whose home base was the British Museum. Had Marx poked his head out of the Museum’s Reading Room, he would have been confronted by thousands of ancient slabs, papers, tokens, statues, fragments of papyrus, and other accumulations inscribed with legal directives testifying to the link between law and civilization. True, many of these antiquities refer to matters of slavery and private property, slotting with perfect cogency into Marxist theory: barbarous relics. But they contained other features that did not fit quite as neatly into Marxist historiography: early consumer protection laws, prohibitions on violence, and demands for the just treatment of the poor and helpless by the rich and powerful.3 Life is more than a game of Monopoly, and law is more than a set of rules to shuffle around a fixed sum of money. There was a reason why the vitrines displaying the wares of peoples without law were so barren.
In viewing law as primarily parasitic rather than generative, Marx failed to appreciate law’s real potential. To understand law in trivial terms, as a mere instrument to oppress and exploit, or a transient artifact of capitalist evolution, does society a disservice. The purpose of law is not to add a civilized veneer to the whims of the powerful; law helps save us from that. Law also maximizes our ability to create while protecting others from our creations. Law can be tiresome, of course, just like flossing and cardio days, but like those chores it has greater purposes.
This isn’t to say law is perfect or always achieves its highest aims, but starting from a position of perfect cynicism makes it hard to see where law errs; the view that law always does wrong precludes any belief that the law can ever do right. The general public is not cynical about law’s potential; by expressing deep frustrations with legal institutions, it reveals its high expectations of law. There’s a reason the New York Times reviews Broadway’s productions of Oklahoma! instead of Tulsa High’s; only those capable of greatness, and granted the privileges to achieve it, provoke passion or reward thoughtful critique. So, before embarking on a sustained meditation on the failures of American law as practiced, it’s worth pausing to consider the value of law in the abstract, and what resources law might require to achieve its potential.
Law’s most obvious value is its ability to restrain violence (a function Marx grudgingly accepted might persist in his otherwise unregulated utopia). Curbing violence was law’s original task, and one so valuable that early societies treated law as a divine gift. Ancient pantheons invariably feature a law-giver, like Athena, who ended otherwise unceasing cycles of retributive violence by requiring feuding clans to resolve their disputes before a jury.4 Law grants legitimate institutions a monopoly on violence, which ends vigilantism and creates order, a point Hobbes famously made when he declared that in the lawless state of nature, there could only be a war of all against all, in which life was “nasty, brutish, and short.” Hobbes, who lived through a fierce phase in one of England’s civil wars, understandably made physical safety law’s paramount duty. But law could do more than bring tranquility; just as “nasty, brutish, and short” is only a snippet of Hobbes’s thoughts, so the reduction of violence is merely a subset of legal possibility. What Hobbes said, more fully, was that life without a legal Leviathan would be “solitary, poor, nasty, brutish, and short,” with “no culture of the earth… no commodious building;… no knowledge on the face of the earth; no account of time; no arts; no letters; no society.”5 Law provides the safety to build, but how much more can it do, and to what ends?
The Mundane Miracle: Making Life Easier
The Constitution doesn’t get overly specific about the objects of American law, aside from some throat-clearing in the Preamble about insuring “domestic tranquility” (shades of Hobbes), securing the “blessings of liberty,” and promoting the “general welfare.”6 When the Constitution provides details about anything beyond tedious matters like electors or the Census, it’s often to list things law can’t do. But the thrust of the Preamble, and the latent assumption of the Constitution as a whole, is that law exists to coordinate society. This is the dead minimum to which all legal systems must aspire—and it’s a useful starting point because (anarchists aside) coordination is the only major legal aim on which broad and immediate agreement is possible. From this lowly base camp, we can attain otherwise unreachable agreement on other legal goals.
Given that law’s most publicized operations are intensely divisive, social coordination may appear a fantastical aspiration. Whatever else they are, laws on abortion, race relations, and gay marriage don’t seem to promote coordination so much as provoke discord. But reading the daily news alone risks a distorted impression of law’s general operations. Headlines always feature the most exciting (i.e., divisive) matters, and it can seem that law is nothing but a series of bombshells, often lobbed by courts. Of course, cases like Roe and Obergefell are morally and politically significant, but they have been, and always will be, volumetrically insignificant. Workaday traffic management generates more legislation in a month, and brings more court cases in a week, than abortion and gay rights have in forty years. Most of law is like this, governing conduct whose moral dimensions are functionally non-existent and whose emotional content is nil. Legal drama will come in later pages, but by first considering law’s less controversial operations, law’s value becomes easier to see.
By coordinating society, law makes life efficient. Most of the time, we simply want law to choose, and have no real feelings about what choice it makes. Who has passionate feelings about which side of the street we drive on, so long as we all drive on the same side? Though Americans drive trillions of miles every year, I’m aware of no Supreme Court briefs challenging the gross injustice of right-hand driving, just as I know of no mass protests demanding that billions of appliances be free to swing between America’s parochial 120-volt standard and the impossible chic of the 220-volt Europlug. Laws were made, life went on. Admittedly, “efficient coordination” is a prosaic, awkward slogan compared to the customary and uplifting pith of justice, fairness, equality, due process, and all the rest. But it’s important nonetheless.
Law’s methods for coordinating society are sometimes easy to see (consider the stop sign), but the huge efficiencies achieved can be hard to intuit, especially because a chief efficiency is being freed from thinking about the mundane. When a lotion bottle promises 15 SPF, no one has to reach for the chemistry set, because law assures us of that quantum of protection. Law’s price is to make Coppertone and the FDA responsible for checking SPF, but those entities can do so more efficiently than consumers, reducing net costs; a few pennies per bottle is convenience had cheaply. Most (though not all) regulations on product safety, accuracy-in-advertising, professional competency, and so on, partake of this morally neutral, economically efficient dynamic.
Indeed, without a vast range of boring laws, complex societies would grind to a halt. Most transactions are now anonymous and would be impracticable if law did not provide a substitute for the personal trust that formerly lubricated commerce. The more we trust the legal system, the more easily we can transact. Even in situations that warrant specific investigation, law greatly shortens the chain of inquiry. Consider the dreaded home remodel, which often seems like a project that law makes more time consuming, not less (permits, building codes, etc.). What this view overlooks is that remodels are only practicable in the first place because other people obey the laws that apply to them. Without regulations on licensing and financial responsibility, you would have to vet your general contractor and his insurer and do the same for all the subcontractors and their insurers and test the fitness of every brick and wire used, etc., etc. ad infinitum. In a regulated world, law allows you to focus on one question: Is your contractor a bozo? If he is, law also provides your means of redress.
Thus, law permits efficient, large-scale coordination, i.e., the civilization Marx assumed would magically organize itself. By announcing standards ahead of time, even if somewhat imperfectly, law allows citizens to plan their behaviors and to have those behaviors predicted in turn. You do not have to think about whether your tailor prefers payment in the giant stone currency of Yap Island and they do not have to think about whether you feel like paying them. The law says they must take U.S. currency and you must to give it to them; the suit is bespoke, the transaction is not. This holds at any scale, anywhere in the United States. (The legal philosopher Scott Shapiro advances a more nuanced version of this dynamic in his characterization of laws as sets of “plans.”7)
There’s another benefit to this coordinated/efficient view of the law: if efficiency is a meta-purpose, law that creates undue complexity or reduces total output risks self-defeat. Until the 1960s, efficiency considerations did not figure overmuch in scholarly accounts of law’s work, but since then, the law and economics movement (L&E) has placed efficiency at the center of legal discourse. L&E scholars enjoyed wild success, not only because they found important applications for economics in law, but because they showed, somewhat to traditionalists’ surprise, that law had long worried about efficiency—implicitly, perhaps, but deeply.8 Even before Adam Smith rearranged his pin factories, law weighed costs and benefits, assigning duties to those fittest to carry them out. Once L&E became mainstream, judges and lawmakers were freed to put economic theories, previously latent and under-evolved, at the center of commercial law. Even criminal law could be framed in terms of efficiency. Although criminal law is normally viewed in moral terms that don’t apply to civil law (no sane contract describes remedies for its breach as “punishment”), criminal law can easily be viewed as efficient. In deterring or removing untrustworthy players from the system, criminal law smooths everyone else’s transactions. By the 1970s, legislators and presidents had also explicitly incorporated efficiency into their directives; the cost/benefit analyses now embedded in regulations were inspired by law’s efficiency revolution.
However, viewing law as an exercise in efficient planning (and perhaps one better done by PhDs, not JDs) raised hackles. Many Ivy League academics considered L&E almost fatally uncouth; the image of Justice, looking very much like Jeremy Bentham’s withered corpse clutching a ledger, galled a profession whose self-perception involved legions of sky-dwelling, sword-wielding nymphs defending the rights of man and human dignity. It’s true that law isn’t purely about efficiency. The right to a jury trial is not really “efficient,” not at first glance and sometimes not at last glance. And even if some basic rights could be framed in efficiency terms, it would be skin-crawling to do so. For example, the right to abortion may produce social efficiencies. Though this is one of the few important claims about abortion that can be empirically tested, it is not an argument to raise in polite company, let alone one likely to sway a Supreme Court Justice.*
In addition to being unable to easily justify certain bedrock values, L&E faces internal limits. L&E requires humans to be mostly rational, which they often are not. Even in the dullest commercial transactions where no high principles are at stake, sloth, pettiness, and obstinacy feature as major variables, illogical expressions that appear in the most distant corners of L&E’s spreadsheet, if they appear at all. This creates problems, which law rather irritatingly facilitates. In many lawsuits, at least one side has—almost by definition—behaved irrationally. The prospect of trial exacerbates maladaptive behaviors, because humans want (or think they want) their Day in Court. Sometimes people ask more of law than mere efficiency, and when they do, what they want is justice.
What About Justice?
Efficiency can only be law’s starting—not highest—aspiration: justice occupies the uppermost slot. After all, attorneys general don’t lead the “Department of Efficiency” or even the “Bureau of Law,” they run the Department of Justice. Lawyers work in the “justice system,” and students pledge allegiance to a nation with “liberty and justice for all.”9 Justice, alas, is trickier than efficiency. Law should produce justice, but for all the talk, it’s hard to quantify justice, or agree on its meaning. It’s also basically impossible to show that justice is an explicit Constitutional requirement. Though many people quite reasonably assume the Constitution grants them a freestanding right to justice, the Constitution is elusive on the subject.* 10 The Preamble is the only place where “justice” appears in anything like its operant sense—and the Preamble, like a corporate mission statement, has no legal effect. Courts will no more accept a claim based on a “right to justice” than they would a claim based on the Preamble’s promise of a “more perfect Union.” Even the Amendments, which are more helpfully specific than the body of the Constitution, do not list “justice” among the rights conferred. The closest the Constitution comes to promising justice is in the Fifth Amendment, which requires “due process,” and the Fourteenth, which requires the same plus “equal protection.” The reason so many important and controversial claims invoke those Amendments is because they open some of the few Constitutional doors to redressing free-floating complaints of injustice.11 People vigorously debate the precise dimensions of those doors. But it is to the lasting credit of Americans and their legal system that justice remains an animating virtue.
Even if the word “justice” doesn’t feature much in the Constitution, once we accept the uncontroversial proposition that law’s general goal is to produce efficiency and coordination, then justice must be a legal goal. A population that does not believe its laws produce justice (at least most of the time) will not follow the law when doing so is inconvenient—and police, being a finite resource, cannot coerce everyone into compliance. Without justice, there can be no coordination and no efficiency, and law becomes pointless. But achieving justice requires adding another floor to the legal tower: the rule of law.
The Rule of Law: Fairness, Accountability, and Impartiality
There’s broad consensus that rule of law is an essential component in worthy legal systems. However, ever since A. V. Dicey popularized the term in the 1880s, people have bickered about its meaning. (“Rule of law” is like “American values”—everyone’s for it, until someone else explains their personal vision of its details.) In 2006, Tom Bingham, then the grandest judge in England, graciously admitted that he “was not quite sure” what the rule of law meant.12
Bingham was unique only in admitting his uncertainty about the precise contours of the rule of law. (From here on, I’ll generally call it the “RoL,” for economy’s sake.) Most lawyers don’t know much about the RoL as a formal concept, and op-ed writers ventilating about Bush II/Obama/Trump’s disdain for the RoL usually know even less. But the term is fancy and vague, and therefore much in vogue, its usage in books having doubled since 1980, and in recent years the RoL has featured in the daily emissions of press and politicians alike, not always with felicity. In 2017, the online magazine Slate asked readers to pay for that outlet’s political reportage because “[t]he Trump administration poses a unique threat to the rule of law,” while that same year, Deputy Attorney General Rod Rosenstein celebrated Constitution Day by remarking that “President Trump honors that principle… by appointing Department of Justice officials who support the rule of law.”13 It’s possible, but deeply unlikely, that Slate and Rosenstein both employed RoL correctly.
There’s no need to be confused about the RoL’s basics. The term is newish, but its principles are ancient. Aristotle grabbed the nettle when he argued that fixed laws of general application do better than ad hoc (and ad hominem) decrees.14 The barons who signed Magna Carta, and their inheritors like John Locke, also knew this. Tom Paine encapsulated the idea with his famous “in America the Law is King”: people should obey the law, but law shouldn’t obey one person.15 The idea has become a little more elaborate over time, but the basic concept remains and it’s an essential part of good legal systems. When the EU cohered, it expressly incorporated the RoL into its members’ legal systems.
Whether rendered as “the law is king,” Rechtsstaatlichkeit, primauté de la droit, praworządność, or plain old “rule of law,” the minima are always these: (1) everyone is (2) bound by laws (3) of general application (4) as applied by ordinary courts. President or prole, governor or governed, no person is above law’s sanctions or beneath its protections, and if a person is hauled into court, that court must be of the regular variety—no special tribunals, Star Chambers, secret courts, or other exotica; at least, not without extremely compelling reasons provided in advance. Those are the basic requirements for the RoL, and without the RoL there can be no real sense of justice and the entire legal system would be denuded of value. The RoL is how law provides the fairness, accountability, uniformity, and impartiality we expect of good legal systems. Arguably, the RoL also requires the guarantee of some basic set of human rights, promoting the freedom and equality we expect from law. In America, the Bill of Rights does most of the work without independent resort to the RoL.
Although RoL has a solid, ascertainable meaning, and is an ideal worth fighting for, the term has an awkward history, especially at the Supreme Court—starting with 1803’s Marbury v. Madison and running through 2000’s Bush v. Gore. In the latter case, attorneys for both candidates claimed the RoL served their side; undeniably, the case had RoL implications. Yet the majority opinion declined to invoke the RoL and even the dissents barely mentioned the concept. This was perhaps wise, as the swift intervention of the Court to decide a deeply political matter that had not fully percolated through normal legal channels suggested that a special exception was being made, and special exceptions don’t sit well with the RoL. A more charitable, but less plausible, explanation was that the Court felt uncomfortable invoking “rule of law” as the Constitution doesn’t contain that phrase. (Then again, we would not expect it to; the term was popularized after Ratification.)
However, it’s fair to read the Constitution to embody at least some RoL principles, even if not all Court decisions do. Certainly, the Fourteenth Amendment’s Equal Protection Clause says that no citizen is beneath the law. Whether a person can be Constitutionally above the law is, regrettably, both less clear and increasingly urgent. There are a few snippets in the Constitution that seem to provide loopholes. Notably, the Pardon Clause allows presidents to excuse violations of federal law retroactively; the right president and right criminal can manipulate matters to end-run the RoL. The Constitution is also vague about the breadth of its protections, which encourages autocratic officials to shove ever-more people into the category of Citizens Lite, or to strip citizenship entirely, as with expanding process of “denaturalization.” The technical debate on these matters is arcane, but focusing on legal values simplifies the issues considerably. Ambiguities should be resolved to minimize the number of people above the law or outside its protections. Anything else undermines the goals of efficiency, coordination, and fairness that are essential legal virtues, and threatens the RoL.
It could be objected that the definition of RoL proposed here fails because not all its requirements appear cleanly in the Constitution. But constitutions are not chunks of isolated words; they have contexts and structures. Although the Court has made some specific and authoritarian blunders in this area, its general view (including that of its textualist/originalist wing) is that the Constitution incorporates some version of the RoL. And one of the most important reasons to believe the RoL exists in the Constitution is because that document establishes a strong system of checks and balances. From here, legal values become entwined with legal methods, starting with judicial review—not a freestanding value, but necessary to achieving all other legal values.
Having the Last Word: Judicial Review
The Constitution enumerates many checks and balances (vetoes, overrides, impeachments, confirmations, the power of the purse), but does not explicitly list one crucial check: the ability of courts to void laws inconsistent with the Constitution. But there are good reasons to believe that judicial review has always been present in the Constitution, because without judicial review, the RoL would be toothless, and the Jenga tower we’ve been carefully assembling in rough accordance with the Framers’ instructions would fall apart. Naturally, any time the Constitution implies an important power without actually listing it—the right to privacy, for example—certain people get their dander up. (These people would do well to remember that the Constitution doesn’t explicitly guarantee the right to vote; that’s just a norm.16) Judicial review is no different, and even some judges attack the idea, with Justice Gorsuch making some notably strange remarks on the subject, although he seems perfectly fine with judicial review when the reviewing judge is Gorsuch.
Beyond Constitutional silence, the usual critique is that judicial review is an antidemocratic usurpation of an elected branch by an unelected one—and, superficially, this is true. At a deeper level, though, judicial review is radically democratic, in the sense of government responding to a citizen’s needs. If government violates your rights, your representative, with 740,000 other people to serve, can only do so much (in practice, nothing). But if the government stifles your Constitutional rights as an individual, a federal judge must listen. In courts, the government-to-citizen ratio is 1:1—and judicial review gives that single judge the power to help you. This is a legal service worth having.
Judicial review was inferred by the courts, most famously in Marbury v. Madison, a strange case that deserves more than the cursory attention it receives.17 Careful study of Marbury might have even persuaded the Court to be more circumspect in Bush v. Gore and in other cases that have unnecessarily weakened the judiciary’s apolitical mythos.* In the standard telling, Marbury established courts’ ability to declare laws unconstitutional—a pivotal moment for the RoL, triumph for separation of powers, cue the choir. But Marbury is both less and more than that. It’s “less,” because Marbury was not a pathbreaker on judicial review; the idea had been present in court decisions and political dialogue well before Ratification.18 This crucial detail shows that judicial review wasn’t some freebooting innovation; the Framers knew about it, and could reasonably be said to have assumed its existence in the same way that they assumed, when requiring presidents to be at least age 35, that everyone understood 35 referred to Earth years, not Venusian ones. Marbury’s true contribution was in establishing that courts could provide remedies for unconstitutional laws, a precedent that would be genuinely important over time.* 19 In the event, no remedy was granted in Marbury itself, partly for political reasons. And this brings us to the other twist, mostly overlooked even in law schools: Marbury was a tawdry, cynical, partisan, unethical mess. It’s Marbury’s facts that make the case intriguingly perverse as a RoL monument, and so relevant for showing how judicial review should be improved, because if Marbury has been sanitized into a monument by deliberate forgetting, courts can only risk so many cases like Marbury and Bush v. Gore.
To decode Marbury’s real meaning, and to understand why the case retains broad relevance today, requires historical context. Today, Supreme Court cases almost always arrive as appeals (save for a few types of cases, such as those involving ambassadors or the states).20 The facts have been established by lower courts, leaving the Court with only theoretical questions. This bolsters institutional trust in the Court, which seems removed from any specific fray. But with Marbury, the Court was very much in the mix; before the expansion of the legal system, the Supreme Court conducted trials itself, including the highly political trial of Marbury v. Madison. The basic dispute concerned one William Marbury’s appointment as a justice of the peace. Near the end of his administration, President John Adams granted Marbury his commission, but the documents were not delivered before Thomas Jefferson, Adams’s successor and enemy, was sworn in. Jefferson’s secretary of state, James Madison (the Madison of Marbury v. Madison), refused to deliver the commission. Marbury sued under the Judiciary Act of 1789 to get what was his. The Court held that Madison’s non-delivery was illegal.21 The traditional narrative ends here, so many people (mostly hungover law students) assume that Madison’s refusal was the unconstitutional deed that established judicial review.
It wasn’t. The unconstitutional germ was a provision of the Judiciary Act, which improperly granted the Court direct jurisdiction over the matter in contravention of the Constitution; because the Act was the vehicle for suit, William Marbury lost.22 Well, isn’t this just a technicality? Who cares? Marbury established that courts could void unconstitutional laws, victory enough. But the facts show that courts are anything but immune to pressure from other branches, and highlight the judiciary’s vulnerability when its members associate too nakedly with politics.
Marbury began with the election of 1800, a fiasco resulting in a tie in the Electoral College requiring no fewer than thirty-six votes in the House to resolve. In the tumult, the outgoing Federalist government tried to cement its legacy by stuffing the judiciary with cronies. Federalists created appellate courts to house new judges and filled lesser positions with sympathizers, including Marbury. As it happens, Marbury’s commission was signed by then–Secretary of State John Marshall—the same Marshall who wrote Marbury and who had himself been installed on the Court as part of the larger scheme that got Marbury his commission. And because Marbury was a trial, the new Chief Justice was also a chief witness, because it was Marshall who had executed Marbury’s commission. Compounding the oddity, the case required Marshall to interpret the Constitution, a document outlined by Madison, the nominal defendant. (Madison expected the judiciary to be the weakest branch and seemed determined to make his own example.) Exacerbating the political complexity, the Republicans (led by Jefferson, Marshall’s cousin, in this ball of Founding incest) had recently repealed the Judiciary Act of 1801, essentially firing a whole category of federal judges for substantially political reasons, were ginning up impeachments of other Federalist judges, and had adjusted the Court’s 1802 Term with the intent of keeping the Justices out of the game during a crucial political period.23
To recap, in service of a purely political agenda, the parties of the day were willing to: (1) create new courts; (2) delete and reconstitute parts of the judiciary; (3) refuse office to appointees; (4) impeach judges; and (5) watch the nation’s highest judicial officer preside over a case in which he and his cousin/president had been involved (along with Marshall’s brother—don’t ask). This is a lesson with contemporary applications, not historical duff. Allegations of naked politicking by current Justices helped lead to the Garland/Gorsuch intrigue, and after the Kavanaugh appointment, some Democrats made noises about packing the Court. Meanwhile, Florida’s governor suggested that his final act before he left office in 2019 would be to make midnight appointments, dramatically recomposing the Florida Supreme Court, while by mid-2018, every member of West Virginia’s Supreme Court had either resigned or faced impeachment.24 To understand the consequences of these antics, and how the judiciary might wriggle free of their consequences in the future, requires returning to 1803, and Marbury.
Although Marbury is the most famous RoL case on the books, it’s worth repeating that Marbury did not get his appointment. And, in a companion case, the Justices allowed Republicans to rejigger the appellate courts, on legally unconvincing grounds.25 Despite all the RoL blather in Marbury about America having a “government of laws, not of men,” in reality Marbury sanctioned the triumph of politicians over laws, but it did sneak in the principle that courts could provide remedies for unconstitutional conduct even if it had to trade away a few litigants’ rights along the way.
For some decades, Marbury’s inconvenient heritage rendered the case something of an unusable oddity. Eventually, Marbury became too useful to leave on the shelf. Though the real Marbury was not a flawless monument to the RoL, the mythical Marbury came to serve that purpose. That, it turns out, has been mostly good enough—but it required building up a professional judiciary as far removed from politics and the facts of any given case as possible. The real Marbury should be a warning to judges about getting anywhere near politics (as some judges do), lest they give credence to allegations of bias and “so-called” judging. That advice is especially timely today, in an era of disputes over executive power, where the Court’s nominee pool draws heavily on officials who have been recently, and often controversially, associated with the executive branch.
The Marketplace of Values
Many scholars read Marbury as an elegant piece of realpolitik that preserved judicial independence at limited cost—a bargain, in other words. It seems distasteful to view Marbury so, but Marbury reminds us that bargaining is a key aspect of all legal systems. Legal systems provide marketplaces for trading in values including fairness, institutional coherence, democratic legitimacy, and legal integrity. This is a crucial legal service, and in a way, “justice” is just the measure of marketplace efficiency: the ability to assign appropriate weights to each legal value in a given context. (This is why so many important cases use “balancing” tests.) This is, in a sense, what happened in Marbury: Marshall bargained away one man’s job in exchange for a lasting institutional principle. Unfortunately, the legal market is inefficient because its participants are frequently irrational, underinformed, and badly incentivized. Fortunately, even highly inefficient markets still operate; trading in legal values remains open, though commodities aren’t perfectly priced.
A flat-out disruption is different, where trading in some legal goods can stop entirely. Such disruptions are called “states of emergency.” Brief states of emergency are not necessarily incompatible with law’s goals. Major disasters provide the classic examples: in the face of unexpected catastrophe, authorities may employ extraordinary mechanisms like curfews, price controls, and militarized policing that are otherwise forbidden—and these measures are pre-authorized, and constrained, by previously made law. Prolonged states of emergency, however, pretend to offer law’s benefits without any of law’s hassles. Permanent emergencies are un-law—the exceptions that swallow every rule—causing all legal values to decay. Their only utility is to show what happens when real law disappears.
Illustration by Negation
Authoritarians constantly find themselves tempted to invoke powers disproportionate to an emergency or to simply invent emergencies to justify suspension of normal law. In places like Putin’s Russia and Maduro’s Venezuela, tactics are unapologetically overt, with the military wheeled in to dispose of inconvenient assemblies, especially those that demand the RoL.26 Western officials generally avoid this ham-fistedness, although David Clarke, Milwaukee’s rabble-rousing sheriff from 2002 to 2017, suggested using National Guardsmen to suppress “goon anarchists.”27 Inevitably, Clarke’s premise was a “state of emergency,” and though the protests in question involved only minor disorder, Clarke described them as a “riot” requiring “ALL non lethal force.”28 Antics like Clarke’s do nothing good for the legal system, but also pose no immediate threat, because they are patently absurd.
Nevertheless, emergencies can cause problems even in a robust republic, and never more so than when transient catastrophes are cast as perpetual crises. War and terrorism are favorites for this, on the grounds that law cannot fulfill its primary duty of maintaining order and restraining violence in the face of disaster. But the facts that America has been at war forever and that terrorism might now be part of life are precisely why they cannot justify a state of emergency. When continued long enough, anything extraordinary becomes ordinary, and can be dealt with through normal legal channels. The initial disaster may abate or it may become chronic; either way, the state of emergency ends or the RoL suffers. Sometimes the losses are minor, but it can be hard to tell in advance. Maybe today’s fire is just a fire. Or maybe not: perhaps the fire was set by terrorists and terrorists are everywhere. English doesn’t have candid terms for what happens next. German does: Ausnahmezustand, the “state of exception” in which the executive branch can set aside any law, including a constitution.29
America has not yet suffered a full Ausnahmezustand, but isn’t free of embarrassments. During the Civil War, Lincoln suspended habeas corpus. (Regrettably, this was an inspiration for Nazi jurist Carl Schmitt.) Habeas corpus—essentially, the right to petition an ordinary court for release after an unlawful detention—is so fundamental to the RoL that it had been part of English law for centuries before its incorporation into the U.S. Constitution.30 Lincoln justified his circumvention of habeas as necessary to protect the rail lines funneling troops to the front. As a lawyer, Lincoln understood the Constitutional problems; only Congress has clear authority to suspend habeas corpus, and only when a rebellion or invasion threatens public safety.31 The initial detentions were not Congressionally sanctioned and, when a detainee appeal reached the courts, Justice Taney (riding circuit) took his side.32 But the Lincoln Administration ignored judicial admonitions for a time and then took the extraordinary step of suspending habeas nationwide, affecting counties where no rebellion, invasion, or threat to public safety was involved. Over the course of the war, perhaps 10,000–30,000 people found themselves deprived of normal access to the court system.33
War is the emergency least kind to the RoL.34 In the (sometimes false) choice between safety and principle, politicians believe citizens will choose the former, even though cynical uses of “public safety” underwrote everything from Robespierre to Stalin. The Lincoln Administration never went quite so far, though it did frankly admit that the RoL would be jettisoned temporarily, with Lincoln’s lawyers citing Cicero’s maxim about law falling silent during times of war—a breathtaking claim, rightly rejected.35 Since then, courts have varied in their deference to the executive.36 It depends on the war and the court, so maximalist presidents always have an incentive to push the boundaries, including what counts as “war.” Treating the Constitution as Gumby was a particular hobby of the Bush II Administration during the War on Terror.37
All branches of government should be parsimonious with emergency powers, because powers tend to outlive the emergency. FDR’s emergency powers greatly outlasted the Depression and the war that were their initial justifications. Later presidents continued the trend, so that in the four decades after FDR’s first inauguration, presidents wielded special authority over trade, travel, security, and even the Post Office. In 1973, a Senate committee concluded that “Congress and the public [were] unaware of the extent of the [state of] emergency… [n]or ha[d] the courts imposed significant limitations” on the executive’s “vast range of powers… [which] confer[red] enough authority to rule the country without reference to normal constitutional processes.”38 And this, even though the relevant emergencies had ended and there was “no present need for the United States Government to continue to function under emergency conditions.”39 The Committee concluded that a “majority of the people of the United States have lived all of their lives under emergency rule.”40 After the Senate report, Congress tried to restrain America’s legal freewheeling, reserving the right to rescind declarations of emergency.41 Going forward, presidents would have to formally declare states of emergency, identify what powers were being activated, and provide general information. That any of this required codification suggested how far out of hand emergency powers had gotten.
The return to normalcy lasted three years. By 1979, Jimmy Carter invoked a state of emergency over the Iranian hostage crisis.42 The hostages came home in 1981—so long that we’ve been through seven Irani and six American presidents, nineteen Congresses, and five Batmans, two of whom (Affleck and Clooney) made a caper flick about those very hostages (Argo), way back when the forty-fifth president was still hosting reality television. And yet, the Iranian emergency continues. Indeed, many “emergencies” continue—roughly thirty at the time of this writing. Abuse of perpetual emergency power is a growing problem. Yet, while the 1976 reforms required Congress to reconsider each emergency within six months, it never has.43
America’s permanent state of emergency conflicts with the RoL, the Constitution, and relevant law. Congress is the prime lawmaker, not the executive.44 Presidential emergency decrees of great duration violate Constitutional doctrines including separation of powers/non-delegation. Beyond that, the declaration of martial law, use of military force, supply of incidental military support, indefinite detentions, and the diversion of litigation into abnormal courts—all of which have been justified by threat of riot or terrorism—sometimes breach enacted laws (e.g., the Posse Comitatus Act), usually violate their spirit, and almost always undermine the RoL.45 An emergency regime leaves nations hostage to notorious vagaries of presidential temperaments. It’s no coincidence that the emergency regime overlapped with undeclared wars, the massive expansion of executive dictates, bureaucratic overreach, and the spread of exceptions that reduces American law into cancerous Swiss cheese. Whatever the partisan inclination, the non-law of emergencies should give everyone something to hate.
The Legitimacy of Doing Things Well
The psychology of permanent emergency degrades institutions, and the judiciary, as the weakest branch, suffers most. This erosion can happen even if the initial emergency is genuine and the proposed response is legal, as in 1937, when FDR contemplated packing the Court to overcome judicial objections to the New Deal. As it happens, the Constitution doesn’t forbid adjustments to Court membership: Article III requires a Supreme Court without saying anything about its composition.46 There could be one justice or one hundred; nine is just a number chosen by Congress in 1869. Reformulating the Supreme Court was not (and is not) only superficially legal, it had been done six times before, sometimes for nakedly political reasons.* 47
It was therefore a surprise, including to FDR himself, that the court-packing bill failed. Just four months before, FDR had won a landslide re-election, 523 electoral votes to 8. Because the Court had struck down some New Deal proposals in the preceding year, FDR read his victory as a mandate to cut through judicial obstruction.48 Every variable seemed in FDR’s favor save one: respect for the RoL. Usually, the RoL is too abstract to arouse much public and legislative feeling. But court-packing was too obvious, too crude, too consequential: FDR planned to neuter the Court, and citizens knew it, because FDR told them that was the plan.49 Court-packing died its deserved death.
Perhaps citizens sensed that tinkering with the Court was a large step toward arbitrary rule. Emergency measures can promote some legal values, notably maintaining order, often faster than normal legal process. Law knows this, and sometimes adopts its own emergency responses, but the price is to undermine the very goals law seeks to achieve. The coda to FDR’s court-packing shows how. Appalled by FDR’s plan, the Court reversed course, the famous “switch in time that saved nine.” The price was a lack of candor about the constitutionality of the bureaucratic state and a certain supinity about executive branch transgressions, which persisted for decades. The tragedy, it turns out, was that there was probably no emergency for either side—most of the New Deal had already survived judicial scrutiny, and much of the rest almost certainly would have.50
The public outcry over court-packing shows that the public will support legal institutions, even when doing so risks the public’s immediate agenda. The willingness to stand firm, even when doing so is inconvenient or carries institutional risk, is not merely part of the RoL, but a value in itself. In law, the easy way is often the wrong way, because it makes nonsense of the rules. Law must have integrity. This is both a functional requirement and a freestanding legal virtue—and not always identical to justice in its visceral sense. Letting the guilty man go, defying popular legislation, or acting against personal and partisan interests, when the rules demand as much, are part of law’s daily work. The public largely accepts this, according law leeway and respect it would afford few others were they to do the same. One of law’s special abilities is to help the public believe that at least one institution does things properly.
So now we know the basic goals of a legal system—coordination, efficiency, justice, the rule of law, accountability, and integrity—and from there we have extrapolated the institutions and norms necessary for success; we have a framework. The next step is to fill in that framework: by establishing who has legitimate authority to make laws, how laws should be made, and under what circumstances laws we deem unjust may be disobeyed.