Issue 4

Justice Souter’s Common Law

The first-year law-school curriculum aims to teach students the “common law method.” But exactly what sort of judicial reasoning that method permits and requires has long been the subject of debate. There are multiple models of common law reasoning, not just one. This Article identifies one such model that legal scholars have yet to recognize as a distinct theory of common law adjudication. It is an approach I ascribe to former Justice David Souter.

Seeing Justice Souter as a common law judge is hardly novel; in fact, it is the conventional wisdom about him. But in my view, Souter’s understanding of the process of case-by-case adjudication reflects deeper philosophical commitments—and, for that reason, carries with it more radical implication—than has been appreciated. To support this claim, I compare Souter’s understanding of the common law to two better known rivals—Professor Ronald Dworkin’s “law as integrity” and Judge Richard Posner’s legal pragmatism. I then show how each of the three models flows from its own more general model of practical reasoning.

The upshot of this comparative analysis is a clearer view of a model of common law reasoning that combines elements of the other two but that rejects an assumption common to them both. Like Dworkin’s, Souter’s model sees legal principles embodied in case law; but like Posner’s, it is empiricist and pragmatist in spirit. It can coherently combine these elements only because, unlike either of its rivals, Souter’s model treats factual and evaluative forms of reasoning as continuous with each other, rather than dichotomous. In rejecting the fact/value dichotomy, Souter accords a much greater role to history in common law reasoning than do either Posner or Dworkin. The result is an understanding of common law adjudication that is at once more traditional and more radical than either of its more famous counterparts. I examine that more radical dimension at play in some of Justice Souter’s most famous and controversial opinions, including the joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey.

Do Your Duty (!)(?) The Distribution of Power in the Appointments Clause

Judge Merrick Garland’s thwarted Supreme Court nomination has divided legal scholars over the meaning of the Appointments Clause. While some believe that the Senate and the President share the power to appoint principal officers, others contend that the President alone has the power to nominate and appoint them. To the former scholars, Article II, Section 2, enables the President to nominate whomever he or she wishes, but it also empowers the Senate to confirm or reject whomever it wishes. Accordingly, the appointment power is divided between the two, meaning it is only exercised when both branches utilize their respective and discretionary powers. To the latter scholars, the same text gives the President the sole power to nominate and to appoint, with appointment subject to the Senate’s mandatory duty to advise and decide on whether to consent. Therefore, advice and consent is a check by which the Senate prevents the President from abusing his or her appointment power, triggered by the President’s decision to nominate. This Note argues that the latter scholars are correct because the Founders’ intent, the Constitution’s text, the doctrines of separation of powers and checks and balances, and long-standing Senate practice indicate that the appointment power is solely a presidential power. For Judge Garland, this conclusion means the Senate violated its duty to hold hearings and to provide an opportunity for a vote on his nomination. More importantly for the nation, it means that the Appointments Clause requires the Senate to apply to every nominee the process that it has designed for securing its consent. Thus, the precedent established by the 114th Senate of blocking all Supreme Court nominations during presidential election years, which will likely be followed and perhaps extended to mid-term election years, contravenes the nation’s fundamental constitutional structure. By failing to perform its duty, moreover, the 114th Senate also deprived the nation of the benefits that the advice and consent process provides, such as greater accountability for the Senate’s confirmation or rejection of nominations and a more functional government. In doing so, the Senate has placed political expediency ahead of the public interest.

Entrenchment, Incrementalism, and Constitutional Collapse

Entrenchment is fundamental to law. Grand documents like the U.S. Constitution, and mundane ones like city and corporate charters, entrench themselves against change through supermajority rules and other mechanisms. Entrenchment frustrates responsiveness, but it promotes stability, a rule of law virtue extolled for centuries. It does so through a straightforward channel: Entrenched law is difficult to change. Scholars have long understood this idea, which can be called the first status quo bias of entrenchment. This Article shows that a second bias lurks: Entrenchment makes changes that do take place incremental. As entrenchment deepens, the scope of potential change to law collapses on the status quo. To restate the idea, when we entrench law, we prevent change, at least for a time, and we confine any changes that do take place to small steps. This has implications for constitutional law, especially the debate about Article V and the separation of powers, both of which shield the Constitution from change more than scholars realize. It also illuminates several questions, especially in comparative constitutional law, such as why constitutions remain unpopular after amendment. Finally, it generates a theory of constitutional failure. When voters’ preferences evolve consistently in one direction, entrenched law eventually becomes as unstable as ordinary law, only less popular. Thus, entrenchment buys neither stability nor responsiveness. Because entrenchment confines legal change to incremental steps, amendment cannot correct the problem. This recasts questions of legal design in new light, and it may explain why some constitutions endure while others collapse.

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