ESSAYS COURTING DELIBERATION: AN ESSAY ON

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ESSAYS

COURTING DELIBERATION: AN ESSAY ON

DELIBERATIVE DEMOCRACY IN THE AMERICAN

JUDICIAL SYSTEM

AYA

Many legal theorists and political philosophers—among them

John Rawls, Ronald Dworkin, Amy Gutmann, Dennis Thompson,

and Joshua Cohen—believe that decision making through delibera-

tion is a normative ideal that yields both better laws as well as a

positive transformation in its participants. They further have

assumed the judiciary is perhaps best equipped to realize this kind

of “deliberative democracy,” and that the courts can effectively pro-

vide an example for other, less deliberative branches of government

to follow. This Essay argues, however, that judicial deliberation is

both more complicated than is assumed by these theorists and also

embodies a kind of deliberation different in nature than the one we

would expect in a deliberative model. Indeed, contributions from

social science suggest that judges are strategic (and oftentimes

political) actors, and that their “deliberations” are more akin to

bargaining than reasoned exchanges. In addition, the products of

judicial decision making—the courts’ opinions—often fail to

reflect true deliberative reasoning. Thus, the judiciary might in

many ways be less deliberative than its sister branches. This is not

to say that judicial processes cannot be modified to become more

deliberative—and therefore more normatively desirable—but it

does suggest that the assumption that the courts provide a delibera-

tive model for other decision makers to follow might be based on a

romanticized view of judicial processes, rather than on the way

judges actually behave. This conclusion has, moreover, strong

* Assistant Professor, Department of Political Science, University of

Rochester. Ph.D., Harvard University; J.D., Stanford Law School. Harkness

Hall 322, Rochester, NY 14627 (http://mayasen.org). I am grateful to Corey

Brettschneider, Jennifer Hochschild, Dennis Thompson, and Matthew

Blackwell for thoughtful insights and suggestions. I am also grateful for

research support from the John M. Olin Center for Law & Business at Harvard

Law School and from the Harvard Center for American Political Studies.

303

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304 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 27

implications for the feasibility of deliberation as a decision-making

mechanism.

NTRODUCTION

Life at the U.S. Supreme Court has always had an air of intel-

lectual debate and rigor. Contemporary portrayals of the Court

conjure images of feisty oral arguments, complete with nimble

lawyering, lively debate, and vigorous discussions between Jus-

tices and litigants. Historians and biographers have only pro-

vided us with glimpses, but these discussions appear to continue

once public attention has subsided. Indeed, Justices’ private

papers and memoirs have left us with romantic reflections of

what might be happening behind chambers doors—hours of

debate and dialogue, followed by copious letter writing and opin-

ion drafting as the Justices grapple with the deepest moral and

legal issues of their times.

These images of honest deliberation and of intellectual

exchange have prompted some political philosophers and legal

theorists to cite the judiciary as an example for other branches to

follow. These theorists—among them John Rawls, Ronald Dwor-

kin, Amy Gutmann, Dennis Thompson, and Joshua Cohen—con-

tend that deliberation is a desirable attribute and that decision

making through deliberation is a normative ideal that yields both

better laws as well as a positive transformation in its participants.

They further have assumed the judiciary is best equipped to real-

ize a deliberative ideal, and that it can provide an example for

less deliberative branches of government to follow.

This Essay will argue, however, that judicial deliberation is

both more complicated than is assumed by these theorists and

also embodies a kind of deliberation different in nature than the

one we would expect in a deliberative model. Indeed, contribu-

tions both from social sciences and from doctrinal scholarship

suggest that judges are strategic (and oftentimes political) actors,

and that their “deliberations” might be more similar to quid pro

quo bargaining than to reasoned intellectual exchanges. Even

when courts do address issues of moral importance in a straight-

forward manner—for example, in cases involving constitutionally

protected rights—their standards of deliberation often fall short.

1. See, e.g.,

UTMANN

& D

ENNIS

HOMPSON

EMOCRACY AND

ISA-

GREEMENT

45 (1996) (“Many constitutional democrats focus on the importance

of extensive moral deliberation within one of our democratic institutions—the

Supreme Court. They argue that judges cannot interpret constitutional princi-

ples without engaging in deliberation, not least for the purpose of constructing

a coherent view out of the many moral values that our constitutional tradition

expresses.”).

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2013] COURTING DELIBERATION 305

This is not to say that judicial processes cannot be modified to

become more deliberative, but it does suggest that the structure

and composition of the courts present serious institutional

impediments to deliberative democracy. This conclusion has,

moreover, strong implications for the feasibility of deliberative

democracy as a practical concept, rather than as a normative

ideal.

Parts I and II of this Essay will begin by exploring the con-

cept of deliberative democracy, and examine along the way the

reasons why many legal and political theorists believe that the

courts—the Supreme Court in particular

—are the most deliber-

ative of governmental bodies. Part III will examine why these

arguments might be flawed. It will both highlight the ways in

which the judiciary’s protocol forecloses true deliberation and

will also examine the nature and content of selected Supreme

Court opinions through a deliberative lens. Part IV will conclude

by noting the implications of the argument for deliberative

democracy.

I. T

DEA OF

ELIBERATIVE

EMOCRACY

A brief sketch of what deliberative democracy is, and is not,

is a useful starting point and provides context for the rest of this

Essay. The idea is quite simple. Deliberative democracy revolves

around “questions of collective political will—about what should

be done. It is about arriving at views that represent collective,

informed consent.”

At the heart of deliberative democracy is

the idea that when free and equal people come together and dis-

cuss important decisions jointly—justifying their reasons publicly

on the basis of generally understood principles—then the result-

ing policy will be both better for society and better for the partici-

pants themselves. Indeed, not simply a form of politics,

democracy, on the deliberative view, is a framework of social and

institutional conditions that facilitates free discussion among

equal citizens—by providing favorable conditions for participa-

tion, association, and expression.

To this extent, “the idea that

democracy revolves around the transformation rather than sim-

2. This Essay focuses (as most legal theorists and political philosophers

do) on the Supreme Court, but these arguments apply with equal force to many

other federal and state courts.

AMES

S. F

ISHKIN

HEN THE

EOPLE

PEAK

: D

ELIBERATIVE

EMOCRACY

UBLIC

ONSULTATION

34 (2009).

4. See Joshua Cohen, Democracy and Liberty, in

ELIBERATIVE

EMOCRACY

185, 186 (Jon Elster ed., 1998).

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306 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 27

ply the aggregation of preferences has become one of the major

positions in democratic theory.”

While the concept is simple and intuitive, there is no univer-

sally agreed-upon single definition of deliberative democracy.

Three broad principles undergird the concept.

The first attri-

bute of a deliberative democracy is the importance of public

incorporation into the decision-making process. A democracy

grounded in deliberation requires that “[p]ersons should be

treated not merely as objects of legislation, as passive subjects to

be ruled, but as autonomous agents who take part in the govern-

ance of their own society, directly or through their representa-

tives.”

Consider the judiciary. For courts to fully embrace

deliberative democracy (as many theorists believe they do), then

actions and decisions must demonstrate respect for members of

the public, and their opinions must be justified to all. Those who

are bound by court decisions should not feel like subjects ruled

by an inaccessible system; to the contrary, they should feel that

they themselves are part of the process that led to the binding

decision. Ultimately, “[a]ll [theorists] agree . . . that the notion

[of deliberative democracy] includes collective decision making

with the participation of all who will be affected by the decision

or their representatives: this is the democratic part.”

A second guiding principle concerns the nature of the delib-

eration itself. In a truly deliberative regime, the participants

must be on equal footing so that all voices can be heard.

The

same participants must also “be open to the facts, arguments,

and proposals that come to their attention and must share a gen-

eral willingness to learn from their colleagues and others.”

Those engaging in deliberation, in other words, must not possess

fixed, inalienable preferences; they cannot be unwilling to

5. Jon Elster, Introduction, in

ELIBERATIVE

EMOCRACY

supra note 4, at 1,

6. For more on what constitutes a deliberative democracy see

UT-

MANN

& D

ENNIS

HOMPSON

ELIBERATIVE

EMOCRACY

3–8 (2004).

7. Id. at 3.

8. Elster

supra note 5, at 1, 8.

9. See Joshua Cohen, Deliberation and Democratic Legitimacy, in

ONTEMPO-

RARY

OLITICAL

HILOSOPHY

: A

NTHOLOGY

143, 162 (Robert E. Goodin &

Philip Pettit eds., 2006) (“In ideal deliberation parties are both formally and

substantively equal. They are formally equal in that the rules regulating the

procedure do not single out individuals. Everyone with the deliberative capaci-

ties has equal standing at each stage of the deliberative process. Each can put

issues on the agenda, propose solutions, and offer reasons in support of or in

criticism of proposals.”).

10.

OSEPH

ESSETTEE

Mild Voice of Reason: Deliberative Democracy

and American National Government 46 (1994).

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2013] COURTING DELIBERATION 307

change their viewpoints, and their relative positions cannot be so

disparate that competing voices are drowned out. To the con-

trary, those embarking on a deliberative enterprise must be will-

ing to consider seriously opposing viewpoints and to incorporate

those viewpoints into their worldview. Deliberative democracy at

its core “requires that participants sincerely weigh the issues on

their merits.”

The third most important principle is that decision makers

provide reasoned justifications.

As noted by Elster,

“[d]eliberative democracy rests on argumentation, not only in

the sense that it proceeds by argument, but also in the sense that

it must be justified by argument.”

To fulfill this promise, justifi-

cations must be both procedurally and substantively “accessible.”

Justifications and reasons provided by the decision makers must

therefore be made public, and reasoning must not take place

exclusively in the “privacy of one’s mind.”

Deliberative democ-

racy values transparency and regimes that obfuscate or engage in

secretive deliberations behind closed doors would stand squarely

in contrast. “Substantive accessibility” is perhaps more elusive—

but equally as (if not more) important. As Gutmann and

Thompson note, a “deliberative justification does not even get

started if those to whom it is addressed cannot understand its

essential content.”

To this extent, the proffered explanation—

as well as the public record of the decision-making process—

should not be crouched in language that is impossible for the

general public to understand. Also, most justifications must not

be based on technicalities or minutiae.

What are the benefits of such a democratic system? Theo-

rists have cited multiple advantages,

and they group roughly

into three general categories. First, many believe that a delibera-

tive form of democratic decision making results in better laws

11.

ISHKIN

, supra note 3, at 35.

12. Elster

supra note 5, at 1, 9.

13.

UTMANN

& T

HOMPSON

, supra note 6, at 4.

14. Id.

15. Elster’s summary on point actually finds at least nine advantages:

[D]iscussion is (or can be) good because (or to the extent that) it

reveals private information, lessens or overcomes the impact of

bounded rationality, forces or induces a particular mode of justifying

demands, legitimizes the ultimate choice, is desirable for its own sake,

makes for Pareto-superior decisions, makes for better decisions in

terms of distributive justice, makes for a larger consensus, improves

the moral or intellectual qualities of the participants.

Elster

supra note 5, at 1, 11; see also James D. Fearon, Deliberation as Discussion, in

ELIBERATIVE

EMOCRACY

, supra note 4, at 44, 43–44 (identifying six benefits to

deliberative democracy).

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308 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 27

and better political processes. Gutmann and Thompson, for

example, support the view that deliberation “promote[s] mutu-

ally respectful processes of decision-making”

and that it

“help[s] correct the[ ] mistakes” that citizens make when they

take collective actions.

Second, many believe that deliberation

can have a positive transformative impact on its participants.

this regard, deliberation not only makes participants more

attuned to the viewpoints of others, but it also makes them more

aware about their own preferences—including the moral and

factual strengths and weaknesses of their positions.

Along

these lines, deliberation—with its emphasis on collective discus-

sion and individual introspection—also encourages individuals

to recognize their civic potential as fully informed citizens. Ack-

erman and Fishkin, for example, argue that the use of delibera-

tive forms of polling shows that “[o]rdinary men and women can

function successfully as citizens.”

A third benefit is that deliberation confers a certain amount

of legitimacy upon the decision-making process. If citizens

believe that a law was born out of genuine participation—guided

by reasoned deliberation—they will be more likely to accept it.

As Benhabib has argued, “legitimacy in complex democratic soci-

eties must be thought to result from the free and unconstrained

public deliberation of all about matters of common concern.”

Accordingly, “a public sphere of deliberation about matters of

mutual concern is essential to the legitimacy of democratic insti-

tutions.”

The legitimacy conferred by deliberation is particu-

larly important when resources are scarce and are to be divided

unequally. “The hard choices that public officials have to make

16.

UTMANN

& T

HOMPSON

, supra note 6, at 11.

17. Id. at 11–12.

18. But see James D. Fearon, Deliberation as Discussion, in

ELIBERATIVE

EMOCRACY

, supra note 4, at 44, 59–60 (finding this argument “backhanded,” as

“[i]t would be strange to discuss matters purely for the sake of improving our-

selves morally and intellectually if we had no expectation that discussion would

have any positive effect on the quality of the collective choice”).

19. See, e.g.,

RUCE

CKERMAN

& J

AMES

S. F

ISHKIN

ELIBERATION

181

(2004) (“By airing competing arguments about [contested facts], deliberation

permits their reexamination—opening up the possibility of opinion change

after due reflection.”);

UTMANN

& T

HOMPSON

supra note 6, at 12 (arguing

that, when citizens “deliberate, they can expand their knowledge, including

both their self-understanding and their collective understanding of what will

best serve their fellow citizens”).

20.

CKERMAN

& F

ISHKIN

, supra note 19, at 5 (emphasis omitted).

21. Seyla Benhabib, Toward a Deliberative Model of Democratic Legitimacy, in

EMOCRACY AND

IFFERENCE

: C

ONTESTING THE

OUNDARIES OF THE

OLITICAL

67,

68 (Seyla Benhabib ed., 1996).

22. Id.

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2013] COURTING DELIBERATION 309

should be more acceptable, even to those who receive less than

they deserve, if everyone’s claims have been considered on the

merits, rather than on the basis of the party’s bargaining

power.”

Frankly, not all of deliberative democracy’s backers agree on

its definition or on its benefits. What they do agree on, however,

is what deliberative democracy is not. Deliberative democracy is

not simply an aggregate model of democracy, or the kind that

operates by taking citizens’ preferences as fixed and then adding

them together in some fashion.

Consider, for example, votes

in Congress. This aggregative process takes members’ prefer-

ences as given and yields no reasoned justification at the end of

the decision-making process. The public is rarely privy to the

back-room ruminations and communications that led to the deci-

sion, and seldom are nuances of the intellectual path to the con-

gressional vote provided (particularly for minor pieces of

legislation). The end result is a decision-making process where

preferences “as such do not need to be justified” and little impor-

tance is placed on “the reasons that citizens or their representa-

tives give or fail to give.”

Deliberative democracy can also be distinguished from quid

pro quo bargaining. By one definition, such bargaining is akin to

“sequential ‘divide-a-dollar’ games in which the parties make suc-

cessive offers and counteroffers.”

A decision made under this

form of bargaining “is determined by the bargaining mechanism

and the bargaining power of the parties—that is, the resources

that enable them to make credible threats and promises.”

Gut-

mann and Thompson refer to this type of bargaining as “self-

interested” bargaining, and it can be thought of as the type of

bargaining that rational actors with fixed preferences play in the-

oretical game situations. It is also to a large extent the type of

decision making that routinely happens both within Congress

and in the back and forth between Congress and the President.

23.

UTMANN

& T

HOMPSON

, supra note 6, at 10.

24. See, e.g.,

ISHKIN

, supra note 3, at 85–88 (discussing the nuances

behind consensual versus aggregative forms of deliberation and suggesting

deliberative polling as a sort of middle ground).

25.

UTMANN

& T

HOMPSON

, supra note 6, at 15; see also Seyla Benhabib,

Deliberative Rationality and Models of Democratic Legitimacy, 1

ONSTELLATIONS

26,

29 (1994) (“A mere aggregation of majority preferences could not claim legiti-

macy because the basis on which the preferences of the minority were dis-

counted could not be stated.”).

26. Elster

supra note 5, at 1, 6.

27. Id.

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310 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 27

II. T

OURTS AS

XEMPLIFYING

ELIBERATIVE

EMOCRACY

The discussion so far has extended primarily to deliberative

democracy in theory. The question of how deliberative democ-

racy operates in practice is significantly less well-developed in the

literature.

When it comes to the courts, a number of theorists

have argued or assumed that the judiciary operates as a delibera-

tive institution, or, at the very least, as an institution more delib-

erative than its counterparts in the legislative and executive

branches. This in turn has led many theorists to hold the courts

up as examples for other branches to follow. After all, if the

courts embrace more fully the principles of deliberative democ-

racy, then their decision making ought to be more well reasoned

and citizens should feel more incorporated into the process. In

addition, we would expect some additional legitimacy to attach

to judicial decision making.

The existing scholarship on the issue has, however, made

this assumption largely without delving deeply into either the

structure of the courts or into doctrinal considerations. The end

result has been a persistent belief among many scholars that

judges deliberate more than they do, and that the judiciary fun-

damentally differs from the other branches of government in its

adherence to the tenets of deliberative democracy. Political and

legal philosophers, in other words, have a tendency to trust in

the courts more than in other branches of government.

To be fair to these theorists, there are good reasons to

believe that the courts do indeed embrace the kind of delibera-

tion endorsed by deliberative democrats, and that judicial deci-

sion making is preferable to legislative or executive decision

making. First, the composition and structure of the judiciary

lends itself well to deliberation. The federal courts, for example,

employ a relatively small group of individuals. The Supreme

Court has nine Justices, and each appellate court has between

seven (in the First Circuit) and twenty-nine (in the Ninth Cir-

28. An increasing number of empirical and experimental studies have,

however, examined deliberation in the context of “deliberative polling,” as well

as in small-government settings. For more on deliberative polling see

ISHKIN

supra note 3; James S. Fishkin, Toward Deliberative Democracy: Experimenting with

an Ideal, in

ITIZEN

OMPETENCE AND

EMOCRATIC

NSTITUTIONS

279,

279–90

(Stephen L. Elkin & Karol Edward Soltan eds., 1999). For more on deliberative

democracy in a small-government setting see

ESIGNING

ELIBERATIVE

EMOC-

RACY

: T

RITISH

OLUMBIA

ITIZENS

’ A

SSEMBLY

(Mark E. Warren & Hilary

Pearse eds., 2008); Simone Chambers, Deliberative Democratic Theory, 6

. R

. S

307 (2003). But see Lynn M. Sanders, Against Deliberation, 25

HEORY

347 (1997), for a strong critique of the feasibility of deliberative democ-

racy in general, and in the context of jury deliberation in particular.

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2013] COURTING DELIBERATION 311

cuit) active judges—a small number compared to the 435 mem-

bers of the House of Representatives, or even the hundred

members of the Senate. Judges are, moreover, known to operate

with small staffs, and with minimal interruptions and scheduled

events. Representatives and senators, on the other hand, employ

dozens of staff members to handle legislative drafting and inter-

office communication. Contrasted with their congressional

counterparts, we would naturally expect judges to engage in

more intimate deliberation; after all, deliberation is easier if the

participants know and interact with each other on a regular basis

and especially if they are unencumbered by staff members, press

interviews, and political appearances.

In addition, although the federal judiciary as a whole oper-

ates as a strictly hierarchical system—the Supreme Court at the

top, appellate and trial courts below—each individual court

operates on an egalitarian basis. The Supreme Court Justices, for

example, appear to treat each other as equals, and we have anec-

dotal evidence of long-standing friendships even among intellec-

tual adversaries.

Judges sitting at the trial or appellate level

similarly seem to have collegial relationships. Even chief judges

have approximately the same responsibilities as their non-chief

colleagues, and all voices count equally once any judge has been

assigned to a panel. By contrast, Congress is undoubtedly a hier-

archical place. Even though each vote counts equally once a bill

reaches the floor, few would label congressional procedure as a

back and forth of “free and equal individuals” given the power

wielded by senior committee members or by members well estab-

lished within their party’s hierarchy.

The courts also employ a variety of institutional mechanisms

that have a distinctively deliberative shine. Oral arguments, for

example, actually mimic somewhat the back and forth of a delib-

erative discussion: each side has a chance to speak, and judges

are quick to question and probe the weaknesses of each view-

point. Equally deliberative are the briefs submitted by litigants.

All briefs (including those submitted by the parties and by amici)

are publicly available, and adversaries have a chance to respond

explicitly to claims made by their opponents—a debate in written

form. Other institutional mechanisms with deliberative charac-

teristics include the post-argument conferences that judges have

with each other, as well as the intra-chambers meetings between

29. See, e.g., Joan Biskupic, Justices Strike a Balance,

USA T

ODAY

, Dec. 26,

2007, at 1D (“The friendship of [Justices] Ginsburg and Scalia, unlike that of

any other pair of justices in recent times, has intrigued—and mystified—observ-

ers for nearly three decades.”).

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312 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 27

judges and their law clerks. Judges, quite simply, appear to delib-

erate a lot—with the litigating parties, with each other, and with

their staffs.

As Judge Edwards warmly puts it, “judges have a

common interest, as members of the judiciary, in getting the law

right, and that, as a result, we are willing to listen, persuade, and

be persuaded, all in an atmosphere of civility and respect.”

But by far the most important factor that gives the courts a

deliberative aura is the opinion that accompanies each decision.

Not only are opinions publicly available the instant they are filed

(satisfying to a significant extent Gutmann and Thompson’s

“accessibility” requirement) but, unlike, say, congressional repre-

sentatives, judges provide a lengthy written justification of a court

decision. Unsurprisingly, then, legal theorists have focused spe-

cifically on the judicial opinion as the primary source of the

courts’ deliberative promise, and have identified this as the key

component distinguishing the courts from the legislative and

executive branches. Rawls, for example, emphasized the deliber-

ative concept of “public reason,” and he consistently referred to

courts as “exemplars” of this public reason

due to their rea-

soned justification:

30. On this general point, see Harry T. Edwards & Michael A. Livermore,

Pitfalls of Empirical Studies That Attempt to Understand the Factors Affecting Appellate

Decisionmaking, 58

UKE

L.J.

1895, 1964 (2009) (“Judges deliberate when they

raise questions during oral argument to alert their colleagues to their concerns.

Judges deliberate in conference and continue to deliberate after conference

when they raise issues uncovered in their research. Judges deliberate when they

circulate draft opinions, receive their colleagues’ responses, and negotiate reso-

lutions to any differences.”).

31. Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making,

151

U. P

. L. R

1639, 1645 (2003).

32. To some extent, the concept of “public reason” is distinguishable

from the principles underlying deliberative democracy. Rawls explained public

reason as being

the reason of equal citizens who, as a collective body, exercise final

political and coercive power over one another in enacting laws and in

amending their constitution. . . . This means that political values alone

are to settle such fundamental questions as: who has the right to vote,

or what religions are to be tolerated, or who is to be assured fair equal-

ity of opportunity, or to hold property.

OHN

AWLS

OLITICAL

IBERALISM

214 (expanded ed. 2005). See Benhabib,

supra note 21, at 67, 74–75, for a discussion of the distinctions between delibera-

tive democracy and Rawls’s “public reason.” These include that (1) “Rawls

restricts the exercise of public reason to deliberation about a specific subject

matter,” (2) “public reason is best viewed not as a process of reasoning among

citizens but as a regulative principle imposing limits upon how individuals, insti-

tutions, and agencies ought to reason about public matters,” (3) “for Rawls the social

spaces within which public reason is exercised are also restricted.”

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2013] COURTING DELIBERATION 313

[Public reason] applies . . . in a special way to the judiciary

and above all to a supreme court in a constitutional

democracy with judicial review. This is because the justices

have to explain and justify their decisions as based on their

understanding of the constitution and relevant statutes

and precedents. Since acts of the legislative and the execu-

tive need not be justified in this way, the court’s special

role makes it the exemplar of public reason.

Importantly, Rawls believed that these opinions must discuss

in plain language the important moral principles central to

deliberative democracy:

The justices cannot, of course, invoke their own personal

morality, nor the ideals and virtues of morality generally.

Those they must view as irrelevant. Equally, they cannot

invoke their or other people’s religious or philosophical

views. Nor can they cite political values without restriction.

Rather, they must appeal to the political values they think

belong to the most reasonable understanding of the public

conception and its political values of justice and public

reason.

To this extent, reasons provided must be more than simply a

collection of judges’ own personal opinions. Neither should the

proffered justifications be based on a particular religion or an

idiosyncratic worldview. Justifications reflected through judicial

opinions should be written in a way that people from all walks of

life can understand.

Rawls also argued that the influence of a written opinion

could actually extend beyond its four corners; in fact, the

“court’s role as exemplar of public reason has a[nother] aspect:

to give public reason vividness and vitality in the public

forum . . . .”

For Rawls, a court achieves this effect through its

authoritative judgments on fundamental political questions. It

fulfills this role when it clearly and effectively interprets the con-

stitution in a reasonable way; and when it fails to do this, as ours

often has, it stands at the center of a political controversy the

terms of the settlement of which are public values.

For Rawls, then, the Supreme Court’s exemplary status is

rooted first and foremost in the public reasoning in which the

Justices engage. But the Court’s status as a deliberative institu-

33. John Rawls, The Idea of Public Reason, in

ELIBERATIVE

EMOCRACY

SSAYS ON

EASON AND

OLITICS

95 (James Bohman & William Rehg eds., 1997).

34.

AWLS

, supra note 32, at 236.

35. John Rawls

supra note

33,

93,

112.

36.

AWLS

, supra note 32, at 236–39.

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314 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 27

tion is further buttressed by its ability to invigorate and galvanize

public discussion, even at times when the Court’s own reasoning

might itself fall short. Rawls is not alone in thinking that the

courts have a deliberative potential unmatched by other

branches of government. In thinking about the institution of

judicial review, Dworkin places paramount importance on the

reasoning contained in the opinion. He argues:

Judicial review insures that the most fundamental issues of

political morality will finally be set out and debated as

issues of principle and not political power alone, a transfor-

mation that cannot succeed, in any case not fully, within

the legislature itself. That is important beyond the impor-

tance of the actual decisions reached in courts so

charged.

For Dworkin, then, the central importance of the Court lies

in its unique ability to confront issues on the basis of reasoned

deliberation rather than “political power alone.”

To this

extent, the judiciary differs markedly from its legislative counter-

parts, which must enact decisions by wielding political power and

which simply cannot adequately debate matters of political

morality. Indeed, Dworkin posits that “[j]udicial review is a dis-

tinctive feature of our political life, envied and increasingly cop-

ied elsewhere. It is a pervasive feature, because it forces political

debate to include argument over principle, not only when a case

comes to the Court but also long before and long after.”

Eisgruber, like Rawls and Dworkin, argues that the judiciary

is fundamentally different from the legislature. His focus is, how-

ever, on the fact that legislators are elected officials, whereas

judges—at least those at the federal level—are not. This, Eis-

gruber contends, is the key difference that allows judges to base

their decisions on principled reasoning:

Judges are supposed to respond to reasons, not prefer-

ences. The structure of federal judicial institutions, and

especially of the Supreme Court, makes it likely that judges

will be disinterested and hence capable of acting on the

basis of reasons rather than interests. Legislators, by con-

trast, are supposed to respond to preferences as well as rea-

sons. The need to stand for reelection guarantees that

they will be sensitive to preferences. As a result, analyzing

Supreme Court decisions depends upon assessing the quality of

37.

ONALD

WORKIN

A M

ATTER OF

RINCIPLE

70 (1985).

38. Id.

39. Id.

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2013] COURTING DELIBERATION 315

reasons, whereas analyzing political decisions often

amounts to counting heads.

Though rooted in an electoral justification, Eisgruber’s posi-

tion dovetails with those of Rawls and Dworkin: what distin-

guishes the judiciary from other branches is the judicial opinion,

which engages seriously with publicly held moral principles.

Where Eisgruber extends the argument is in positing that it is the

unelected nature of judicial officers that allows them to put forth

these kinds of reasoned justifications. It is because judges are

free from the burden of voter preferences that they are free to

engage in principled reasoning. Elected representatives, by con-

trast, must pander to their political constituents, thus lowering

the bar for reasoned discussion to press releases and quid pro quo

bargaining.

III. J

UDICIAL

ELIBERATION IN

RACTICE

We have so far seen that deliberative democracy brings with

it powerful intrinsic and instrumental benefits—among these

better decision making, a more involved citizenry, and, perhaps,

increased institutional legitimacy. We have also seen that many

legal theorists believe that the courts—more than other political

branches—best epitomize the promise behind deliberative

democracy. But do courts actually behave this way? Do judges

behave differently from legislators or executives? Are the reasons

provided by judges in their opinions the kind of reasons that we

would consider adequate justifications for purposes of delibera-

tive democracy? The descriptive inquiry about these questions

can be divided into two areas: political (or procedural) and legal

(or substantive). Political issues concern the institutional mecha-

nisms at the court—specifically whether we actually believe that

the institutional framework of the judiciary facilitates the kind of

40.

HRISTOPHER

L. E

ISGRUBER

ONSTITUTIONAL

ELF

-G

OVERNMENT

(2001) (emphasis added).

41. It is important to note that thinking about the courts as inherently

deliberative bodies provides a thoughtful rejoinder to the counter-majoritarian

critique. After all, assuming that courts do satisfy the deliberative tenets more

so than the other branches—a point on which Rawls, Dworkin, and Eisgruber

(and perhaps Elster, Cohen, and Gutmann and Thompson) would likely

agree—then their role in American democracy is normatively desirable. Why?

The courts legitimize their own existence—and resolve to some extent their

“difficult” counter-majoritarian nature—by employing a different type of deci-

sion making, one that is actually better, more inclusive, and more transforma-

tive than those of other branches. See, e.g.,

HRISTOPHER

F. Z

URN

ELIBERATIVE

EMOCRACY AND THE

NSTITUTIONS OF

UDICIAL

EVIEW

(2007); see also Christo-

pher F. Zurn, Deliberative Democracy & Constitutional Review, 21

& P

HIL

467

(2002).

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316 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 27

deliberation required. Legal issues, on the other hand, concern

the justification proffered by the Court—i.e., this inquiry takes

the opinions issued by judges at face value and moves forward by

analyzing these opinions.

A. Political (Procedural) Issues

Prior thinking into the deliberation of the courts has, as Gut-

mann and Thompson have argued, relied on a sort of “deductive

institutionalism.”

This logic assumes that because judges pro-

duce crafted opinions that appear to rely on thoughtful justifica-

tion, reasoned deliberation led to that decision. Of course, no

one would assume the same thing of legislators, who are assumed

beholden to their constituents. “[But] [b]ecause of the incen-

tives built into the judicial role (such as the need for professional

respect), judges [are assumed to] have more regard for well-rea-

soned principles that are capable of discounting morally suspect

preferences.”

Reasoning backwards from the opinion there-

fore has the effect of ignoring the incentives that the judges

themselves have, and it ignores any possible ulterior motives,

deeply held beliefs, or immutable personal characteristics that

they might possess. A better inquiry into judicial deliberation

would employ forward, not backwards, induction, and it is here

that social science research sheds some clarity.

Using “forward induction,” the judicial process starts shed-

ding some of its deliberative patina from the moment of nomina-

tion. One of the tenets of deliberative democracy is the

participation of individuals with free and open minds—ready to

engage with, and be accommodating to, opposing viewpoints.

But there is strong evidence that Presidents do not appoint

judges for their ability to engage in nuanced deliberation;

neither do Presidents appoint judges based on their willingness

to consider conflicting viewpoints. Indeed, the prevailing view is

that Presidents select nominees largely on the basis of like-

minded—and somewhat fixed—political ideology.

Scholarship

on the Supreme Court, for example, suggests that Presidents

appoint judges who not only share their opinion but also tend to

42.

UTMANN

& T

HOMPSON

supra note 1, at 45.

43. Id.

44. See, e.g., Erwin Chemerinsky, Ideology and the Selection of Federal Judges,

U.C. D

AVIS

L. R

619, 624–26 (2003) (“No one seems to deny that it is

completely appropriate for the President to consider ideology in making

appointments. Presidents, of course, always have done so.”);

ASS

R. S

UNSTEIN

ET AL

UDGES

OLITICAL

?: A

MPIRICAL

NALYSIS OF THE

EDERAL

UDICIARY

6 (2006) (“In the modern era, at least, presidents are usually interested in

ensuring that judicial appointees are of a certain stripe.”).

\\jciprod01\productn\N\NDE\27-2\NDE201.txt unknown Seq: 15 9-MAY-13 12:05

2013] COURTING DELIBERATION 317

vote exclusively in accord with their positions.

Take, for exam-

ple, the recent nominations to the Court—John Roberts, Samuel

Alito, Sonia Sotomayor, and Elena Kagan. With the exception of

Kagan, all have long, well-developed records of their ideological

profiles. Justice Alito, for example, as an applicant to a federal

government position, wrote early in his career that he always has

“been a conservative and an adherent to the same philosophical

views that I believe are central to [the Reagan] Administra-

tion.”

He continued in the same essay:

I believe very strongly in limited government, federalism,

free enterprise, and the supremacy of the elected branches

of government, responsible to the electorate . . . . Most

recently, it has been an honor and source of personal satis-

faction for me to serve . . . President Reagan’s administra-

tion and to help advance legal positions in which I

personally believe very strongly. I am particularly proud of

my contributions in recent cases in which the government

has argued in the Supreme Court that racial and ethnic

quotas should not be allowed and that the Constitution

does not protect a right to an abortion.

Little in Alito’s application suggests a willingness to engage

seriously with viewpoints in favor of abortion rights, affirmative

action, or a welfare state. To the contrary, this document dis-

plays a certain amount of recalcitrance toward, and perhaps hos-

tility to, opposing viewpoints, and Alito admits to taking

“personal satisfaction” in defeats sustained by abortion advocates

and affirmative action supporters.

Justices can indeed change

their minds,

but Alito’s statement purposefully signals adher-

ence to a particular worldview

and his record on the Court—

45. See, e.g., Lee Epstein et al., The Increasing Importance of Ideology in the

Nomination and Confirmation of Supreme Court Justices, 56

RAKE

L. R

609, 610,

620 (2008) (employing statistical analysis and finding that “the ideology of the

Presidents and their nominees is rather closely associated” and that the impor-

tance of ideology in appointments “seems to be increasing with time”).

46. Samuel A. Alito, Assistant Attorney General Application (Nov. 15,

1985) (unpublished job application), available at http://www.reagan.utexas.

edu/alito/8105.pdf.

47. Id.

48. Id.

49. Indeed, several Justices—among them Earl Warren, Harry Blackmun,

and, more recently, David Souter—have surprised appointing Presidents by

adopting new ideologies. See, e.g.,

PSTEIN

& J

EFFREY

LLAN

EGAL

DVICE

AND

ONSENT

: T

OLITICS OF

UDICIAL

PPOINTMENTS

119–20 (2005).

50. An admittedly partisan viewpoint is provided by Harry Reid, State-

ment on Confirmation of Samuel Alito (Jan. 31, 2006) (“I do not oppose the

Alito nomination on the basis of a 20-year-old job application. Instead, I view

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318 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 27

along with those of Roberts and Sotomayor—has so far borne

out the expectations of his appointing President.

This is not to say that nominations such as these are inappro-

priate—nor is it to say that Alito should be faulted for having or

sharing strong views. Judges, like legislators or executives, are

strong-willed, opinionated individuals, and it would be natural to

expect that strongly held political views are precisely what led

them to a career in public service.

Similarly, Presidents would

be silly not to appoint those individuals most likely to implement

their long-term ideological agendas. The problem does not lie in

Presidents appointing judges with strong, fixed opinions; the

problem lies in the expectation that judges ought to somehow be

different than Congressmen or Presidents and that they should

be somehow more willing to seriously entertain positions that

they have for years steadfastly opposed. Unfortunately, delibera-

tive democracy does require participants to be willing to engage

seriously with opposing viewpoints, and this contrasts markedly

with what is seen in practice. This aspect also raises questions

about deliberative democracy’s ability to work in a context where

partisan players remain the main participants.

There are, moreover, other institutional constraints specific

to the courts that should concern deliberative theorists. Deliber-

ative democrats take seriously the notion that decision-making

processes should be open and visible to the public. Trans-

parency, incorporation, and accessibility are elements key to any

deliberative enterprise. Judged by these standards, decision mak-

ing in the courts is rarely transparent, inclusive, or accessible—

especially when compared to congressional or executive decision

making. The most public of judges, Supreme Court Justices, in

all instances keep low profiles and make few public appear-

ances—a fact that contrasts significantly with their more political

peers.

Those appearances that Justices do make are generally

that document as a roadmap to Judge Alito’s subsequent judicial opinions and

speeches. Judge Alito’s judicial opinions have been largely consistent with the

ideological signals he sent in the 1985 job application . . . .”).

51. Alito, supra note 46 (“In college . . . I discovered the writings of Alex-

ander Bickel advocating judicial restraint, and it was largely for this reason that

I decided to go to Yale Law School.”).

52. See, e.g., Tony Mauro, How to Open Up Our Court,

USA T

ODAY

, Apr. 23,

2008, at 11A (“[W]e see a lot of the justices when they are nominated and again

when they leave the court. But in between, when they are doing the public’s

business, they drop out of sight—unless they have a book to sell.”); Fernanda

Santos, Who’s That Guy? Without Robes, Grand Marshal Is Mystery,

N.Y. T

IMES

, Oct.

11, 2005, at B3 (“Despite Justice Scalia’s prominence, few paradegoers recog-

nized him, a reflection perhaps of Supreme Court justices’ long tradition of

limiting their public appearances.”).

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2013] COURTING DELIBERATION 319

at elite institutions—mostly at top-flight law schools—and on top-

ics of general interest (e.g., career forums or moot courts), not

specifically on the moral questions before the Court. Members

of the media are often barred or closely monitored.

To be fair

to the Justices, there is a logic to this privacy. Judges are natu-

rally loath to appear biased, lest they be called upon to recuse

themselves at a later point, a concern that seldom troubles legis-

lators. And quite a few of them are simply shy and prefer to be

left alone to their work.

While these choices are understanda-

ble—rational, even, from the judges’ standpoint—they under-

mine the principles of deliberative democracy, which demand

transparency, incorporation, and accessibility in the decision-

making process.

The inaccessible nature of the courts extends directly into

their handling of cases. Oral arguments in the nation’s federal

courts have never been recorded or televised, and no photogra-

phy is allowed.

The limited seating available in the Supreme

Court courtroom is generally reserved for the parties and their

lawyers, for members of the Supreme Court Bar, and for select

members of the press. Only a fraction of seats is made available

for public seating, and those who want to witness the Court in

action are admitted on a first come, first served basis. If the case

being heard is particularly newsworthy, members of the public

must queue up hours, even days, before the Supreme Court

begins its session.

53. For a comical take, see Adam Liptak, You Can Quote Me, Next Week,

N.Y. T

IMES

, Nov. 11, 2009, at A1 (reporting on Justice Kennedy’s visit to a local

school and noting that Kennedy’s office “insisted on approving any article” writ-

ten about the visit by the school’s newspaper staff).

54. See, e.g., Gina Holland, David Souter: The Justice Is Still a Mystery Man

After 14 Years in Capital,

AILY

EFFERSONIAN

May 5, 2004, http://daily-jeff.

com/local%20news/2004/05/06/david-souter-the-justice-is-still-a-mystery-man-

after-14-years-in-capital (quoting Justice Souter in a 1996 letter as saying that

“[i]n a perfect world, I would never give another speech, address, talk, lecture

or whatever as long as I live ”).

55. Former Senator Arlen Specter introduced several propositions that

would have forced the Supreme Court to televise proceedings, measures the

Justices have publicly opposed. See, e.g., Robert Barnes, A Renewed Call to Televise

High Court,

ASH

. P

OST

, Feb. 12, 2007. Public opinion appears situated solidly

against the Justices. See, e.g., New C-SPAN/Penn, Schoen and Berland Associates Poll:

What Americans Know About the U.S. Supreme Court and Want Changed About the

Court,

C-SPAN

(Sept. 24, 2009), available at http://supremecourt.c-span.org/

assets/pdf/CSPANSupremeCourtPollSept242009.pdf [hereinafter C-SPAN

Supreme Court Poll] (reporting that 65% of respondents agreed that “the U.S.

Supreme Court should allow television coverage of its oral arguments”).

56. See, e.g., Adam Liptak, Tailgating Outside the Supreme Court, Without the

Cars,

N.Y. T

IMES

, Mar. 3, 2010, at A14 (chronicling the misadventures of people

waiting all night for a chance to see Supreme Court oral arguments and noting

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320 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 27

The normative implication here is that the Supreme Court

operates without attracting much public attention, and the pub-

lic as a consequence knows little about the Supreme Court and

its decision making. A 2006 public opinion poll revealed that

77% of Americans could identify two out of the Seven Dwarfs in

Snow White, but only 24% of Americans could identify at least two

Supreme Court Justices,

while another poll found that only 1%

could name all nine Justices.

A more recent poll found that

only 49% of Americans could name any U.S. Supreme Court

case, with 84% of those individuals pointing to Roe v. Wade.

contrast, only 9% of these individuals were able to identify Brown

v. Board of Education.

This consistent lack of public knowledge

is masked by—and militated through—the fact that the public

“approves” of the Court more than it does of Congress.

From a

deliberative perspective, however, “approval” is far less desirable

than incorporation. Indeed, approval is important—and it no

doubt dovetails somewhat with a sense of legitimacy—but if the

approval stems from lack of familiarity, then it is meaningless

from a deliberative perspective.

Perhaps the most troubling from a deliberative perspective

is the fact that the norm of judicial privacy extends to inter-cham-

bers deliberation. These conferences—where any reasoned dis-

cussion would take place, where conflicting viewpoints would be

debated, and where compromises would be reached—are strictly

off-limits to anyone but judges themselves. Prevented by norms

of privacy from direct observation, recent scholarship has used

somewhat indirect methods in trying to unpack the underlying

that “the number of seats set aside for members of the public who want to see

entire arguments can be as few as 50” and that “[t]here is a separate line for

those interested in getting a three-minute glimpse”).

57. New National Poll Finds: More Americans Know Snow White’s Dwarfs Than

Supreme Court Judges, Homer Simpson Than Homer’s Odyssey, and Harry Potter Than

Tony Blair,

USINESS

IRE

(Aug. 14, 2006). By contrast, 69% of respondents in a

separate 2007 poll could identify the U.S. Vice President, and another 66%

could identify their state’s governor.

ESEARCH

FOR THE

EOPLE

THE

RESS

HAT

MERICANS

NOW

1989

–

2007

(2007), available at http://people-

press.org/reports/pdf/319.pdf.

58. Kimberly Atkins, Commentary: Anonymous Justices,

AWYERS

USA

, June

2, 2010, http://lawyersusaonline.com/dcdicta/2010/06/02/anonymous-

justices.

59. C-SPAN Supreme Court Poll, supra note 55.

60. Id.

61. See, e.g.,

ARLYN

H. B

OWMAN

& A

NDREW

UGG

. E

NTER

. I

NST

FOR

. P

OLICY

ESEARCH

UBLIC

PINION ON THE

UPREME

OURT

(2010), availa-

ble at http://www.aei.org/files/2010/06/28/BowmanPOSSupremeCourt.pdf.

Approval of the Supreme Court hovers between 50% and 60%, while support

for Congress generally hovers around 20% to 25%.

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2013] COURTING DELIBERATION 321

mechanisms of judicial deliberation. The preliminary conclu-

sion of this research is that, if anything, judicial decision making

might be more similar to legislative bargaining than to a truly

deliberative model. Consider the decision-making rule used by

the Court: a simple majority vote where five out of nine judges is

enough to constitute a majority. A longstanding principle in eco-

nomic and social choice theory is that these kinds of voting struc-

tures are driven by the existence (and importance) of a median

voter—the person with half of the other decision makers ideo-

logically to his/her “right” and half ideologically to his/her “left”

on a particular issue.

The middle position allows the median

voter to have an inordinate amount of influence on the decision-

making process. Although most frequently invoked in the litera-

ture on Congress and elections,

this “Median Voter Theorem”

has increasingly been applied to judicial decision making by the

Supreme Court.

From a legal or political science perspective,

the significance of the “median Justice” (like his median voter

counterpart) is that his position “will prevail under majority rule

and various voting procedures.”

From a deliberative perspec-

tive, however, the significance of the “median Justice” is that it

analogizes the Court to a legislative body where one member

holds unique (if not absolute) power by virtue of his or her cen-

tral position on an ideological spectrum.

The end result, quite

62. This idea is called the “Median Voter Theorem.” See, e.g., Duncan

Black, On the Rationale of Group Decision-Making, 56

J. P

. E

CON

23 (1948); see

also

NTHONY

OWNS

CONOMIC

HEORY OF

EMOCRACY

(1957).

63. For applications of the Median Voter Theorem in the congressional

context see Black, supra note 62, at 23–24; Keith T. Poole & R. Steven Daniels,

Ideology, Party, and Voting in the U.S. Congress, 1959–1980, 79

. P

. S

. R

373 (1985). For applications of the Median Voter Theorem in the context of

elections see

OWNS

, supra note 62.

64. Andrew D. Martin et al., The Median Justice on the United States Supreme

Court, 83

N.C. L. R

1275 (2005); Bernard Grofman & Timothy J. Brazill, Iden-

tifying the Median Justice on the Supreme Court Through Multidimensional Scaling:

Analysis of “Natural Courts” 1953–1991, 112

. C

HOICE

55 (2002); see also

Byron J. Moraski & Charles R. Shipan, The Politics of Supreme Court Nominations: A

Theory of Institutional Constraints and Choices, 43

. J. P

. S

4 (1999); Lee

Epstein & Tonja Jacobi, Super Medians, 61

TAN

. L. R

37 (2008).

65. Martin et al., supra note 64, at 1281. Martin et al. find that the iden-

tity of the median Justice fluctuates over time and that this fluctuation repre-

sents a coherent ideological portrait of any given natural court.

66. The coverage on this is voluminous. See, e.g., Robert Barnes, Justice

Kennedy: The Highly Influential Man in the Middle,

ASH

. P

OST

, May 13, 2007, at

A01 (“[Justice] Kennedy holds enormous power in pivoting between the left

and right, legal experts say. He stands alone in the middle—and that enhances

his importance.”); Linda Greenhouse, In Steps Big and Small, Supreme Court

Moved Right,

N.Y. T

IMES

, July 1, 2007, at A2 (“The [Court’s recent rulings]

underscore what case after case demonstrated as the term unfolded: Justice

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322 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 27

naturally, is that the median Justice becomes the target of bar-

gaining, lobbying, and cajoling efforts. Litigants have accord-

ingly directed their arguments toward the current median,

Justice Kennedy,

and we must also assume that the other Jus-

tices do the same once in chambers.

The mathematical existence of a median Justice brings to

the forefront the role that very un-deliberative (i.e., strategic) tac-

tics can play in practice. On this point, Epstein and Knight’s

analysis of Supreme Court decision making provides a good illus-

tration.

Their empirical (and historical) analysis presents the

Justices as political actors, strategically leveraging their votes to

further their own interests—more akin to legislators bargaining

amongst themselves, and less like the deliberative democrats that

we might imagine. How does this kind of bargaining take place?

First, the Justices generally communicate between, not among,

themselves—i.e., memos are circulated privately, between the

individual Justices and the presumptive writing Justice, and not

to the entire Court. And, second, the memos themselves

represent a straightforward quid pro quo bargain: the Justice writ-

ing the memo is doing so to bring attention to language that is

preventing him or her from joining in the opinion. This kind of

bargaining—where one party threatens to withhold a vote unless

certain specific changes are made—bears a surprisingly strong

resemblance to what happens in Congress, and the evidence on

this point is startling: “[I]n more than two-thirds of the most

important cases of the 1970s and 1980s, at least one justice

attempted to bargain with the opinion writer—with a good deal

of the negotiation done through private memos.”

This phe-

nomenon has become widespread: “Of nine landmark cases

Kennedy’s role in the position that Justice Sandra Day O’Connor once held at

the [C]ourt’s center of gravity.”).

67. See, e.g., Kevin T. McGuire et al., Targeting the Median Justice: A Con-

tent Analysis of Legal Arguments and Judicial Opinions (May 24, 2009) (unpub-

lished manuscript) (finding that litigants are more likely to include arguments

that appeal to the median Justice); see also Press Release, Am. Civil Liberties

Union, Supreme Court Ends Term by Striking Down Military Tribunals at

Guantanamo Bay: Justice Kennedy Emerges As Critical Swing Vote on the Rob-

erts Court (June 29, 2006), available at http://www.aclu.org/national-security/

supreme-court-ends-term-striking-down-military-tribunals-guantanamo-bay

(quoting ACLU national legal director Steven R. Shapiro in saying “the votes

[by Justices Roberts and Alito] may be less important on a range of critical

issues than Justice Kennedy, who now holds the balance of power on a closely

divided Court”).

68.

PSTEIN

& J

ACK

NIGHT

HOICES

USTICES

AKE

(1998).

69. Id. at 73 (emphasis added). For example, one memo from Justice

Rehnquist to Justices Burger, Powell, and O’Connor reads: “I have been negoti-

ating with John Stevens for considerable time in order to produce a fifth vote in

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2013] COURTING DELIBERATION 323

handed down during the first term of the Rehnquist Court, eight

generated at least one bargaining statement.”

In addition, “in

several of those, the opinion writer was confronted with the task

of negotiating with more than one justice at the same time.”

What this correspondence suggests, then, is that the Justices

engage in serious bargaining behind closed doors and that this

bargaining is closer to a simple zero-sum, quid pro quo bargaining

than to the kind of nuanced give-and-take that forms the back-

bone of true deliberation. Justices, it appears, behave more like

congressional representatives trading votes over a bill rather than

the transformed deliberators many would hope them to be.

B. Substantive (Doctrinal) Issues

We are still left to ponder the fact that judges frequently

issue nuanced opinions, and that these decisions could reflect

the kind of reasoning expected from a deliberative regime. On

this point, we can infer from these thoughtful opinions that

either true deliberation is taking place in judicial chambers, or

move forward admitting that the process might not be as deliber-

ative as we had originally hoped, but that the end result is, quite

happily, deliberative.

The reasons outlined above make the

first assumption somewhat difficult to swallow. But the second

consideration is interesting in its own right. Some of the benefits

of deliberative democracy could still attach from having a deci-

sion grounded in a strong and nuanced discussion of moral prin-

ciples. And accepting that the opinions themselves reflect some

reasoned deliberation would allow the courts to retain some of

the deliberative promise envisioned by Rawls, Dworkin, and

others.

my Bildisco opinion. I have agreed to make the following changes in the cur-

rently circulating draft, and he has agreed to join if I do.” Id. at 74.

70. Id.

71. Id.

72. On the specific consequences of court opinions, this Essay is fairly

agnostic. Some have posited that the courts are defenders of those very things

that facilitate deliberation more broadly and, thus, sole focus on whether the

courts are deliberative is by itself misguided. See generally Corey Brettschneider,

Balancing Procedures and Outcomes Within Democratic Theory: Core Values and Judi-

cial Review, 53

. S

TUD

423, 439 (2005) (“Although political scientists and

political theorists have often defined democracy in terms of institutions and

procedures, my own view suggests why it is impossible to understand democ-

racy’s value independent of specific policy controversies.”). Although courts’

decisions are no doubt important, a complication of this viewpoint is that we

have no way to assess how much the courts’ decisions would change if the judi-

cial process was more deliberative.

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324 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 27

This discussion implies, obviously, that we should pay close

attention to the nature of judicial opinions, taking at face value

the reasoning they contain. To this extent, judicial opinions

need to have both accessible language and accessible content.

After all, “deliberative justification does not even get started if

those to whom it is addressed cannot understand its essential

content.”

On this point, however, few would dispute that the

judiciary stumbles with alarming frequency. Reporters are rife

with gummy opinions whose substance is obscured by a variety of

prongs, rules, exceptions, standards, and procedural issues,

topped with the occasional dollop of Latin. Sentences are at

times so thickly punctuated with citations that ascertaining points

and arguments can be difficult, and even relatively straightfor-

ward opinions are frequently prefaced by dense procedural dis-

cussions that add little to the moral considerations involved.

From a deliberative perspective, this leaves open the key question

of to whom opinions are addressed. The public? Litigants?

Lower courts? The answer, like the opinions themselves, is

unclear.

Let us assume for the sake of discussion that cases are written

lucidly and clearly. It is then the second requirement—that the

substantive contents of any opinion reflect reasoned delibera-

tion—that presents a stumbling block. As Zurn and others have

observed,

judicial opinions—both at the Supreme Court and

lower court levels—are in some instances extremely narrow in

their reasoning and focus on minor technicalities rather than sig-

nificant moral dimensions. And judicial obsession with a case’s

procedural posture makes it so that judges can frequently avoid

questions of general concern or moral principles, opting instead

for easier, quicker, technical answers that will attract less atten-

tion. In this regard, there are dozens of examples, a recent

instance being Elk Grove Unified School District v. Newdow.

The

issue in that case involved the constitutionality of the Pledge of

73.

UTMANN

& T

HOMPSON

, supra note 6, at 4.

74. Christopher Zurn has, for example, done a case-by-case analysis of

several important Supreme Court opinions, trying to discern whether the lan-

guage employed by the Court is one of generally understood moral principles

—as opposed to more narrowly construed holdings based on legal technicali-

ties. His conclusion is that the Justices for the most part “are rightly engrossed

with the technicalia of the rule of law, not with arguments about fundamental

moral and political principles.”

URN

, supra note 41, at 188.

75. No systematic study (to the author’s knowledge) has looked at the

public’s ability to comprehend or analytically synthesize the content of contem-

porary Supreme Court opinions.

76. See

URN

, supra note 41, at 184–220.

77. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).

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Allegiance under the First Amendment’s Establishment Clause.

As the case involved religion, public life, and parental rights,

Newdow represented precisely the kind of situation where a

broadly written opinion—one seriously engaged with moral prin-

ciples and written with a public audience in mind—would have

been particularly appropriate. What happened was actually quite

different. The Court’s well-publicized opinion dodged the con-

stitutional questions at the heart of the case, instead reversing

the appellate court’s decision on the ground that the plaintiff, a

non-custodial parent, lacked the necessary legal standing to pro-

ceed with his case. The end result, as many bitterly observed, is

that the Court avoided any discussion of the important moral

principles underlying the arguments and, “after agreeing to carry

out its democratic tasks of exemplifying, representing, or com-

municating in the people’s moral-political reason, the Court

switched to its preferred legalistic language and found a way of

shirking its civic duties.”

An obvious counter is that the Court’s hand was forced—

had it decided the case on the basis of the substantive issues

involved, it might have made a glaring legal mistake in handling

the plaintiff’s non-custodial status (i.e., his standing to seek

relief). To that extent, the Court would have exposed itself to

legitimate attacks from elites within the legal community—per-

haps future judges or Justices, law professors, or practitioners.

This argument is fair: no one, not even Supreme Court Jus-

tices, wants to leave themselves open to an attack further down

the road, and no one wants to look bad in the eyes of their peers.

But acting rationally does not shake the deliberative critique, and

by structuring the opinion in a manner that so blatantly avoided

the constitutional question, the Court effectively postponed the

resolution of the issue to a later time—and in so doing left a

palpable void in public discourse. Does the Pledge of Allegiance

violate the First Amendment? Should children have to voice

their moral allegiance to a country “under God”? What are the

considerations on both sides of that debate? These are exactly

the kinds of questions that deliberative democracy demands be

addressed by transparent, reasoned decision making.

Along with the political question doctrine and the doctrine

of constitutional avoidance, doctrines like standing are one way

that courts can dodge difficult questions using the cloak of legal

propriety. But it could be there is a simpler, perhaps more con-

troversial, mechanism at work here: basic reliance on legal prece-

dent and prior case law. Of course, there are many good reasons

78.

URN

, supra note 41, at 188.

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326 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 27

for the courts’ historical reliance on precedent: having a consis-

tent legal framework for non-legal actors to follow, creating a

permanent body of law for all judges to apply, etc. No one can

dispute these public policy considerations. But stepping outside

of this schema, and viewing the system from a deliberative frame-

work, having a large body of precedent allows judges to avoid

addressing difficult moral questions in a comprehensive fashion.

Rather than having to explain each important holding on the

basis of moral principles, judges in many instances can simply

apply or distinguish prior cases on point—a significantly easier

task. Previous case law is decided on the basis of even older pre-

cedent, linking cases back to each other in a kind of circular

logic—a logic where morally grounded reasoning is neither

required nor particularly welcome. Some areas of Anglo-Ameri-

can common law, established originally by cases that once did

employ reasoned deliberation, have been reduced to the quick

application of somewhat obscure and occasionally illogical rules

and doctrines (e.g., the rule against perpetuities) that even

trained lawyers have difficulty explaining. Going back to the

example in Newdow, at some point a nuanced, carefully consid-

ered explanation emerged as support for the standing doctrine.

But its harsh application to the Newdow facts—effectively shutting

down reasoned debate on the real issues involved—severed the

connection between standing and its justification. No longer

grounded by a thoughtful debate about the appropriate role of

the courts, standing is now simply understood as a tool often

used by the courts to avoid tough constitutional questions.

This is indeed a bold assertion: after all, reliance on prece-

dent forms the bedrock of the Anglo-American legal system. To

that end, let us step back from the ledge for a moment and admit

two key facts. First, reliance on precedent is obviously an impor-

tant institutional mechanism, and a precedent-free system would

quickly devolve into an inconsistent patchwork of case law,

strongly undermining the predictability of laws and legal enforce-

ment. We might want judges to decide each case on the basis of

moral principles, but it would result in an intractable, unpredict-

able mess, both for judges and for litigants. Second, and perhaps

more importantly, not all precedent serves to constrain the par-

ticipation of the courts in contemporary moral debates. Since

the 1940s, vast areas of case law have expanded the courts’ reach

into publicly salient topics, and many would argue that, if any-

thing, the courts have vastly increased the range of important

issues that they participate in. A case in point—and certainly the

most controversial of doctrinal expansions—is the idea of sub-

stantive due process, under which individual citizens are

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accorded certain inalienable rights (among these the right to

raise one’s children according to the dictates of one’s con-

science,

the right to marry,

the right to make end-of-life deci-

sions,

and the right to privacy in intimate relationships

) that

are unmentioned, but nonetheless constitutionally protected.

For the purposes of this discussion, the public nature of these

“fundamental” rights, their salience in contemporary public dia-

logue, and their importance in citizens’ day-to-day lives means

that this is a prime area for the courts to engage in the kind of

public reasoning required by deliberative democracy. After all,

the public understands with agonizing clarity what it means to be

denied privacy in their sexual and reproductive lives, and they

understand what it means to not be able to marry the person

they love.

The Court’s gay-rights jurisprudence is a good example.

The rise of the LGBT movement, the debate over same-sex mar-

riage, and the increasing prominence of gays and lesbians in

politics, finance, and the media have made the public discussion

of gay and lesbian rights imperative; and the Court has (again, to

its credit) not shied away. But—and this is a key point—does the

deliberation on display in these cases meet deliberative democ-

racy’s standards? Consider Bowers v. Hardwick, which upheld a

controversial anti-sodomy statute and was a blow to gay and les-

bian rights.

The primary motivation behind the majority opin-

ion was that the “constitutional right of homosexuals to engage

in acts of sodomy” was neither rooted in American “history and

tradition” nor “implicit in the concept of ordered liberty.”

Indeed, for Justice White, it was clear that

[p]roscriptions against that conduct have ancient roots.

Sodomy was a criminal offense at common law and was for-

bidden by the laws of the original thirteen States when they

ratified the Bill of Rights. . . . Against this background, to

claim that a right to engage in such conduct is “deeply

79. E.g., Troxel v. Granville, 530 U.S. 57 (2000); Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925).

80. E.g., Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434

U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967).

81. E.g., Washington v. Glucksberg, 521 U.S. 702 (1997); Cruzan v. Mo.

Dep’t of Health, 497 U.S. 261 (1990).

82. E.g., Lawrence v. Texas, 539 U.S. 558 (2003); Poe v. Ullman, 367 U.S.

497 (1961).

83. Bowers v. Hardwick, 478 U.S. 186 (1986).

84. Id. at 191–95.

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328 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 27

rooted in this Nation’s history and tradition” or “implicit in

the concept of ordered liberty” is, at best, facetious.

The precedent on Justice White’s point is quite clear. To be

recognized as a fundamental right for purposes of the Due Pro-

cess Clause, any presumptive rights or liberties (including the

right to “homosexual sodomy”) must be “deeply rooted in this

Nation’s history and tradition”

or “implicit in the concept of

ordered liberty,” such that “neither liberty nor justice would exist

if they were sacrificed.”

So, for the Bowers majority, that a

group (gays and lesbians, in this case) had long been denied cer-

tain rights was reason enough for the denial to continue.

Leaving aside the implications of the opinion, substantive

due process cases like Bowers illustrate two intertwined delibera-

tive critiques. First, even commendable attempts to address con-

temporary moral debates—for example, case law in the

substantive due process tradition—tend to operate on a strongly

path-dependent basis, one governed in large part by what has

happened before. What is a fundamental right? Again, accord-

ing to the Court’s substantive due process jurisprudence, a fun-

damental right is one that is deeply rooted in this nation’s

“history and tradition.” From a purely descriptive perspective,

rights that are deeply rooted in the nation’s history and tradition

are by nature those that already enjoy some measure of protection

under laws and legal precedent. And from a normative delibera-

tive perspective, the path dependence generated by looking only

to “history and tradition” effectively allows the Court to sidestep

contemporary debates by permitting Justices to leverage sheer

inertia to reach legal conclusions—much like reliance on prece-

dent permits the courts to evade important constitutional issues.

The end results are opinions that consistently fail in capturing

contemporary public debates.

This first critique dovetails with a second deliberative cri-

tique, which is that it remains unclear just how the discussions in

cases like Bowers (and also its successor, Lawrence v. Texas)

illu-

minate or reflect current moral discourse. Bowers cited historical

laws and customs unfavorable to gays and lesbians—an obvious

instance of confirmation bias (e.g., “cherry picking”).

Confir-

85. Id. at 192–94.

86. Moore v. E. Cleveland, 431 U.S. 494, 503 (1977).

87. Palko v. Connecticut, 302 U.S. 319, 325–26 (1937).

88. Lawrence v. Texas, 539 U.S. 558 (2003).

89. Commentary on this point is well-developed. See, e.g., William N.

Eskridge, Jr., Sodomy and Guns: Tradition as Democratic Deliberation and Constitu-

tional Interpretation, 32

ARV

. J.L. & P

. P

’

193 (2009); John C. Toro, The

Charade of Tradition-Based Substantive Due Process, 4

N.Y.U. J.L. & L

IBERTY

172, 194

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mation bias works both ways, and Bowers’ successor, Lawrence, was

guilty of the same thing—pointing to existing laws and practices

favorable to gays and lesbians in its overruling of Bowers. The

problem with this kind of decision making is not only that it fails

in capturing the public debate, but also that it allows the courts

to effectuate deeply held views about the morality of homosexu-

ality through the lens of ostensibly reasoned justification. This

aspect highlights a key norm of contemporary judicial thinking:

judges are not “supposed” to have opinions; they are simply “sup-

posed” to interpret. The unfortunate outcome is, however, that

most people (especially public officials) have deeply held opinions

on these issues; forcing judges to invoke precedent, history, or

tradition to support these prior beliefs merely drives the discus-

sion away from moral principles that citizens can understand and

toward the generalization of prior laws and legal precedent on

the basis of one’s prior personal beliefs. Ironically, this is

removed from Rawls’ insistence that the Supreme Court Justices

“cannot . . . invoke their own personal morality, nor the ideals

and virtues of morality generally” or “cite political values without

restriction.”

IV. F

URTHER

HOUGHTS

& C

ONCLUSIONS

Where does this discussion leave us? Are the courts hope-

lessly un-deliberative? Maybe. For the courts to realize their

deliberative potential outlined by Rawls and Dworkin, the judici-

ary would have to undergo significant, perhaps unwelcome,

changes. True deliberation requires transparent deliberation.

Oral arguments would have to be televised in real time and

closely analyzed, debated, and discussed in public forums.

Judges’ correspondences regarding cases would also have to be

made publicly available, if not while the proceedings are happen-

ing, then certainly following the filing of the opinion. And

judges themselves would have to be more publicly accessible and

more available to interact with the public on issues at the heart of

public debate. Accountability and dynamism—including the

willingness of participants to engage with members of the public

with regard to issues before the courts—are important attributes

of the deliberative framework and cannot be denied.

(2009) (“[T]he deep roots test does a poor job of eliminating moral-political

judgments from the substantive due process framework because judges are free

to ‘cherry-pick’ from history to support their preconceived opinions [and]

judges have discretion in characterizing the relevant tradition . . . .”).

90.

AWLS

, supra note 32, at 236.

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330 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 27

Other necessary changes might, however, be even more dif-

ficult, if not impossible, to enact. Deliberation at its bare mini-

mum requires that participants enter the process with an open

mind, ready and willing to consider seriously the merits of oppos-

ing viewpoints. Unhappily, judges today are appointed (or

elected) largely on the basis of their ideological consistencies,

and the strategic impulses behind these strategic actions would

be impossible to change. Presidents, understandably, want no

surprises, and they have every incentive to appoint individuals

who will predictably vote in one way, and one way only. Execu-

tives appointing individuals who exercise independent thought

will reap no rewards, and there is even less of an incentive to

appoint jurists who entertain with any gravity opposing view-

points. Changing this aspect of the judiciary, and of the confir-

mation process, would entail reforming at a fundamental level

the separation-of-powers structure establishing federal judiciary,

an all but impossible task.

In terms of deliberative substance (i.e., reasoned justifica-

tion), the nature of Supreme Court opinions, and the institution

of precedent, represents a second inexorable difficulty. Do we

want to move away from a precedent-based legal system? Would

we be at ease with a regime where judges engage in moral delib-

eration and address each case de novo? If we were perfectly hon-

est with ourselves, the answer would probably be no. To allow

judges the kind of power to address moral questions without the

constant invocation of existing laws and legal precedent would

undermine significantly the existing legal system, and adjudica-

tion would become significantly less predictable—both for liti-

gants and for the public. Legal life would truly become snarled

and conflicted if we expected jurists to evaluate each case before

them solely on the basis of the moral considerations presented

therein.

The issues raised in this Essay ultimately leave us with two

implications. First, deliberative democracy is undoubtedly very

appealing—bringing with it inherent benefits (transformed and

energized citizens) as well as instrumental benefits (better laws

and increased institutional legitimacy). On the other hand, if

judicial deliberation falls short of the standard set by deliberative

democrats, then we should not be surprised if these benefits also

fail to materialize. Accordingly, if we believe, as Gutmann,

Thompson, and Fishkin do, that deliberative democracy brings

with it a transformed and more sophisticated citizenry, then we

should not be surprised that only 24% of the public can name

two or more Supreme Court Justices and that only 1% can name

all nine. Similarly, if we believe, like Benhabib and Rawls do,

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that reasoned deliberation brings with it increased legitimacy,

then we should not be surprised at the vitriolic rhetoric leveled

against “activist” judges and the “unelected” judiciary. Neither

should we be surprised when the Supreme Court’s legitimacy is

called into question following cases like Bush v. Gore

and

National Federation of Independent Business v. Sebelius.

Second, the discussion suggests that deliberative democracy

at an institutional level might be an untenable ideal. There are,

of course, opportunities for deliberative democracy to thrive in a

small government context, or within a deliberative polling exer-

cise,

but as this Essay has argued, it is something else entirely to

think that deliberative democracy can operate at a national level.

To be sure, the more involved participants are in politics, and

the more they rise to a level of national prominence, then the

more inclined they will be to hold firm, fixed opinions—thus

making them less likely to be the kinds of individuals ideally situ-

ated to deliberate genuinely. And for the judiciary specifically,

judges and lawyers are quite simply trained to argue on the basis

of precedent, not on the basis of widely understood moral princi-

ples. Taken together, these considerations suggest that delibera-

tive democracy in the U.S. courts currently remains a normative

ideal, rather than as anything approaching a realized concept.

91. Bush v. Gore, 531 U.S. 98 (2000).

92. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).

93. See Edwards

supra note 31.

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