In his law-review article “Rethinking Constitutional Welfare Rights,” 61 Stan. L. Rev. 203 (2008), Ninth Circuit nominee Goodwin Liu, drawing on the work of moral philosopher Michael Walzer, makes the case for what he calls an interstitial judicial role in recognizing constitutional welfare rights—i.e., “claimed affirmative rights,” as Liu quotes Frank Michelman, to “education, shelter, subsistence, health care and the like, or to the money these things cost.” Liu tries to portray that judicial role as modest, but it is so only if compared against Michelman’s extravagant theorizing, not when compared against the proper role of the judiciary in our constitutional republic. In this post, I’ll present Liu’s argument, and in the next post I’ll critique it.
Here’s the core of Liu’s own summary of his argument (pp. 203-204):
My thesis is that the legitimacy of judicial recognition of welfare rights depends on socially situated modes of reasoning that appeal not to transcendent moral principles for an ideal society, but to the culturally and historically contingent meanings of particular social goods in our own society.… I argue that judicial recognition of welfare rights is best conceived as an act of interpreting the shared understandings of particular welfare goods as they are manifested in our institutions, laws, and evolving social practices.
On this account, the existence of a welfare right depends on democratic instantiation in the first instance, typically in the form of a legislated program, with the judiciary generally limited to an interstitial role. Further, because the shared understandings of a given society are ultimately subject to democratic revision, courts cannot fix the existence or contours of a welfare right for all time. So conceived, justiciable [i.e., judicially cognizable] welfare rights reflect the contingent character of our society’s collective judgments rather than the tidy logic of a comprehensive moral theory.
Liu addresses at some length the objection that (as he casts it (p. 247)) the judicial role that he advocates presents “an intolerable risk that judges, in the name of interpreting society’s values, will instead impose their own values on society.” He identifies two dimensions to this objection. The first dimension is the claim that “societal values are dynamic and contested.” Liu’s response (p. 254):
The problem [i.e., challenge] for courts is to determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine. This difficult task requires keen attention to the trajectory of social norms reflected in public policies, institutions, and practices, as well as predictive judgment as to how a judicial decision may help forge or frustrate a social consensus. Yet the task is familiar to common law adjudication and … pervades the interpretive work of courts on a wide range of constitutional questions.
The second dimension of the objection is the claim that “there is no reason to think that courts are better situated than legislatures to express those values.” Liu’s defense against this objection is that he “envisions a form of judicial review that is less didactic and interventionist and more dialogic and provisional” (p. 255). As he puts it, the role of the courts would be to “meaningfully assess the distributive reach of a welfare statute by focusing on the extent of legislative deliberation and democratic legitimacy supporting it rather than on its substantive rationality” (p. 263). Courts would “leverage the legislature’s own publicly stated commitment to welfare provision and then inquire whether or not apparent qualifications on that commitment comprise part of the social understanding of the commitment itself” (p. 264).
In his conclusion (pp. 266-267), Liu identifies two areas in which he believes that courts can now “legitimately foster evolution of welfare rights.” First, “the interstate discrimination in federal funding [of the education of low-income children] seems overdue for legislative reconsideration”—which (as I understand it) is Liu’s way of saying that courts should compel that legislative reconsideration by ruling, dialogically and provisionally, that the existing federal program that supplements state spending on low-income children is unconstitutional because its method of allocating federal funds has no evident purpose. Second, courts should strike down “California’s antiquated and inequitable system of school finance” on the ground that it has “outlived its policy justification and now contributes to systemic inequity.”