As shown by my Part 1 excerpts from Ninth Circuit nominee Goodwin Liu’s law-review article on “Rethinking Constitutional Welfare Rights,” Liu argues for what he calls an “interstitial” judicial role in recognizing constitutional “welfare rights” (broadly defined to include claimed affirmative rights to “education, shelter, subsistence, health care and the like, or to the money these things cost”). Liu calls for judges to engage in “socially situated modes of reasoning that appeal … to the culturally and historically contingent meanings of particular social goods in our own society” and 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.”
I promised a critique of Liu’s argument, but I confess that I’m tempted merely to say to anyone who has read the excerpts I’ve presented (or the broader article): To those who have a sober understanding of the judicial role under the American Constitution, no further explanation is necessary. To those who think Liu’s conception seems sober, no further explanation is possible.
But let me try anyway. Let’s consider some basic defects in Liu’s two-pronged response to the objection that the judicial role that he advocates invites judges, in the guise of interpreting the Constitution, to impose their own values on society:
1. The judicial role that Liu proposes—“determin[ing] … 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”—“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.” In remarkable understatement, Liu acknowledges that judicial exercise of that vast discretion is a “difficult task.”
Liu’s only defense of conferring that vast discretion on judges is that that same task “pervades the interpretive work of courts on a wide range of constitutional questions”—namely (as he discusses on pp. 236-237), the Eighth Amendment’s prohibition of cruel and unusual punishments, the Fourth Amendment’s prohibition of unreasonable searches and seizures, and some questions under the constitutional guarantees of freedom of speech, equal protection, and due process. But the asserted judicial role in most or all of his examples is controversial and disputed—and fairly invites the charge that judges are just imposing their own values on society in deciding those questions. So it’s difficult to see Liu’s response as anything other than a verbal shell game.
2. In response to the anticipated objection that courts aren’t better situated than legislatures to express society’s values, Liu retreats to the position that the form of judicial review that he is proposing is “dialogic and provisional” and would “focus on the extent of legislative deliberation and democratic legitimacy supporting” the legislative judgment. In other words (as I understand it), rather than telling a legislature, “You can’t do X,” Liu’s judges would tell the legislature, “You haven’t adequately considered and explained why you have done X, and unless and until you do, you can’t do X.”
I agree that, in theory at least, Liu’s proposed form of judicial review is less absolutist and interventionist than the harder form (precisely because it leaves open the possibility that the legislature can ultimately do X). But Liu’s approach would have the courts treat Congress and the state legislatures as quasi-administrative bodies, with their reasoning and deliberation subjected to probing (but ill-defined) judicial review. Liu makes no effort to justify this radical departure from traditional separation-of-powers principles. Nor, in practice, is there any reason to believe that courts would be spare in exercising this softer form of judicial review. Indeed, the conceit that the judicial review is softer would invite its overuse. At the same time, it would take little ingenuity for judges to turn it into the practical equivalent of the harder form.
3. More broadly, Liu does not acknowledge, much less confront, the argument that irrespective of whatever one imagines to be the relative capacities of the judiciary and the legislative bodies to express society’s values, our system of representative government assigns that function, within the bounds of the Constitution, to the legislative bodies. It would seem that Liu doesn’t acknowledge that argument because he believes that the bounds of the Constitution are ultimately indeterminate, subject to “socially situated modes of reasoning that appeal … to … culturally and historically contingent meanings.” That’s not someone to be trusted with judicial power.