Articles

HLS Library Book Talk | Cass Sunstein’s ‘Constitutional Personae’

September 13, 2019


JUNE CASEY: Good
afternoon, everyone. My name is June Casey. On behalf of the Harvard
Law School Library, I’d like to welcome you to
today’s faculty book talk. Today we’re celebrating
Constitutional Personae: Heroes, Soldiers
Minimalists and Mutes by Professor Cass Sunstein,
recently published by the Oxford University Press. And I would also like to
thank the Dean’s Office for sponsoring today’s lunch. And I encourage you all to
enjoy the refreshments while we listen to today’s talk. Just as a quick note, today’s
talk will be recorded as video. So please note, if
you ask any questions at the end of the talk, you’ll
be part of today’s recording. Recordings of the HLS
faculty book talks appear on the law
school’s YouTube site approximately a week
after the book talk. Today, we’d like to
introduce Professor Sunstein. He is the Robert Walmsley
University Professor at Harvard Law School. He is joined by three Harvard
Law School panelists– Dean Martha Minow, the
Morgan and Helen Chu Dean and Professor of Law,
Professor Mark Tushnet, the William Nelson
Cromwell Professor of Law, and Professor Adrian Vermeule,
the John H. Watson Jr. Professor of Law. I’d also like to note
the Harvard Law School Coop has joined us today
with copies of Constitutional Personae for you to purchase
and for the author’s signature at the end of today’s talk. Thanks again, and now I will
turn the microphone over to our wonderful panel. CASS SUNSTEIN: OK. Great. So thank you for coming. This is an unusual
book, and I’ll give you a sense of the origin of it. If you observe people who
are learned in the law, or people who are close
observers of the Supreme Court, or people who are just
occasionally interested in what the Supreme Court is
doing, you might think that there are dispositions– kind of psychological
or social dispositions– toward favoring different
kinds of actors. So the idea is, if you
introspect a little bit, you might find that one or
another kind of Supreme Court justice deeply appeals to you. So you might think
that there’s something about Justice Scalia
that is extremely admirable and
magnetic, or you might think that there’s something
about Justice O’Connor that is far preferable or not. And the claim is
that, if we look at American history and the
debates over the judicial role, this is actually larger
than constitutional law. I think it says something
about the human psyche. We can find that
one or another type is attractive to diverse people. And my suggestion,
which is really a unsupported
empirical claim but I want to make it
plausible, is that many of our constitutional
debates are kind of unremittingly epiphenomenal. That is they are derivative
of attachments to one of four identifiable types. So there are standard
debates about the role of the text, the importance of
the rule of law, the attraction or not of originalism,
the role of democracy, that animate
constitutional theory. These are with us today with
our new Supreme Court nominee. My suggestion is that
behind them or predating them there are four
iconic kinds that are dominating perspectives. So that’s Earl
Warren, a hero, and I mean the term hero
to be actually and improbably neutral. There can be heroes
who are admirable and heroes in my sense
who are abhorrent. Heroic decisions are
large and big and bold. They involve, just
as I’m defining them, invalidation of acts of
Congress and state governments. So protection of freedom of
speech in the Brandenburg and New York Times against
Sullivan cases, those are iconic heroic decisions. Brown against Board of
Education is probably the defining heroic decision. The recent same-sex marriage
case is heroic, so too the sex equality decisions. At least, heroism emerged. So you can think of a hero
as at the opposite pole from a soldier who follows
Oliver Wendell Holmes’s suggestion– if the people want
to go to hell, I’ll help them. It’s my job. A soldier is opposed to
the hero on the ground that the appropriate
role for the judiciary outside of maybe
very extreme cases is to be respectful of
democratic processes. And there’s some theories
why that might be the case, but I’m suggesting that the
appeal of the soldierly persona for many people
at least predates the theories which have a
kind of ex post justificatory character. The New Deal court after
1936 was very soldierly, upholding minimum wage and
maximum hour legislation. Chief Justice
Roberts occasionally plays the soldier, as in the
Affordable Care Act case. In the context of guns,
it’s Justice Stevens who’s a prominent soldier. And in so far as the court
upheld anti-discrimination laws against various challenges
from the standpoint of congressional power,
it was being soldierly. I think it should be clear
just right now that there’s no inconsistency in being
a soldier on a Thursday and a hero on a Friday. Justice Brennan was that. So too Justice Scalia, where
the theory of interpretation– two different ones–
produced a lot of heroism for both of those two figures
and also a lot of soldiering. OK. Minimalists– and I think
Judge Garland is mostly this– favor narrow decisions
and shallow decisions. So they favor narrow
decisions that are tethered to the particulars
of the controversy at hand. You could imagine an affirmative
action decision which avoids soldiering, but it
doesn’t say universities can do whatever they want. That’s the soldier’s
preference, avoids heroism in the form of a large principle
of, let’s say, colorblindness but says that the validity
of affirmative action turns on the particular context. And that would
emerge in a decision which is tailored to this
affirmative action program. Shallowness means
respectful of a wide range of theoretical commitments
and abstracting from, let’s say, large
accounts of what the free speech principle,
or the equality principle, or the commander in chief
authority are about. Trying to produce a decision
that can attract respect from people who disagree on
the foundational questions or have no idea what they think
about foundational questions. Justice O’Connor, following
Justice Frankfurter, I think is the great minimalist
in American constitutional history, who went toward
narrowness and shallowness in many of the hardest cases. So in a sex discrimination
case, the goal would be to be
very case-specific and not pronounce broadly about
the sex equality principle. In a free speech
case, it would be not to do what was done in New
York Times against Sullivan and to announce broad
principles about libel law and free speech. But instead to say, what did
the New York Times say exactly here and is it possible to
rule on the First Amendment issue in that context and
not to say much about others? OK. The mute we’re not going to
see a lot in constitutional law for obvious reasons. And by muteness, I don’t mean
a justice who doesn’t ask questions in oral arguments. I mean instead a
pattern of trying to say not something
narrow and shallow, but nothing at
all in the context of an intense
constitutional controversy. For a long time,
many people– and I confess I was one
of them– thought that muteness was the right
approach to same-sex marriage. Alexander Bickel’s embrace
of the passive virtues is maybe the defining
plea for muteness, where the court doesn’t legitimate. It doesn’t strike down. It just says nothing. I think there’s a
good argument that on some of the
frontier’s questions involving privacy, the 4th
Amendment, and technology post-Snowden, that there’s
a good Frankfurterian argument for muteness. Where the Frankfurterian
argument could take– as in, I think,
Frankfurter’s own mind– a respect for the limited social
capital of the Supreme Court and its need to
husband that resource. But could, maybe more
plausibly in my view, have a different
foundation which is about judicial humility
in the face of empirical and some moral questions to
which judges don’t really have reliable answers. And that’s a reason
to say nothing at all. The usual debates about
issues like sex equality, freedom of speech, abortion,
have a stylized form. One thing I’m hoping is that the
stylized arguments that you’re about to see in very crude
forms will, after the next three or four minutes, just be so
familiar that they will replay themselves in your legal
careers time and again and you’ll just be
able to spot them. So the heroic view, whether it’s
from Justice Scalia or Justice Marshall, is that the
soldier is cowardly and too timid and unwilling to take
constitutional principles seriously. And the failure to provide
protection, let’s say, for criminal defendants
is a reflection of what is a faux humility. That is, soldiers
are actually timid, and that’s something that
Justice Scalia particularly abhorred. Soldiers say to heroes that
they have the vice of arrogance, that their own account
of constitutional meaning is actually sectarian
whether it is dressed up in historical or moral
clothing, and that the need to respect democratic
pluralism is an overriding imperative
for a judiciary in the diverse society. We could see that certainly
in the 1920s, the attack on the Lochner court. We could see it in the 60s, with
the attack on the Warren court. And it’s very much with us now,
though it has both, let’s say, right-wing and left-wing faces. With the left saying
campaign finance is one area for soldiering,
affirmative action, commercial advertising,
and conservatives saying the same thing
about same-sex marriage and various
anti-discrimination efforts. Minimalists urge that
both soldiers and heroes show arrogance of
a kind in the sense that they are in the
grip of a theory. Now, minimalists have
to concede, I think, that they too have
a theory of a kind, or at least a
component of a theory. Minimalism is an
incomplete theory. But they have to be prepared
to defend that theory as against what they see as
the global aspirations of soldiering and heroism. If there’s any kind of
large theoretical claim that I feel deeply in my bones,
you’re looking at it right now. And the theoretical
claim is that not withstanding widely-held
views within both the popular and legal
cultures, there’s nothing that interpretation just is. So we can see from
many on the left who are drawn to certain
understandings of the Constitution that there
is an account of what it means to interpret the Constitution
that just falls out of the appropriate
theory of interpretation once we understand what the
practice of interpretation is. Now, one view of that
is Dworkin’s view that interpretation just
is a matter of making a thing the best it can be. That’s his view of
law’s integrity. That is an account
of interpretation that says that what we do when
we interpret the free speech principle, for example,
is to be faithful to the existing legal
materials but also to make it the best it can be. But that’s not the only
view of interpretation. The original public meaning view
associated with Justice Scalia is also a view of
an interpretation. The view that you should
interpret a document consistently with
the current meaning is a view of interpretation. We need an account of
interpretation which doesn’t just rely on
conventional understandings of the term, but which is,
as Adrian Vermeule more than anyone else has explored,
is institutionally sensitive and– as
Dworkin, I think, has rightly shown as well– is normatively invested. Which is to say that
we need to create an account of
interpretation which depends on our own
view of something like decision costs
and error costs. With those views in mind,
we are prepared at least to sketch the ingredients
of an argument or at least a specification of
the occasions for minimalism. The argument would be
that the right attitude toward constitutional law
is like Burke’s attitude toward political change. And I’m just relying on
a very simple version of Burke’s views as standardly
attributed to his Reflections on the Revolution
in France, where he is critical of the
notion of a priori reasoning and much more sympathetic to the
idea of incremental development that sees traditions
as a kind of heritage. Now, that wouldn’t
be the right attitude for all times and seasons. You could imagine
a legal universe, let’s say, South Africa maybe
in the immediate aftermath of the fall of apartheid,
where something more like heroism or
soldiering might have an appeal depending on your assumptions. But for a mature
legal culture at least on certain assumptions,
the risk of arrogant,
insufficiently-informed decisions in the context at
least of frontier’s issues, where the judges are
having early encounters with complicated problems,
there the best way to minimize the cost of
decisions and cost of errors is to be kind of like O’Connor. And the suggestion is that in
a stock of cases that typically are the fare of the Supreme
Court, that is frontier’s issues on which reasonable
people disagree, there’s a good argument for
narrowness and shallowness. What is less important than
the plea for minimalism is the effort to isolate the
considerations to which you’d advert in deciding whether
to accept that argument. One would be there’s nothing
unique that falls out of the notion of
interpretation, and the other is there has to be judgements
both about likely normative outcomes and about
institutional capacities. We wouldn’t want to be
maximalist about minimalism. That would be
inconsistent with theory. We’d want to be minimalist
about minimalism, acknowledging that
there are contexts where width and depth are earned. The only suggestion is
that’s not what it’s usually like on the Supreme Court. If you look out the
rule of law, freedom of speech, self-government,
and the right to vote and due process as they’re
lived in the United States, I think there are two
very remarkable facts. One is the extraordinary recency
of all four of those things. If you looked at the rule
of law, freedom of speech, self-government, the right
to vote, and due process as they were understood in,
let’s say, 1950, far more than the halfway point to date
of the American experiment, you would see
understandings of those four that would seem so
absurdly truncated that no self-respecting
democracy could have them. And the development
of those four into their modern
incarnations is a product of some interaction
between cultural movements and minimalist decisions
from the Supreme Court. So I’ve suggested very
briefly that the right account of a persona depends on the
proper theory of democracy and rights and
institutional competence, but I want to urge that for many
observers and practitioners, one or another does have a
kind of magnetic attraction. And introspection
reveals that fact. The magnetic attraction
is a causal claim I’m making about why people
endorse one or another persona, but in the end, in
law as in drama, the right persona depends
not on magnets but instead on the plot of the play. Thanks. ADRIAN VERMEULE: Thank
you so much, Cass. I found this idea fascinating
and intriguing ever since Cass started working on it. I think it’s a wonderful notion. I’m just not sure what
sort of a notion it is. So I’m left uncertain
about the personae, and I have a set of
puzzles about them that I want to start with. And then I have what I think
is a constructive idea that at least helps me
understand what we’re getting at when we talk
about constitutional personae. So here are three
puzzles about it. I’m not sure
whether the personae are causal in their own
right or just epiphenomena. That is, sometimes Cass,
especially in the book, less so in the talk, speaks
as though the personae just fall out directly from a
theory of interpretation and they’re epiphenomenal
in that way. Sometimes the idea seems to
be that the personae antedate the theory and indeed may cause
the judge to adopt the theory. That is, the
fundamental prime mover is attraction to a
persona, and then the judge adopts a theory
that allows the judge to express that persona. And I don’t know
whether these are different mechanisms
that operate in different
circumstances or why. So that’s one puzzle. A second puzzle is I can’t
tell whether the personae are or are not sort of consciously
and willfully adopted. This is related to the first. Sometimes they seem to just
sort of follow naturally. Sometimes they seem
like a strategic choice. At one point Cass
discusses the possibility that the personae are
rhetorical devices. I think that’s an
important thought, and I’m going to return
to that when I give my constructive suggestion. A final puzzle is– I can’t tell
whether the personae are or are not
defined independent of actual behavioral outcomes. So some of the
personae seem to be defined in terms of what judges
actually do as opposed to what they express in their opinions. So the hero seems to be defined
in terms of invalidating statutes, the soldier in
terms of upholding them, but some of the
other personae aren’t defined behaviorally that way. The second-order soldier
may or may not invalidate. The minimalist moves on a
different axis all together. One can be minimalist in
invalidating or minimalist in upholding and so on. Then there’s the
ever enigmatic mute. And originalism is said
to be consistent with any of the personae. So in this third puzzle,
I tend to think that there are different categories. Not only different categories,
but different sorts of categories
underlying the personae. And they’re defined somewhat
orthogonally to each other, sometimes behaviorally,
sometimes expressively, and on different axes. OK. Let me offer two ways
forward, so two ways I think of getting at
this very rich idea that Cass has given us. So one way– a kind
of obvious way– would be to see
constitutional personae as a kind of basket of ideas. It’s a cluster
concept containing a bunch of different phenomena
that are related by a family resemblance, but
there is no kind of deep theoretical coherence. That strikes me as plausible,
but maybe it gives up too soon, and I want to see if we can
go one level deeper and see if we can say something about
a coherent theory of personae. So I’m going to
spice things up a bit by talking about
Roman funerary masks. Yes, you heard that right,
Roman funerary masks. Bear with me for a moment
and I hope the relevance will become obvious. So the word persona has
two meanings in Latin. It can mean a mask or a
character played by an actor. And a moment’s thought
tells us the connection. In the classical world,
actors wore masks. But this wasn’t the type
of mask wearing that tries to manipulate or fool people. Everybody in the
relevant audiences knew that the mask
wasn’t the face. Rather the point of the mask
was a kind of representation. It was to bring to life
a certain character. Now, here’s a
slightly creepy twist. So if you’re an elite
Roman pater familias, you would have in
your house death masks of your famous ancestors,
the ones who had been consuls or praetors or something. And at your own
funeral, your family would hire actors to wear the
death masks of your ancestors, to walk around, go on a stage,
speak as though they were your ancestors, to boast
about their accomplishments, and to praise you as a
worthy successor to them. So talk about
family resemblances. I want to suggest that the
constitutional personae are like that. They are like Roman
funerary masks. So there are masks
that everyone knows to be masks that are adopted
for ceremonial, ritual, and legitimating
purposes or functions. So it’s not quite
right to call them rhetorical or literary
devices, because that might suggest
devices that affect the audience behind
the audience’s back without the
audience understanding that they’re being affected. I don’t think it’s like that. I think the personae in
the Roman funeral mask are understood by all to
operate in a certain way. And the way they
operate is they bring to life a praiseworthy ancestor
or a praiseworthy value. They bring to life our ancestral
commitments, if you like, and they legitimate what the
judge is doing by reference to those ancestral commitments. So the commitment differs
according to the persona. So it may be the rule
of law– the soldier mask is like the rule of law. The constitutional
principles of justice– that’s the hero. I have no idea what
the mute is not saying, but you get the picture. The point of the mask is to
ritually legitimate the judge by reference to a value that’s
widely seen as praiseworthy. I think an advantage
of this conception is it resolves the
puzzles I’ve laid out. So the personae are
deliberately adopted, but they’re not
strategically adopted. They are ritually adopted. They’re not either
causal or epiphenomenal. They’re constitutive. They’re constitutive of a
certain ceremony that’s carried out for certain purposes. And I think it explains why it
is perfectly OK for the judge to don one mask on one occasion
and a different one on another. So I’d encourage us to think
about the personae in ritual and indeed sacramental terms
as a mode of legitimation for judicial decisions. I throw that out as
just a way of getting at the many fascinating
puzzles raised by Cass’s fascinating concept. MARTHA MINOW: That
was fascinating. Well, ever since
Professor Sunstein started on this project, I have
been fascinated by it as well. And I also have wondered–
what kind of thing is this? And my suggestion is that
it’s a form of virtue ethics. So virtue ethics, in contrast
to utilitarian or deontological ethics, identifies
praiseworthy– just as in Professor Vermuele’s
formulation– praiseworthy conduct, ways of being
in the world instead of abstract theories,
and actually also often looks at the kinds
of people and kinds of acts. Aristotle, of course, focused
on character traits that could be nurtured and
taught and is the touchstone for modern virtue ethics. There are many different
versions of modern virtue ethics, but I think none
that actually take the path that Cass has identified. And I offer that
to you as a place to locate this project, Cass. That is a kind of
virtue ethics that holds up models
of ways of being, whether it’s naming individuals
or types of character. And I think that there
are lots of reasons why this is a
desirable way to think about how to govern conduct. So much of the abstract
theoretical approaches– deontological, utilitarian– don’t come to grips
with the practices, or they are manipulable. Which is another way of
saying the same thing– that their level of
abstraction doesn’t actually come down to brass tacks. Another is they don’t have
the psychological grip, the aspirations of living
a life worth living, being a kind of person may have. A third is, let’s
be frank, we’re all so good at criticizing. Lily Tomlin says
God created language to meet the deep human
desire to complain. There’s a lot to that, and
we’re really, really good at it. It’s harder to actually
turn the positive. And I think that virtue
ethics is a way to do that, and like the case method,
concrete details really help. And this approach,
this persona approach, seems to me very promising. In that mode, I was
struck re-reading the book just this week by a
connection with a biography and letters of
George Washington. George Washington
is someone who also thought a lot about
personal traits and thought about how to
aspire, what kind of person he wanted to be. One of the biographers says
that what made him great was not just that he was
very tall, which he was, but he had this project of
trying to conform himself to an ideal type of
character, and so he engaged in a kind of moral
striving throughout his life. And how different that is from
contemporary child rearing in many households
in the United States, where we actually see opinion
polls of parents– what is it that you want your child to be? Happy is number one. Successful is number two. Some idea of the virtue
of what kind of person is not really part of the
response, the vocabulary. There’s an attenuation of a
kind of language about character that I think is problematic and
in particular doesn’t develop the notion of
governing yourself, which was the preoccupation
that Washington had. He says all over his letters,
I’m a flawed human being. How can I govern myself? How can I become better? And I think that’s a
very interesting way to think about the
job of a judge, because a judge is
governing but has to be governed at the same time. I think there are
drawbacks to virtue ethics that may actually be related,
unfortunately, to this project. One basic concern is
that it is self-centered, or that it doesn’t have a
kind of generalizability. And that’s related
to this intuition that I think Cass rightly
has that people may actually be drawn to different
roles and different persona at different times. And I think that Adrian’s
offered an interesting way to think about that. It’s like a repertoire
of rules that are appropriate for
different occasions. But we’re missing
that understanding of what is that
larger context that will avoid the strategic uses. And I think that that’s a
danger with virtue ethics, and that’s a question
that I would raise here. I also think that we might
learn something about that by thinking about the
context within which the roles are played. So I see some people
here were also yesterday at the presentation about
the Italian Constitutional Court, brand new book out that
actually for the first time translates into English some of
the opinions from that court. A member of the court was
here and several scholars. And one of the things
that came out very clearly was that that court understands
itself very specifically as relational. And its relationship
to the legislature and its relationship to other
branches of government is– I’ve never heard judges
talk quite that way– and the relationship
among the justices who all sit together as
a body in every case. That’s an example of context. And it might be a way
to think about what is outside the selection
by the individual judge about the persona. Comparison with other
actors, like lawyers– lawyers often think
about what kind of lawyer am I going to be. Am I going to be a heater
who heats up the action and says this is really urgent? Am I going to be a cooler
that says, yeah, yeah, there are problems, but
were you able to manage it? There might be some comparative
persona studies in your future. I would just close by saying
George Washington himself thought of his life in terms
of a theater in which we all play parts, and he had in his
own mind several role models. One was Roman. Cato was one of his role
models as a virtuous Roman not only for his
military strength but for his self-command. Cincinnatus, a farmer who left
the farm to go to the army but then went back to the farm. That was very, very significant
in Washington’s own view of his life. And then some more abstract
ones– the patriot, the father. I think it’s interesting
to compare when there’s a specific person who
is behind the persona, and this was true in
your presentation, too, as opposed to a type
or a general description. And it would be
interesting to think about the power and
limitations of each of those. And also to think more
systematically about why and when it makes
sense for people to move from one to another
as their aspiration. I do think that having
a range of roles is an important part of
focusing on the plot, which is the punchline of
your presentation, Cass. And it’s not that we only
play one role in the plot, particularly if you’re a judge. There are many, many
different plots, many, many different stories. My image– not so good
but I give it to you– is it’s not a GPS
but a gyroscope. MARK TUSHNET: I’m
happy to be here to engage in this conversation
about Cass’s book. Excuse me. I got a frog in my throat last
night I haven’t gotten rid of. My comments are more
like reflections provoked by reading the book
than they are direct comments on the arguments in the book. But as you’ll see, they
are convergent with some of the things that you
already heard this afternoon. I begin with the
thought or the idea that the reference to
personae may trigger a thought that these different
personae are stable characterological
dispositions. And Cass explicitly disclaims
that, I think properly so, in the course of the book. But he did say here that
the notion that these are characterological
dispositions is sort of a motivating
intuition for this project, and then towards the end
that these persona have a magnetic attraction. I thought about the idea of the
sort of dispositional nature of these things in light of a
couple of earlier works that came to mind. The first– and this is in some
ways an interesting connection to some of the observations
that Adrian made– is a book by John Noonan called
Persons and Masks of the Law. In which, then professor,
now Judge Noonan argued that in a
variety of ways judges– I’ll translate it into
the current context– judges adopt personae as a
way of avoiding or disclaiming personal responsibility for the
decisions that they’re making. And you can see how
this might play out in the context of these four
personae that Cass talks about. For me, the
interesting part of– or the thing that provoked
the reflection leading me to Judge Noonan’s work– is his notion that
personae are masks that shield the judge
from responsibility, personal responsibility. And as he would have wanted
it, that those masks should be taken off, and
the judges should act in ways that make
clear to themselves, I think, more than anyone
else that they are personally responsible for what
happens, including the denial of recovery
to injured people, the sentencing of people
to execution, and the like. Now, this denial of
responsibility idea then led me to think
about an earlier work, also in a tradition dealing
with, I would say now characterological dispositions,
Jerome Frank’s Law and the Modern Mind. In which, through engaging with
psychoanalytic theory to which he was quite
attracted and which I find quite attractive
as well, Frank ended up by describing
Oliver Wendell Holmes not as a hero, which is
what he was here, but rather as the
fully-mature jurist. So for Frank, Holmes
instantiated the Freudian where id was ego shall be. He was completely in
control of his actions. He was not driven by things
that he didn’t understand. Now, in this context,
what would a mature jurist be in the context
of Cass’s account? So I think it would be– and this is consistent again
with some of the things Cass said and the dean
and Adrian said as well– that the fully-mature
jurist flexibly adopts the persona
that is appropriate to the circumstances that
he or she is confronting. And my last observations
are about two components of that formulation. The first is about
appropriateness. So how do we understand
adopting the persona that is appropriate to
the circumstances? There are a couple
of ways of doing it. One is suggested by
Cass’s account of– I would say, put it here– the conditions under which
minimalism or other approaches are appropriate– call that the
condition-based approach. The other is to say that
you determine what’s appropriate by examining whether
the conditions for persona A, B, or C are satisfied. The other approach
would be to say that determining appropriateness
is a matter of judgment. And we don’t have
conditions that can tell us when
somebody is exercising good judgment or not. My own view is that
in the legal academy– I’m not familiar with
discussions in other contexts– the notion of good judgment
is severely undertheorized– I guess is a way to put it. And one of the
things about it is– and this again gets to
the personae point– we actually, we as
lawyers, actually know good judgment
when we see it. Or maybe even better
again in this context, we know people who have good
judgment when we see them. That’s the sort of
line, is this the kind of person you would go to for
advice about an important life decision? So it would be very
useful, I think, in addition to thinking about
conditions for appropriateness, to think about
exactly what we mean when we talk about somebody
having good judgment. Then my final observation
is about flexibly adopting the
appropriate persona, and it’s about the
flexibility point. In some level it returns
to judge Noonan’s concern about personal responsibility. Because one feature or
side effect or something like that of
flexibly adopting one and then another persona
is that it raises questions about your candor– the judge’s candor– in
adopting that persona under those circumstances. And one of the virtues that
we think is appropriate for judges– it may not
be an overriding virtue, but it’s a matter of concern– is that they be candid. And so it could be that Frank’s
fully-mature jurist understood in light of these ideas about
flexibly adopting persona under appropriate circumstances
might reproduce the problem that Judge Noonan
identified of judges acting in ways that allow them
to disclaim responsibility for their own actions. CASS SUNSTEIN: OK. Those are great comments, and
there’s really a lot there. I’m just going to get
at one point, which I think all three
are after and Adrian signaled right
off the bat, which is, what is this a tale of? What are the personae about? Are they motivations
for things, or are they artifacts of things? Do they predate what
constitutional law ends up looking like, or do they follow
from a theoretical position? Something like that, so
that’s what I’ll get at. It relates to the virtue
ethics point and the point about judgment also. So here’s the idea. There are a class of people– and every human psyche
has this in it– who loves the phrase if the
Constitution means anything, it can’t be that the
government can do that. John Hart Ely dedicated
his great book on the Warren Court
in the following way– you don’t need many heroes
if you choose wisely. That’s a tribute to the
heroic judicial role as instantiated by Warren. Ronald Dworkin described
the Supreme Court as the forum of principle
in American government. There are certain
types who at one stage in the remembered past thought
of Marshall and Brennan as kind of the bright
stars in the firmament, and I think actually their
psychological space is now maintained by Thomas and Scalia. Even though they are
ideologically very different, they are persona-like
exactly the same– the big bold stroke,
where for Thomas it’s the administrative
state has to fall, and for Brennan
and Marshall it’s that capital punishment goes. There’s something
about that that has a real pull for
a certain psychology. There are others
for whom Frankfurter and O’Connor look like
the kind of quiet, but they’re the stars. And there are people
who think, oh, my god, what could be worse than that? And what I want to urge
on the magnetic attraction is that often– and this is speculative,
but I believe true– the theories that develop
from the attraction are epiphenomenal. They’re after-the-fact
justifications. That’s not the whole
story, of course. But that Ely’s and
Dworkin’s accounts have something to do with
the psychological pull of the judicial
persona which they are respectively defending. And those who like
the soldier, there’s something very
similar happening. So that’s at least part
of a response to, I think, all three. Adrian’s right,
though, that at times I say that the right
persona falls out of a theory of interpretation. Now, as a normative
matter that is true. Not as a matter of the
sociology of judging, but as a normative
matter it’s true. So it can’t be
sufficient to say, I have an account of Warren
Court-ism whose origins actually lie in the appeal of
the heroic judicial persona, and then there’s
my account, period. The justification depends
on whether the account is convincing, and on my view
the various accounts that lead, let’s say, to
principal embrace– that’s too crude
but– of soldiering, or heroism, or
muteness certainly, those are not convincing. And there is an account of
the appropriate judicial role under constraints given decision
cost and error costs that acknowledging the
incompleteness of minimalism as a theory gives it
a kind of centrality. Now, you could be,
as Adrian says, a heroic minimalist, meaning
you will invalidate narrowly and shallowly. That’s a very different
type from my iconic hero. Warren was infrequently
a minimalist, and Thomas you see no
enthusiasm for minimalism. It is important, just as
Adrian does, that there are second-order soldiers. Originalists are
second-order soldiers. They invalidate a lot purporting
to invoke the original meaning of the Constitution. I think that’s more often
than is comfortable a fake, and it’s Dworkin or Ely’s stuff
with historical footnotes. But it’s really a
moralized conception that has heroism at its heart. I want to think more about
the virtue ethical point. I wonder whether heroism,
soldiering, minimalism, and muteness are too weakly
connected with virtues that are really fantastic. They’re a little too
abstract to be like courage– or maybe minimalism and
soldiering can claim humility. But I tend to think it’s more
like in romance and politics, where there’s a type
that different people are differently drawn
to, and you might be drawn to someone in romance
who gets you in big trouble. So you reconsider, and that’s
where the theory starts working in the legal analogue. AUDIENCE: Hi. My name is Guillermo Garcia,
and I’m an HAD student here at Harvard Law School. And I was wondering, when I was
listening to your conversation and to your presentation– I must confess I
haven’t read the book– but one of the
things that struck me is if you are taking into
consideration group dynamics. Someone like Professor Ronald
Heifetz at the Kennedy School would say that what you
are actually describing happens all the time
in group dynamics. Every time a particular group
faces a particular challenge and there is pressure
placed on the group, they’re going to look
for different roles. And people are going to
start assuming certain roles because the same group is
pushing them to do that. And the same person
in a different group might assume a different role,
depending on the task at hand. So it’s not that you come in to
the room with a particular bag that you are always going to be
representing, but it starts– depending on the case and
depending on the circumstances. You’re going to assume
a different role maybe because you are
the only Hispanic. And you’re discussing an
issue about Hispanic law, and the group is going to
turn around and look at you and think, go on, you’re
the Hispanic guy here. You have to say something
about it, right? And then you’re placed
in a situation where you have to defend
certain Hispanity or something about
Hispanics because you are the only Hispanic present. But maybe that particular person
in a group full of Hispanics might be considered less
Hispanic than the others because you study in a
particular school, et cetera. So I was wondering how
much you’ve considered that type of group dynamics? CASS SUNSTEIN: I’ve thought
a lot about group dynamics, and I have a relatively recent
book on exactly that topic. I don’t think of the
personae as principally a product of group dynamics. I think of them as
principally either a function of psychological attraction to
a certain type as a legal actor, or as a hard-won judgment
about how people should act as judges in different roles. So let’s get concrete. I don’t think Thomas’s
heroism, as we’re calling it, meaning invalidating
lots of stuff, is a product of people
think he’s– what? The Yale Law School
graduate who’s the youngest or something, or
that he’s African-American. It’s not about dynamics. It has something to do
with some combination of his affinities and his
theoretical commitments. And that’s certainly
true of Justice Scalia, and it’s true of O’Connor and
Breyer’s occasional soldiering also. So the group dynamics seem
to me extremely important. How important they are
in the Supreme Court is a quite interesting question. I think in so far as we’re
talking about these four personae, it’s not
about how they’re interacting with each other
and how they’re looking. AUDIENCE: I have
a question that I think is a little
less theoretical, and I have a question about,
I guess, the anti-canon. If you think about a Korematsu
or a Plessy, or a Dred Scott, and in a sense I suppose
it’s minimalist in as much as the government wanted to
intern Japanese Americans and so the court’s
role of minimalism is to let that stand
where appropriate. CASS SUNSTEIN: No. That’s soldiering. AUDIENCE: OK. So can you talk about
where of the types the anti-canon would fit? CASS SUNSTEIN: OK. So Plessy against
Ferguson is soldiering, and it’s not minimalist
soldiering either. It’s soldiering full stop. So Plessy against
Ferguson says, you want to engage in racial
segregation, so be it. Korematsu is a form of
ambivalence soldiering. Ambivalent in the sense that
Justice Black’s opinion, you can tell he was not
saying if the people want to go to hell, I’ll help them. It’s my job. But under the very
difficult circumstances, we’ll allow this to go. So what concept as an
anti-canon is actually a super interesting question. There’s not always
a consensus on this. Committed soldiers might think
that Plessy and Korematsu are fine. They’re maybe not the things
that bring the biggest smile to the soldier’s face, but
they are an honorable exercise of judicial deference in the
context of what soldiers, I think, would rightly say
is a legitimately ambiguous constitutional provision. So I think it’s probably good
to make a very sharp distinction between soldiers
and minimalists, where a soldier
thinks, uphold what the democratic process does. And while a soldier could be
upholding this particular thing and bracketing the question
about other things, which would be a kind of
minimalist soldiering. Soldiers as a breed
want to uphold stuff. Now, it’s interesting there’s
no one on the Supreme Court who’s a consistent soldier
right now as Holmes was. But we might be able to
make more progress than I did in the book by
thinking of domains where soldiering is particularly
attractive to certain types. Like, let’s say, the
conservative skeptics about the Warren
Court might take things that are candidates
for you for the anti-canon and say, no, that’s honorable
soldiering in the face of an ambiguous constitution. And liberals are certainly
soldiers with respect to the Affordable Care Act,
the Violence Against Women Act, a wide range of
things that Congress has tried to do
under the Commerce Clause and the 14th Amendment. And liberals embrace
soldiering with respect to campaign finance
and restriction of commercial advertising. Now, the question is, is calling
liberals soldiers there– is that a helpful thing to do? I think so. It’s their self-presentation
as democracy, democracy, democracy. Is that merely a rhetorical
bow of a stylized sort in the view of the
fact that liberals tend to be OK with striking
down bans on same-sex marriage? They don’t like the anti-canon. Or instead do they
have a theory of one or another kind which
produces soldiering sometimes, heroism others? Probably the latter. But the anti-canon–
it’s interesting. I think you are pointing
to terrific candidates for the anti-canon, and they
are soldiering decisions. The Lochner decision is
also part of the anti-canon, and that’s heroic. AUDIENCE: Hi there, and thank
you very much for the panel. I’m Paul Horowitz. I’m a visitor here
this semester. I wanted to raise another term
from ancient Roman history since it’s all the
rage today, which evolves and is still
important today, which is the idea of office. Philip Hamburger develops
it very well in his Law and Judicial Duty book. Your question or
your assumption seems to be that occasions for
all these different personae are all available or
at least inevitable in modern
constitutional judging. But I wonder whether, again
by way of forcing a theory, whether every persona
that you describe is necessarily fully consistent
with what we might consider to be the set of
character traits or of loyal behavior that
constitutes judicial office? Or whether either
some of these personae ought to be working
in other fields, or maybe whether some sense
of judicial office or theory of office could tell us
when particular personae are appropriate and
when they’re not? CASS SUNSTEIN: It’s
a great question. And I haven’t thought
about it, so I’ll give you a kind of
very tentative answer. Which is that the view that once
we kind of give a thick account of the judicial office– we will rule some in and some
out depending on context– has the same
infirmity as the view that once we get clear on
what interpretation is things are going to fall out. And I think it’s exactly
the same infirmity. That is, you could have an
account of interpretation which says that it’s
the judicial role to cast constitutional
provisions in the best moral light. Which would lead you
to be a hero in March and then a soldier in
April, because that’s what the right moral
theory would entail. But it would be completely open
for the sceptic about that view of interpretation to
say, no, interpretation is a matter of uncovering
the original meaning, which would lead to
reversing which way you go in the different months. And I think that
debate is tractable only once we decide that the
right theory of interpretation comes from not the
word interpretation but from a fully-normativized,
which is to say external, account of what
the right view is. And I think exactly the
same is true for office. JUNE CASEY: One more? OK. We’re almost out of
time, so I’m going to invite you all to join the
Coop at the back of the room and join the conversation and
buy a copy of Constitutional Personae. I have to admit that when
the announcement came out about Judge Garland,
I immediately reached for my desk copy to read it. And I welcome you
to do the same. So thank you very much
for joining us today, and let’s thank the panel. [APPLAUSE]

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