Structural Review, Pseudo-Second-Look Decision Making, and the Risk of Diluting Constitutional Liberty

INTRODUCTION I am very grateful to Professor Tushnet for his probing response to my treatment of structural, review.(1) His comments are valuable under the principle of res ipsa loquitur, for Professor Tushnet long has been a leading observer of the Court's structural work.(2) I am especially grateful for Professor Tushnet's encouraging words about my project and its goals.(3) WE share, it seems, a strong conviction that academic lawyers, political scientists, and ultimately, the courts need to give more systematic attention to structural (or what he would call subconstitutional) review.(4) Professor Tushnet's own essay focuses on two key thoughts. First, he worries that the Justices might manipulate structural review to obtain desired substantive outcomes while avoiding "the sting of the charge that they are foreclosing legislative choice."(5) Second, he considers the impact of structural doctrines on the Court's more traditional substantive work, including by raising the possibility that their now-pervasive use may remove the need for substantive judicial review altogether.(6) Limitations of time and space foreclose a full reply to these provocative observations. In this Essay, however, I will pause to note some reasons why the "sham decision" critique of structural review is, for me, unpersuasive. I also will offer a few comments on the proper relationship between structural and substantive review. I note, in particular, that an endorsement of "activist" structural review need not lead to a "nonactivist" approach to substantive review, far less its total abandonment. I also suggest that a vigorous embrace of structural rules may well lead to more, rather than less, overall judicial protection of fundamental rights. I. STRUCTURAL REVIEW AS A SHAM Professor Tushnet poses the question whether the true purpose of structural review is to facilitate strategic behavior by judges bent on writing their own philosophies into law. On this view, as Professor Tushnet has written elsewhere, "[c]lever judges ... invoke structural review when they predict that the legislature will be unable to enact legislation that contravenes the judges' personal preferences."(7) They thus "`rig' a desired substantive outcome."(8) They pretend to be exercising judicial restraint by declaring that the legislature may reinstate an invalidated law, all the while knowing that, as a practical matter, it cannot.(9) Why do I doubt that judges often use structural review as a subterfuge for de facto substantive review? There can be no doubt that judicial motivation--like any form of human motivation--is complex. My own sense of things suggests, however, that judges usually state real reasons for real decisions when they set forth their reasons in written opinions.(10) It is difficult to prove this proposition. It seems to me, however, that it corresponds with what we expect of ordinary citizens when they make important formal and public pronouncements. Why should we expect anything less of judicial authorities who are distinctively steeped by training and experience in the importance of truth, precision, and principle?(11) Let us assume, however, that judges (or at least many of them) have no qualms about manipulating doctrine any way they can to etch their own substantive preferences into law. In my view, if one aims to achieve substantive outcomes by way of judicial action, there are strong practical and tactical reasons not to rely on structural rules. The key problem is that the technique "lacks reliability."(12) From a sham-decision-making perspective, for example, the Court apparently felt it had done enough to lay the death penalty to rest when it decided Furman v. Georgia.(13) The Court also apparently felt it had done enough to ensure that legal aliens could get federal civil service jobs when it decided Hampton v. Mow Sun Wong.(14) And the Court apparently felt it had done enough to safeguard states from damages actions under the Rehabilitation Act when it decided Atascadero State Hospital v. …