Pildes on Institutional Formalism and Realism

June 6

I recently read and enjoyed Rick Pildes’s article in the Supreme Court Review: Institutional Formalism and Realism in Constitutional and Public Law. From the beginning:

Constitutional law, and public law more generally, often entails regulating and reviewing the actions of institutions. Most prominently, in the realm of national affairs, public law oversees the actions of Congress, the President (a mix of an institution and a person), and administrative agencies. In the arena of state action, public law assesses the performance of institutions such as state courts and legislatures. To be sure, public law often involves judging more particularized actions of individual agents of the state—whether law enforcement officers, for example, have conducted a constitutional search or seizure in a specific factual setting. But much of the most important work of constitutional law—and certainly many of the highest-stakes and most visible cases—involves judicial review of the performance of the institutions of government.

When courts engage in reviewing the actions of other governmental institutions, such as Congress, they nominally apply, or purport to apply, what I call “institutional formalism.” This formalism consists of treating the governmental institution involved as more or less a formal black box to which the Constitution (or other source of law) allocates specific legal powers and functions. Legal doctrine, that is, assimilates the institution—“the Congress,” or “the President”—at a high level of abstraction and generality. By design, this institutional formalism blinds courts to any more contingent, specific features of institutional behavior, or to the particular persons who happen to occupy the relevant offices, or to the ways in which the institution actually functions in particular eras in which the institution is embedded within distinct political, historical, and cultural contexts. Instead, the role of judicial review is to assay the powers and properties of the institution at a general, essentialized level that intentionally ignores these fluid features—though these features are central, as we know, to the way the institution actually functions. That this institutional formalism exists is often taken for granted as part, some might say, of what the rule of law entails. How could it be otherwise?

And yet, an alternative does exist, in some form of institutional realism. This form of realism would entail constitutional and public-law doctrines that penetrate the institutional black box and adapt legal doctrine to take account of how these institutions actually function in, and over, time. There are many forms and degrees of institutional realism that legal doctrine could reflect. Such realism could be limited only to certain indicators of institutional change, such as those considered most “objective.” For example, the most narrowly legalistic form of institutional realism would take into account only those changes directly reflected in a public institution’s formal structure; should the passage of the Seventeenth Amendment, for example, influence federalism doctrines? But the functioning of institutions can change dramatically, of course, even absent any formal structural change. For example, should the way the Court responds to congressional, executive, and administrative action shift at all to reflect that the “Congress” of our era is constituted by hyperpolarized political parties more ideologically unified and more politically distant from each other than throughout the twentieth century? Does the Court’s expansive reading of the Clean Air Act, to permit the EPA to regulate greenhouse-gas emissions, already evince this realist view about the Congress of our era? Similarly, institutional realism could operate at higher and lower levels of generality: it could mean taking into account how this particular presidency or this particular agency is perceived to function. If legal doctrine is receptive at all to institutional realism, where should this form of realism begin and end?

Pildes uses Shelby County and the Voting Rights Act as one of his central examples, but he begins with some longstanding questions in the field of federal courts. And perhaps it is just because I recently finished teaching federal courts, but I think that the dilemma Pildes outlines actually has the most payoff in that field. Many important federal courts cases reflect the tradition of what Pildes calls “institutional formalism,” but some other very important cases also reflect Pildes’s “institutional realism.” Students are frequently frustrated by attempts to reconcile these two kinds of cases, and this framework may help to explain why the two types of cases seem to be talking past one another.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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