Wednesday, June 29, 2011
I'm grateful to Tom as well as Michael for highlighting my work. It isn't often that a junior person is blessed with as acute, thoughtful, and learned an audience as what I had at the ALRR.
Tom raises what I take to be one of the most powerful criticisms of my book project. I want to step back for a moment in order to address Tom's question properly. I adopt a specific variety of value pluralism for religious liberty questions. That approach is skeptical about accounts of religious liberty which rely on one or even several discrete values to work out religion clause conflicts. Some of these single value accounts acknowledge the costs of their view; others do not. But even those accounts which admit the possibility of loss or cost when some values are chosen over others (Tom's letter b) nevertheless believe that it is possible and profitable to justify in a systematic way ex ante which values ought to win in any given conflict. And they use that specification to construct comparatively hard rules that lead to certain outcomes -- certain in both senses of the word: (1) specific outcomes that elevate the selected value to overriding status; and (2) predictable outcomes, because people come to know that, say, the Establishment Clause is guided by a norm of state neutrality which will control in all cases.
The question that Tom asks is, how do the clearly important and worthwhile aims of predictability of outcome and legal stability figure into an account which does not start from the position that values can be systematized or rank ordered? I agree with Tom that these rule of law values are deeply important, and I think it would count very much against any approach that it sacrificed stability and predictability. Another way to ask this might be to wonder whether it is possible to disaggregate (1) and (2) above -- is it really true that the only way to achieve stability and predicability in the law is by elevating a single value (or small set of values) to master status? Or can we achieve many of the advantages of (2) without (1)?
I think that we can, by adopting a comparatively strong and binding approach to precedent. We can give rule of law values their due and adopt the position that value pluralism is the order of the day when it comes to religious liberty conflicts, by keeping a close eye on precedent and hewing to a minimalist and gradualist view of legal change. That common law sensibility will get us many of the advantages of predictability and stability without making the mistake of believing that we can conclusively systematize the values often in play. In fact, over time, a judicial culture which adopts a tragic view as well as a strong reading of precedent will, I believe, create a predictable and stable system. But its stability and predictability will derive not from theoretical system, but from a close examination of the particular facts for similarity or difference with past decisions.
Admittedly, and as was pointed out to me gently at the ALRR, my approach might seem inelegant from a theoretical perspective. Indeed, to the extent that my view is persuasive, it persuades exactly because it is theoretically unsystematic and (for some) dissatisfying. I will quote from one of Tom's excellent pieces on a related subject: "[T]here is a fairly widespread view . . . that if judges cannot find a coherent single principle – or at least a rather small and manageable set of principles – on a subject, they should exit entirely and let the politically accountable branches decide such questions prudentially." Berg, Religion Clause Anti-Theory. I guess I don't agree with that widely shared view, and I suppose if I were forced to choose between simple and predictable single-value rules that mutilate the conflicts of religious liberty for the sake of cohesion and an inelegant approach that permits judges to aspire to analyze the conflicts as they actually are, I would go for the latter. But the reality is that this is a false choice because my approach depends to a great extent on the constraining quality of precedent to shape judgment -- not by giving judges a quick and easy rule to apply, but by focusing their attention on fact specific inquiries within which multiple values (though certainly not an infinite number of them) compete for dominance. We can have (2) without (1) -- and courts often decide cases believing just this (and...if I had to predict the way Hosanna-Tabor will be written, it will reflect something like my approach!).
Thanks again, Tom, for the terrific and difficult question, which I've only sketched an answer to here.