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What CLS Got Wrong

By Jack M. Balkin

Like Sandy, I too agree with just about all of Mark's post, except for the essential point he neglected to mention. The pertinent passage is his closing:

I myself don't find these arguments particularly strong, but that -- on the CLS view -- doesn't mean anything about what constitutional law on this matter "really" is. If, as Holmes said and as CLS reiterated, what the law "is" is what the courts will do in fact, the thing to do is to figure out which side of the argument can count to five first.

Or, put another way, remember Bush v. Gore?

By almost all accounts, Bush v. Gore was an embarrassing failure of legal analysis, a historic stain on the court to the enduing shame of the five who signed on. This consensus view confirms that much more is involved than getting to five. Although Mark cites Holmes, the favorite authority for skeptical assertions, Holmes also wrote, "It has given me great pleasure to sustain the constitutionality of laws that I believe to be as bad as possible because I helped thereby to mark the difference between what I would forbid and what the Constitution prohibits."

CLS was correct that the law is whatever the court decides, but this does not mean that whatever it decides is legitimate or proper. The crucial mistake of CLS was its failure to emphasize that, while legal analysis is frequently capacious enough to support any outcome (especially at the level of Supreme Court cases), nonetheless, usually certain arguments are legally stronger than others. Mark's own comment (on the weakness of the arguments against validity) confirms this. That is why Jack is right to focus on the soundness of legal analysis.

It is not just about marshaling five votes, at least not for judges with integrity, but about coming up with and adhering to the most compelling legal argument. The more often we emphasize this the harder it will be for judges to engage in cynical analysis.

Full post as published by Balkinization on January 04, 2010 (boomark / email).