The majority in McCutcheon invokes the fact that other institutions — namely, Congress and/or the FEC — have the power to fill any regulatory gaps that might emerge from the Court’s striking down the aggregate contribution limits. Some critics of the decision excoriate the Court for invoking the power of Congress or the FEC to act, based on what I call the “institutionally realist” view that it is unlikely that either a polarized Congress or gridlocked FEC will do anything. Indeed, Rick Hasen accuses the Chief Justice of a tactical use of “faux” “political naivete” in invoking the powers of Congress or the FEC; according to Rick, here, the “Chief Justice understands exactly what is going on politically,” knows nothing will happen, and is therefore deceptively hiding the truth about McCutcheon’s effects. Put another way, we can ask: should McCutcheon — and cases like it — be decided differently based on the Court’s judgments of “political realism” about how the political branches and regulatory agencies are likely to respond?
McCutcheon is thus a perfect example of what I have recently come to realize is one of the most profound and pervasive issues in all of constitutional and public law, a problem that we have not yet fully recognized or appreciated. It’s the problem of what I call “institutional formalism versus institutional realism” in how the Court does or should review the actions of other institutions of government: in deciding cases, should the Court take into account its own view of how other institutions are “realistically” likely to act or should the Court’s decisions rely only on the formal legal powers other institutions have, without regard to how they are likely to exercise (or fail to exercise) those powers? In my view, this problem runs throughout public law and is inescapable. There is no clear or consistent answer to it, either in doctrine or the way commentators write about the Court. In reaction to any one case, like McCutcheon, one’s views about how “realist” or “formalist” the Court should be tend to be dominated by how one feels about the particular outcome. But only when we see how pervasive this issue is across different areas of constitutional law, does the depth and complexity of this “realist/formalist” tension become fully apparent.
I have recently written about this in Institutional Formalism And Realism in Constitutional and Public Law, forthcoming in The Supreme Court view, here. Here is the abstract:
Constitutional and public law often entail judicial review of the actions of public institutions. In engaging in this review, courts can adopt a stance of either “institutional formalism” or “institutional realism” regarding how the institution in question functions. After defining those terms, this article argues that the tension between institutionally formalist and realist approaches is a pervasive one, even if obscured or latent, throughout the constitutional and public law of institutions. We cannot understand these bodies of law fully without recognizing this fact. Many scholars in discrete areas of law can be understood as grappling with this tension in some form. But we have not appreciated how profound this institutional issue is, nor how it transcends specific areas of law to stand as one of public law’s general, defining problems.
This formalist/realist institutional tension structures public-law doctrine and debates regarding judicial oversight of virtually all the institutions of governance. As this article demonstrates, that is so for judicial review of the actions of Congress, the President, federal administrative agencies, state legislatures, and state courts. After developing this framework, the article applies it to the Supreme Court’s Shelby County decision, in which the Court struck down part of the Voting Rights Act, and shows that the case hinges on how formalist or realist the Court ought to be regarding Congress.
The general struggle in how the law should conceive public institutions can be seen as the modern successor to the early 20th century tension between formalist and realist approaches to the substantive content of legal concepts, categories, and doctrines. Now, the tension between institutional formalism and realism re-raises the question of how much pragmatism – this time, at the level of institutions and processes – is compatible with certain conceptions of the rule of law. Focusing more directly on this tension illuminates public law and its controversies but cannot suggest that any final resolution is available. Yet to understand public law fully requires appreciating the powerful role this tension quietly plays.