“The Census Decision: Institutional Realism, Institutional Formalism, and Judicial Review”

Yesterday at the Balkinization blog, I put up this perspective on the Court’s Census decision. Here is a bit of that analysis:

Today’s decision in the Census case is a powerful example of what I call an “institutionally realist” approach to judicial review of executive branch action.  The Court not only probed deeply beneath the surface of the formal administrative record, which it rarely does, to conclude that the administration’s justification for the citizenship question was “contrived” and pretextual. 

In various other ways, the Court concluded that the “unusual circumstances” of the case warranted the approach the Court was taking.  For example, the Court also concluded that, even though the district judge was wrong to permit discovery outside the record at the stage he did so, it turned out after the fact that there were good reasons for doing, and the Court was therefore willing to rely on the information generated in this way.  That the stakes are far higher regarding the Census than ordinary administrative law issues undoubtedly played a major role in why the Court was willing to approach the case as it did.  The “unusual circumstances” that justified a more aggressive application of administrative-law doctrines were thus a realistic recognition of the (1) magnitude of the issues and (2) the signs that there was nothing regular about the processes that led to the Commerce Department’s decision. 

I want to put this way of looking at the Census decision in a larger context concerning how courts review the actions of governmental institutions more generally.  Back before the Trump administration was a gleam in the eye of American politics, I wrote an article called Institutional Formalism and Realism in Constitutional and Public LawI mention when the piece was written to indicate that it was not written (or gerrymandered) for the Trump administration.  But I think it frames the central, underlying issue the courts confront in reviewing many of the actions of the Trump administration, including in today’s Census case.  

The central idea of Institutional Formalism and Realism is  that, when courts are called up to judge the actions of other governmental institutions or actors, they implicitly confront a choice about whether to adopt a more formalist or more realist stance towards the institution or actor involved.   When courts are institutionally formalist, they treat the government institution involved largely as a black box, to which the Constitution (or other sources of law) allocate specific powers or functions.  In this mode, courts do not open up that black box to attempt to make more realist assessments of what underlies the way those institutions exercise their powers at any particular moment in time, or how those institutions might function differently in different eras.  

This is reflected in doctrines like “the presumption of regularity,” which courts ordinarily apply in reviewing agency action – and which Justice Thomas relies heavily on in his critical dissent today.  Institutional realism entails the opposite stance:  in assessing the legality of government decision-making, courts do take into account their judgments about how specific institutions are actually functioning (or failing to function) at particular moments in time.   …

Today’s Census decision, and the conflict between Chief Justice Roberts and Justice Thomas’ dissent, nicely illustrates how strongly this tension between institutional formalism and realism underlies major Court decisions.  But the tension is pervasive and inescapable. 

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