For much of his tenure as Chief Justice, John G. Roberts has been described as an “institutionalist.” It has been so common to see the word associated with the Chief as to almost be his epithet. (Homer gave us “the man of twists and turns, Odysseus” and the modern Court gave us “the institutionalist, John Roberts.”) But October Term 2023 has prompted a discussion of whether the label still fits. And beyond that, we may wonder if there are any others at One First Street (see, e.g., Justice Elena Kagan) to whom the descriptor applies.
But before we can engage in a meaningful conversation about whether any members of the current Court are institutionalists, we must address what we mean in using the term. We might share a general sense that the word denotes taking account of the interests of one’s court when deciding a case—but what interests, exactly? And should we be for institutionalism or against it? Or, to put a finer point on it, when should institutional considerations (however defined) eclipse one’s own independent judgment of how a case should be decided? Enter Rachel Bayefsky’s forthcoming article—Judicial Institutionalism—at just the right moment.
Judicial Institutionalism offers the most comprehensive treatment to date of this important and complex concept. The article begins by undertaking the difficult task of defining what institutionalism means within the judicial setting. Bayefsky’s definition centers on preserving the federal courts’ effective authority, which encompasses both sociological legitimacy (the public’s confidence in the courts) and efficient administration (the smooth working of the court system within its resources). After unpacking what institutionalism might mean, Bayefsky addresses whether we should favor judges who favor it—concluding that we should, for reasons ranging from the need to maintain the rule of law in a divided society to the need to ensure that cases are decided without delays that impede the workings of the judiciary.
At this point, one might think that Judicial Institutionalism has done enough—it has defined the concept and defended it. But Bayefsky is just getting started. She goes on to thoughtfully anticipate various concerns and critiques of her positions—chief among them that we should not want the power of the federal judiciary shored up or that even if we should, such shoring up should not be undertaken by the judiciary itself. Bayefsky responds to these concerns before going even further—and works through how institutionalism sits with legal theory and then various theories of legal interpretation. Specifically, the articles makes the claim that institutionalism is not simply a “good thing” from a moral perspective; it is also legally valuable and fits (to varying degrees) within different modes of constitutional and statutory interpretation. (Under Bayefsky’s construction, even ardent originalists and textualists can legitimately consider the courts’ effective authority when engaged in decision-making.) The article concludes by sketching out how institutional considerations should come into play—from deciding whether to grant a writ of certiorari to determining the scope of an equitable remedy—and how open judges should be about taking such considerations into account.
Stepping back, Judicial Institutionalism is quite ambitious and we are the ones who benefit by it. To mix topographical metaphors, it dives deep into a vitally important topic, yet also manages to cover a great deal of terrain. Building on prior scholarship (from Neil Siegel’s work on judicial statesmanship to Richard Fallon and Tara Grove’s work on conceptions of legitimacy), Bayefsky brings us to a new place. We end up with a thoughtful and carefully executed treatment of a concept that will help us better understand the judiciary. Now to be sure, not everyone will be convinced of every step along the way. But one of the many virtues of the article is that it is clearly mapped out, leaving the reader to decide how far she will follow the author and where she might part ways—thereby enabling a discussion worth having about institutionalism and the courts today.
We are plainly living through a moment in which some are questioning the legitimacy of our institutions—judicial and otherwise. Where this Court goes and how the public will receive it will depend, largely, on the actions of the Justices—including whether they depart from their personal views on particular legal questions to forge compromise and whether they move incrementally rather than in bounding steps. Again, it is critical for us to be able to speak particularly about whether and how the Justices should weigh these sorts of considerations—Bayefsky’s article equips us to do just that. One hopes that the members of the Court are engaged in the same conversation, given all the “twists and turns” to come.
