Wednesday, March 23, 2016

Zacharias on Brandeis and Judicial Review

Lawrence S. Zacharias, University of Massachusetts Amherst, has posted Reframing the Constitution: Brandeis, “Facts,” and the Nation's Deliberative Process, which appeared in the Journal Jurisprudence 20 (2013) 327-72:    
During his first years on the Court, Louis Brandeis self-consciously used his opinions to reframe the Constitution and thereby refocus his colleagues' perspective on judicial review. This article elaborates on his tactical use of opening sentences to frame the Constitution's deliberative processes in their factual settings.

The reputation of Justice Louis Brandeis rests in significant part on revitalizing American legal positivism through his factual inquiry. Ironically, "Brandeis's facts," in particular their persuasive power, are still widely misunderstood. The commonplace is that Brandeis won judicial restraint simply by mustering an imposing array of facts to support rules, in particular social legislation, threatened by the Court's disapproval. Yet, as I argue here, Brandeis was more concerned with moving the Court away from a role in which it sought to replicate or second-guess the factual inquiries underlying legislative deliberations. To do so he had to divert his fellow justices' attention from "legislative facts" by using another set of facts that refocused their attention on constitutional processes. For the Constitution's structure implies requirements for the integrity and complementarity of the various deliberative processes - federal as well as state, local and administrative as well as legislative. So as the nation moved through industrialization and the nationalization of commerce, Brandeis used facts characterizing the transition to help appraise the quality of deliberation underlying the nation's laws. As I will show, these facts often appeared in the opening sentences of his opinions for the Court.