Richard Posner on the Rise and Fall of Judicial Deference

At the JOTWELL site, Emory law professor Charles Shanor reviews an important article by Judge Richard Posner on the rise and fall of “Thayerian” judicial deference to legislatures. Posner traces the history of James Bradley Thayer’s famous argument (first developed in the 1890s) that judges should only strike down a statute if its unconstitutionality is “so clear that it is not open to rational question.” In practice, this would mean that virtually any controversial law would be upheld, since it is almost always possible to raise a “rational question” about the matter, especially in a world where we have multiple, widely divergent theories of constitutional interpretation.

As Posner explains, Thayerian deference enjoyed considerable popularity among Progressive and New Deal jurists from the 1910s to the 1940s, but gradually waned thereafter, for a variety of reasons. Today, it has very little support among either liberal or conservative jurists and constitutional theorists, to say nothing of libertarians. I think Posner is also right to argue that Thayerian deference lost popularity at least in part because it is an intellectually weak theory.

One implication of the decline of Thayerianism is that it makes little sense for today’s overwhelmingly non-Thayerian jurists and legal scholars to hurl accusations of “judicial activism” at each other. In most such debates, neither side actually favors across-the-board deference to the legislature. When they denounce decisions they dislike as “activist,” they usually just mean that the decisions are unsound – not because they are striking down a law, but because they rely on incorrect reasoning. In such a situation, “judicial activism” is not an analytically useful concept. If “activist” means that the decision in question struck down a law, that tells us very little about its correctness. If “activist” is just a synonym for “wrong,” it is superfluous.

Instead of debating whether a given decision is “activist,” it would be better to focus on the issue of whether it is based on a correct theory of constitutional interpretation, and whether it applies that theory properly.

UPDATE: In the original version of this post, I accidentally got James Bradley Thayer’s first name wrong. I apologize for the mistake, which I have now corrected.