Institutional Formalism and Realism
I want to give a shout-out to an important new paper written by Rick Pildes, who I think is probably the most perceptive scholar out there with respect to the relationship between law and politics. Here is the paper and 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.