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September 01, 2016

Lawyering: The Heart of Institutionalism

Michael D. Schag

What is institutionalism? Academics use the term to explain systemization in organizational behavior, bureaucracy, economics, and sociology, but when legal commentators bandy the idea of institutionalism about, it typically suggests something a bit different—a brand of thinking that favors the stability of and respect for the institutions in our society, particularly the courts.

Although typically applied to the reasoning of judges, the concept of institutionalism is not the exclusive province of jurists. Practitioners at the bar have an interest in institutionalism. How many times has an advocate faced an uphill battle fighting on behalf of a client against a judicial mindset opposed to the client’s point of view? Even where there is an impression of imbalance, it is rarely helpful for a lawyer to foster disrespect for the institution in rendering advice. This does not equip the client for dealing productively with such adversity.

In a system of laws, counseling-at-law is best accomplished by explaining the legal framework for probable court decisions rather than couching outcome forecasts in naked emotionality and exasperation. That is the easy way out. The more difficult task is carrying a client through a course of logic even when the predicted outcome is adverse. If a counselor fosters contempt for the court by departing from the field of reason, it will be nearly impossible to bring the client back to reason when it is needed, for having lost the mantle of discernment.

In the realm of judges, the idea of institutionalism provides an explanation for the essential methodology and underpinnings of decision making. Sometimes commentators use it in an attempt to make sense of rulings that seem counterintuitive when compared with known or perceived political ideology. The most recent example of this is found in a growing body of comment holding that Chief Justice John Roberts is an institutionalist. He has been labeled an institutionalist as a way of explaining his votes in controversial decisions like National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) (upholding the controversial individual mandate of the Affordable Care Act), and King v. Burwell, 135 S. Ct. 2480 (2015) (holding the Affordable Care Act’s premium tax credit provisions applicable to purchases on both state and federally facilitated exchanges).

Although without using the term explicitly, Chief Justice Roberts, the nation’s 17th chief justice, seemed to reflect the popular notion of institutionalism when he told an Atlantic Monthly contributing editor that he embraced Chief Justice John Marshall’s vision for the Supreme Court. John Marshall was surely the original institutionalist, if there ever was one. When he took the bench as the nation’s fourth chief justice, the coequal power of the judicial branch was still in substantial question. Marshall’s tenure marked a rise in judicial power that has never fully subsided.

Indeed, Roberts has indicated that he places value on justices who are willing to put the good of the Court above their own ideological agendas. So, one is left to ask, where is the ideological integrity in that? Does a concern for institutional esteem trump interpretational methodology? Does this make consensus the heart of institutionalism? Yet, even while espousing some degree of malleability, Roberts nevertheless attributes the success of his predecessor, Chief Justice William Rehnquist, to knowing who he was and holding “no inclination to change his views simply to court popularity.”

Perhaps this is not a contradiction. If one’s methodology is customarily rigorous, one can possibly find harbor for justifying purposeful deviation in Ralph Waldo Emerson, who wrote, “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” One commentator, Sandy Levinson, implied such Emersonian thinking is tantamount to being “cavalier about consistency.” But is it? Judges, after all, are supposed to apply judgment. The zen of Emerson’s observation is that adherence to mere hermeneutics, no matter how faithfully applied, will occasionally fail to yield a just result. If it were so, judging could be reduced to an algorithm.

Individual situations occasionally present challenges to our methodology, and so in them we find that judicial independence and restraint are in opposition. In the muddy waters of discretion, balancing, and equity, there is a place for consideration of probable consequences. In this, there is standing for the institution. The institution ultimately affects both individual and societal justice. Well it is for both individuals and society to accept the outcome as justice. This, as Roberts might say, is “the difference between being a judge and being a law professor.”

Michael D. Schag

The author is an Air Force trial judge and litigation partner with Heyl Royster, Chicago and Edwardsville, Illinois. The opinions expressed are his own and not those of the U.S. Air Force or Heyl Royster.