Duncan Hosie (Stanford Constitutional Law Center) has posted Supreme Court Lawmaking and Clear Error as Characterological Discipline (125 Michigan Law Review, forthcoming 2027) on SSRN. Here is the abstract:
This Article proposes a characterological interpretation of clear error deference as it operates in Supreme Court constitutional lawmaking. It adds a fifth justification to the four on which scholars and judges have rested Rule 52(a)(6)—epistemic competence, structural allocation, systemic efficiency, and public legitimacy—attuned to the domain of an apex court making prospective, binding constitutional rules. Drawing on George Herbert Mead’s concept of the generalized other and Erving Goffman’s rules of deference and demeanor, the Article argues that the Rule functions as a role-orienting idiom in an interrelated system: an institutional practice through which a justice signals regard to others, settles expectations of behavior, and pluralizes inputs to lawmaking. This interpretation is characterological because a justice’s internal commitment to her role within a system built on role relationships triggers the idiom and mediates its content; positive law does neither. Guarding against unitary enunciation of legal rules and unitary management of Article III, the Rule as institutional practice steadies and broadens constitutional lawmaking that must carry authority in a fractious and heterogeneous polity. The act of confronting a record one did not build and displacing the findings of another in a shared system yields three benefits. For the individual justice, the practice enlarges deliberative reasoning by interjecting the presence of other minds at the juncture where the temptation to overreach is greatest. For Article III, it sustains a schema of pluralized, diffuse, and accountable lawmaking power and gives the Court’s pronouncements the social form of authority exercised through role rather than asserted through will. For constitutional law, it sustains the capacity to arbitrate political disagreement by registering and speaking to it. The Article then demonstrates that the Roberts Court has repeatedly violated the Rule so understood. It isolates five injuries, in roughly escalating order: the disruption of the mutualistic teamwork on which functional differentiation within a unified, hierarchical judiciary depends; the loss of doctrinal and public transparency over Court action; the invitation to view the Court as politicizing justice; the undermining of the Court’s own lawmaking authority at the endpoint of totalizing supremacy; and the disintegration of the deference practices that turn a system into a system of law. It concludes by positioning the Rule alongside other deference practices to argue that Article III lawmaking acquires its authority through a complex system of role-mediated judgments that positive law can capture only in part.
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