Abstract

The role of judicial balancing in U.S. constitutional law adjudication is a source of great contention; both empirically (disagreement over whether opinions do or do not rely on balancing) and normatively (disagreement over whether judges should or should not engage in balancing). On the one hand, notions of balancing are hard to separate from a conception of just decision-making. Courts are inherently required to resolve disputes between parties, charged to carefully weigh the arguments for one decision against another. Indeed, balancing - in some sense - seems to be the central task with which judges are charged, as symbolized by the scales of Lady Justice. Yet judicial balancing is frequently criticized as corruptive of constitutional legitimacy, turning the judge into an unelected policy-maker and eroding the firm foundation of absolute rights. Although the image of scales suggests an impartial and neutral evaluation, critics note, the metaphor of “balancing” is typically invoked in the law to describe something quite opposite: an ad-hoc, subjective evaluation of competing options for which no precise scale of common measurement is possible. Since the 1960s, a rough consensus has emerged in the U.S. legal community, which views judicial balancing as a significant threat to constitutional freedoms, to be avoided and constrained. Insufficient attention has been paid, however, to the ways in which balancing may be used to expand constitutional protection of individual rights. In this article, I argue that judicial balancing not only may serve to expand protection of constitutional rights, but that it is in fact an indispensable tool for this purpose. Although some cases requiring adjudication of individual rights claims may be resolved by application of clearly established categorical rules, balancing is a vital technique at the edges of constitutional doctrine. Where the issues are not so clear-cut as to permit neat categorical resolution, or when the facts of a case present unique circumstances - particularly in the form of novel rights claims or new forms of state action - balancing enables courts to appropriately extend judicial scrutiny to protect individual rights in ways that established doctrine might have been inadequate to do. In Part I of this article, I offer a new theoretical framework within which to understand and critique the phenomenon of judicial balancing. Scholarly debate over the merits of judicial balancing has so far been greatly handicapped by confusion and disagreement over what we mean by the term balancing. Too often missing from this debate has been a recognition that “balancing” may come in different forms, which may in turn be subject to very different empirical and normative evaluations. I find it useful to think of three types of judicial maneuvers present in American constitutional law which - while all may be described as balancing - are conceptually, practically and effectually distinct. I term these: multi-factor weighing, balancing as rights contraction and balancing as rights expansion. Using familiar cases to illustrate these three different approaches, I suggest that concern over balancing maneuvers that result in diminished protection of individual rights may inadvertently delegitimize the very maneuvers necessary to enhance such protection. Part II applies theory to practice, examining in detail the role of balancing in the historical evolution of a particular line of constitutional jurisprudence, namely the freedom of association doctrine. Through this historical inquiry, I suggest that the U.S. Supreme Court for four decades employed balancing to expand protection for associational expression and create room for the emergent labor and civil rights movements to flourish. More recently, however, I suggest that this beneficial evolution in our nation’s freedom of association jurisprudence has stagnated, as the Court came to favor a more categorical approach. With judicial balancing now thoroughly stigmatized, however, we see not an abstention from its practice, but only its quiet reappearance in a less candid and less beneficial form. Balancing as rights contraction now increasingly threatens individual rights, even as the continued denial that the Court is engaged in balancing undermines the legitimacy of the constitutional judicial endeavor as a whole. Finally, Part III explores what might be gained from a revival of judicial balancing, and what steps could be taken to maximize its appearance in rights-expansive form, while limiting its use as rights-contraction. While considering both the merits and risks of balancing approaches, I argue that a reconciliation with balancing could prompt a renewed dynamism of the American judiciary as defenders of individual liberty and government restraint - a prospect particularly inviting as the cause of freedom confronts new and ever more powerful threats from the expansion of executive and regulatory power. I also examine what US scholars and jurists may learn from foreign jurisdictions where balancing is viewed not as a threat to individual rights, but as an ally. Looking specifically to the emergent international approach of “proportionality balancing,” I suggest that it is indeed possible to introduce greater structure into the inescapable judicial task of balancing, rendering it both more powerful and more accountable. Ultimately, my hope is that this work serves as a call for American legal scholars and jurists to reconsider our hasty negative evaluation of balancing and rejoin the international discussion on how to improve judicial balancing, rather than shun it.