Balancing, the pragmatic and the reasoned

In the course of the 1920s, 1930s and 1940s, American legal thinkers were increasingly concerned with the elaboration of more realistic, truthful understandings of the processes of adjudication.^[667] One import­ant strand within this rapidly growing body of work emphasized the pragmatic and instrumental dimensions of judicial decision making.^[668] The language of balancing played an important role in these projects of describing adjudication in more convincing terms.

By the late 1950s, these tendencies of (re-)description ran into a for­midable opposing force. At that time, a series of high-profile scholarly contributions began to express grave concern over the legitimizing qual­ities of Supreme Court decisions. These contributions came with pro­posals for new understandings of what adequate legitimization should entail and for how it might be achieved. This section discusses the work of arguably the most prominent writer formulating such ideals: Professor Herbert Wechsler of Columbia Law School.

On many readings, these new, although often in fact rather traditional, ideals of judicial craftsmanship stood in direct opposition to the ideas associated with balancing. This section elaborates this contrast and its implications for the meaning of balancing.

1. ‘Whatever formula is used...’: from ‘clear and present danger' to

balancing

(a) Zechariah Chafee and Sociological Jurisprudence

The clear-and-present-danger test, as was seen earlier, is commonly traced back to the opinions of Justices Holmes and Brandeis in the landmark cases of Schenck and Abrams (both 1919).^[669] But the fact that Holmes' and Brandeis' phrase has come to be seen as the cornerstone of an expansive American approach to freedom of expression, owes at least as much to Zechariah Chafee, a practicing lawyer and professor at Harvard Law School.

In his 1920 book Freedom of Speech, Chafee wrote:

The true boundary line of the First Amendment can be fixed only when Congress and the courts realize that the principle on which speech is clas­sified as lawful or unlawful involves the balancing against each other of two very important social interests, in public safety and in the search for truth. Every reasonable attempt should be made to maintain both inter­ests unimpaired, and the great interest in free speech should be sacrificed only when the interest in public safety is really imperilled |...|.^[671]

The language in which Chafee here described and promoted the clear- and-present-danger test was that of his contemporaries, the Sociological Jurisprudes. Chafee's freedom of speech balancing was, in other words, the balancing of interests of Roscoe Pound and others, discussed in Chapter 2.^[672]

Chafee, first of all, was interested, in the same way that Pound was, in how a jurisprudence of interests could be more true to life, more real­istic, than a jurisprudence of rights. ‘To find the boundary line of any right', he wrote using language almost identical to Pound's, ‘we must get behind rules of law to human facts'.^[673] In the context of freedom of speech this meant looking at the ‘desires and needs of the individual human being who wants to speak and those of the great group of human beings among whom he speaks'.^[674] Talk about rights in the context of civil lib­erties, Chafee thought, could only lead to ‘deadlock'.^[675] This distinction between rights and interests, which he traced back explicitly to both von Jhering and Pound, Chafee thought could clarify ‘almost any constitu­tional controversy'.^[676]

This foregrounding of interests over rights functioned as a stepping stone for Chafee's main substantive argument: the idea that freedom of expression was not merely an individual, but a social interest.

As in Roscoe Pound's work, Chafee's interest analysis was integral to a project of recalibration of individual and societal claims in consti­tutional rights cases. On this point, Chafee's argument was very similar to, but also subtly different from, Pound's critique of the Lochner case.^[679] Pound, as discussed in Chapter 2, was concerned with promoting a view of the constitutional rights of property and contract as ( mere individual) interests that could be balanced against other (important social) inter­ests, in order to overcome the paramount status they had been given by the Supreme Court. Using the same argumentative device to opposite effect, Chafee argued that protecting the freedom of expression was not merely in the interest of individual speakers, but of society at large. This time, however, the ‘rights-into-interests' mode of argument was of course designed to result in greater, not less, protection for the constitutional right concerned.

Chafee relied on two related further elements of the Sociological Jurisprudes' argumentative arsenal. First, his invocation of balancing language was inspired by scepticism of deduction and ‘literalness', and, more generally, of methods of legal reasoning that obscured difficult underlying policy choices. ‘The rights and powers of the Constitution [...] are largely means of protecting important individual and social interests, and because of the necessity of balancing such interests the clauses can­not be construed with absolute literalness', he wrote.^[680] Balancing, on this view, was a pragmatic solution for where legal dogmatics left off, or failed.

Finally, Chafee's approach to free speech was akin to Pound's methods in its emphasis on empirical evaluations and attention to factual circum- stances.^[682] The reference to a ‘method of balancing and this broad test of certain danger' is revealing for the fact that Chafee saw ‘clear and pre­sent danger' as turning primarily on the prediction of the likely conse­quences of allowing or suppressing speech.^[683] The idea that this inquiry contains a strong factual element is underlined by contemporary sugges­tions that ‘danger' was a matter of fact for juries to decide, and that ‘clear and present' was merely a description of the requisite standard of proof for this determination.^[684]

(b) Beyond ‘clear and present danger': balancing and policy The phrase ‘clear and present danger' had a chequered history after its initial invocation in Schenck and Abrams.^[685] Its status as a doctrinal test for deciding cases was far from settled. ‘Clear and present danger' was arguably never consistently endorsed as a first amendment ‘test' by a clear majority of the Supreme Court.^[686] Some Justices and observers were not convinced it even was a ‘test' at all. ‘‘Clear and present danger' was never used by Mr. Justice Holmes to express a technical legal doctrine or to con­vey a formula for adjudicating cases', Justice Frankfurter wrote in a 1946 concurring opinion: ‘It was a literary phrase not to be distorted by being taken from its context'.^[687]

The uncertainty over its doctrinal status, however, has to be contrasted with the unequivocal dominance of the rhetoric of ‘clear and present dan­ger' in American free speech law of the 1930s and 1940s. Not only was the language pervasive in discussions on freedom of expression, ‘clear and present danger' became the lens through which many of the problems of first amendment adjudication were viewed.

Throughout these discussions, the connection between the ideas and practices behind ‘clear and present danger' and those related to the bal­ancing of interests and values, first expounded by Chafee, assumed ever- greater importance. Paul Freund, for example, in words later cited by Justice Frankfurter, wrote in 1949 that the ‘clear-and-present-danger test' was ‘an oversimplified judgment', and ‘no substitute for the weighing of values'.^[688] ‘Clear and present danger', other commentators began to argue, was merely a ‘shorthand description of the balancing process under­taken by the Court'.^[689] Whereas the idea of balancing had originally been invoked by Chafee in order to give practical substance to the distinctive ideology of freedom of speech of Justices Holmes and Brandeis, balancing now came to eclipse the original test virtually entirely. By the late 1940s through early 1950s, an increasingly dominant view held that balancing was all there was to ‘clear and present danger'.

This growing emphasis on balancing meant that the relevance of ‘clear and present danger' as an independent idea came increasingly under strain. Balancing had come to make up ‘the extent of the utility of the concept'.^[690] ‘Clear and present danger' could perhaps still be useful in pointing to the ‘relevant factors to be balanced', or as expressive of a more general protective ‘attitude' towards free speech that should influence the outcome of a balancing process.^[691] But beyond that, its distinctive qual­ities as an approach to deciding cases were seen as limited. ‘Qualified commentators have repeatedly noted', wrote William Lockhart and Robert McClure, summarizing the literature, ‘that whatever formula is used, the Court's function in freedom of expression cases is to bal­ance competing interests'.^[692] This balancing itself, in a new development, was increasingly described as being ‘legislative' in nature. Judging first amendment claims, on these views, became explicitly a matter of pol- icy.^[693] ‘Clear and present danger' or not: what courts were actually doing in first amendment cases, it was felt, was carrying out ‘judicial review in the fullest legislative sense of the competing values which the particular situation presents'.^[694]

The resulting assimilation of ‘free speech adjudication', ‘balancing', and ‘policy', had assumed considerable importance by the time the Supreme Court decided the Dennis case in 1951.

(c) Broader impulses: pragmatism and instrumentalism

This transformation of the clear-and-present-danger test has to be read as part of a broader jurisprudential intellectual current: the rise of pragma­tism and instrumentalism as central elements of mainstream legal theory during the middle decades of the twentieth century.²⁰⁴ These two labels refer to complex and sometimes internally contradictory concepts. But it is possible to single out at least three specific impulses emanating from pragmatism and instrumentalism as the ‘dominant philosophical influ­ence' of the time that were of particular relevance to balancing.²⁰⁵

On a first, very general, level, pragmatism and instrumentalism pro­moted an emphasis on the role of interest balancing as a technique of pub­lic (judicial and legislative) decision making. Pragmatism did so through its abhorrence of fixed rules for broad categories of cases and its insistence on experiment and incremental change. And instrumentalism did so by viewing law as a means to an end - an end described in very general terms as the ‘maximization' of wants and interests.

The adherence to such a broadly applicable value theory of ‘maximiza­tion', secondly, came with a corresponding scepticism of ‘more particu­lar notions of value for the resolution of specific issues'.²⁰⁶ ‘Pragmatic instrumentalism', to use Robert Summers's overarching term, made it very difficult to conceive of adjudication in specific areas, like freedom

danger formula in favour of a balancing of interests that can readily be manipulated'). But see Haberle (1962), p. 39 (‘clear and present danger' as a balancing test).

²⁰¹ Cf. Meiklejohn (1961a), p. 13 (balancing ‘is a fiction which serves to cover the fact that [...] the Court has reinstated as “controlling” the “clear and present danger” test of 1919, but with the words “clear” and “present” left out').

²⁰² See above, Chapter 4, Section B.2.

²⁰³ 341 US 494, 519 (Frankfurter, J., concurring).

²⁰⁴ Summers (1981), p. 873.

²⁰⁵ Cf. Harris (1936), p. 464. See also Kennedy (1925), p. 66.

²⁰⁶ Summers (1981), p. 915. See also at p. 876. of expression, in anything else than the terms of ‘maximization'. In this way, the scope for any distinctive normative content for doctrinal tests like ‘clear and present danger', or for a categorical prohibition on prior restraints, for example, was severely undermined. Put simply: in the prag­matic instrumentalist view, the philosophical foundations of free speech adjudication could be nothing more or less than the localized instantiation of the philosophical foundations of rights adjudication generally. Having qualitatively different ‘tests' in operation for different areas of free speech law or for different constitutional rights, in the pragmatic instrumentalist view, could only be a sign of misplaced doctrinal traditionalism.

Finally, ‘pragmatic instrumentalists' shared with the Realists a dis­trust of juridical formulas and doctrinal language. Commentators and judges taking this line were particularly concerned that constitutional metaphors or literary phrases, such as ‘clear and present danger', could be transformed into ‘sterile dogma', in precisely the way Justice Holmes had warned against. This, again, was one of the many instances in which the perceived formalism of the Lochner period served as a commonplace image of what was to be avoided.

(d) Balancing as liberation

Taken together, these micro-level doctrinal developments and broader intellectual currents exemplify the pressures on the Court to ‘liberate' itself from the confines of doctrinal formulas such as ‘clear and present danger', and to move towards candidly framing its opinions in the lan­guage of a decisional process that was seen as both inevitable and nor­matively desirable. That process, of course, was a balancing of interests. Justice Harlan's opinion in the Dennis case, read in this way, signified ‘a declaration of independence by the Court from the tyranny of a phrase'.^[696] There had been ‘too many opinions that hide the inevitable weighing pro­cess by pretending that decisions spring full-blown from the Constitution' or from doctrinal formulas.^[697] ‘What seems to have brought balancing out of the closet and into the hard light of day', in the eyes of one later writer, ‘was the judicial desire for candor, the simple drive to tell the truth about judging regardless of costs'.^[698] The pragmatic instrumentalist perspective meant, furthermore, that once ‘candid balancing' surfaced in one area, there would be significant pressure to similarly ‘liberate' other areas of law from obscurantist traditional formulas and to frame decisions there too in terms of balancing. Balancing's march forward, in that sense, was a truly imperial one.

2. A competing perspective: standards of judicial reasoning

The mid to late 1950s were a pivotal time in the history of constitutional adjudication in the US. Major civil rights cases began to come up for deci­sion by the Supreme Court. And the political exigencies of the Cold War were acutely felt, even after the death of Senator McCarthy. In this climate, spurred on in part by precisely the trends discussed just above, one com­mentator would note that a majority of the Warren Court conceded ‘as perhaps no other Supreme Court before it would have, that courts make law'.^[699] Such avowals, combined with the impact of monumental decisions such as Brown v. Board of Education, provoked attacks from politicians. During 1957 and 1958, especially, members of Congress proposed bills to strip the Court of part of its jurisdiction and to abolish life tenure for Justices.^[700] While none of these proposals were ultimately enacted, these were attacks on the Court on a scale not seen since Roosevelt's court­packing plan in the 1930s.^[701]

In the legal academy, unease about the Supreme Court's work mani­fested itself in two main related categories of critique.^[702] The more gen­eral of these concerned the lack of an adequate theory of constitutional adjudication to justify the practice of constitutional judicial review. In the narrower context of judicial performance in specific cases, on the other hand, critiques focused on the inadequate justification provided by the opinions of the Justices. One of the most influential examples of the first kind of critique can be found in Judge Learned Hand's 1958 ‘Holmes Lecture' on ‘The Bill of Rights', in which he called for greater self-restraint on the part of the judiciary in the face of the democratically accountable branches of government.^[703] An important instance of the second category was Professor Henry M. Hart's 1959 Harvard Law Review Foreword, in which he warned that deficiencies in the Court's reasoning were threat­ening to undermine ‘the professional respect of first-rate lawyers for the incumbent Justices of the court'.^[704]

As these calls for more attention to ‘the importance ofjudicial rational­ization' grew louder in the course of the late 1950s, legal scholars became engaged in projects of formulating ‘a new set of ideals and standards for judicial decision-making' in order to better secure the legitimacy of the institution of constitutional judicial review and its exercise in specific cases.^[705] What these critiques amounted to was a high profile attempt to restore ‘order to the legal world in the aftermath of realism',^[706] a call for a ‘return to reason in law',^[707] at precisely the time when balancing came to play a significant role in Supreme Court decisions. The resulting clash of ideas has had lasting influence on the meaning of balancing in US legal discourse.

(a) Process jurisprudence and ‘reasoned elaboration' Thinking about adequate standards for judicial reasoning had important antecedents in American jurisprudence. But it was during the final years of the 1950s that some of the core ideas within this tradition received their most influential expressions and came to dominate debates in con­stitutional law. The labels most commonly used to describe these ideas are ‘Process Jurisprudence' and ‘Reasoned Elaboration'.^[708] Their core ten­ets can be described as a faith in reason and, especially, in the reasoned justification of constitutional decisions.^[709] Adherents of this tradition defended an image of adjudication as ‘a device which gives formal and institutional expression to the influence of reasoned argument in human affairs'. As such, adjudication had to discharge a particularly heavy ‘bur­den of rationality'. ^[710] The precise nature of the concept of ‘reason' remained unclear, and the standards of legal argument appropriate to its fulfillment contentious. A common theme in many contributions, however, was the insistence on reason as a ‘suprapersonal construct', a form of argument that transcended individual predilections.^[711] How to give substance to this idea remained a central challenge for contemporary scholars.

(b) The call for ‘neutral principles of constitutional law' By far the most influential attempt to develop new ideals and standards for constitutional legal reasoning came from Professor Herbert Wechsler of Columbia Law School. It was contained in a lecture delivered in 1959, entitled ‘Toward Neutral Principles of Constitutional Law'.^[712] The debate over ‘the possibility' of such ‘neutral principles' has come to characterize the Warren Court era as a whole.^[713] It is in this debate that the themes of process jurisprudence, ‘reasoned elaboration' and a more general unease with judicial reasoning at the Supreme Court coalesced.

The central issue in Wechsler's lecture was what he called ‘the problem of criteria' - standards for the justification of Supreme Court decisions, to be adhered to by the Justices themselves as well as by their critics.^[714] Such standards are necessary if the Court is to function not as a ‘naked power organ' but as a ‘court of law'.^[715] The greatest obstacle to the satisfac­tion of this ideal - ‘the deepest problem' of constitutionalism, even - in Wechsler's view, is ad hoc evaluation; judgments turning on the ‘immedi­ate result' in a case.²²⁷ Wechsler's opposition to the ad hoc in adjudication is summed up in an oft-cited paragraph:

[W]hether you are tolerant, perhaps more tolerant than I, of the ad hoc in politics, with principle reduced to a manipulative tool, are you not also ready to agree that something else is called for from the courts? I put it to you that the main constituent of the judicial process is precisely that it must be genuinely principled, resting with respect to every step that is involved in reaching judgment on analysis and reasons quite transcend­ing the immediate result that is achieved.²²⁸

In Wechsler's depiction of the standards for judicial reasoning, ideas of justification, reason, principle, and law come together. A ‘court of law' should take decisions that are ‘entirely principled'. A ‘principled decision' is one that rests on ‘reasons' with respect to all the issues in the case. And adequate ‘reasons' are those that in their generality and their neutrality transcend any immediate result that is involved.^[716]

Despite the enigmatic, ‘tantalizing' even,^[717] nature of his argument, Wechsler's basic position can be summarized in two simple general state­ments: Judicial decisions must be reasoned, and the reasons supporting these decisions must be of a special kind. ‘The call for neutral principles in its mildest form is a plea for reasoned elaboration rather than ipse dixits in Supreme Court opinions', Wechsler's critic Martin Shapiro wrote approv­ingly.^[718] The difficulty, of course, would be to determine what kinds of rea­soning might justify judicial decisions. Within the large body of literature responding to Wechsler's ‘neutral principles' suggestion, two trends are particularly striking. On the one hand, the idea of any kind of ‘neutral­ity' in Supreme Court decision making was from the outset greeted with intense scepticism and criticism. At the same time though, to the extent Wechsler's work was read as a broader call for ‘general principles' in judi­cial reasoning, it found widespread resonance. ‘I fail to grasp Professor Wechsler's position if it consists in the statement that one ought to, or even can, supply “neutral principles” for “choosing” between competing values', one early critic wrote. However, ‘we may still require that the tri­bunal formulate a standard or criterion that shall function as a principle of decision in this and other cases of its type. This principle is general in the sense that it covers but also transcends the instant case'.^[719] A ‘neutral principle', therefore, came to be largely equated with a ‘principle' as such, which in turn was taken to mean a ‘rule of general application, logically and consistently applied'.^[720]

3. Principled reasoning and balancing

We can now frame our central question. How did Wechsler and his contemporaries view the relationship between principled reasoning and judicial balancing?

Wechsler's article was published just before the balancing debate erupted on the Supreme Court and his article does not address the theme in any direct way.^[721] A later commentator, Kent Greenawalt, has observed that Wechsler's original lecture left ‘some doubt' as to whether the Supreme Court's ‘open-ended standards that indicate some kind of weighing of factors or balancing but that do not unambiguously yield results in many of the cases to which they apply' could qualify as ‘neutral principles'.^[722] Greenawalt also notes that in a later article, Wechsler openly wondered whether constitutional-law questions of the format ‘How much is too much?' might not simply be ‘beyond the possibility of principled decision'.^[723]

Reading Wechsler's original article in light of later interpretations, it is possible, however, to piece together a likely contemporary understand­ing of the balancing/principled reasoning relationship, along three axes. These concern opposition to types of reasoning that were seen as mechan­ical, results-based, and legislative, or not appropriate to a ‘court of law'. In each case, what is striking is the paradoxical nature of the positions held. It is not surprising, then, that American legal scholars have come to label the discourse of neutral principles and its opposites a ‘schizophrenic' discourse.^[724]

(a) Candour versus ‘mechanistic reasoning'

The first of these axes concerns the value attributed to judicial candour and openness. Using a freedom of speech example, Wechsler argued that as ‘some ordering' of values would be essential to maintaining a function­ing Bill of Rights, judges should be very careful not to take ‘a mechanistic approach to determining priorities of values'.^[725] This warning demonstrates that Wechsler was taking aim at unacknowledged judicial choices as much as at choices that were acknowledged but unprincipled. The ‘ mechanistic' label, an obvious throwback to Pound's early-twentieth-century attack on the Supreme Court's Lochner line of decisions, was invoked to convey the exact opposite of the openness that was demanded of courts.^[726]

Wechsler himself did not raise the question of whether the Supreme Court's ‘balancing opinions' should be seen as examples of such ‘mech­anistic reasoning', or rather as manifestations of judicial candour. Other commentators, however, took up precisely this issue. And they came to diametrically opposing conclusions. On one side, writers argued that the open articulation of competing interests was precisely one of the main strengths of balancing-based adjudication.²⁴⁰ They thought that narrow, ‘virtually ad hoc', but ‘articulated and undisguised' decisions, were all that could realistically be expected from the Supreme Court in difficult areas of constitutional rights adjudication.²⁴¹ Not to balance explicitly would be to take an unreasoned, ‘mechanistic' approach to constitutional adjudica- tion.²⁴² On this view, it was precisely the vehement anti-balancing rhetoric of Justice Black and others which most risked to ‘deprecate and damage' the process and image of judicial decision making, which had to be ‘as deliberate and conscious as men can make it'.²⁴³ For others, on the other hand, the Supreme Court's balancing decisions consisted of no more than ‘a declaration of result accompanied by the simple announcement that the Court has balanced the competing interests'.²⁴⁴ Such opinions clearly did not qualify as ‘reasoned decisions' in Wechslerian terms.²⁴⁵

Both sides, then, invoked the horrors of ‘mechanistic reasoning' - the familiar shorthand for the vices of formalism discussed earlier, in Chapter 2 - and claimed the virtue of candour. That they did so, in the words of one contemporary overview, ‘perhaps equally unconvincingly', ²⁴⁶ only serves to underline the continuous tension and ambivalence that lies at the heart of balancing's American local meaning.

jurisprudence'. See, e.g., Sunstein (1986), p. 624 (‘Lochner-like quality'); Friedman (1997), pp. 519-20 (‘Wechsler's approach, to those critical of it, bore too much similarity to the now bad old days of arid legal formalism.') See also Chapter 2, Section B. 4.

²⁴⁰ Karst (1960), p. 81.

²⁴¹ Bickel (1970), p. 77. See also Wright (1971), p. 779. Wright also writes: ‘Bickel is by no means alone in his conclusion that candid case-by-case balancing of particular elements of particular fact situations is the best that can be done'. Ibid. See also Gunther (1968), p. 1148 (claiming that there might be value in the ‘relatively unobscured acknowledg­ment' that Courts ‘balance values').

²⁴² See, e.g., Miller & Howell (1960), p. 671 (‘Any reference to neutral [...] principles is [...] little more than a call for a return to a mechanistic jurisprudence and to a jurisprudence of nondisclosure.'); Mendelson (1964), p. 481.

²⁴³ Bickel (1962), p. 96, cited in Powe (1989), p. 281.

²⁴⁴ See, e.g., Kent (1961), p. 484.

²⁴⁵ See also Emerson (1963), p. 877 (balancing reduced the first amendment to a ‘limp and lifeless formality').

²⁴⁶ Kennedy (1969), p. 851.

(b) Ad hoc-, result-oriented reasoning

In whatever precise way Wechsler's notions of generality and neutrality are understood, a key underlying theme clearly was the opposition to ad hoc decision making focused on results in individual cases.^[727] On a most basic level, Wechsler called for decisions based on ‘analysis and reasons [...] transcending the immediate result' of the case at hand.^[728] The desirability of this criterion was hotly contested. Many commentators felt that atten­tion to the real-world impact of individual judicial decisions had been one of the great contributions of, first, Sociological Jurisprudence and, then, Realism. ‘Professor Wechsler's lecture [.] represents a repudiation of all we have learned about law since Holmes published his Common Law in 1881, and Roscoe Pound followed [...] with his pathbreaking pleas for a result-oriented, sociological jurisprudence, rather than a mechanical one', Dean Eugene Rostow of the Yale Law School wrote acidly in 1962.^[729] Another writer summarized the debate on ‘result-oriented jurisprudence' a year later as follows: ‘To some, the label connotes subjectivism pure and simple [.] To others, a “result-oriented” court signifies a welcome innov­ation, a “belated recognition” of the limitations of logic and tradition'.^[730] In addition, the idea of ‘narrow' decisions, tailored to the individual case, not only fit well with traditional common law conceptions of the judicial role, but also seemed especially appropriate in an era in which courts were called upon to solve civil rights claims that were seen as both new and difficult.^[731] As Kenneth Karst observed, ‘the phrase “ad hoc” should not disturb anyone who recognizes that we are concerned with cases, decided by courts'.^[732]

The Supreme Court's ‘balancing opinions' of the late 1950s and early 1960s were widely seen as espousing a kind of ad hoc decision making - or, in more favourable terminology: a ‘case-by-case' approach. Justice Harlan, for example, unambiguously described his preferred solution for first amendment cases, in his Barenblatt opinion for the Court, as a process of ‘balancing [...] the competing private and public interests at stake in the particular circumstances shown'.^[733] And in Konigsberg, Justice Black's dissenting opinion specifically chided Harlan for taking an overly narrow, particularistic view of the interests concerned.^[734] Justice Frankfurter's position, on the other hand, was much more ambiguous. In his Dennis concurrence, Frankfurter had warned explicitly against the dangers of ‘ad hoc judgment'.^[735] And the presentation of his deferen­tial balancing approach proceeds in distinctly general, even ‘legislative', terms. A generalized ‘interest in security' seen to be threatened by the Communist party^[736] was to be weighed against a similarly generalized, social ‘interest in free speech'.^[737] At the same time however, Frankfurter's comments on the legacy of the clear-and-present-danger test, in particu­lar his reference to its requirement of ‘immediate peril' and his appre­ciation for Paul Freund's multiple-variable understanding of the test,^[738] reveal a sensitivity for the need for a more situated judgment.^[739]

Notwithstanding these ambiguities, balancing at the Supreme Court predominantly came to be associated with some form of ad hoc decision making. In academic commentary, ‘balancing' was routinely referred to as ‘ad hoc balancing', and the Court's ‘balancing test' was perceived to lie ‘very close to the ad hoc end of the continuum' of possible judicial deci­sional techniques.^[740] The great balancing debate between the Justices, in short, was understood to be about not just balancing per se, but about ad hoc balancing.^[741]

As Martin Redish observed in a later retrospective study, 1960s atti­tudes towards the ad hoc in constitutional judicial decision making, both within the balancing context and beyond, revealed a distinct ‘schizo­phrenic' quality.^[742] Much of the Supreme Court's reasoning on this issue seemed trapped between on the one hand ‘perceptions about the dan­gers to constitutional rights of anything approaching a detailed case-by- case balancing process', and on the other hand apprehension about ‘the Court's institutional incompetence to perform [the] “legislative” func­tion' of reviewing potentially offending legislation in any way that would transcend the boundaries of the immediate case at hand.²⁶³

(c) Courts of law

If Wechsler's opposition to ‘mechanistic' reasoning, ad hoc decision mak­ing and result-oriented reasoning are difficult to interpret in any precise way, the most enigmatic element of his, and others', proposals surely was their broad call for courts to behave like ‘courts of law '.^[743] But this demand for judges to behave ‘judicially', in both its negative and positive aspects, arguably formed the core of the new proposals for the standards for judi­cial reasoning.^[744] Negatively speaking, judges were exhorted not to behave like legislators or policy makers. Wechsler and others, notably those schol­ars associated with ‘process jurisprudence', were profoundly attached to a principle of ‘institutional settlement'.^[745] The question of ‘who should decide what'^[746] was of fundamental importance to these writers because of their conviction that the Supreme Court's prestige could only be pre­served if it could be ensured that the Court ‘did not overstep the limits of its function'.^[747] Viewed from a positive angle, these same commentators were interested in promoting the importance of ‘traditional standards of judicial performance';^[748] of the relevance of doctrine, legal method and ‘craftsmanship' to the exercise of the judicial function, as distinct from other forms of decision making.^[749]

These aspirations for judicial reasoning are coupled with, or translated into, critiques ofjudicial balancing throughout the literature and case law of the period. Balancing, it was argued, was ‘not law'; carrying out bal­ancing exercises was not appropriate ‘judicial behaviour'; and balancing opinions forced or incited judges to intrude upon the sphere of compe­tence of the legislative branch. Louis Henkin, in a seminal 1978 article, gave the following summary of the critique:

Wechsler's most famous demand of the Court, that it decide cases on the basis of neutral principles, is at bottom a demand that the Court act according to law, not caprice. Some have seen a tendency towards judicial ‘lawlessness,’ or at least a straining at the restraints of legal pro­cess, method and doctrine, and an exaltation of judicial reinlessness and improvisation, in the growing resort by the courts to ‘balancing’ in consti­tutional adjudication.^[750]

Henkin here describes a diametrical opposition between balancing and ‘legal method and doctrine’, that, he writes, ‘some’ commentators and judges had drawn earlier.^[751] One of the most prominent of the partici­pants in these earlier debates was Thomas Emerson, who had formulated many of his central objections to balancing in the first amendment con­text in precisely these terms. ‘The principal difficulty with the ad hoc bal­ancing test’, he wrote, ‘is that it frames the issues in such a broad and undefined way,..that it can hardly be described as a rule of law at all’.^[752] Commenting on the Supreme Court’s use of a balancing test for cases of indirect regulation of speech (the Douds-type of conflict),^[753] for example, he wondered whether it might be possible ‘to frame a more satisfactory interpretation of the first amendment in this area’, one that would be less ‘open-ended’, and that would ‘permit the courts to function more like judicial institutions?’^[754]

In criticizing balancing’s ‘open-ended’ nature, Emerson was primar­ily focused on safeguarding the ‘law-like’ character of Supreme Court first amendment doctrine - the positive dimension of the argument out­lined above. The negative side of that argument was given voice by other judges and commentators who argued that balancing, as practiced by the courts, was primarily a legislative, rather than a judicial, activity.^[755] Justice Frankfurter’s position on the inevitably legislative nature of balancing has been discussed earlier.^[756] Many commentators raised very similar con­cerns. Judicial balancing was felt to be ‘too insensitive to the special com­petencies of legislatures and the judiciary’.^[757] Interest balancing tended to lead courts ‘into regions better known to legislatures’, hampering ‘strictly principled decisionmaking’.^[758] The perceived similarity between balan­cing by courts and ‘legislative judgment’ was problematic, as it might suggest that courts ‘were in a better position than legislatures to make decisions about social questions’.^[759]

While the ‘balancing judicial behaviour’ critique was widespread, there were also commentators who took a diametrically opposed view­point, arguing that it was not balancing but the idea of ‘neutral principles’ itself which was ‘too legislative’.^[760] These opposing perspectives again exemplify Martin Redish’s argument about the ‘schizophrenic’ attitude towards the particular and the general, the ad hoc and the rule-based, and the substantive and the formal, in constitutional adjudication at the time.^[761]

(d) ‘The best that can be done’

The notion of a discourse with schizophrenic characteristics, if use of this term may be forgiven, is possibly the best way to sum-up the intersection of discussions on balancing and on standards for constitutional legal rea­soning. The extent to which these two debates were intertwined deserves special emphasis. On the one hand, the clash over balancing to a great extent was seen to turn on ‘large issues about [...] the proper role of judi­cial review’, i.e. the question of standards.²⁸³ At the same time, discus­sions on these ‘large questions’, on the proper role for the judiciary and on the standards for carrying out that role, very often took the problem of balancing as their central concern. Looking at constitutional discourse in the US in the early 1960s either from the angle of ‘balancing’, or from the angle of ‘standards of reasoning’, then, a very similar set of questions and problems emerges. To a large extent, these problems center on the ques­tion of the virtues of legal formality and of its opposites. A conceptual framework thus appears in the form of a triangle of balancing, standards of reasoning and formal versus substantive.

The debates that arose at the intersection of these three perspectives were marked by ironies, contradictions blatant and subtle, and aspira­tions and exhortations to judges and writers that were avowedly unrealis­tic but which were passionately adhered to nonetheless. These ambiguities pervaded everything: the nature of the desired standards of reasoning, the meaning of the terminology of formal and substantive and the meaning of balancing. It was recognized that commentators and the public at large made ‘complex and often conflicting demands' upon the federal courts; ‘demands for adherence to logic, to neutrality, and to experience'.^[762] At work was a ‘nostalgic yearning' for an avowedly impossible ‘pre-political jurisprudence' or a ‘return to doctrine'. What is significant is that this yearning itself and the recognition of its impossibility were both seen as ‘an existential reality - a fact of American political life'.^[763]

Contradictions, then, abounded on all levels of the standards, balanc­ing, and legal formality debates, and their interrelations. Within the dis­cussions on standards, there was a foundational tension in that the call for adjudication based on ‘neutral principles' contained elements of, and was intended as, both a defense of the institution of judicial review and a limitation on its exercise.^[764] In terms of legal formality, there was the irony that Wechsler's and others' attempts to provide an ideal for the rea­soned justification of decisions were often seen as steps on a road leading straight back to the archetype of faulty judicial decisions: the allegedly ‘mechanistic' reasoning of the Lochner era.^[765] Others observed that even Wechsler's own followers ‘when forced to adjust [his] rules to the realities of constitutional adjudication' wound up ‘abandoning those rules'.^[766] Out of this resignation to reality arose an important idea: ‘the conclusion that candid case-by-case balancing of particular elements of particular fact situations' might be ‘ the best that can be done'.^[767]

Such contradictions and tensions remain in view when the lens of bal­ancing is used to look at some of the same issues. On the one hand, it was recognized that if ‘neutral principles' were to mean anything more than ‘minimal rationality', then their position would have to be ‘at the oppo­site extreme from a resolutely ad hoc weighing of a welter of conflicting interests to produce a one-time-only result'.^[768] At the same time, however, there was the irony that some high profile ‘enthusiastic balancers' were seen also to be ‘strong advocates of principled decision making'.²⁹¹ There were balancers who did not give up their search for principle,^[769] and there were those who recognized that ‘devotion to principle' did not preclude a ‘balancing approach'. ^[770]

To sum up; both sides in the debates over both standards of reason­ing and balancing proclaimed the virtues of candour and the vices of mechanistic reasoning. Both were caught between the dangers of the ad hoc and the attractions of situated, ‘realistic judgment', and both seemed trapped between the promises of the rule of law and the haunt­ing spectre of excessive formalism. The resulting unease over the stand­ards for legal reasoning and apprehension over balancing were not merely aspects of mid-century American legal life. They were emblem­atic of it.

E.