“A Traditional Respect For the Functions of The Other Branches”

A Passage From Justice Scalia

In Webster v. Doe (1988), the plaintiff, an employee of the CIA, was discharged by the Director after the plaintiff had informed the agency that he was a homosexual. The Court held the plaintiff’s claims under the Administrative Procedure Act judicially unreviewable under the APA’s exception to reviewability for “agency action … committed to agency discretion by law,” although it allowed other constitutional claims to go forward.

Justice Scalia wrote a separate opinion somewhat misleadingly styled a “dissent” — misleadingly because Scalia agreed with the majority as to the unreviewability of the APA claims, although he disagreed that the constitutional claims were reviewable, and therefore dissented from the Court’s judgment. In the course of his discussion, Scalia wrote a passage that resonates today. The APA’s exception for action committed to agency discretion by law, in Scalia’s view, had to be understood against the background of “the common law of judicial review of agency action.” Scalia described that common law in the following terms:

[A] body of jurisprudence that had marked out, with more or less precision, certain issues and certain areas that were beyond the range of judicial review. That jurisprudence included principles ranging from the "political question" doctrine, to sovereign immunity (including doctrines determining when a suit against an officer would be deemed to be a suit against the sovereign), to official immunity, to prudential limitations upon the courts' equitable powers, to what can be described no more precisely than a traditional respect for the functions of the other branches reflected in the statement in Marbury v. Madison, 1 Cranch 137, 170-171 (1803), that

"[w]here the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation."

The subtlety of Scalia’s thought, at least before his last few years on the bench (I explain the qualifier here, arguing that the original Scalia was in many ways a classical jurist), is on display in his reference to “what can be described no more precisely than a traditional respect for the functions of the other branches.” That respect is not exactly a legal doctrine; indeed Scalia contrasts it with other, familiar doctrines. It is a judicial attitude, although it is much more than a bare preference or “value.” It is a judicial attitude founded in law and hallowed by time, one that expresses the overarching spirit of an array of legal doctrines, that has its roots in an interlocking complex of legal principles and inchoate norms, and that is traditionally manifest in the unwritten practice of judges. The tradition of respect to which Scalia refers sees judicial review of agency action and executive action as sensitive business, not something to be undertaken lightly or imprudently. The judge must be aware that “it is excellent to have a giant’s strength, but it is tyrannous to use it like a giant,” and that other branches, especially the executive, must not be pushed to the point where they have no choice but to exert their own, equally gigantic strengths.

In my view, over and above the legal arguments about this case or that case, this remedy or that remedy, the larger tradition of respect to which Scalia referred has eroded to the point of disappearing in the practice of the federal judiciary, especially on the part of district judges, in recent years. When exactly that erosion began is debatable, but certainly by the first Trump administration and continuing into the Biden administration, one saw precious little of the respect to which Scalia refers.

And things have only gotten worse in the second Trump administration. Late last night, the Chief Justice was forced to step in to stay an intemperate order from a district judge whose self-confidence far outran his scant experience, an order (ancillary to a TRO proceeding, not a final judgment or even a preliminary injunction) that commanded the executive branch to disburse as much as two billion dollars within less than 36 hours, in legal circumstances where the district court’s very jurisdiction is questionable, and in practical circumstances that made immediate compliance all but impossible. Whatever the ultimate merits of that case may be, Scalia’s point is that judicial review of executive and administrative action is a power to be exercised with patience, prudence, restraint and respect, not a bludgeon to be swung wildly. One may legitimately hope that the spirit of the law of reviewability, as it were, is not yet dead; but it is also legitimate to fear that the wisdom of Scalia’s admonition will only become fully apparent at the point when it is no longer heeded.