Basic Legal Knowledge, Pt. 1: Deference

I've threatened before a series of posts about basic legal concepts. It is time for the first on the subject of court deference. Partly this offers something of (hopeful) value to my faithful readers. Partly this is practice for some lectures planned for the first week of class. To that end, feel free to critique these posts (not that certain of you really need the encouragement). Your criticisms will help make my class better.

In addition to all that, we are about to confront the squirrelliest part of the Ohio Supreme Court's decision in the Elephant Wars case -- O'Donnell's concurrence. Understand the squirrelly parts of O'Donnell's decision, and the almost equally squirrelly parts of the dissent, it helps to understand the concept of deference.¹

Deference is a key, but poorly understood, concept in judicial review -- that is, the review by the court of the lawfulness of legislative and executive decisions. For instance, to really understand why some rights seem to be protected more than others, you need to understand standards of review, and to understand standards of review, you need to understand that they embody, among other things, the degree of deference.

Deference means deference to the factual determinations of the legislature or executive. Any action under review will have some factual basis behind it. For example, law authorizing DUI checkpoints (to use an example cited by a past commenter) is based on a factual determination that such laws deter drunk driving and/or are effective in catching drunk drivers. Similarly, a police DUI checkpoint in a particular spot is presumably based on a determination that it is a good spot to catch drunk drivers.

Courts are generally reluctant to start all over in determining facts. So to some extent they defer to the facts as determined by the other branches. To use the example above, a court will certainly determine how to set up a DUI check point so that it doesn't offend Constitutional rights to search and seizure and so that it can't be used arbitrarily. But courts are reluctant to open up the initial question of whether checkpoints are an effective law enforcement tool.

Why are they reluctant? A couple of reasons. First, the courts assume that the legislative and executive branches are more competent to determine facts. Legislatures have hearings at which anyone can present evidence, executives have extensive staffing and, often, entire agencies dedicated to studying policy. Courts on the other hand are ill equipped to make anything beyond very simple factual determinations.

The second reason is separation of powers. Courts are supposed to provide a check on legislative and executive actions, but not be superlegislatures or superexecutives. While certain segments of the polity bemoan "unchecked" judges, courts in fact put a number o checks on themselves in the form of doctrines like separation of powers. Deferring to factual findings is part of that.

So courts defer. But how much they defer varies. First off, it varies based on the type of case. For example, in cases involving economic regulation, the courts pretty much take the legislative determinations as true unless they are clearly erroneous or pretextual². On the other hand, when rights determined to be "fundamental" are at issue, the court will scrutinize the factual determinations more carefully. Courts have all sorts of magic words to describe the various gradations of factual review, depending on the context. If you read things like "arbitrary and capricious," "abuse of discretion," "de novo review," odds are the court is talking about the degree to which they will review someone else's factual determinations.

In addition to all that, different judges will defer differently. While deference is not absolutely a left/right thing, by and large conservative judges are more deferential to the determinations of other branches while liberal judges are less reluctant to pick apart the factual bases behind actions under judicial review.

¹I could of course just drop a definition of the concept in a footnote to the post, but the footnotes apparently really bug people like Modern Esquire and Tim Russo, so I won't do that.

²This ultimately comes from the most famous footnote in Supreme Court history: footnote four of Carolene Products.