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63 U. Colo. L. Rev. 293 (1992)
Post-Liberal Judging: The Roles of Categorization and Balancing

handle is hein.journals/ucollr63 and id is 309 raw text is: POST-LIBERAL JUDGING: THE ROLES OF CATEGORIZATION AND BALANCING KATHLEEN M. SULLIVAN* Constitutional theory in the last several decades has been ob- sessed with the question of how to constrain judges' exercise of will. Institutional theories treating courts as the forum of reason and princi- ple, theories of textual literalism or originalism, theories of courts as perfecters of democratic process, and theories about the boundaries of interpretive communities, to name a few, all try to refute accusations that judges are simply expressing their own subjective preferences when they interpret the Constitution. Each of these theories assumes that courts cannot authoritatively displace legislative judgment if they simply recapitulate the legislature's job. Lochner hovers like a spectre to be continually banished.I These concerns are crudely echoed in lay discourse about the Supreme Court. The retirements of Justices Brennan and Marshall have each prompted the President to declare an end to an era of legis- lation from the bench.2 The conservative caricature of the liberal Justices pictures them just making up whatever law suited their sense of justice. The conservative promise is that their replacements will not be so free-wheeling. This paper explores the question whether theoretical concern with judicial legislation is reflected in the practical choice of doctri- nal formulas in constitutional law. These formulas for analysis fall into two recurrent styles that may be labeled categorization and bal- ancing-terms that have organized the debate in the past. Categorization and balancing each employ quite different rheto- ric. Categorization is the taxonomist's style-a job of classification and labeling. When categorical formulas operate, all the important work in litigation is done at the outset. Once the relevant right and mode of infringement have been described, the outcome follows, with- out any explicit judicial balancing of the claimed right against the gov- ernment's justification for the infringement. Balancing is more like grocer's work (or Justice's)-the judge's job is to place competing * Professor, Harvard Law School. The author retains the copyright to this article. 1. Lochner v. New York, 198 U.S. 45 (1905). 2. See Kathleen M. Sullivan, Bush's Supreme Court Red Herring, N.Y. TIMEs, July 29, 1990, at E17.

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