Southern California Law Review, Vol. 75, No. 6 (September 2002), pp. 1281-1405


Semisubstantive review, as I use that label, entails four key features. First, the subject matter of judicial inquiry is not the process applied in adjudicating a discrete dispute; rather, the matter at hand is the constitutionality of a statute or other generalized expression of legal policy. Second, some procedural omission by the lawmaker -- rather than an incurably substantive flaw in the end product of its work -- lays the groundwork for a judicial intervention that invalidates the challenged rule or negates how that rule otherwise would operate. It may be, for example, that a federal statute read as a whole, in context and in light of its legislative history, leaves no serious doubt that Congress meant to say “X.” The Court, however, might refuse to read the law to say “X” because of the procedural failure of Congress to “mak[e] its intention unmistakably clear in the language of the statute.” Third, this type of constitutional ruling is provisional, rather than conclusive, in nature. In the wake of our hypothetical statute “X” case, for example, Congress may go back to the drawing board and enact a new law that provides for “X” so long as it satisfies the Court's process-centered requirement of facial clarity. For this reason, analysts sometimes describe semisubstantive rulings as “remanding the question to the political processes” or as embodiments of “second-look” review. These rulings contrast with judicial actions ordinarily associated with constitutional decisionmaking -- namely, rulings that declare, once and for all, whether the substantive requirements of a challenged rule are compatible with the supreme law of the land. Fourth and finally, the Court confines its use of semisubstantive rulings to cases in which the substantive values at stake are (in the Court's view) distinctively deserving of judicial protection. These process-centered invalidations, for example, seldom take hold in garden-variety cases that trigger only low-level, rational relation scrutiny. Instead, they surface most often in cases that involve judicially emphasized free expression, state autonomy or suspect classification values. It is the interaction of these substantive values with demands for heightened procedural regularity that justifies describing this judicial approach as involving semisubstantive review.

In this Article, I examine how semisubstantive doctrines have fared in the hands of the Rehnquist Court. In Part I, I evaluate the modern Court's use of four varieties of these rules -- what I call semisubstantive “how,” “why,” “when,” and “who” rules. This discussion reveals that semisubstantive review pervades the Rehnquist Court's work. Indeed, many of the Court's most prominent rulings -- in cases like Reno v. ACLU, City of Boerne v. Flores, and Lucas v. South Carolina Coastal Council, as well as its recent decisions on the rights of aliens -- involve important and varying features of semisubstantive analysis.

Part I also provides an initial outline of recurring themes that overarch the Rehnquist Court's semisubstantive work. Three themes are of particular importance. First, this Court is broadly open to semisubstantive decisionmaking; indeed it has invoked semisubstantive doctrines in virtually every field of constitutional law. Second, notwithstanding the Rehnquist Court's evidenced receptivity to semisubstantive decisionmaking, it has often shown ambivalence toward the application of these doctrines (with the exception of the now-familiar, constitutionally driven, clear statement rules of statutory interpretation). Third, the Rehnquist Court has deployed semisubstantive review techniques in large part to advance much the same policy agenda that finds expression in its more traditional, once-and-for-all constitutional jurisprudence. More specifically, in a bevy of prominent “what” rule decisions, the Court's so-called “Federalism Five” (made up of Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas) has given energetic protection to state autonomy values in a way unseen since the early days of the New Deal. In keeping with this theme, the current Court has used all forms of semisubstantive doctrines -- "how" rules, “why” rules, “when” rules, and “who” rules -- to deflect authority from federal policymakers to state and local officials.

In Part II of the Article, I review the Court's semisubstantive work on a Justice-by-Justice basis. This study confirms the three themes developed in Part I. Yet Part II also does something more. It reveals that the more controversial forms of semisubstantive decisionmaking (most notably, findings-based “how” rules and purpose-centered “why” rules) have generated ambivalence not only within the Court as a whole, but within the minds of the individual Justices as well.

Finally, in Part III, I turn to an evaluation of the key themes that emerge from my analysis of the Court's work in Parts I and II. I note, for example, that a gravitation toward semisubstantive decisionmaking fits comfortably with depictions of this Court as preferring a “minimalist” approach when it engages in constitutional review. In addition, I ask whether this Court's ready use of semisubstantive doctrines to protect federalism values is justifiable in this day and age. In particular, I point out that strong federalism-based semisubstantive approaches took root as a sort of constitutional gap-filler in an era when the Court recognized no (or virtually no) hard and fast doctrines that shielded states from congressional overreaching. Now that the Rehnquist Court has forged many strong substantive protections of state autonomy values, it is an open question whether semisubstantive safeguards of federalism interests continue to make sense.

I close Part III by building on my Justice-by-Justice analysis in Part II to explain why inevitable departures from and appointments to the Court may greatly affect the future prevalence of semisubstantive decisionmaking. To be sure, the replacement of one Justice with another -- especially when, as now, so many of the Court's rulings are closely divided -- always portends some shifts in constitutional doctrine. With respect to semisubstantive decisionmaking, however, the opportunities for a marked change in direction are distinctively rich. This is the case, in part, because of the Justices' ambivalent attitudes toward provisional rulings that this Article repeatedly highlights. It is also the case because the subjects of whether, why, and how to use these rules remain deeply under-theorized within the current Court's work. In this environment, semisubstantive review -- although pervasive -- is jurisprudentially fragile, at least in the broad set of cases that do not involve constitutionally inspired clear statement rules of statutory interpretation. In short, within the present Court, the phenomenon of semisubstantive decisionmaking does not rest on a firm foundation of clearly articulated and widely accepted theory.