Arbitrary and capricious — or “hard look” — review is a critical and legitimizing force in a political and legal environment that is increasingly hostile to administrative government. It employs principles of judicial deference to balance the authority of courts and agencies in pursuit of rational, transparent administrative policymaking. It is thus no surprise that arbitrary and capricious review is a favorite topic of both courts and commentators. Despite this active focus on hard look review, however, a crucial point has been overlooked. Existing scholarship overwhelmingly portrays arbitrary and capricious review as one-dimensional — as applying the same standard in the same way across all manner of agency conduct. This Article rejects this one-dimensional approach and offers a new perspective that represents a potentially transformative view of arbitrary and capricious review. It reconceptualizes hard look review as a multi-dimensional expression of judicial deference and argues that arbitrariness review is both more effective and more easily justified when it is “deconstructed” — when it first divides administrative policymaking into its constituent parts, such as record building, reason giving, input scope and quality, and rationality. This shift exposes arbitrary and capricious review for what I contend it should be: a collection of more particularized inquiries into specific components of agency decision making. The deconstruction model is useful for several reasons. It provides a new and coherent theoretical framework for arbitrary and capricious review. This framework may then be used to evaluate each of the deconstructed components of agency conduct against the underlying principles of judicial deference and goals of hard look review to develop a new, dynamic view of arbitrariness review that tailors judicial deference to discreet aspects of agency decision making. Deconstruction also reveals institutional and systemic benefits to viewing hard look review as a multidimensional exercise. These in turn increase our understanding of how hard look review should be utilized in different contexts and of when courts should defer to the political branches more generally.

Science and politics often interact successfully in administrative law. Potential problems arise, however, when agencies make “counter-scientific” policy decisions — decisions that overlook otherwise uncontroverted scientific evidence in favor of political rationales. This short essay draws new attention to these counter-scientific policy determinations by asking if and under what circumstances they may be considered illegitimate in a constitutional democracy. More specifically, it asks how counter-scientific decisions impact three of the animating principles of administrative legitimacy — agency expertise, accountability and transparency, and efficiency — and identifies some additional variables that are useful to that analysis. Part II offers recent examples of three different forms of counter-scientific policy decisions. Part III outlines the three principles of legitimacy to be applied to those decisions. Part IV then evaluates counter-scientific policy decisions in light of each of those three principles, arguing that variables such as the scope of a particular agency’s expertise, the nature of that agency and its role in government, and the agency’s own claims as to how it is exercising its policymaking authority are critical to understanding the democratic viability of counter-scientific policy decisions. This insight is not only valuable in its own right, but also as a useful starting point in a more rigorous evaluation of counter-scientific agency decisions that could have powerful implications for policymaking as well as for administrative legitimacy in general.

Recusal is one of the most hotly contested issues currently facing the Supreme Court. Within the wide-ranging debate over the Justices’ recusal practices, however, a singular theme has emerged: Congress must do more to protect the integrity and legitimacy of the Court by regulating the Justices’ recusal practices. Herein lies the problem. Rather than solve the puzzle of Supreme Court recusal, direct congressional regulation has created an impasse between Congress and the Court over recusal that has consequences for the reputation, efficacy, and legitimacy of both branches. In a precursor to this Article, I recast the issue of Supreme Court recusal as a constitutional question and argued that direct congressional regulation of Supreme Court recusal violates the separation of powers. This Article builds on that prior work and argues that separation of powers principles are critical to understanding and alleviating the inter-branch impasse over recusal. It contends that Congress, rather than the Court, should take the lead in resolving that impasse and that the separation of powers requires Congress to use indirect constitutional mechanisms to do so. Specifically, Congress should repeal the current statutory provision directly regulating Supreme Court recusal and focus instead on more indirect constitutional tools — such as impeachment, procedural reform, judicial confirmation, appropriations, and investigation — to influence the Justices’ recusal practices. This effort to frame the recusal debate within its proper constitutional context permits a more robust and productive dialogue about both the Justices’ recusal practices as well as the broader question of the nature and dynamics of inter-branch relations in our tripartite government.

The debate over the role of traditionalism in constitutional interpretation has itself become a tradition. It remains a popular and controversial topic among constitutional scholars and presents normative questions that are as divisive, difficult, and important today as at the Founding. Missing from the discussion, however, is a comprehensive account of how the Supreme Court has employed traditionalism - an approach that looks for meaning in present manifestations of longstanding practices or beliefs - in its constitutional jurisprudence. This project is the first to fill this significant gap in the literature by providing an exhaustive and systematic analysis of the Court’s use of constitutional traditionalism. This Article focuses on the Roberts Court’s first five terms to provide an empirical foundation that will not only offer previously unavailable insights into the Court’s current traditionalist practices, but will also set forth a useful framework for the ongoing normative debate over traditionalism.

This project uses content analysis of key terms to identify every instance in which the Roberts Court employed traditionalism to interpret the Constitution. More specifically, this project set out to answer the following three questions: first, how frequently does the Roberts Court employ traditionalism in its constitutional jurisprudence?, second, how robust is the Court’s use of traditionalism (i.e., is it used to interpret a broad or narrow range of constitutional provisions)?, and finally, how often and in what contexts do individual justices on the Roberts Court rely on traditionalism in their own constitutional opinions? The research provided here suggests answers to all three of these questions. First, the data indicate that traditionalism has been relied upon regularly by the Roberts Court, appearing in nearly half of the Court’s constitutional cases. Second, traditionalism is frequently applied to a wide variety of constitutional provisions: two-thirds of the constitutional provisions considered by the Roberts Court were subjected to a traditionalist analysis, and ranged from provisions pertaining to government power and structure to individual rights. Finally, the data show that although traditionalism is used more frequently by conservative justices, it is nevertheless employed by all members of the Court in a wide variety of contexts. Although there is more to learn about traditionalism’s role in the Court’s constitutional jurisprudence, this evidence makes clear that notwithstanding the normative controversy surrounding traditionalism, any future study of the workings of this Court, its members, or of the future direction of constitutional law in general must take traditionalism into account.

Supreme Court recusal is one of the most timely and hotly contested issues in American law. Recent debate over when justices should be precluded from deciding certain cases has included public calls for the exclusion of Justices Thomas and Kagan from any future cases addressing the constitutionality of the controversial Affordable Care Act, the congressional testimony of two sitting justices, a letter from over 130 law professors successfully prodding Congress to introduce a new Supreme Court recusal reform bill, and numerous editorials in national print and electronic media outlets. Among the wide variety of voices in the discussion, a singular theme has emerged - more rigorous congressional regulation of Supreme Court recusal practice is needed to protect the integrity and legitimacy of the Court.

This discussion, however, misses the point. Lost in the impassioned debate about when justices should recuse themselves is a far more important and fundamental constitutional question: who should make that decision? This issue is at the core of our constitutional separation of powers and federalism principles, and should take center stage in the debate over Supreme Court recusal. This Article is the first to comprehensively apply separation of powers principles to the question of Supreme Court recusal, and argues that the Constitution requires that the Supreme Court be the sole arbiter of its own recusal standards. This argument shifts the focus of the debate from an ineffectual and unrealistic congressional command model, based primarily on notions of judicial ethics, to a more fundamental constitutional inquiry into the proper exercise of legislative and judicial authority. While this Article represents a significant break from current orthodoxy, it is imperative to situate the Court’s recusal decisions within the proper normative framework. Understanding the unconstitutionality of Supreme Court recusal standards should yield a more useful and transparent dialogue about the Court’s recusal practices going forward.

The debate over teaching evolution in public school science classes is changing rapidly. States have recently adopted new anti-evolution policy measures that represent a significant departure from previous efforts to curtail the teaching of evolution. These new measures employ what I describe in this Article as the “distributive model” of evolution education. The distributive model shuns legislative or regulatory prescriptions in favor of higher-order policy statements encouraging educators to promote critical thinking about scientific questions, including evolution. These policy statements empower individual educators to judge for themselves how best to engage in a critical review of evolution on a case-by-case basis. The emergence of the distributive model is critical to the future of evolution instruction because it portends a paradigmatic shift in the way we view evolution education policy. Prior to the introduction of the distributive model, courts consistently invalidated efforts to curtail evolution instruction under the Establishment Clause. This Article identifies the emergence of the distributive model and argues for a brand new way of looking at evolution instruction policy through the lens of administrative, rather than merely First Amendment, law. This new perspective is important because it offers a more holistic view of the distributive model’s highly dynamic policy environment than that provided by the Establishment Clause. More specifically, viewing the distributive model in accord with principles of administrative law reveals a number of significant political and legal issues independent from, and potentially preclusive of, Establishment Clause analysis.