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Vicki C. Jackson, Thayer, Holmes, Brandeis: Conceptions of Judicial Review, Factfinding, and Proportionality, 130 Harv. L. Rev. 2348 (2017).

Abstract: Three Harvard Law School alumni — James Bradley Thayer, Oliver Wendell Holmes, Jr., and Louis D. Brandeis — have had outsized impacts on judicial review, how it is conducted and conceived. Part I of this Essay provides a brief overview of Thayer’s theories of judicial deference, Holmes’s value skepticism and deference to “dominant opinion,” and Brandeis’s efforts, through improved understandings of facts, to bring “legal justice” closer to “social justice.” Their influences endure in (at least) rhetorical commitments to judicial deference to legislatures and a certain “value skepticism” that, as Part II suggests, help explain why “proportionality review,” though widely used in other constitutional democracies, has not been adopted here. Part III argues that proportionality review, in some areas, would improve the transparency of constitutional analysis and enable constitutional law to better approach constitutional justice. It further argues that, in an age of “truthiness,” “fake news,” and “kabuki theater” in legislative hearings, courts are most likely, among major institutions of government, to provide publicly transparent and impartial decisionmaking about facts relevant to the constitutionality of laws, whether under proportionality review or other doctrines. Deference may be appropriate, as Thayer, Holmes, and Brandeis in different ways urged, but it should be deployed in ways responsive to the social facts about different governmental decisionmaking processes.