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Monday, June 18, 2018

(SCOTUS Term): Deciding little, deciding few, and competing judicial functions

I had thoughts similar to what Dahlia Lithwick and Eugene Volokh argue. This Court does not want to decide substantive constitutional issues--to make constitutional law--that can guide lower court, other branches and governments, and the public. In addition to the standing punt in Gill (which retains the gerrymandered status quo, so it is not a neutral result), Volokh points to Tuesday's decision in Lozman and last week's decision in Masterpiece as examples of the Court failing to resolve the tricky substantive issues presented in the cases. The acid test will be whether the Court does something similar with the travel ban. (Eugene also mentions Janus, although the outcome in that case is so over-determined, it feels like waiting for the inevitable).

The wisdom of so-called minimalism or reliance on "passive virtues" or what Dahlia derides as the Chief fearing political criticism must be measured against the Court's shrinking docket. The Court will decide fewer than 70 cases this Term. And the cases it decides will not have the long-term prospective effects that we expect from a Court of last resort working with an almost-entirely discretionary docket. The nature of that docket focuses the Court on its rulemaking, as opposed to its error correction, function. So what is the Court doing and how does it see its role?

On the rulemaking/error-correction line: We might think of Lozman and Masterpiece as failures of discretionary case selection, creating confusion between those competing roles of the Court. In both cases, the Court realized it had the wrong vehicle for resolving the core constitutional issue. Neither case presented the paradigm case for the supposed legal issue. And both had unique features that allowed for narrow resolution of the case at hand (in other words, correcting lower-court error) while providing little general guidance (rulemaking).

Posted by Howard Wasserman on June 18, 2018 at 09:59 PM in 2018 End of Term, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


@Scott, @Asher

I don't think that anyone is trying to argue that the opinions did not reflect the true beliefs of the justices. Rather, people are trying to puzzle out why those specific beliefs lead to the resolution is these specific cases. As a generic matter cases can be resolved on all sorts of different grounds; there is not one proper way to resolve every case, though certainly some ways may appear more cogent or persuasive than others.

So when a court says it is going to do X but appears to instead do Y it tends to breed speculation. That speculation isn't founded on a belief that Y is wrong, only on a belief that Y is discongruent with X.

Posted by: James | Jun 20, 2018 11:49:59 AM

4 to take a case (possibly for opposite reasons), 5 to decide it. It's not at all clear that a majority of justices ever wanted to make a strong ruling about partisan gerrymandering.

Posted by: Salem Al-Damluji | Jun 20, 2018 6:25:04 AM

I share the belief that AMK (along with everyone else who joined these opinions) agrees with their reasoning and their conclusion. I think that if he had something to say in these cases, he's likely to have said it. The same goes for the others.

But I think that's distinct from two (related) issues that Howard raises. First, did the Court address the question it granted cert. to answer? Second, are the Court's agenda-setting functions operating correctly? That is, is the Court granting cert. in the "right" set of cases?

Both of these questions are hard to answer.

Maybe the Court set Gill for argument (it didn't technically "grant" the case) in order to decide an important question of Article III standing. But if that's so, it doesn't seem consistent with the outside perception of the case; nor is it fully consistent with the questioning at oral argument. The Court resolved the case by addressing a question it doesn't seem to have set out to answer. That both gives rise to the perception of punting, and it might also have other negative effects --- if the Court reaches out to resolve a case on some unexpected grounds, is it more likely to make a mistake? Set out a rule that has unintended consequences? Or simply issue a decision of limited effect? I guess we'll see... But the question of what the Court is doing here, and to what effect, is a good one, I think, to consider.

It's also not clear what inferences we can draw from these cases for the cert. process more generally. I don't think it's right to say that the Court is not interested in deciding these hard constitutional questions... It is certainly interested in doing so; the cert grants are evidence of that. It seems more likely that they can't do it. That is, there's some dissonance between their desire to decide the QP in Lozman---as evidenced by the cert grant, their intent to decide that QP---as evidenced by the questions at argument, and their appararent (in)ability to do so---as evidenced by some of these opinions. If that's right---if the Court can't address these questions (at least not in these cases)---then something in the cert process might need to change. Maybe they should look more closely in the relist process to make sure that there are fewer possible escape hatches. That is, selecting a vehicle where the only way out is to address the QP becomes a sort of a commitment device. Alternately, they should change the cert criteria so they're not taking cases that they won't be able to answer. They should focus on something else. But this relates to Howard's question of the how Court sees itself and its role? Does Court see itself as its cert.-granting self (big, important constitutional decider!), or its case-deciding self (modest, incremental, apolitical). Assuming, of course, that those characterizations are even correct.

No answers here. Just more questions.

Posted by: Scot Free | Jun 19, 2018 7:05:11 PM

Your first link doesn't work.

Could I float the apparently radical theory that a majority of the Court actually believes that the plaintiffs in Gill hadn't proven standing, and that injunctive relief in Benisek wasn't proper regardless of likelihood of success on the merits? Suppose, as people seem to assume, that Justice Kennedy doesn't really believe in either of those holdings, but rather just isn't sure, still, if these claims are justiciable are not. If that's the case, why didn't he just say that? He did in Vieth. And why didn't four other members of the Court argue that the claims were non-justiciable, if that's what really motivates their votes?

Posted by: Asher Steinberg | Jun 19, 2018 11:56:49 AM

That is one theory. Another theory is that the court is in a holding pattern because it expects one or more retirements soon and those retiree(s) do not want to put the court in a 5-4 position that would only get quickly overturned once a new justices(s) are appointed.

I don't like to engage in retirement speculation because judges retire when they want to retire but the court's sudden interest in very narrow rulings at the end of this term is entirely consistent with the retirement hypothesis (as it is with other hypothesizes).

Posted by: James | Jun 19, 2018 11:26:03 AM

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