an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In a sharply worded dissent yesterday in a case overturning the imposition of the death penalty with regard to specific Texas defendants, Chief Justice Roberts wrote, “We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to ‘clearly established’ federal law.” He went on to describe the relevant precedents as “a dog’s breakfast of divided, conflicting, and ever-changing analyses.”
He was, of course, referring only to the tangled capital punishment cases of the Court, which often turn on the more-or-less idiosyncratic views of the fabled "median justice," a role previously occupied by Sandra Day O'Connor and now filled by Anthony Kennedy (who was in the majority in all three of the cases striking down impositions of the death penalty). But one might well apply Chief Justice Roberts acerbic comments to vast areas of contemporary constitutional law, where one can confidently say that a substantial majority of the Court believes that current doctrines make little or no sense, but, of course, they split shaprly on what "sensible" doctrine would be. So we have, in the two affirmative action cases from the University of Michigan, Gratz and Grutter, 7 justices who agree that the policies of the undergraduate and law school admissions should rise or fall together, while Justices O'Connor and Breyer were able to discern constitutionally relevant distinctions that, therefore, controlled the outcomes in the two cases. Another notorious example is the set of Ten Commandements cases from Kentucky and Texas, where only Justice Breyer was able to see a difference in the two cases. And, of course, the abortion decision last week might well fit this model, inasmuch as it's difficult to believe that anyone besides Justice Kennedy could see a genuine distinction between that decision and the one several years ago that struck down a functionally identical law from Nebraska. "Dog's breakfast" seems quite accurate as a description of much, perhaps most, of the Supreme Court's recent handiwork with regard to interpreting the Constitution.
My own view, as a "teacher" of constitutional law to impressionable law students, is that it's basically a waste of time to inflict most of these cases on the young except insofar as they should become aware of the potential for intellectual incoherence generated in any multi-member decisionmaking body that puts a premium on issuing a collective opinion (instead of the old English practice, for example, of "seriatim" opinions delivered by each member of the court). And this also raises extremely interesting questions of "judicial ethics," inasmuch as justices regularly sign opinions with which they could not possibly agree in toto simply to create an "Opinion of the Court" that ostensibly declares the law. The most important example is the willingness of Chief Justice Rehnquist and Justices Sclaia and Thomas to sign the per curiam opinion in Bush v. Gore. As Richard Posner, among others, has noted, it is inconceivable that they agreed with a word of the "equal protection" analysis; they would have rested the decision on their reading of Article II relating to the appointment of electors. The embarrasment is that that reading was rejected by six of the justices, and if they had refused to sign the court's opinion, then the equal protection analysis would have been rejected by five of the justices. So the result would have been Bush wins (by adding the three votes for the Article II analysis to the two votes of Kennedy and O'Connor based on Equal Protection) even though the specific analyses justifying that win would have been rejected by a majority of the Court. So sacrificing intellectual integrity was a small price to pay to create the illusion that "the Court" had genuinely united behind anything other than an outcome (Bush wins).
But the point is that justices of all stripes regularly sacrifice their intellectual integrity in order to reach the all-important "rule of 5," i.e., getting (at least) four of their colleagues to unite behind a single opinion that can be presented to lower courts (and law professors, law students, lawyers, and editorial writers) as "the law" instead of merely personal opinions of the justices. Justice Brennan, for example, signed his share of opinions that he could not possibly have believed because they were effective way-stations on the way to what he hoped, at a later time, would become the final view of the Court.
Along this line, I commend a review by Jeremy Waldron in the current New York Review of books on two recent books, by Jeffrey Rosen and Jan Crawford Greenburg, on the Supreme Court. Waldron is quite critical of both because they present as their models of judicial behavior politically-skillful pragmatists who will not let rigid adherence to legal principles stand in the way of making deals with their colleagues necessary to achieve majority opinions. Thus Rosen invidiously contrasts the rigid Scalia with the more malleable Rehnquist, and both seem to be infatuated with John Roberts as a politically savvy Chief who will ultimately not let his views as to what the Constitution, best interpreted, means stand in the way of achieving some kind of judicial "consensus." Waldon, perhaps the best known systematic critic of the very idea of judicial review, asks why we should put such power in the hands of individuals who are acting more like "politicians" than as stern guardians of legal principles. Interestingly enough, in Greenburg's book, it is Clarence Thomas who comes across as the justice with the greatest degree of Dworkinian "integrity" inasmuch as he rarely seems willing to bend his views on the what the Constitution means simply to make nice with his colleagues. (This makes his vote in Bush v. Gore all the more interesting, therefore, since it cannot possibly be defended under any "integrity" model of judging.)
A final point: The acerbity of Roberts's dissent suggests that he may be giving up on his professed desire to overcome the fragmentation of the current Court. So maybe he is on his way to becoming more like Thomas or Scalia. The "Roberts Court" (which is really, right now, the Stevens-Kennedy Court) is clearly a work in progress, not least because of the consequences of the 2008 presidential and Senate elections for who will succeed the now-87-year-old John Paul Stevens and, possibly, the already septagenerians Scalia, Ginsburg, and Kennedy. Posted
by Sandy Levinson [link]
Prof. Levinson [from the post]:
And this also raises extremely interesting questions of "judicial ethics," inasmuch as justices regularly sign opinions with which they could not possibly agree in toto simply to create an "Opinion of the Court" that ostensibly declares the law. The most important example is the willingness of Chief Justice Rehnquist and Justices Sclaia and Thomas to sign the per curiam opinion in Bush v. Gore.
You missed Souter and Breyer. Despite the fact they dissented ("I respectfully dissent"), explained what they thought, and explained what should have happened, the cowardly per curiam signed them on nevertheless to the majority opinion to add weight and "consensus" on their ill-conceived "equal protection" claim. Sadly enough, the media bought on to this nonsense about the decision being a "7-2" decision (and this erroneous "fact" is still paraded around in RW circles and even amongst the laity).
I actually wasn't forgetting Souter and Breyer, since the four justices who believed there was a serious 14th Amendment question were Kennedy, O'Connor, Breyer, and Souter. The five who didn't were Rehnquist, Thomas, Scalia, Ginsburg, and Stevens.
Thread Hijack: Any other Balkinites planning to see Professor Levinson in Los Angeles tomorrow? If so, would love to coordinate, make sure to meet up face-to-face. Email me direct at beau (ahem) oblios-cap (cough) com.
"And the more fundamental equal protection claim might have been left to the state court to resolve if and when it was discovered to have mattered."
He rocognises that there may be an issue (adn that the majority is asserting that). He has the good sense to say, basically, "it's hard to say that something that hasn't been done yet is being done wrongly....
And for good measure, he chides the majority for their faux 'remedy':
"By halting the manual recount, and thus ensuring that the uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm. And that remedy harms the very fairness interests the Court is attempting to protect."
Breyer certainly doesn't, contrary to what the majority false claims of him, think that "there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy". This statement is just false. That is to say, a lie.
And Justice Souter is of similar opinion; while he acknowledges that there might conceivably be equal protection issues in elections (hardly a novel concept), he thinks they would be best addresses when they actually show up:
"The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd., ante, p. ___ (per curiam), or this case, and should not have stopped Florida's attempt to recount all undervote ballots, see ante at ___, by issuing a stay of the Florida Supreme Court's orders during the period of this review, see Bush v. Gore, post at ____ (slip op., at 1). If this Court had allowed the State to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided in 3 U. S. C. §15. The case being before us, however, its resolution by the majority is another erroneous decision.
"As will be clear, I am in substantial agreement with the dissenting opinions of Justice Stevens, Justice Ginsburg and Justice Breyer."
"It is only on the third issue before us that there is a meritorious argument for relief, as this Court's Per Curiam opinion recognizes. It is an issue that might well have been dealt with adequately by the Florida courts if the state proceedings had not been interrupted, and if not disposed of at the state level it could have been considered by the Congress in any electoral vote dispute."
The majority seizes on "meritorious argument for relief", saying he agreed there was a problem. Not so; he doesn't say the argument, even if meritorious in the abstract is won. And it's hard to "win", seeing as there was no evidence; no factual record for the actions at issue (the subject of the stay). They were all in the future, and he says they might be perfectly OK if just left to run their course, just as Breyer did.
The "facts" supposedly cited by Olson and company had to do with counts already done (and which the court allowed to be included in the official results). The majority did nothing about these counts. This is the fundamental dishonesty of the majority opinion, and both Breyer and Souter excoriated the majority for this. They did not "concur in part and dissent as to the remedy".
Waldron is quite critical of both because they present as their models of judicial behavior politically-skillful pragmatists who will not let rigid adherence to legal principles stand in the way of making deals with their colleagues necessary to achieve majority opinions.
If that's how Waldron is taking Greenburg, then he doesn't understand her view. It's not that she doesn't think Roberts will stand up for his convictions. It's that she thinks he'll tend to seek consensus on narrower opinions when possible, rather than being tempted toward more sweeping opinions the way Thomas and Scalia would be. Getting nine justices to agree on an abortion case is no mean feat. That's the kind of example she has in mind. It's not that any justice on that case had to say anything they disagreed with. It's just that they had to refrain from saying further things they would have wanted to say.
On the '7-2' bit, a big confusion there is "Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, dissenting." When someone "joins" (not "in part") does that uh mean something?
I was against Roberts' confirmation and wanted Democrats to vote against him basically because I didn't like the ideological path he would likely take the Court.
His past efforts to promote a certain ideology, including the Reagan years, plus the thought that Bush wouldn't nominate someone who would not help promote Bush ideology factored in here.
I felt his faux "umpire" metapor was rather crafty. For those who took it seriously, his EPA dissent (underlining the importance of the judiciary, his distaste for certain precedents, etc.) is a telling rejoinder.
Roberts also seemed like a nice guy sort, personable and media friendly. Comments like "dog's breakfast" and other snarky remarks (again, the signs were there before, if you cared to look), unline another to him too.
BTW, some said "hey, wait ... we will save our fire for the next one! O'Connor's vote is the one that counts." Not even a filibuster.
Jeremy Pierce makes an interesting point. The test will be the forthcoming opinion on race and school assignment. It's not at all clear why he would have wanted the Court to take the two cases, which do not conflict and come accompanied with a powerful supporting opinion by Judge Kozinski.