Caperton and Boundary-Enforcing Justices Part II: How Vague Law Can Create Stable Outcomes

Rick Pildes

In a previous post on Caperton, I suggested a fundamental but insufficiently appreciated distinction between Justices who consider it essential to enforce outer boundaries on political processes, even if those boundaries can be defined only vaguely, and Justices who believe that unless legal decisions can be expressed in the form of relatively clear rules, the Court should stay out of a problem altogether. I suggested this distinction is key to understanding Justice Kennedy (and Justice O'Connor before him), and to recognize that this is part of what has made them the "swing Justices" over the last 20 years. And I noted that academics would always criticize boundary-enforcing Justices and decisions, because by their very nature, these decisions cannot generate relatively clear, bright-line legal principles that enable the decision to be enforced in a fairly determinate way.

Now along comes the always-insightful Linda Greenhouse to perfectly illustrate what I mean. In a recent post, she criticizes Justice Kennedy's opinion for precisely these reasons:

The case was latched onto by a whole bunch of well-meaning folks who thought they could use it as a poster child for what's wrong with a system in which judges must run for election and raise money to do so. But its facts are so extreme that it can in no way be described as typical, and it produced an opinion so qualified and so tied to those facts, it's impossible to state the holding accurately in a way that has any utility for the nonextreme, and hence less visible and perhaps more troubling, situations that come up when judges have to run for office or retention. The real fight in this case was evidently in conference, in a closed-door debate that went on for weeks over whether to grant it. I'm sorry that they did: The case promised more than it could possibly deliver, while doing very little to clarify a judge's duties in ethically ambiguous situations.

Linda's commment provides an opportunity to turn to the next stage in unpacking the Court's boundary-enforcing role. Having identified the existence of this concept, I want to assess it a bit, or at least say a few words about the considerations that should go into assessing it. Decisions like this typically spawn two criticisms: (1) they are vague and will cause confusion, chaos, and the like among lower courts and those who have to comply -- this is the primary criticism in Chief Justice Roberts' dissent; (2) they are not likely to do much good because the facts in such cases are usually extreme and atypical -- this is Linda's complaint. Put together, the complaint is too little benefit for too much cost.

My main point is that these kind of complaints are always defective, at least without deeper institutional analysis. They are defective for the same reason: they view a Supreme Court decision as an isolated atom, as if it exists in a legal universe of its own, instead of as part of a larger legal and political system. Vague Supreme Court law can nonetheless lead to stable legal/policy outcomes. Caperton is a good example: as has begun to happen already, there is no doubt the case will lead to state-level reform of judicial ethics rules and practices, whether through statute, codes of judicial ethics, or state court rules. All that will happen without further federal due process litigation, which will probably continue to play a minor role. The question is not what a Supreme Court text says as text, it is how other actors will internalize and respond to the decision. This affects both standard criticisms: (1) vague Court decisions might generate much less confusion, uncertainty, and hence costs, because other actors will elaborate the decision; (2) the benefits can be much greater, because other actors, located in other institutional contexts, can expand the Court's principle beyond where formal constitutional doctrine stops. Of course, the values underlying the vague decision must be "right," but neither Linda nor Chief Justice Roberts seems to be complaining about that in Caperton. Their implicit premise is that Court doctrine must be self-enforcing; what they fail to consider is that the enforcement might include other institutional actors not constrained in the same way the Court is.

Finally, the criticism that vague Court decisions cannot be administered is not always wrong. But nor is it always right. Whether it is right depends on context. But that means the criticism, standing alone, is not sufficient. What is required is judgment about how the rest of the institutional system will absorb and respond to the Court's decision.
Posted 2:15 PM by Rick Pildes [link]