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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Boundary-Enforcing Supreme Court Decisions (Part III): How to Recognize Them, Why We Often Don’t
In a series of posts, I’ve been discussing what I call the “boundary-enforcing role” the Supreme Court sometimes plays. These are typically cases in which public authorities have engaged in action that seems to many, including the Court, an extreme abuse of authority – a law, regulation, or individual action that is “outrageous” and beyond the pale – but for which the Court cannot easily create a clear legal rule to define the boundary between legitimate and unconstitutionally extreme conduct. At that point, the Court sometimes decides nonetheless to establish that the Constitution does impose some boundary; at some point, such extreme conduct becomes unconstitutional. And sometimes, the Court decides that it should not impose a boundary because any legal rule would be too vague. Moreover, some Justices are regularly much more willing to impose these vague boundaries than others. In thinking about the Court (not just the current Court, by the way) it is essential to recognize this feature of constitutional law, and to appreciate that implicit debates about whether the Court should play this role – among the Justices, and among those who assess the Court’s decisions – recur throughout diverse areas of constitutional law.
Now along comes the Court’s decision in the school-search case, Safford Unified School District v. Redding, to illustrate another key point. How do we recognize a boundary-enforcing decision? And, more to the point, why are some decisions immediately recognized – and reacted to – as boundary-enforcing decisions, while others are not, even though they are similar in character? To take another cut at the issue, why is the vagueness inherent in a legal principle sometimes seen as an enormous problem, and other times largely ignored?
I’ve been using the due process case involving judicial elections, Caperton, as the paradigm of a boundary-enforcing decision. Caperton concluded that at some point (though it cannot be defined with precision) due process requires that judges recuse in the extreme situation of a case pending at the time of a judicial election in which a financially-interested party has become a dominant spender on behalf of one of the judges competing for office. The school-search case arises in a context about as far from judicial elections as possible, but the comparison of Safford and Caperton is instructive. Safford involved conduct the 8-1 Court and many others found extreme and outrageous: the strip-search of a 13-year old girl who school officials believed might be distributing prescription drugs to students and, after searches of her backpack and clothes had turned up nothing, believed might be hiding them in her underwear.
But notice how vague the legal standard is the Court had to come up with to hold this particular extreme search unconstitutional. A school search has to be (1) based on reasonable suspicion at its inception; (2) it has to be reasonable in scope, even if justified; (3) different phases of a search require different levels of justification; (3) in deciding how to apply these principles, school officials have to calculate not just whether a student is violating a school policy or state law, but in addition, how dangerous or serious the violation “is.” And notice a number of bright-line rules instead were available to the Court, some of which would have condemned this search, some not. To list just a few: (1) strip-searches of students are always unconstitutional; (2) or strip-searches are always unconstitutional except for weapons; (3) or, once there is “reasonable suspicion” to search a student – as the Court agrees existed here – then a search is necessarily constitutional; (4) or, the Fourth Amendment does not apply to school searches – a position the Court had rejected long ago in the TLO case and that dissenting Justice Thomas appears to prefer. This is not to criticize the Court’s decision, but to point out that the Court decided a vague, boundary-enforcing decision was better – and that 8 members of the Court agreed with that.
Safford and Caperton end up having a lot in common (though Safford is probably a bit less vague). Yet while there was plenty of criticism of Caperton for being too vague, there was almost none of that for the school-search case. Why? Why is this kind of vagueness taken for granted as fine in some contexts, but not others? For commentators, I suspect it’s partly the difference between a 5-4 decision and an 8-1 one – this kind of issue gets obscured in an 8-1 decision, at least to many. An experienced Court lawyer like Walter Dellinger , writing in Slate, recognizes the similarity between these two cases, despite the different contexts and votes. And perhaps the reactions have something to do with how sympathetic to the outcome commentators are, though I’m not sure how far that goes, since I take some of Caperton’s critics to be sympathetic nonetheless to the outcome there.
In the school case, the Court saw what it regarded as such extreme, outrageous conduct as to warrant a constitutional bar, even as it expressed the terms of that bar in vague ways; school officials and lower courts are going to have to sort out what this standard now means. My main point is to note that fact, to show how more pervasive this boundary-enforcing Court role is than we often recognize, and to raise a question about why we only see it some of the time it is taking place. Posted
by Rick Pildes [link]