Wednesday, February 16, 2011

Vague Law, Stable Outcomes: The Example of Money and Judicial Elections

Rick Pildes

In earlier posts and academic work, I've written about the phenomenon I call "vague law, stable outcomes." This experience is central, in my view, to thinking about constitutional doctrine and Supreme Court decisionmaking, yet not properly appreciated. Some of the most difficult problems the Court confronts arise when the Court is inclined to conclude a constitutional violation has occurred, but where the nature of the issues inherently makes it difficult or impossible to formulate a relatively clear set of doctrinal principles or rules that can define the border between constitutional and unconstitutional action. Should the Court go ahead and declare the action unconstitutional, even though the Court will inevitably be able to do no better than generate a vague set of principles to guide future cases? Or should the fact that the Court cannot do better than offer vague principles be a reason the Court should refrain from declaring a constitutional violation in the first place? A good recent example is the Caperton case, in which the 5-4 Court held that due process is violated at some point when a judge sits on a case involving the interests of an entity that has spent extremely large amounts to get that judge elected (or his opponent defeated). There is simply no clear doctrinal way for the Court to specify at what point spending or contributions to elect or defeat a judicial candidate become so large as to require, as a matter of due process, judicial recusal. For some Justices, that unavoidable lack of clarity is a reason not to act; for others, that lack of clarity is not.

In cases like these, dissenting Justices and academic commentators typically take the Court to task for issuing vague and destabilizing rulings that create uncertainty and raise the prospect of endless litigation. Thus, in Caperton, Chief Justice Roberts offered up 40 or so situations to which the vague principles of the Caperton decision might extend, but which could not clearly be handled in any obvious or easy way by the Court's decision. But these criticisms implicitly assume that the only source of stability and certainty that constitutional decisions can provide must come from within legal doctrine itself. Thus, these critiques take what we might call an internalist and purely legalist view of the potential sources of clarity and stability in the law. But in my view, we should think more broadly (and perhaps judges already do so) about how Court decisions interact with policymaking institutions. There are many examples of vague constitutional rulings turning out to generate stable policies and practices, not because the doctrine itself is clear, but because other institutions respond to the Court's decision in ways that create the clarity and certainty that the law itself lacks.

Now comes along a perfect example to illustrate this phenomenon with respect to Caperton itself. As the New York Times recently reported, New York's highest court, which has the power to regulate the state judicial system on these matters, is set to issue clear rules that will provide a great deal of certainty about the relationship between money and the need for judicial recusal. For example, these rules will state that “no case shall be assigned” by court administrators to a judge when the lawyers or any of the participants involved donated $2,500 or more in the preceding two years, court officials said. Other state high courts are issuing similar rules. Other state high courts are issuing similar, though less strict, rules. I do not profess to know whether any of these rules are sensible or not; I have not studied them in detail. But they nicely illustrate the point that just because constitutional doctrine itself is vague -- and inherently so, with respect to certain kinds of problems, particularly some of the most difficult the Court confronts -- there remain sources outside legal doctrine that can take vague constitutional law and turn it into clear, stable, predictable outcomes. It is important to bear that in mind in evaluating Supreme Court decisions that create "vague" doctrine.

The most difficult question, once we focus on the potential dynamic relationship between constitutional doctrine and the responses of other institutions, is knowing how to judge in advance whether vague constitutional law will be turned into stable policies and practices by other actors. Sometimes, vague constitutional doctrine does create a mess -- constant uncertainty, enormous transactions cost of endless litigation -- and should be avoided for that reason. Sometimes other institutions cannot or will not turn vague law into stable outcomes. Can we have any confidence in advance, and can judges, about recognizing when it is likely that other institutions will create stability and clarity out of vague constitutional doctrine? But we only get to these kind of questions once we recognize the larger point: that vague constitutional doctrine can be transformed into clear rules and practices through the actions of other institutions.

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