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
The Court and Congress: The Child Pornography Case
When Congress botches a statute, should the Court take into account whether Congress is likely to respond to the Court's decision? That is one of the more intriguing questions spawned by yesterday's decision in the child pornography case, Paroline v. United States.
As eight Justices saw it, the text of the law suggested Congress had created a messy situation: (1) Congress intended to ensure that victims like Amy receive some restitution; (2) Congress did not intend that they receive as much as $3.4 million in restitution from someone who possessed two images of the victim, which is what the victim sought; (3) and Congress had not provided any direct guidance in the statute itself for how courts ought to determine the point between $0 and $3.4 million at which restitution ought to be set. Congress must have meant something between $0 and $ 34 million, but provided no road-map for even generally figuring out how much. All eight Justices presumably agree it would be better for Congress to address and resolve the general policy issues. The question is what to do when Congress hasn't -- and, perhaps, what decision from the Court makes it most likely that Congress will do so.
Initially, the question is whether the Court should try to put Humpty Dumpty back together again: should the Court construct a version of the law that creates a rough approximation of what Congress might have been trying to do -- as Justice Kennedy's majority opinion did -- or should it conclude that Congress has made such a mess, and has provided so little guidance, that the Court should not to try to spin rationality from such little thread but instead throw its hands up and push the issue back to Congress -- as CJ Roberts's dissenting opinion did.
But the even more intriguing question is which way of handling situations like this -- the Kennedy or Roberts approach -- makes it more likely that the final outcome will be what all eight Justices agree would be best, which is for Congress actually to address these issues. It's possible the Roberts approach would make it more likely than the Kennedy approach that Congress would be forced to get back into this area. Roberts reaches a result that he knows Congress did not intend -- that victims get nothing, even though the whole point of the statute was that they ought to get something. But since that outcome flies so dramatically in the face of the policy we have good reason to believe Congress wants (both the enacting and current Congress), the very extremity of that result perhaps makes it all the more likely that groups will mobilize and be able to move Congress to respond. And it's possible Congress might be less likely to respond under the majority's approach: Congress might conclude after yesterday that the courts are now in the middle of working things out and might wait to see what the courts manage to do. And we can now also ask, should the Court take these considerations into account -- which way of deciding a case like this makes it more likely Congress will step up -- when the Court chooses between the majority and dissenting approaches.
Of course, when you have a hammer, everything looks like a nail, and I see these questions through the framework of the issues I laid out in this blog yesterday, before the child pornography opinion was handed down. Should the Court try to make "realistic" judgments about how Congress is likely to respond to the Court's decision or consider it irrelevant whether Congress is more likely to respond if the Court goes down the Roberts rather than Kennedy path? For my post yesterday about these issues, see here. Rick Hasen has some initial thoughts about these questions, also, over here.