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Playing It Safe: How the Supreme Court Sidesteps Hard Cases and Stunts the Development of Lawby Lisa Kloppenberg(New York University Press, 304 pp., $38)

For many years, Israel's General Security Service has engaged in certain forms of physical coercion, reasonably described as torture, of suspected terrorists. Suspected terrorists have been repeatedly shaken, in a way that causes their heads and necks to dangle and to vacillate rapidly. They have been tied in chairs for long periods of time, their heads covered in opaque and foul-smelling sacks, while very loud music is played. They have been deprived of sleep and subjected to other forms of physical harassment, designed to elicit information about terrorist activities. According to the General Security Service, these practices have occurred only in extreme cases and as a last resort, when necessary to prevent terrorist activity and significant loss of life.

In 1999, the practices were challenged before the Supreme Court of Israel on the ground that they were inconsistent with the nation's fundamental law. The government responded that abstractions about civil liberties should not be permitted to overcome real-world necessities, so as to ban a practice that was, in certain circumstances, genuinely essential to prevent massive deaths in an area of the world that was often subject to terrorist activity. According to the government, physical coercion was justified in these circumstances. A judicial decision to the opposite effect, the government argued, would be a form of unjustified activism, even hubris.

In deciding the case, the Supreme Court of Israel refused to resolve the most fundamental questions. Indeed, it avoided them. The court held that the practices were unlawful, but through a narrow route. The court's principal argument was that the disputed practices could not be imposed by the executive branch alone, but must be endorsed by the national legislature, after a full democratic debate on the precise question. "[T]his is an issue that must be decided by the legislature branch which represents the people," the court ruled. "We do not take any stand on this matter at this time. It is there that various considerations must be weighed."

This approach to contested issues is not unusual, for courts often try to avoid the hardest issues. In the 1950s, when the United States was in the midst of the Red Scare, the secretary of state banned members of the Communist Party from traveling abroad. The ban was challenged under the Constitution, on the ground that it violated both freedom of speech and the right to travel. The largest question in the case was whether the Constitution permitted the U.S. government to deny a passport to Communists. That question was bitterly contested. Yet the Supreme Court avoided it. The Court ruled more narrowly, saying that the secretary of state could not act on his own, and that if people were going to be banned from leaving the United States because of their political convictions, it was necessary that Congress should specifically authorize him to make the decision.

Under conditions of war, is the government permitted to restrict civil liberties? In the aftermath of terrorist attacks, is racial profiling constitutionally acceptable? Or, put war and terrorism to one side. Can public universities adopt affirmative action programs? Is it permissible to segregate high schools on the basis of sex? When can government discriminate against gays and lesbians? Does the free speech principle ban the Federal Communications Commission from requiring broadcasters to provide educational programming for children? These are fundamental questions. But after all these years, the Supreme Court has not given anything like clear answers to them.

In Washington and elsewhere, lawyers are now scrambling to bring the Court's ambiguous decisions to bear on the national effort to combat the risk of terrorism. But this is just the tip of the iceberg. Lawyers have long been struggling to figure out when, if ever, affirmative action programs are acceptable. They have not been able to discern clear rules because the Supreme Court's decisions have been carefully limited to particular facts. For ordinary citizens, as well as for lawyers and law students, the uncertainty is a source of frustration, even exasperation. Why won't the Court just tell us what the Constitution means? Why does the Court avoid many fundamental issues? To answer these questions, we need to step back a bit.

Emphasizing the value of clarity, some justices try to develop clear rules. Hugo Black, the great civil libertarian of the Warren Court, contended that the law of free speech was, or should be, simple and clear. The First Amendment says that Congress shall make "no law abridging" the freedom of speech; and Black insisted that these simple words dispose of almost all free speech disputes. But Black's preference for rules was not limited to free speech. In areas ranging from the separation of powers to privacy, Black tried to apply broad principles that would guide the future.

In this regard, Antonin Scalia is Hugo Black's heir. In 1989, Scalia published a powerful lecture, "The Rule of Law as a Law of Rules," the title of which nicely captures his aspiration for the law. Scalia wants courts, no less than legislatures, to set out rules that will make life simple for lower courts, litigants, and ordinary people. Like Black, Scalia is an "originalist," believing that the meaning of the Constitution is settled by those who originally ratified it. A large part of Scalia's defense of originalism is that it promises to reduce uncertainty and to create (in his words) a "rock-solid, unchanging Constitution."

But most of the time the Rehnquist Court has refused to follow Scalia's lead. The Court has not embraced originalism. Moreover, the Court has usually ruled narrowly rather than broadly, leaving many areas unsettled. There is considerable uncertainty not merely in the areas described above, but also regarding government's power to regulate the Internet, to restrict the rights of private-property owners, and to create voucher systems in education (an issue that the Court may finally resolve this year). What is the source of this uncertainty? The main answer lies in the Court's frequent use of various techniques of "avoidance," by which it refuses to decide many of the hardest questions.

Lisa kloppenberg does not believe in avoidance. She wants the Court to resolve controversial issues and not to duck them. She asks the Court "to develop, rather than avoid, constitutional law." She contends that by adopting a new presumption against avoidance, the Court can promote "guidance, development and greater uniformity in federal constitutional law." Much of her book consists of somewhat exasperated chapters showing how the Court has refused to decide cases and to unpack legal complexities. She covers a wide range of problems, including environmental law, race discrimination, sex discrimination, discrimination on the basis of sexual orientation, and federalism. Kloppenberg has provided the first sustained attack on the long-standing judicial practice of avoidance in at least a generation. For that reason alone, her argument deserves careful attention.

Her book treats two kinds of avoidance strategies, and it is important to distinguish between them. In some cases, the Court refuses to rule at all, finding some kind of procedural barrier that leads it to dismiss the case. Kloppenberg emphasizes that procedural barriers have played a large role in cases involving environmental protection, racial discrimination, and laws declaring English to be the "official language." But a different kind of avoidance occurs when the Court does decide the particular case before it, but issues narrow opinions that do not sort out the law for the future. This approach characterizes many judicial opinions involving civil liberties and national security; it also plays a role in recent Supreme Court decisions involving affirmative action, sex discrimination, and discrimination on the basis of sexual orientation. Here we can find a form of judicial "minimalism," which Kloppenberg generally deplores.

For an example of a procedural barrier, consider the somewhat exotic requirement of "standing." You cannot get into a federal court simply because you object to some practice, or even believe, with reason, that the practice is unlawful. You have to show that as a result of the practice, you have been personally harmed, and suffer what courts call an "injury in fact." It follows that if you live in New York, you cannot bring suit against a public official in California for acts of racial discrimination unless you can show that the alleged acts of discrimination have injured you in particular.

Kloppenberg shows that the requirement of an "injury in fact" has had some real importance in the environmental area. Consider a case in which a well-known environmental group, the Defenders of Wildlife, brought suit against the Department of the Interior, objecting to its refusal to apply the Endangered Species Act to acts of the U.S. government in foreign nations. Were members of the Defenders of Wildlife injured by this refusal? Two members claimed that they were. They went so far as to sign affidavits claiming that they had a professional interest in seeing certain endangered species, which, they contended, would be harmed by specific projects of the United States abroad.

But the Supreme Court refused to hear their claims. It said that the affidavits were too vague and general, since no one had any definite plan to observe the species. Kloppenberg complains that this is hyper-technical; she thinks that the Supreme Court should have taken the opportunity to resolve the important question of whether the Endangered Species Act applies outside the boundaries of the United States. "Given Congress's stated purpose in enacting the ESA," Kloppenberg urges that the Court should not have avoided the issue. More generally, she objects that "the Supreme Court has impeded citizen suits by environmentalists in the last twenty-five years," thus stifling "the evolution of environmental law."

The requirement of "injury in fact" applies generally; it is hardly limited to environmental cases. The requirement has stopped the Supreme Court from responding to some complaints about racial discrimination. Allen v. Wright, in 1984, involved a suit by parents of African American children attending public schools. The parents challenged certain regulations by the Internal Revenue Service allowing charitable deductions to go to private schools that discriminated on the basis of race. The Court ruled that the parents lacked standing because they could not show that they were concretely affected by the IRS policy. For this reason, the Court refused to decide whether the IRS policy was lawful. Here, too, Kloppenberg objects to the Court's avoidance strategy. She contends that the IRS faced "an intense, politicized environment," and that "it was important to keep the federal courts involved. Particularly through the appellate process, they could have provided an important voice on the constitutional equality issue."

To Kloppenberg's dismay, the Court has also declined to resolve legal controversies over state laws that make English a state's "official language." Do these laws violate the federal Constitution? Maria-Kelly Yniguez, an insurance claims manager for the state of Arizona, argued that they did, because they violated her First Amendment right to speak to her clients in Spanish, and also discriminated against Hispanic-Americans. After the lawsuit was filed, Yniguez left government service, and she no longer had a stake in the controversy by the time the case reached the Supreme Court. The Court found that the case was "moot" and refused to decide it.

In a striking opinion by Justice Ruth Bader Ginsburg, the Court went well beyond dismissal. It also insisted that federal courts should try to avoid difficult constitutional issues, by sending ambiguous issues of state law to the state courts for clarification. In the Yniguez case itself, it was not clear whether the particular English-only law applied only to official documents and acts, or whether it applied more broadly to all speech by government employees. The Court emphasized that if it applied narrowly, people like Yniguez would be unaffected and have no complaint at all. The Court suggested that if federal courts sent the dispute to the Arizona state courts for clarification (the technical term for this procedure is "certification"), they might well have avoided the constitutional problem altogether. Kloppenberg dislikes this avoidance strategy, too, urging that it leads to unjustified delay and uncertainty. Among other things, "the current Court is unlikely to give fast and efficient relief to the problem of inconsistent rulings" among lower courts.

Kloppenberg rightly emphasizes that the area of affirmative action is characterized by narrow, case-specific holdings. The Supreme Court was first asked to decide on the constitutional status of affirmative action programs in the early 1970s. Nearly thirty years later, the law continues to have a great deal of uncertainty. The reason is that the Court has decided relatively few cases, and its decisions have been cautious and inconclusive, avoiding broad pronouncements. In the famous Bakke case, in 1978, the Court was asked to rule on the constitutionality of an affirmative action program for medical school; the case was resolved by a badly splintered Court, lacking a majority opinion.

The apparent "rule" of the case was that universities may use race as a factor in admissions, but may not create rigid quotas. This idea obviously leaves open many questions. In the decades since Bakke, the Court's decisions have turned not on clear rules, but instead on a somewhat unruly set of relevant factors. In the late 1990s, the Court declined an opportunity to clarify the law involving affirmative action in education. As a result, there is still a high degree of uncertainty about the law governing affirmative action. Kloppenberg acknowledges that some justices are nervous about an authoritative pronouncement and "likely prefer that other constitutional actors resolve this difficult question, even on a piecemeal basis with local differences." But she complains that the "Court's avoidance renders this part of Equal Protection law confusing and stalls its development in any direction."

Kloppenberg is equally frustrated by the Court's ambiguous signals about discrimination on the basis of sexual orientation. Here, as elsewhere, she wants the Court to tell us what the Constitution means. In fact the Court declined for many years to address the issue at all. In 1984, the Court decided Bowers v. Hardwick, holding that the Constitution allowed states to criminalize acts of sodomy among homosexuals. (The Court did not decide the question of whether heterosexual sodomy could be criminalized.) Since that time, the Court has decided only a single relevant case, Romer v. Evans. There the Court struck down an unusual Colorado law, one that banned localities from enacting ordinances to forbid discrimination on the basis of sexual orientation. In invalidating the Colorado law, the Court objected that it was based on an unacceptable "animus" against gays and lesbians; but the Court's opinion was narrow and cryptic, offering little guidance for the future. Kloppenberg applauds the Court's result, "because the Court protected a sexual minority group that has long been, and continues to be, subject to discrimination in the majoritarian political process"; but she objects to "the Court's silence about important elements of the gay rights controversy" and to the "substantial confusion" that the Court has created. She compares the ambiguous signals of the United States Supreme Court with the much greater clarity of the Vermont Supreme Court, which ruled in 1999 that the state must provide the benefits of marriage to same-sex couples. In the same vein, she objects to the confusing opinions in cases involving sex equality and abortion, where the Court has also "steered an indistinct middle course."

As a sharp contrast, Kloppenberg explores what she describes as the Court's "aggressive expansion of states' rights." Whereas most of her book deals with the Court's "purported passivity," she thinks that the Court has done something very different in the domain of federalism. In this domain, she urges, the Court has "eagerly accepted federalism challenges and developed new constitutional law," most of it unfavorable to Congress. Several of the key cases involve Congress's power to regulate "Commerce ... among the several States." Between 1937 and 1995, the Court never invalidated an act of Congress under the commerce clause.

Instead, it held that Congress had broad authority to control any problem--labor unrest, racial discrimination, crime--that seemed to have any connection at all to interstate commerce. In 1995, however, the Court struck down the Gun-Free School Zones Act, which banned the possession of a gun within one thousand feet of a school. The Court was unable to find a substantial connection between the ban and interstate commerce. And in 1999 the Court went much further, striking down a provision of Violence Against Women Act creating a right to sue for victims of gender-motivated violence. The Court rejected explicit congressional findings, based on extensive testimony that such violence did indeed affect interstate commerce.

The court's recent skepticism about congressional power, and its willingness to decide large issues of federalism, has not been limited to the commerce clause. Section 5 of the Fourteenth Amendment gives Congress the power to "enforce ... by appropriate legislation" the provisions of that amendment. In the last decade, Congress has tried to use this provision to ban discrimination on the basis of age, disability, and religion; but the Supreme Court has significantly limited Congress's power. Thus the Court concluded that Congress could not, under the Fourteenth Amendment, allow victims of sex-related violence to sue in federal court. In the Court's view, Congress could not reach private violence without overstepping its bounds. In an especially striking ruling, the Court also invalidated the Religious Freedom Restoration Act, which would have strengthened people's right to be free from discrimination on the basis of religion. Nor is this all. The Court has held that Congress could not apply the Age Discrimination in Employment Act to state universities, concluding that Congress could not use the Fourteenth Amendment to ban age discrimination.

Kloppenberg disagrees with those decisions as a matter of principle. She finds the "substantive rulings in the federalism area unconvincing and overly simplistic." Yet the subject of her book is avoidance, and she much likes the fact that the Court has been "decisive," ensuring a "robust lawsaying role" that "offers guidance, promoting uniformity and predictability in constitutional law nationwide." In a brief conclusion, she argues that the Court should adopt a firm presumption against avoidance, on the ground that "the Court's contribution is an essential part of a vibrant dialogue that will help keep our Constitution meaningful over time."

Kloppenberg's book has some real virtues. She is a careful, even painstaking scholar, and she does a fine job of exploring the current Court's many attempts to avoid the most controversial and difficult issues. She is entirely right to link the Court's interest in issuing narrow rulings with its occasional refusal to rule at all. She is also right to suggest that in the federalism cases, the Court has often proceeded quite aggressively. Of course Kloppenberg does not deal with the currently pressing issue of civil liberties when national security is threatened. Still, it is reasonable to speculate that the Rehnquist Court would be interested in strategies of avoidance there, too. Indeed, Chief Justice Rehnquist wrote a remarkable book on exactly that subject in 1998, in which he made many arguments on behalf of judicial avoidance of the hardest issues during wartime. Rehnquist emphasized in particular the fact that the nation's understanding of civil liberties is different when national security is at stake. He did not argue in favor of judicial abdication, but he seemed to favor a cautious judicial role, offering sympathetic discussion of cases in which courts postponed decisions and avoided the most difficult questions--for example, by requiring congressional approval of liberty-infringing decisions by the president. Kloppenberg convincingly shows that the Rehnquist Court uses avoidance in many domains.

Yet there is a significant gap in Kloppenberg's analysis, and she does not offer anything close to an adequate discussion of the reasons for avoidance. The gap first. Kloppenberg writes as if the Rehnquist Court were distinctly or unusually inclined to avoid deciding controversial issues. But she does not demonstrate that the current Court uses strategies of avoidance more often than its predecessors. Indeed, she does not even investigate the issue. But judicial avoidance has been with us since the beginning, playing a role in the era of John Marshall and in the era of Earl Warren and in every era between. In 1962, Alexander Bickel wrote The Least Dangerous Branch, a book celebrating "the passive virtues" by which the Court refuses to decide cases. Bickel emphasized the importance of procedural barriers throughout the Court's history. Writing decades before the Rehnquist Court, and under the evident influence of his mentor Felix Frankfurter (the Warren Court's Chief Avoider), Bickel urged that the Supreme Court's law-saying role was, and would be, tolerable only if the Court intervened selectively and avoided frequently.

In any event, narrow and unambitious rulings have been central to the elaboration of constitutional rights. The modern law of free speech was built not in a year or even in a decade, but through a century of mostly incremental decisions. Even the ban on racial segregation in schools was issued not as a bolt from the blue, but after a long series of cases establishing that separate was not equal in certain circumstances. Nor should the incrementalism of American constitutional law be surprising. American courts follow the common law method, which produces law through close encounters with particular cases. Much constitutional meaning is produced in just this way.

But the most important problem is that Kloppenberg has not justified her general antagonism toward avoidance. Of course guidance by general rules is good. But it is not so good to be guided by stupid rules. Kloppenberg does not carefully examine the reasons for avoidance, or sort out the circumstances in which avoidance does and does not make sense. There are practical reasons for avoiding decisions, and there are reasons of principle, too.

Begin with a simple fact: diverse people often have difficulty in achieving agreement on a general rule that will guide the future. The Supreme Court consists of nine people, and they frequently disagree with one another. Even if members of a multi-member body are able to agree on how to dispose of a particular problem, they might well be unable to agree on general rules. Sometimes they are able to settle a particular problem only if they agree to leave future issues undecided. This is a familiar point for international negotiators and for Congress; and the point holds among spouses and in families, too. When the Supreme Court "plays it safe," it is often because five people are not able to agree on a more contentious ruling. I suspect that in the areas of affirmative action and sex equality, uncertainty in the law has been in large part a product of the difficulty of achieving consensus on a multi-member court.

There are other practical issues. Even if an internal consensus emerges, and even if the Court's majority is confident that it is right, it might hesitate to impose a broad rule on the nation, for the simple reason that the nation might be reluctant to go along. Consider an infamous example. In 1959, the Court refused to strike down a law banning racial intermarriage--not because the Court thought that the law was constitutionally acceptable, but mostly because the Court was fearful of an adverse public reaction, one that would be especially damaging while the nation was in the midst of an intense controversy over school desegregation. Kloppenberg does not like this sort of thing. She is skeptical about "avoidance predicated on concerns about a hostile reaction to the courts." But why? Under difficult or unusual conditions, there is nothing dishonorable about judicial efforts to prevent constitutional rulings from being futile or counterproductive. Sometimes discretion really is the better part of valor.

But these are not the strongest arguments for avoiding hard issues. When justices refuse to decide, or when they rule narrowly, it is often because of a salutary humility--a belief that at a particular moment they are not in a good position to bind the future. For one thing, they might lack indispensable information. Imagine that you are a judge, and you are asked to strike down the military's policy of "don't ask, don't tell" on the ground that it discriminates against homosexuals. In your heart of hearts, you might believe that the policy reflects simple prejudice and should be eliminated; but you might also be hesitant to decide the issue if the government insists that military preparedness really requires the policy. In these circumstances, a reasonable judge might try to avoid the issue, neither upholding nor invalidating the policy. Certainly judicial humility helps account for courts' general unwillingness, during periods of war, to strike down practices reasonably defended on grounds of national security. Sometimes courts have undoubtedly been too humble; but the strategy of avoidance cannot be condemned across the board.

Now suppose that you are asked to come up with rules to govern the constitutional status of affirmative action programs. In this context, judges might lack relevant information. They might also lack full confidence in the underlying judgments of value. If so, they might well proceed incrementally, limiting their decisions to particular facts. Some cases are easy, of course. Rigid quota systems seem unacceptable, but a college with a long history of racial discrimination is certainly entitled to create a minority outreach program. But what of the innumerable programs that fall between these poles? A sensible judge might try to build the law up through close encounters with particular facts, and refuse to rule broadly for a long time. Such a judge might also want to learn from experience, seeing how various practices actually work in the world.

What is true of affirmative action is true of many other areas. Consider government efforts to regulate speech (conspiracies? threats? child pornography?) on the Internet; or sex segregation in education (on athletic teams? for high schools?); or even racial profiling (is it entirely clear that courts should strike down, today, all practices falling within that category?). Having no monopoly on wisdom, moreover, judges might well want to listen, with some care, to the views of other branches of government before committing themselves to a particular view of the Constitution. Avoidance is often a product of a healthy judicial interest in allowing Congress, the president, and the states to have their say. Indeed, the very structures of litigation--the procedures of courts themselves--encourage narrow judgments. Litigants typically focus on their own circumstances and their own plight. They have little incentive to discuss other people's problems. It is no wonder that judges, in the process of deciding the case at hand, will be reluctant to attempt to answer questions on which the parties have provided little or no information.

Many people want the meaning of the Constitution to be stable, and there is much to be said on behalf of stability. But as a matter of actual practice, American constitutional law has depended on changing understandings of both facts and values. The understandings of free speech, privacy, federalism, and racial discrimination are very different today from what they were thirty years ago, and they will certainly be different thirty years hence. Kloppenberg appears to like changes in constitutional understandings, but she does not sufficiently appreciate the extent to which changes are made possible only by narrow rulings and even avoidance.

None of this demonstrates that the Rehnquist Court has struck the best balance between openness and closure, or that Kloppenberg is wrong to argue against avoidance. The real problem is that Kloppenberg has not explained when avoidance is sensible and when it is not. We could make a lot more progress here. The argument on behalf of clarity is greatly strengthened when the particular area calls for advance planning and when judges have (and are entitled to have) considerable confidence in their views. Some domains of the law do require a high degree of settlement. The rules of contract and property law must be clear in order for a market economy to function. When people need to make many decisions in a short time, they really do need clear rules, laid down in advance. In such circumstances, it is more important for the law to be settled than for it to be settled well. But is it really so bad if the precise status of affirmative action programs remains unclear, and if the Court has resolved only the easiest cases? Is it really so awful if we do not know exactly what government can do to protect national security during wartime?

Judicial confidence is important, too. In Brown v. Board of Education, the Court issued a flat rule against racial segregation in education; the Court did so in part because it had dealt with that problem for a number of years, and it had, and was entitled to have, considerable faith in its conclusion. The Constitution is now understood to forbid most forms of sex discrimination as well, not because the Court issued a broad prohibition when it first confronted the problem, but because the Court finally became confident of the prohibition after a long series of encounters with discriminatory policies. Compare cases involving regulation of speech on the Internet. In this matter it may be too early to commit the nation to settled principles. Indeed, the uncertainty of the law governing civil liberties during wartime is partly a product of the fact that judges do not know exactly what government should be able to do. Of course the most clear and egregious constitutional violations should be struck down. But in the genuinely hard cases, the uncertainty is even salutary, because it allows for a degree of openness and contestation in public debate.

Lisa Kloppenberg is right to object that the Supreme Court sometimes underrates the need for guidance and clarity. But if judicial judgments are imperfect, and if democracy has its own claims, then avoidance should not be taken as either coyness or cowardice. It should be seen instead as an indispensable aspect of a system in which deliberation about rights and structures is a widely shared endeavor.

Cass R. Sunstein is a contributing editor at The New Republic.

By Cass R. Sunstein

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