...our consideration is limited to the present circumstances...

November 19, 2010 11:55 AM

The case “touches issues of far-reaching significance,” Justice Anthony M. Kennedy wrote. Then he explained why the court would decide none of them. A definitive ruling should be avoided, he said, because “it might have implications for future cases that cannot be predicted.”

The New York Times' occasional series on the Roberts Court has published a survey of resent studies and analyses of the opinions issued by the court. Among the statistics tossed about to the delight of law nurds everywhere:

• The average length of a majority opinion under Roberts is higher than it's ever been;
• Four of the ten longest rulings ever have been issued by the Roberts court;
• The Roberts court has the highest percentage ever of unanimous decisions with one or more concurrences.*

*In which one or more justices quibble and snark with some aspect of an opinion with which they largely agree.

Speaking to an ABC News reporter in 2006, Chief Justice John Roberts said, “The more cautious approach, the approach that can get the most justices to sign onto it, is the preferred approach. It also contributes, I think, to stability in the law.” But this quest for unanimity may be leading to lengthy opinions that shy away from deciding anything but the matter immediately at hand. The Times quotes a frustrated Judge Frank M. Hull on the futility of attempting to use the ruling in City of Ontario v. Quon as precedent (Justice Kennedy's majority opinion is cited above; Justice Scalia openly rebuked this cautious approach in his concurrence: “The-times-they-are-a-changin' is a feeble excuse for disregard of duty.”)

On the other hand, perhaps it's not such a bad thing that the most conservative court in decades refuses to set much precedent? “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear,” wrote Kennedy, and there's certainly an argument to be made for inches instead of miles and deliberate delegation to lower courts and even intentional obfuscation and ambiguity. The Times quotes James Spriggs of Washington University: “If the goal is to clear up any conflict in the lower court opinions, then you may want a clearer opinion. But a real bright line may create some injustices in the system.”

posted by kipmanley (22 comments total)

The more cautious approach, the approach that can get the most justices to sign onto it, is the preferred approach

And Citizens United is a great example of that, huh your honor?
posted by Danf at 11:59 AM on November 19, 2010 [6 favorites]

Or the creation of a new individual right to firearms.
posted by a robot made out of meat at 12:11 PM on November 19, 2010 [2 favorites]

“If the goal is to clear up any conflict in the lower court opinions, then you may want a clearer opinion. But a real bright line may create some injustices in the system.”

This is a meaningless statement. The very existence of conflict in the lower courts means that there are already injustices. A bright line rule may reduce the number of unjust or incorrect results, although a perfect rule is likely impossible to craft.

Further, non-bright-line rules create injustice, too. Muddy decisions, subjective balancing tests, and multi-factor analyses all invite endless appeals while the lower courts thrash out exactly what the Supreme Court meant or define the contours of the new test or analysis. The end result is more uncertainty, longer case pendency, higher costs, and more opportunities for wealthy, repeat players to use their advantages against the little guy.

One of the main reasons we have an unelected judiciary is so that they can knuckle down and make the hard decisions. In many cases, if they get it wrong then Congress can overrule them. In other cases they can always revisit the issue later. It's not like there's a shortage of petitions for certiorari.
posted by jedicus at 12:13 PM on November 19, 2010 [2 favorites]

And Citizens United is a great example of that, huh your honor?

Or the creation of a new individual right to firearms.

No, actually. CU was a 5-4 decision, so was DC v. Heller (the firearms case). McDonald v. Chicago (applying DC v. Heller to the states) was extremely fractured. There was an opinion with 5 justices joining for part and 4 joining for another part, two concurrences, a lone dissent, and a dissent with 3 justices joining.
posted by jedicus at 12:19 PM on November 19, 2010 [2 favorites]

Justice Scalia openly rebuked this cautious approach in his concurrence: “The-times-they-are-a-changin' is a feeble excuse for disregard of duty.”)

There's no chance this is actually going to bother any conservatives who would normally have a stick up about "activist judges," right? Cognitive dissonance and all that?
posted by Amanojaku at 12:22 PM on November 19, 2010 [1 favorite]

Danf: Citizen's United is actually an example of this approach. It's (fairly, in my opinion) gotten a lot of outcry for a lot of its dicta -what the justices say and talk about, but stuff that doesn't directly relate to the ruling and so isn't binding as precedent. But the decision itself was a rather narrow holding.

The decision is narrow because really, it technically says that a certain campaign finance law does not apply to on-demand movies like "Hillary: The Movie".

But the way many of the justices framed their arguments was with this scary-sounding talk about corporations having free speech rights. They didn't really need to do this- they could have just made the same (narrow) ruling to hold the law inapplicable to on-demand movies. But they invoked broad constitutional principles instead, when they started talking about it. Nonetheless, the ruling itself was actually narrow.

This is a good trick for getting otherwise uninterested justices on-board: "hey, the holding's pretty limited. All that stuff I say about constitutional issues doesn't really count". This way, you convince other justices to sign on. Then years later, you try to reframe the debate in a later case, so that actually, those constitutional principles weren't merely dicta after all. I think that this is part of the strategy being talked about above.

(Law nerds: Scalia does this with his use of Crawford in Melendez-Diaz. Note the shift of the three formulations of "testimonial hearsay" from dicta to binding precedent).
posted by HabeasCorpus at 12:24 PM on November 19, 2010 [2 favorites]

I'm a firm believer that he took the consistent messaging of "don't legislate from the bench" and turned that message into whatever his betters wanted it to be.
posted by arimathea at 12:31 PM on November 19, 2010 [2 favorites]

“The-times-they-are-a-changin' is a feeble excuse for disregard of duty.”

If he'd added "and it takes a lot to laugh and a train to cry ... " I would have freaked out.
posted by Faze at 12:38 PM on November 19, 2010

Meh, I kind of want to take back my statement that the holding was narrow. Reading the opinion, it wasn't that narrow.

But my general point still stands: a lot of the really scary speech about how much we should protection we should afford corporations comes from the Concurrences (esp. Scalia's), and not from the Opinion. Toning down rhetoric to win more converts has been, and will continue to be, judicial strategy.
posted by HabeasCorpus at 12:39 PM on November 19, 2010 [2 favorites]

This conservative side of this court acts like the Oracle of Delphi. They profess an impartial deference to the law and yet have no problems with attending and speaking at blatantly partisan events. (Justice Scalia spoke at the Federalist Society meeting this week, where he said the State of the Union as a "juvenile spectacle" that justices shouldn't attend.) To them, legal precedence only counts when it counts.

They are passive-aggressive, just as practically the whole right in this country has become.
posted by Benny Andajetz at 12:44 PM on November 19, 2010 [5 favorites]

You may have missed a sarcasm tag there, jedicus.
posted by notyou at 1:09 PM on November 19, 2010

I know the first two comments were sarcastic (i.e. that the authors were arguing that CU and Heller were, in fact, bad decisions), but at most those decisions say nothing either way about the consensus approach because they aren't examples of consensus at all. In fact, one argument might be that they show the bad results of a lack of consensus.

* I say dubious because I do think that, for good or ill (okay probably ill), we pretty plainly have a Constitutional right to, at a minimum, the ownership and peaceful use of weapons appropriate for a civilian militia, given that states should also be able to require reasonable background checks and safety & marksmanship training (i.e. provide for a well-regulated civilian militia). If that needs to change, it should be changed by amendment. There are some parts of the Constitution that we're just stuck with until we change it, and that's one of them.
posted by jedicus at 1:24 PM on November 19, 2010 [1 favorite]

Whoops, that asterisk's origin got lost in an edit. I originally said something about CU being terrible and Heller & McDonald being dubious decisions, possibly indicative of what you get without consensus when you have a conservative majority.
posted by jedicus at 1:26 PM on November 19, 2010

jedicus : my exact point was that there was not a preference for a narrow consensus decision.
posted by a robot made out of meat at 3:16 PM on November 19, 2010

What I find disturbing about the supreme court is that decisions are either pretty much unanimous or they are a 5-4 decision where I can predict who voted what way based on who nominated the justice in question. However, these are supposed to be grand legal minds, some of the best of the current generation. Unanimous decisions, it seems to me, could be similarly decided by lesser minds and narrowly split decisions seem to me to have obviously no clear answer within the law and are based far more on pre-exisiting notions that have little to do with quality as a juror. At the end of the day, I don't know how to reconcile these issues with the respect I feel I ought to give the court. Especially as an academic myself, it is the one governmental institution that seems to have the most compatibility with how I think about things, and yet its flaws seem even more glaring in that light. Without any sarcasm and a healthy skepticism about my rather limited current knowledge, I would honestly appreciate for a law person to help me see why my understanding in flawed.
posted by Schismatic at 4:31 PM on November 19, 2010 [1 favorite]

Justice Scalia spoke at the Federalist Society meeting this week, where he said the State of the Union as a "juvenile spectacle" that justices shouldn't attend.

His statement was correct, regardless of who he was talking to. The State of the Union is definitely a juvenile spectacle, and the justices' attendance at it is as silly as the gold stripes on Rehnquist's robes.
posted by The World Famous at 4:45 PM on November 19, 2010 [1 favorite]

my exact point was that there was not a preference for a narrow consensus decision.

The article says nothing on that point that I can see. There was a conspicuous absence of statistics about the number of unanimous or near-unanimous opinions from this court as compared to others. The court does produce a lot of unanimous opinions with one or more concurrences, but concurrences are non-binding, so that says nothing about the breadth of the actual decision. Do you have any data that show that this court produces fewer 9-0 or 8-1 decisions than other recent courts?
posted by jedicus at 5:21 PM on November 19, 2010 [1 favorite]

In many cases, if they get it wrong then Congress can overrule them.

Such as...
posted by Etrigan at 5:54 PM on November 19, 2010

Such as...

. . . every ruling that could be affected by the modification or enacment of a statute.
posted by The World Famous at 6:05 PM on November 19, 2010

Do you have any data that show that this court produces fewer 9-0 or 8-1 decisions than other recent courts?

No, nor would that be very interesting since the selection of cases is endogenous.
posted by a robot made out of meat at 6:47 PM on November 19, 2010

No, nor would that be very interesting since the selection of cases is endogenous.

By that logic none of these statistics are interesting. But of course granting cert only requires the agreement of four justices, and there are five justices currently on the court that were there under Rehnquist, so in fact such comparisons are indeed interesting.
posted by jedicus at 8:19 PM on November 19, 2010 [1 favorite]

This is perfectly in line with the conservative idea that reality itself is indeed biased towards liberalism and it's bedfellow, rationalism. By pursuing definite, clear cut, logical lines of legal thought, the court would clearly slide towards the left. Subconsciously, the conservatives know this, though they would be - and are - clearly unable to articulate the reason for this choice of inaction. It's a blind spot. They can pontificate and equivocate all they like, but they will never, ever be able to hit the mark.

And no, I don't know if I am joking, either. I think I may be onto something.
posted by Xoebe at 9:04 PM on November 19, 2010 [1 favorite]