The Supreme Court and the Butterfly Effect

By MICHAEL C. DORF

Monday, Sep. 24, 2007

Next week, the Supreme Court begins its third Term with John Roberts in the Chief Justice's seat. Court watchers wonder whether Roberts will be able to build on a string of 5-4 conservative victories last Term, and thus consolidate a conservative majority. How the Court decides the cases on its docket will, of course, have profound consequences for the parties involved and for those subject to the rules of law it lays down. Yet Supreme Court decisions can also have consequences well beyond the parties and principles directly involved.

To take one obvious example, the Court's ruling in Bush v. Gore handed the Presidential election to George W. Bush, and thus may have altered the course of history. Granted, it is possible that Bush would have won without the Justices' intervention--either because he might have won the recount mandated by the Florida Supreme Court, or because the Republican-dominated House of Representatives would have declared him the winner in the face of competing Florida slates of electors. However, it is also possible that Al Gore would have won the recount and that political pressure would have then forced a Bush concession. Had the Court not acted as it did, the last 81 months might have unfolded very differently.

Though the potential far-reaching consequences of a decision like Bush v. Gore were to some extent foreseeable, the consequences of other Supreme Court decisions are not. Supreme Court cases, like all other events in the world, can trigger "butterfly effects." In the butterfly effect, seemingly small events have enormous consequences because they set history on one course, rather than another. In this column, I will look at the butterfly effect of some past Supreme Court decisions and speculate about the potential butterfly effect of two cases currently before the Court.

What is the Butterfly Effect?

The term "butterfly effect" was made popular by the film of the same name, as well as by the earlier Jurassic Park. The phenomenon is also well-known to science fiction readers from the 1956 L. Sprague de Camp short story, "A Gun for Dinosaur," and other tall tales of time travel.

In most such stories, a time traveler journeys to the past and inadvertently causes some small effect--such as killing a butterfly--that has momentous consequences as time goes by, so that the he returns to a radically-altered future. Or perhaps the time-traveler never returns at all: The dead butterfly does not beat its wings, causing a minute impact on the weather which, through the magic of chaos theory, ramifies down the ages, eventually leading a storm to make landfall on one rather than another shore, killing the time traveler's great-grandfather, and thus leading to the time traveler's own disappearance in a puff of logic.

The time travel version of the butterfly effect is, of course, fictional, but the effect itself is quite real. Natural and social scientists refer to it as "path dependence." Initial conditions make large differences over enough time, even without the paradox of time travel. To give a dramatic example, had a comet not struck the Earth 65 million years ago, leading to the extinction of the dinosaurs, our squirrel-like ancestors would never have emerged to fill the niches vacated by the giant beasts, and human beings almost certainly would not have evolved (although super-intelligent lizards might have).

Is Campaign Finance Reform the Butterfly that Gave Us Bill Clinton's Presidency?

Butterfly effects undoubtedly have arisen as a consequence of past Supreme Court decisions, although one can never pinpoint them precisely. History is not a controlled experiment and so we cannot know exactly what would have happened absent a particular Supreme Court decision (or any other event for that matter). Nonetheless, we can make educated guesses.

Consider, in this context, the Supreme Court's 1976 decision in Buckley v. Valeo. That case invalidated a number of post-Watergate campaign finance restrictions, including a provision that prohibited a Presidential candidate from spending more than $50,000 of his own money to get elected. The ruling was hardly a slam-dunk, for as numerous critics of Buckley have noted, restrictions on spending money are not identical to restrictions on speech, even though money can be spent on speech. Regardless of who has the better of this argument, it is certainly conceivable that, in 1976, the Court might have upheld, rather than struck down, the $50,000 limit.

Suppose it had done just that. Such a ruling might well have altered the outcome of the 1992 Presidential election. In the general election campaign that year, third-party candidate Ross Perot spent over $60 million of his own money--more than the total amount of money spent by either of the two major party candidates--and won 19 percent of the popular vote. Then-Governor Bill Clinton garnered 43 percent to President George H.W. Bush's 38 percent, and the fiscally conservative Perot probably drew more support from potential Bush voters than potential Clinton voters.

Moreover, even if one thinks Perot drew support more or less equally from the Bush and Clinton camps, many observers at the time thought that Perot's candidacy helped Clinton by, in the words of a 1992 Baltimore Sun article, "distracting the public enough . . . to give the Arkansas governor a chance to get back on his feet after a brutal primary season, and stirring up a call for change." It is thus at least plausible that a different result in Buckley--one that would have had the effect of drastically limiting how much of Perot's own money he could spend, and thus preventing his independent candidacy --would have led to a second term for George H.W. Bush, and a host of resulting dramatic differences in the years since then.

Butterflies and Backlash: When Supreme Court Decisions May Be Counterproductive

Critics of liberal judicial activism by the Supreme Court sometimes argue that decisions like Roe v. Wade are not only illegitimate but actually counterproductive. When the Justices constrain the options of elected officials on morally divisive questions, the argument goes, they lull supporters of the Court's substantive decisions--abortion rights supporters, in the Roe example--into a false sense of security that the right they back is protected. Opponents, meanwhile, become energized, seeking radical changes to the constitutional order.

On this view, the growth of the national political power of the religious right over the last three decades was fueled by Supreme Court decisions on abortion, school prayer, gay rights, and other hot-button issues. Had the Court not constitutionalized, and thus nationalized, such questions, the old New Deal coalition might have held together: Socially conservative but poor Southern Whites and Catholic "Reagan Democrats" could have voted for economically- progressive Democrats at the national level, even as they continued to support social conservatives at the state level, because the federal government would have had little to say about the key social questions.

To be sure, this counter-narrative may be wrong. The realignment of socially conservative White voters was originally the product of candidate Richard Nixon's "Southern Strategy" to use race (and racism) as the wedge to drive apart the New Deal coalition. It is thus quite possible that the strategy would have succeeded even if the Supreme Court had never said a word about abortion, school prayer or gay rights.

Still, even if we recognize that backlashes are impossible to predict with precision, they are real phenomena nonetheless. We cannot say with any certainty how the last 34 years would have unfolded had the Supreme Court not recognized a right to abortion in Roe. We can, however, say with certainty that they would have unfolded very differently.

Butterflies on the Docket

The very unpredictability of butterfly effects means that we cannot say which decisions the Supreme Court will make in the current Term will, in the end, prove to be most consequential. Nonetheless, we can say that two cases before the Court could have a large impact beyond the precise issues they resolve because, depending on the outcome, they could make certain issues more salient in the 2008 Presidential campaign.

One such case is Boumediene v. Bush. The case presents the question whether the Military Commissions Act of 2006 violates the Constitution's provision governing the circumstances under which the privilege of the writ of habeas corpus may be suspended. Should the Court hold that the Act unconstitutionally deprives detainees of the right to habeas corpus (or its legal equivalent), one could well imagine the Republican nominee holding the ruling up as an example of why he should be elected--namely, to ensure that a tough-minded President names Justices to the Court who won't stand in the way of the tough measures that need to be taken against suspected terrorists.

Likewise, one could imagine the Democratic candidates praising the decision in Boumediene to gain political support from civil libertarians--if the decision is handed down before a nominee has effectively been selected. And whenever the decision comes down, it is likely that the eventual Democratic nominee would have to find some way to support it without appearing too "soft" to the general electorate.

A Supreme Court decision in District of Columbia v. Heller could play an even larger role in the 2008 Presidential election. In March of this year, the D.C. Circuit decided Parker v. District of Columbia, holding that the District's gun control law violates the Second Amendment. Although the Supreme Court has not yet decided whether to review the case, it likely will hear it, given that the ruling creates a division of authority among the federal appeals courts on the meaning of the Second Amendment and the scope of permissible gun control.

Should the Court rule in favor of the District, that ruling will likely be denounced by the Republican Presidential nominee, and even if the decision is broadly popular, it could be extremely unpopular with key swing voters in key swing states.

Thus, as Supreme Court litigator Tom Goldstein argues on Scotusblog, liberal results in Boumediene and Heller could work to the advantage of the Republican candidate in 2008, and in a very close election, could make the difference.

Judges Should Ignore Butterflies and Backlashes

Accordingly, a Machiavellian liberal Supreme Court Justice might sometimes think that the best way to move the law in a liberal direction would be to vote for conservative results, thus avoiding a conservative backlash effect. On the immediate issue at hand, the law would become more conservative, but that result would be outweighed by the more liberal direction that politics would take. Likewise, a Machiavellian conservative Supreme Court Justice might sometimes take the exact opposite approach, voting for liberal results to help elect conservatives via backlash. (We can also imagine the reverse dynamic, where one anticipates liberal backlash to a very conservative decision.)

Yet this approach would be reprehensible, no matter who tried it. Even if political backlash is a potential consequence of a controversial Supreme Court ruling, that hardly means that a Supreme Court Justice should make his or decision based on the desirability or undesirability of such a backlash. We have an independent judiciary precisely because we hope that the judges will not be driven by likely political consequences.

Moreover, making decisions based on projected second-order, third-order and more remote consequences is guesswork at best. Unpopular rulings sometimes spark backlash but at other times, they move public opinion, by placing the Supreme Court's moral authority behind a position.

At a more fundamental level, the butterfly effect shows why calculations about the likely long-term impact of any decision are misguided. Ramified by the passage of sufficient time, any decision, indeed any action, will have large but inherently unpredictable consequences.

Even the decision to topple a clearly despotic regime may prove disastrous, as we are discovering in Iraq, but even then, today's catastrophe may pave the way for tomorrow's nirvana. The point was nicely summed up by the late Chinese Prime Minister Zhou Enlai's cagey answer to a question about the effect of the French Revolution: "Too soon to tell."


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.

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