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Chief Justice Roberts Advocates the Passive Virtues, Even as the Supreme Court's Docket Reveals their Subtle Vices


Monday, Nov. 20, 2006

In an interview at the University of Miami last week, Chief Justice John Roberts stated that it is more important for the Supreme Court to speak with one voice by deciding cases "on a narrow basis," than to issue bold opinions that conclusively resolve large legal issues.

Contained within that statement are two different kinds of conservatism, one substantive, the other methodological, and Chief Justice Roberts espoused them both. Below, I explain the difference and then focus on methodological conservatism. In championing narrow Supreme Court rulings, I argue, Roberts risks undercutting an essential function of the judiciary in our constitutional system

Judicial Restraint is Often in the Eye of the Beholder

As a substantive matter, the Chief Justice believes that courts, including his own, should only rarely invoke the Constitution to displace the decisions of elected legislatures. As he stated in his interview, "I have enormous respect for the authority carried by the people across the street in Congress. [M]illions of people have voted for them and put their confidence in their judgment."

This philosophy, sometimes called "judicial restraint," is most frequently invoked by conservatives these days, although historically both judicial restraint and its opposite--judicial activism--have tended to be in the eye of the beholder. Few judges or Justices self-identify as judicial activists. They tend instead to view their own decisions to displace the judgment of elected officials as simply mandated by the Constitution, while characterizing the decisions of their colleagues with whom they disagree as enacting mere personal preferences--in other words, activist.

For example, in recent years, some conservative Justices who sing the praises of judicial restraint in their writings and lectures have, nevertheless, consistently voted to displace the judgments of elected officials when it comes to such matters as race-based affirmative action and states' rights. Whether Chief Justice Roberts will not just preach even-handed judicial restraint, but also practice it, remains to be seen.

The Chief Justice's Methodological Conservatism: Avoid Unnecessary Decisions

In last week's interview, Chief Justice Roberts also espoused methodological conservatism. Judges and Justices who are methodological conservatives, whether they tend to vote for liberal or conservative results, avoid making broad pronouncements about the law, preferring instead to decide each case on narrow grounds. Methodological conservatism of this sort is best summed up by a maxim that Chief Justice Roberts has often repeated: If it is not necessary to decide an issue to resolve a case, then it is necessary not to decide that issue.

The Roberts philosophy finds some support in the text of Article III of the Constitution, which only empowers federal courts--including the Supreme Court--to decide "Cases" and "Controversies." For methodological conservatives, these terms emphasize the limits of a famous statement by Chief Justice John Marshall in Marbury v. Madison: "It is emphatically the province and duty of the Judicial Department to say what the law is." That may be true, methodological conservatives like Roberts acknowledge, but the duty only extends so far as the courts properly have power. And their power extends only to concrete cases and controversies. The Supreme Court has no general power to interpret the laws or Constitution outside the context of adversarial litigation. It cannot, for instance, offer "advisory opinions" to Congress as to the constitutionality of pending legislation.

Over a generation ago, constitutional law scholar Alexander Bickel--who famously struggled with the question of whether the Supreme Court's power to hold laws unconstitutional could be reconciled with democracy--expressed approval for methodological conservatism of the sort that Chief Justice Roberts endorses. Bickel said that the Court should embrace the "passive virtues," a phrase that resonates deeply with the Roberts philosophy.

Yet if we understand Roberts as an intellectual heir to Bickel, we must also understand his philosophy as vulnerable to the most potent critique of Bickel's view. In an influential article in the Columbia Law Review titled "The Subtle Vices of the Passive Virtues," another leading constitutional scholar, Gerald Gunther, criticized Bickel's proposal that the Supreme Court should manipulate its docket so as to avoid having to decide socially divisive questions. Even the decision not to decide, Gunther explained, is itself a decision, and all the worse for its covert nature.

In addition to Gunther's charge that Bickelian passivity is merely disguised and unprincipled activism, we can take note of another subtle vice of methodological conservatism: It ignores the extent to which fetishization of the case-or-controversy limitation on the jurisdiction of the Supreme Court impedes that Court's ability to perform what has become its most important function--namely, resolving important questions of federal statutory and constitutional law because of their impact on the overall development of the law. Case-or-controversy fetishism sometimes leads the Justices to focus far too narrowly on the particulars of the cases that happen to come before the Court.

To see these vices of methodological conservatism, we need look no further than the current Supreme Court docket.

Vice Number One: The Adversary System

Next month, the Justices will hear argument in Meredith v. Jefferson County Board of Education, one of two cases that present the extraordinarily important question of whether a public school district can take the race of pupils into account as part of a multi-factor pupil assignment system. Around the country, school boards sometimes do so in an effort to accommodate some substantial measure of parental choice while ensuring that no school grossly departs from the demographic mix of the district as a whole.

The case is intricate because it requires the Justices to reconcile statements in desegregation-era decisions to the effect that school districts could voluntarily pursue racial integration through race-conscious means, with more recent decisions subjecting all uses of race to the demanding "strict scrutiny" test.

In addressing the Meredith case, the Justices could use all of the help they can get, but they won't be receiving much assistance from the plaintiff's lawyer, who has filed an extraordinarily weak brief. Fortunately, the U.S. Solicitor General and others have filed friend-of-the-court briefs that present the arguments for unconstitutionality with greater skill.

The Justices will also get some help during the oral argument. After the Solicitor General asked the Court for ten of the plaintiff's allotted thirty minutes of argument time, the Justices took the extraordinary step of giving the Solicitor General fifteen minutes. But that still leaves the plaintiff's lawyer with fifteen minutes of his own.

Why must the plaintiff's lawyer be permitted to (very probably) waste everybody's time? Because methodological conservatism requires the Court to view the case as being principally about whether Crystal Meredith should have been allowed to transfer from one kindergarten in Jefferson County, Kentucky to another, rather than as being fundamentally about whether school boards across the country can engage in voluntary race-conscious efforts to maintain racially-integrated schools.

Yet this case-specific view is clearly a fiction. After all, the Supreme Court has nearly complete control over its own docket, and it only grants petitions for review when a case presents important unresolved questions of federal law. On occasion, the Court will even appoint counsel to represent a legal position not espoused by any of the parties.

For example, in 2000, the Justices heard a case, Dickerson v. United States, that presented the question whether a federal statute had validly overruled the Court's 1966 decision in Miranda v. Arizona mandating that suspects subject to custodial interrogation be read their rights. Because the Clinton Administration took the view that the statute was unconstitutional, and because the defendant was happy to benefit from that position, the Justices appointed then-law professor (now federal judge) Paul Cassell to defend the statute's constitutionality. Cassell, who had been the leading academic defender of the statute, did a most able job, although he ultimately lost.

Unfortunately, cases like Dickerson are the exception, rather than the norm. Under the sway of an expansive notion of the case-or-controversy limit, the Court frequently permits poor advocacy because of the happenstance of who represents the particular parties that appear before it.

Vice Number Two: Unsympathetic Parties

The case-or-controversy fetish also can blind the Court to the real substantive stakes, as last week's decision in Ayers v. Belmontes arguably illustrates. The narrow question presented was whether the sentencing phase of Fernando Belmontes's California trial for capital murder was consistent with the Court's understanding of the Eighth Amendment, which requires that a defendant be permitted to introduce all manner of mitigating evidence.

Belmontes offered evidence that his religious awakening would cause him to lead a productive and other-directed life in prison, if he were spared. Yet at the time of his trial, California only made such evidence relevant under a catch-all provision known as "factor (k)." Factor (k) asked the jurors to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime."

In the Supreme Court, Belmontes argued that factor (k) was impermissibly narrow because jurors could reasonably have interpreted it to mean that they could only consider circumstances that made the crime less severe, as opposed to circumstances that made the defendant less reprehensible overall. Given the language of factor (k)--which California has since changed--that seems like a plausible argument.

However, our case-focused system of litigation gave the Justices a strong incentive to rule against Belmontes, because his own mitigating evidence was extraordinarily weak. Belmontes claimed--with supporting testimony from ministers--that when he had previously been incarcerated as a youth, he had undergone a religious awakening, and had done good works. But this evidence had an obvious defect: Belmontes committed a brutal murder after his supposed religious awakening. It is highly unlikely that a jury would think that his religious convictions were insufficient to prevent him from committing murder, yet productive of enough good to count for anything in mitigation of his sentence.

Thus, in order to ensure that Belmontes would not get the retroactive benefit of a rule that almost certainly would not have benefited him had it been in place during his sentencing trial, the Justices may have strained to find that factor (k) did, in fact, permit the jury to give effect to mitigating evidence.

That is unfortunate, though, because the ruling will govern future cases in which defendants produce genuinely mitigating evidence. The unsympathetic facts of the Belmontes case framed the issue for the Justices, as concrete facts invariably do. A methodological approach that made less of the particular case or controversy before the Court, and more of the general effects of a given decision across the nation and for the future, would enable the Justices to focus on the likely systemic effects of its rulings.

Vice Number Three: The Happenstance of District Court Factfinding

Case-or-controversy fetishism can also lead to trouble when the formulation of a constitutional rule depends upon the resolution of some general factual question about the state of the world.

For example, the Justices recently heard oral argument in two cases presenting the question whether the federal Partial Birth Abortion Ban Act is constitutionally valid. A crucial issue in the case is whether the procedure the Act defines as partial birth abortion is ever medically necessary. In the Act's findings section, Congress said it is not. The district court, however, heard testimony and found that in many circumstances, it is the safest form of abortion.

Whom should the Court believe? Although congressional findings are generally entitled to some respect, the Court has an independent duty to inquire into the facts underlying a claimed infringement on constitutional rights. Moreover, Congress's factual findings are highly dubious here. They include a claim that medical schools do not offer training in the banned procedure. Yet that claim is plainly false. And more generally, it is clear that Congress used the findings section of the Act simply to try to insulate its policy judgment from review.

But if the Court sometimes cannot trust Congress to make important factual judgments, neither does it make sense for the Court simply to rely on the particular record and findings compiled by the single federal district judge who happened to preside over the trial where the particular lawyers happened to present the evidence they did.

Is "partial birth abortion" ever medically necessary? Does racial integration enhance the educational experience of public school children? Is homosexuality an immutable characteristic?

The answers to such ultimately empirical questions shape the constitutional law applicable to all cases for decades. The sensible way for the Court to address them would be in a fact-finding forum that the Justices themselves supervise--much as they do for such obviously fact-intensive cases as interstate border disputes. In those cases, the Court appoints a special master and carefully scrutinizes his or her conclusions based on the evidence presented.

Genuine and Artificial Case-or-Controversy Limits

There is nothing in the literal text of Article III that prevents the Court from using a similar procedure in other cases. To be sure, Marbury v. Madison prevents Congress from expanding the Supreme Court's original jurisdiction, but it need not be read to prevent the Court from utilizing a special master or the equivalent in a case that falls within its appellate jurisdiction.

That is not to say that there are no limits on how the Supreme Court decides cases. The case-or-controversy language of Article III does mean that, unlike constitutional courts in Europe and some state courts in the United States, our federal courts cannot simply decide constitutional questions in the abstract.

But if the case-or-controversy limit cannot be avoided, case-or-controversy fetishism can be. The Justices might start by recognizing that narrow, case-focused decision making can have serious costs. Notwithstanding the Chief Justice's favorite aphorism, sometimes it is necessary to decide.

Michael C. Dorf is the Michael I. Sovern 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

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