Supreme Court Minimalism And Its Effects On Lower Courts
Cass Sunstein blogged and opined yesterday on Justice Roberts’ Georgetown Law commencement speech. The Chief argued that there were clear benefits to consensus, or near-consensus, in Supreme Court decisions. As a result, he argued for judicial minimalism because “the broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible ground”. He thus concluded that “if it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.”
Sunstein seems to approve of this view, on broader social grounds. He contends that minimalism “tries to avoid taking a stand on the most controversial questions and thus shows respect for people with reasonable competing views” and adds that “narrow rulings help to promote a key goal of societies that are both diverse and free: to make agreement possible where agreement is necessary, while also making agreement unnecessary where agreement is not possible.”
The cost to minimalism, which Sunstein points out, is that lower courts lack clarity on the law. A 6-3 vote may ruffle more feathers, but at least the lower courts have greater guidance for future cases. But there is another important implication to deciding cases on very narrow grounds: federal courts will increasingly produce circuit splits. And state courts will similarly diverge in their interpretation of federal law.
When the Supreme Court gives broad guidance, lower courts can better predict the “proper” answer to questions outside the narrow facts considered by the Court in the particular case. Lacking such guidance, lower courts will often reach differing conclusions on the scores of subissues that lay just beneath the surface of any Court opinion. The problem is that, because the Supreme Court hears so few cases, many of these disagreements will remain in place for extended periods. Thus, courts reviewing death sentences in Missouri may have a very different concept of “mental retardation” than courts in Florida. This despite the fact that, according the the Supremes, it is unconstitutional to execute a person with mental retardation.
Perhaps allowing for varied interpretations of federal law has benefits. Some have argued, for example, that circuit splits promote federalism by allowing different areas to have constitutional and statutory interpretations that fit with local concerns and values. On the flip side, though, it does create greater unpredicatability for citizens and corporations. Confusion can only drive up business costs. And there is also a fairness concern: to the degree possible, shouldn’t the constitution have a single meaning for all Americans? Should a person with an IQ of 63 (and of course the requisite adaptive skill deficits) receive constitutional protection from death sentences in Missouri but not Florida?
I’m not sure whether allowing greater diversity of judicial opinion will have more of an effect on state or federal courts. I wouldn’t be surprised if things get a bit more out of hand in the states. Federal judges may feel greater social pressure to stay within reasonable interpretations of existing Supreme Court precedent. It is, after all, their system. As one of our Alabama justices, Tom Parker, made clear, state court justices don’t always feel the same fidelity to the Supreme Court. Parker argued that the Alabama Supremes had a duty to ignore the U.S. Supreme Court decision striking down the juvenile death penalty. Who knows what a fella like Justice Parker might do if the Courts leaves open large patches of ambiguity.
One possible response to the rise in splits is for the Court to step up the number of cases it hears each term. It could then quickly address the gaps left by writing narrow opinions. Over time, though, this approach would yield few of the benefits that Sunstein admires. Does it make that much difference whether you overturn Roe v. Wade over three judicial terms rather than one?
One further point. As Orin Kerr noted, Roberts’ address is really quite enjoyable. I suspect that the atmosphere in conferences has changed drastically with the arrival of a this fresh comedic talent. View it yourself here.
Image to the right is a 1968 untitled drawing by minimalist artist Eva Hesse. It is in the collection of the St. Louis Art Museum.