Sasha Samberg-Champion writes:
I read your interesting post on Legal Theory Blog today, in which you advocate that Supreme Court Justices both (1) adhere more closely to formalism and (2) compromise with each other more in order to forge stable majorities. But I wonder how compatible these two ideas are?
Right now, it could be argued that the problem is that we have _too much_ formalism -- that is, competing formalism. On many issues we have two blocs of formalists -- albeit drawing very different conclusions from what they would consider a formal reading of precedent and constitutional interpretation. This is possible because each side sees only its own opinions as valid precedent. The liberals are internally consistent and the conservatives are internally consistent, but neither gives any particular weight to a 5-4 opinion written by one of the other side's Justices when that side happened to swing O'Connor in a particular case -- and nor should they.
The problem is, in many cases in which O'Connor is the swing vote and she doesn't write the opinion, the opinion is virtually worthless as precedent because it doesn't tell us what influenced O'Connor to join the majority and not the dissent -- it tells us what Scalia or Stevens thinks is the law and the important facts. The result is that we have two distinct lines of caselaw in each such field, a Scalia line and a Stevens line, often difficult to reconcile, and then O'Connor and to some extent Kennedy can pick and choose from them based on the facts of the case.
One solution to this problem, as you suggest, would be for the majority opinion writer to move towards the middle to "restate" the law in a way that would be agreeable to more than 5 Justices. (Or for O'Connor to write at least a concurrence in every case to explain her controlling position, a la the Powell opinion in Bakke, but that's far too much to ask of one Justice unless you provide her with an additional set of clerks.) In theory, that's what's supposed to happen in chambers to some extent, as the opinion writer incorporates the varied opinions of members of his/her majority and tries to add more votes.
But now the problem is, we've created compromise law that doesn't adhere to anyone's formalist reading, but rather was created to reach a particular political result -- i.e., legal stability. It then falls to the law professors to try to "explain" how we could come to such an odd detente. To me, that seems like an acceptable solution, but it doesn't seem like formalism. Isn't that exactly the kind of results-oriented law that you don't like? Am I missing something here?
Moreover, the Turley idea of increasing to 19 the number of Justices on the Court would disserve the ideal of compromise. The whole point of having a small number of Justices is to let everyone hash out ideas and come to some consensus. The more people you put in the room, the more likely you will end up settling cases by simple vote and political power rather than reasoned discussion. If anything, the way to achieve compromise
is to knock off a couple of Justices.
posted by Lawrence Solum 12:24 PM