Rick Pildes on Georgia, Ayotte and WRtL
In response to my take, and Sam Bagenstos’s, on the “as applied” decisions this Term, NYU Professor Rick Pildes writes in with a very different, and provocative, perspective:
I expect these cases will indeed be re-argued before a new Court, though not in the technical sense of re-argument you initially had in mind. My comment is also related to Sam Bagnestos’ comment on the emergence of as-applied doctrinal developments this Term; this emergence is tied to another development in the Court this Term that I have noticed:
It has become clear to me that the Court’s actions are being shaped right now by Justice O’Connor’s unusual position of imminent retirement during the Term. As I see things, the Court is being moved by one or both of two considerations. First, the Court is attempting to get as many decisions handed down as possible before Justice O’Connor retires in cases in which she has participated in argument and conference. Second, the Court is attempting to avoid putting a new Justice in the immediate position of having to resolve 4-4 divisions within the Court–a position that would require re-argument of the cases just for that new Justice and that would force a new Justice to come to a position right away on some of the most charged cases before the Court. That was the miserable position Justice Blackmun found himself in when he first joined the Court and it appears the Justices are looking to avoid re-creating that situation for any new Justice.
The result has been a series of exceptionally narrow, unanimous decisions that are issued much more quickly after argument than typical and that go far out of the way to avoid tackling any issues that might divide the Court and require the writing of lengthy majority and dissenting opinions. This pattern has now been manifested in at least three areas: constitutional federalism; abortion; and campaign finance. The cases include Georgia v. United States, on whether Congress can make the States liable for damages suits under the Disability Act; the abortion statute for minors in the Ayotte case; and now the WRtL decision today. In all three of these areas, among the most controversial before the Court, there is no doubt the Court is internally divided, whatever the particular outcome in particular cases. Yet in all three, the Court this Term has issued short, unanimous opinions that are so narrow, one almost wonders why the Court took the cases in the first place. The answer, of course, is that the Court granted the cases when it assumed it would have a full Court for the Term to resolve these issues.
As a result, I believe one cannot and should not read much into any of these decisions, except that the Court, not surprisingly, is divided. But Justices are bypassing those divisions by agreeing unanimously to temporize and let the lower courts confront these issues again, by which time the Court will presumably be stable again. That the Justice who wrote McConnell, Justice Stevens, was willing to along with the WRtL remand is no more significant for the ultimate merits than is the fact that Justice Scalia was willing to go along in the federalism area with a remand in the Georgia case.
FWIW, I totally agree with Rick about what the Court is doing (as I said in the comments thread here: http://prawfsblawg.blogs.com/prawfsblawg/2006/01/the_roberts_cou.html#comments ). But I think the as-applied aspect of these decisions is nonetheless significant. I think that after Boerne and Florida Prepaid were decided, you would have thought it was impossible that the Court would decide a Section 5 case on an application-specific as-applied basis. The Court took a step toward that analysis in Lane, over four dissents, but the Lane dissenters wouldn’t have joined US v. Georgia if they didn’t agree that as-applied analysis is appropriate in Section 5 cases. Similarly, the four more liberal justices wouldn’t have joined Ayotte if they didn’t agree (contrary to what some abortion rights activists might have thought) that as-applied analysis is appropriate in abortion cases. So these cases don’t make big substantive law, but they wouldn’t be such easy outs for the Court if they didn’t reflect such broad agreement among the justices on the propriety of as-applied challenges.
Comment by Sam B. — January 23, 2006 @ 6:09 pm
Prof. Pildes:
Thank you for elucidating the institutional/personnel reasons that are likely driving the Court’s recent decisions. I think you have made a powerful case for the idea that these decisions are in effect “temporizing” on the merits of the most hot-button substantive issues. From that premise, I think your conclusion that “one cannot and should not read much into any of these decisions” is unimpeachable, but only as to the ultimate merits of the underlying substantive issues (e.g., parental-notification provisions in abortion statutes, whether there still is such a thing as “pure issue advocacy” in the campaign finance context).
That said, it would be a mistake to believe that these decisions are going to be without substantive consequences. Needless to say, these decisions are decisions of the supreme Court, not unpublished one-offs from a Court of Appeals, and not only the actual (albeit elusive in many of these decisions) holding, but every word, every nuance will be hung on pondered, picked over, used, and abused by attorneys and lower-court judges. Try as they might, the Justices can’t decide the cases by saying nothing (their little experiment with “this offer good for one day only” jurisprudence in Bush v. Gore having gone over like a lead dirigible, that’s a card they dare not play too often).
In short, these purportedly pragmatic, tempriozing decisions have substantive consequences. Let’s take Ayotte. With some necessary oversinplification, I take Ayotte as holding that a reviewing court should not be too quick to invalidate a whole statute based on the potential for a few unconstitutional applications; the only guidance the Court appears to offer to inform a reviewing court’s analysis of the question — i.e., whether an injunction against particular unconstitutional applications of the statue is appropriate versus an injunction agaisnt the enforcement of the statute as a whole — is that the Court should weigh such factors as the clarity of the constitutional doctrine involved (aside, is this some kind of qualified-immunity-type analysis creeping up the back stair?) and the relative ease with which the court can craft a narrower remedy. The overall drift of the opinion is an unmistakable preference for narrow remedies where they are feasible.
Now, what I think the Court has actually done, wittingly or not, is to effect a silent revolution in severability analysis — at least if we read the opinion at face value as establsishing general propositions of law (and there is again nothing in the decision suggesting that its holding and reasoning are limited to the facts or that it is announcing special rules for abortion cases or that subset of abortion cases dealing with a lack of a health exception in an otherwise constitutional set of restrictions). What you would never really know from reading just Ayotte is, first of all, that the question of severability is not just a question of discerning legislative intent, but it heretofore has been regarded as a question purely of state law. One would further be forgiven in having no idea that the states have developed some sharply differing approaches to the question. I say “heretofore” above because the Ayotte decision not only fails to pay any serious regard to this rather critical choice-of-law issue — much less does it probe state severability doctrine or even suggest that the lower court should do so — it offers up a mish-mash of federal concerns to guide the severability analysis, suggesting that this is more question of federal constitutional remedy law than of state severability law.
As noted, the staes vary quite a bit on severability. In some states, if there is any interrelatedness between the unconstitutional part of the statute and the constitutional parts, the staute is regarded to be non-severable, even in the face of a statutory severability clause expresly stating otherwise. In others, the analysis tilts more toward severability. Predictably, these different approaches yield very different outcomes, and some of those outcomes will be very different from the outcome of an anlysis that is confined to the Ayotte factors. But in any case, the question has until now been clearly treated as a question of state law, not a question about how clear the constitutional principles are or how easy or difficult it might be for a reviewing court to fashion a narrow remedy. In sum, the Court has, in the name of expediency unanimously endorsed an opinion that, at a minimum, sits uneasily with the existing severability jurisprudence. At a minimum, this opinion is going to sow confusion and uncertainty. Are the Ayotte guidelines meant to supplant or simply be a supplement to state severability principles? If the latter, how much weight do the federal principles get in relation to the state principles? Which principles win out if there is a conflict? If the Court meant that the federal guidelines are to be the only guidelines the lower court is to follow, hasn’t it just silently overruled the cases saying that the question is one of state law? All of these questions will need to be dealt with, and they will affect all areas of constitutional litigation. Governmental defendants may now see that they have an opportunity to make severability arguments that they did not have before Ayotte.
I’ve gone on too long as it is, but will note that one could perform a similar exercise with WiRTL, which can be read as calling into question whether the Court really meant some of the things it seemed to say in McConnel v. FEC.
The sum of the matter is that these “temprizing” decisions, while not affecting the merits of the big-ticket substantive issues, will have serious — likely unanticipated — substantive consequences in many areas.
Comment by SDangerfield — January 25, 2006 @ 12:22 pm