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Caperton and The Supreme Court?s Boundary-Enforcing Role

By Jack M. Balkin

In a pathbreaking decision, the Supreme Court today ruled 5-4 that Due Process requires an elected judge to recuse himself when a party with a vested stake in a case spends so much campaign money to get that judge elected (apparently, either through contributions or expenditures) as to raise an objective probability that the judge will be too biased to serve. Momentous as the decision is for the future of judicial elections and disputes over judicial bias, I want to focus instead on an even larger issue, which is what this case reveals about different conceptions about the nature of law and of the Supreme Court?s role. These differences come up time and time again across dramatically different areas of law; they explain a profound difference between Justices like Justice Kennedy, who wrote Caperton (and Justice O?Connor before him), and Justices like those in the dissent, including Justices Roberts, Alito, Scalia, and Thomas. These differences also explain why some academics consistently criticize Justices like Kennedy and O?Connor, even as those Justices have dominated the Court?s decisionmaking in close cases for several decades now.

The signal to these differences is Justice Kennedy?s emphasis throughout that Caperton presented ?extreme facts,? ?an extraordinary situation? ? and his candid admission that extreme cases test the boundaries of legal principles and sometimes cannot be resolved through any bright-line legal rule that defines the clear content of the principle that is being violated. At this very point, Supreme Court Justices divide. Some Justices ? Justice Scalia most forcefully ? believe that if the Court cannot come up with bright-line legal rules to define the content of a legal principle, then the Court has no sound, principled, indeed legal basis for acting. The best the Court can possibly do, by definition in such cases, is come up with a quite vague gesture that some constitutional boundary has been crossed. But vague guidance, on this view, is not law. In contrast, Justices like Kennedy and O?Connor not only reject this view, but they see as one of the Court?s most essential roles the need for the Court to insist that there are boundaries on the conduct of public institutions and actors ? that some lines cannot be crossed, even if it is legally impossible to define those lines with clarity.

This tension comes up throughout constitutional law. It partly explains why the Court will always have closely divided cases, in different areas of the law. The issues of partisan gerrymandering and racial redistricting, for example, present essentially the same problem as Caperton ? and it is no coincidence that Justices O?Connor and Kennedy controlled those areas of law as well. In the 1990s, the 5-4 Supreme Court held in a line of cases starting with Shaw v. Reno that constitutional limits exist on ?extreme? instances of racially-designed election districts ? even though it was clear, as the dissenters argued, that there was no precise way to define how much influence of race in district design was ?too much.? Nonetheless, Justice O?Connor clearly believed that the Court?s role was to plant a flag to establish that there were some limits ? even if those limits could not be defined with any precision. Similarly, today?s dissenters in Caperton have resisted having the Court hold that partisan gerrymandering can violate the Constitution ? precisely because there is no obvious or easy way to define how much political control of districting is too much. Characteristically, Justice Kennedy has been willing to leave the door open to a case of such extreme partisan manipulation that perhaps he would be willing to find the Constitution violated.

The difference between ?boundary-enforcing? Justices and ?bright-line rule? Justices is one of the keys to understanding the Court, yet it is one of the least appreciated elements of judicial ideology or approach. Many further fascinating questions arise once this difference is recognized. What kinds of threats to the design of political institutions should the Court see as sufficient enough to justify drawing an inherently vague boundary ? to saying, in essence, ?this far but no farther?? More generally, when are the benefits of boundary enforcing worth the costs of vagueness? How consistent are different Justices about their willingness or not to accept the role of boundary enforcer even when law must be vague? And if the law the Court issues is necessary vague, what happens after that ? does the decision create chaos, by unleashing a torrent of further cases, as ?bright-line? Justices always fear? I will leave those questions, some of which I have written about, for another time. For now, the important point is to see Caperton in this larger framework, and to recognize that the structure of the problem it presents is a feature of constitutional law that cannot be eliminated.

Full post as published by Balkinization on June 08, 2009 (boomark / email).