Preserving What?

Jonathan Zasloff beat me to Cass Sunstein’s discussion of Roberts and Alito’s “minimalism,” but since I’m working on and thinking about a scholarly article about it I thought I’d add my two cents. Sunstein’s basic point — that Alito and Roberts cast pretty much the same votes as Scalia and Thomas but are less interested in theory and write narrower opinions — is true as far as it goes. But when they vote to nominally “preserve previous decisions,” one has to ask exactly what is being preserved. The clear and explicit overturning of landmark precedents a la Lawrence is rarer than one might think; the New Deal Court, for example, often overturned precedents sub silento, and the Warren Court’s overturning of Plessy happened the same way (strike down segregation in a case emphasizing that education was unique and therefore not controlled by Plessy, and then just cite the case to overturn other types of segregation with no further explanation.) Rehnquist’s strategy was to hollow landmark Warren Court precedents rather than explicitly overturning them, and he tried to do the same thing with Roe. Upholding the precedents means something only they retain actual content. As Zasloff argues with respect to the nominal upholding of Flast v. Cohen, the centerpiece of Sunstein’s argument:

This is really grasping at straws. Does Sunstein really think that the next time taxpayers sue over a legislative appropriation, Alito and Roberts will gravely uphold standing, saying that they are bound by the precedent? If so, I have a bridge in Brooklyn to sell him. No–they will find some other meaningless distinction to show that there is no standing here, either. The distinction that they insisted on here actually cut against their argument: it makes MORE sense for there to be standing with an executive action, because the President is much less accountable to the public than Congress is. (If you don’t like something that the government is doing, whom do you call: your Congressman or the White House?). Besides, it’s easier to overrule a precedent simply by depriving it of all of its force: this is precisely what Roberts and Alito will do with Roe.

Right. And, of course, this is even more striking with the “upholding” of Carhart in Carhart II. As far as I can tell, what’s been preserved is “a woman’s right not to be burdened by an arbitrary abortion regulation if anyone is dumb enough to pass a law that’s exactly like the Nebraska statute.” (And since Kennedy found that statute constitutional anyway, almost certainly not even that.) What matters here is not the (laughably disingenuous) characterization of precedents but what the decision actually did with the statute and why, and the Court’s accepting anachronistic assumptions that no matter what the data says women must be crazy to want to get an abortion as a legitimate state interest will obviously give the states more leeway to regulate a woman’s right to choose. A couple of other points:

• As I mentioned yesterday, while Sunstein likes to tout the democratic advantages of minimalism, I think there are real democratic costs to the kind of disingenuous hair-splitting employed by Alito and Roberts. Moreover, the democratic advantages of narrow rulings are inhere only if they actually reserve real legislative authority (or a right to sue that might actually be recognized or whatever.) Accountability is best served by candor (and, yes, I would say the same thing about the Warren Court’s post-Brown desegregation jurisprudence.)
• I don’t mean to suggest that narrow holdings are never relevant, only that they can’t assumed to be and that we shouldn’t just take the Court’s word for it. While I remain skeptical that Kennedy himself will ever find an affirmative action program that will pass muster, failing to overrule Grutter has at least some consequences even as Bakke is reduced to less and less. Having said that, though, it’s important to remember that Alito and Roberts’s lack of interest in legal theory cuts both ways. The rare cases where the justices differ in their votes are likely to be cases where Scalia and Thomas cast more “liberal” votes. While, as we’ve seen, their commitment to “originalism” doesn’t constrain them on the issues that matter most to them, there are others — punitive damages, the 4th Amendment, 6th Amendment right to a jury trial, etc. — where they will vote with liberal justices. With the similarly reactionary but more pragmatic Alito and Roberts. conversely, there’s nothing that will cause any unpredictability.

At any rate, the first term demonstrates Roberts and Alito to be doctrinaire conservatives just as their records predicted, and the most likely effect of their “minimalism” is to do most of what Scalia and Thomas want to do in a more politically palatable manner.