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Why the Supreme Court Is Activating the Passive Virtues

A theme of this year at the Supreme Court has been the rise of the “passive virtues.” The term was coined by Alexander Bickel in a famous law review article in 1961. There he suggested that Supreme Court should deploy justiciability doctrines to avoid hard and divisive constitutional questions or at least ration their number. Doing so would allow the Court to preserve its political capital for the times it needed to act decisively on essential cases.

Yesterday’s decisions in the gerrymander cases are classic instances of the passive virtues, avoiding the merits of closely contested and politically divisive issues.  In Gill v. Whitford, the Supreme Court reversed a lower court decision, and held that a constitutional challenge to a gerrymander by the Wisconsin legislature failed because of lack of standing. And it also rejected a challenge to a lower court’s refusal to issue a preliminary injunction against gerrymandering in Maryland because a preliminary injunction there would not  have satisfied the rather technical requirements for that injunction, whatever the case’s likelihood of success on the merits.

Moreover, the Court elsewhere this term followed another passive virtue by ruling on cases in the narrowest possible ways.  Masterpiece Cakeshop turned on the bad motives of a few decision makers below and avoided the larger free speech and free exercise issues in the case. Just yesterday, the Court did something similar in a less momentous case, avoiding a ruling about whether probable cause for arrest generally precluded a claim that the arrest was retaliation for the exercise of First Amendment rights.  It instead made the case pivot on the unusual allegation that the city had an official policy of retaliation.

The passive virtues are on the display this term for two reasons, the first of which is likely to endure more than the second. First, the Court is ideologically split and this split mirrors its ideological composition with all conservative judges appointed by Republicans and all liberals appointed by Democrats. The Court is genuinely concerned that the perception of partisan divisions will weaken its authority, particularly when many people in the nation remain furious that Neil Gorsuch rather than Merrick Garland is the latest justice—a fact that reflected politics in the raw.

Second, members of the Court may believe that they have a particular need for diffuse popular support, because the current President is both polarizing and likely to generate much polarizing business for the Court. The travel case this term is likely the only the first such instance.

In short, the Court both has reason to believe that it has less institutional capital, and yet is more likely to have to draw on it. Thus, the Court will behave passively as much at it can, so its decisive actions in a crisis will be more broadly embraced.

To be clear, this is an explanation, not a justification of the Court’s decision making. The passive virtues are mostly unavailing, because the Court’s decisions in all but the highest profile cases have little effect on its popular standing.  Moreover, the Court should take account of the consequences of its decision only when the law formally directs it to do so.

Reader Discussion

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on June 19, 2018 at 13:20:02 pm

I suspect that the gerrymandering cases started off on the merits, otherwise they wouldn't have taken so long. But the in-fighting got so bad, that the Chief suggested they go this route rather than openly attack each other in their opinions. I also bet there are very contentious decisions coming up soon, and they thought that was enough disagreement for one term.

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Devin Watkins
on June 19, 2018 at 15:53:47 pm

Well said, John.

"Moreover, the Court should take account of the consequences of its decision only when the law formally directs it to do so."

Perhaps, this advice should be offered to the DOJ and the FBI as well.

Also, a lower Court has just "determined" (PRE-determined, perhaps) that Kansas MAY NOT require proof of citizenship in order to vote and the execrable jurist rendering such decision asserted that the policy impact would be to lessen the level of voting.

Well, he got that right - and why should we not lessen the level of voting among non-citizens? BTW: If i recall correctly, this case was related to the FIRST conviction for non-citizen voting. Can you imagine that?

When will we be rid of these meddlesome Black Robed Priests?

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gabe
on June 19, 2018 at 17:32:36 pm

McGinnis says:
"The passive virtues are mostly unavailing, because the Court’s decisions in all but the highest profile cases have little effect on its popular standing. Moreover, the Court should take account of the consequences of its decision only when the law formally directs it to do so."

I'm skeptical for two reasons:
1) I'm loathe to attribute even "unavailing passive virtues" to a Court with a majority comprised of four hard-Left ideologues and a man suffering jurisprudential "disassociative identity disorder."
2) And I've see little sign, historically, regardless of what it "should" do, that the Court ''...take(s) account of the consequences of its decision(s)…" whether or not "the law formally directs it to do so."

In any event, other than the Justices, their clerks, the FBI and the Director of Intelligence, who can really say what has motivated recent quiescent jurisprudence?

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Pukka Luftmensch
on June 19, 2018 at 21:28:19 pm

Pukka:

"2) And I’ve see little sign, historically, regardless of what it “should” do, that the Court ”…take(s) account of the consequences of its decision(s)…” whether or not “the law formally directs it to do so.”"

By that I take it that you mean that the Black Robed Masters do not take into account the deleterious effects of their decisions NOR do they consider the consequent diminution of constitutional safeguards and protections that those "policy determined* decisions have upon COTUS.

Then again, is not "disassociative political disorder" the clear consequence of pandering to the media in search of reputational immortality.

As my fellow street urchins were wont to say, "Screw 'em"

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gabe
on June 19, 2018 at 22:31:01 pm

Haha!
Over the past few days I have read the final report on the FBI/DOJ Clinton email investigation (my summer leisure reading,) and you and I have watched two important bureaucrats (the FBI Director and DOJ's Inspector General) deny that there is material evidence of a political "fix" on the part of either agency. Yet, we who have read the report know that our eyes are not lying, that the bureaucrats are spinning an ungodly lie, that the FBI and DOJ lied about the investigation while they were doing it and covered up their lies and that they are still lying and further obstructing justice by covering up their prior obstructions of justice and that the media is not just complicit but a co-conspirator in their obstructions of justice.

It seems that no matter how jaded one becomes he can't keep up with the unbounded corruption of the Democrat Party and the unbridled cynicism of its media facilitators, that everything to do with the rule of law in Washington DC since the dawn of the Clinton/Obama/Clinton era has become tainted with their political, intellectual and moral decadence, by their corrupt pursuit of what you have described as "policy determined decisions" in the DOJ and in SCOTUS and by their self-serving pursuit of what you call "reputational immortality" and by their insidious "pandering to the media."

You say "Screw 'em" but it's we and the country who are getting screwed.
And not just by five judicial oligarchs.

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Pukka Luftmensch
on June 23, 2018 at 10:33:30 am

In commenting on McGinnis' commentary, I said, "I’m loathe to attribute even 'unavailing passive virtues' to (this Supreme) Court..." and cited as one of my reasons the proposition that "I’ve see little sign, historically... that the Court ”…take(s) account of the consequences of its decision(s)…”

In reply Gabe said, "By that I take it that you mean that the Black Robed Masters do not take into account the deleterious effects of their decisions NOR do they consider the consequent diminution of constitutional safeguards and protections that those “policy determined* decisions have upon COTUS."

In sur-reply to Gabe, I NOW say resoundingly, Yes, that's precisely what I meant, and as just the latest piece of a Mount Everest-sized heap of supporting evidence, I point to this week's decision (which I just read about this morning) by the US Fourth Circuit ordering that a new sentencing hearing be held to reconsider the multiple life sentences without parole given the "DC Sniper" Lee Boyd Malvo who was aged 17 years in 2002 when he and his mentor murdered by sniper fire 10 people in the DC Metro area. In ordering that Malvo be resentenced the 4th Circuit this week was following the commands of two of Justice Kennedy's edicts redrafting the Eighth Amendment, one of which (Miller vs. Alabama) decreed that teenagers cannot be sentenced to life imprisonment unless they are found to be "permanently incorrigible,'' that "...rare juvenile offender whose crime reflects irreparable corruption," and not the customary "...juvenile offenders whose crimes reflect the transient immaturity of youth..." Kennedy later(Montgomery vs. Louisiana) declared that that decree would apply retroactively. Hence, the Fourth Circuit this week ruled that Malvo must be resentenced in Virginia.

That kind of mush-minded nonsense is the consequence, to quote Gabe paraphrasing me, of SCOTUS failing to "take into account the deleterious effects of their decisions."

The mindset of Justice Kennedy and four other Justices (indifferent to the consequences of their behavior, perhaps even oblivious to the reality that bad ideas have bad consequences) is a social pathology when it is combined with their hubris. That kind of sociopathic therapeutic mindset is loose and running wild in our country:

I lived in a close-in suburb of Washington, DC at the time of the DC Sniper rampage in 2002. Several of Malvo's victims died within 10 miles of my neighborhood. I know first-hand the terror that Malvo caused millions of residents (including me and my family) throughout the weeks of his murder spree.
The morning after the terror was over, I was ordering coffee at the local Starbucks and all the talk was of the news that the snipers had been captured and of the descriptions of them which had just been made public.

I recall a woman ahead of me in the coffee queue declaring, "I just feel so sorry for the boy!"
That cruel sentiment is not the consequence of "passive virtues" on the Court.

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Pukka Luftmensch

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