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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.

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