The risk of upending settled doctrinal expectations

A guest post by Lawrence Friedman

Courts strive to avoid sudden, tectonic shifts in doctrine. The legitimacy of their decisionmaking depends upon two of the values that mark the rule of law: consistency and predictability. Absent adequate justification for a doctrinal shift and judicial decisionmaking starts to look like it is based more on caprice than reason.

The U.S. Supreme Court is not immune from the risks associated with such shifts—indeed, in two separate opinions in the past few weeks, Justice Clarence Thomas has argued that the Supreme Court consider radical changes in approach to long settled constitutional doctrines.

Concurring in the denial of certiorari in McKee v. Cosby, Thomas explained that, in an appropriate case, the court should reconsider the precedents underlying the First Amendment rule that public figures cannot pursue damages for defamation absent a showing of “‘actual malice’—that is, with knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan and its progeny, Thomas argued, “were policy-driven decisions masquerading as constitutional law” that the Court “should not continue to reflexively apply.”

More recently, in Garza v. Idaho, Thomas (joined this time by Justice Neil Gorsuch) dissented from the majority’s ruling that, notwithstanding that a criminal defendant has waived the right to certain bases for appeal, prejudice should be presumed when his attorney does not pursue an appeal after being requested to do so. Thomas disagreed not only with the ruling but the basic premise of Sixth Amendment doctrine—that criminal defendants have a right to effective counsel. No modern precedent, he argued, including Gideon v. Wainwright, sought to square this rule “with the original meaning of the ‘right … to have the Assistance of Counsel.’” He suggested that the Sixth Amendment guarantees the accused only “the services of an attorney,” and assumptions to the contrary conflict “with the government’s legitimate interest in the finality of criminal judgments.”

Justice Thomas’s originalist approaches to defamation under the First Amendment and the right to counsel under the Sixth may be criticized on substantive grounds. As to the former, consider Eugene Volokh’s conclusion that “constitutional constraints on speech-based civil liability have deep roots, stretching back to the Framing era” and Sullivan is “entirely consistent with original meaning.” As to the latter, consider the textualist argument that the very existence of a right to counsel privileges the individual’s interest over a governmental interest in finality, and that ineffective counsel undermines the integrity of this premise.

Even setting aside these substantive concerns, Thomas’s opinions preview what Chief Justice Roberts may look forward to should more justices be appointed who share not just Thomas’s interpretive approach, but his willingness to cast aside settled rules in favor of a return to the presumed original understanding of the constitution. It is not just a dispute, in other words, about meaning, but about the way in which the Supreme Court goes about the business of constitutional rulemaking.

A radical alteration in settled doctrine runs the risk that the Court’s decisionmaking is unmoored from the past, and that the justices cannot be counted on to create reasonable expectations for the future. It is not just about a loss of respect, but the dilution of a hard-earned legitimacy. One of the reasons the American people abide by the decisions of unelected judges about the meaning of our most sacred secular text is because, agree or disagree, there is in most areas of constitutional law a continuity that has allowed public and private institutions and individuals alike to rely upon expectations the Court itself has set about the boundaries of its reach—expectations that allow us to make our own plans and plot own courses.

To return to one of Roberts’s favorite analogies: no umpire who decided, one day, to honor the strike zone as it existed in baseball’s infancy would last long on the job. The players, the pitching, the equipment, the field—all are different today. Umpiring has accounted for these differences, as managers and players well know. They have expectations about the range of possible calls an umpire might make when the ball hurtles toward the catcher’s glove, and they trust that those expectations will hold true from game to game, and across the seasons. Chief Justice Roberts has intuited that Americans rightly expect the same of their Supreme Court—and that they likely would find ways to marginalize the Court if it were otherwise.

The argument for caution: Justice Kavanaugh’s dissent in June Medical Services, L.L.C. v. Gee

A guest post by Lawrence Friedman

Some commentators expressed surprise last week when Chief Justice John Roberts cast the fifth vote to stay the enforcement of a Louisiana law restricting access to abortion in June Medical Services, L.L.C. v. Gee. That law creates an admitting-privileges requirement for doctors who seek to perform abortions. The law thus implicates the 2016 decision in Whole Woman’s Health v. Hellerstedt, in which the Court struck down a Texas law requiring abortion providers to hold admitting privileges at nearby hospitals and to comply with other regulatory mandates.  There, the Court reasoned that the Texas law served no rational purpose other than to unduly burden women seeking to exercise their right to choose. The stay in June Medical Services simply delays the Louisiana law’s implementation until the Court can take up its constitutionality in view of Hellerstedt, likely next Term.

Roberts’s vote favoring a stay should not have come as a surprise. Though the Chief has previously expressed doubts about the existence and scope of unwritten constitutional rights, he has been unwavering about the importance of adhering to precedent when it comes to maintaining the legitimacy of the Supreme Court itself. Staying the Louisiana law in light of Hellerstedt promotes that legitimacy by demonstrating the Court’s respect for its own recent jurisprudence.

More interesting than the Chief voting to impose the stay was Justice Brett Kavanaugh’s dissent—the only separate opinion. While Justices Thomas, Alito, and Gorsuch did not disclose why they voted to deny the plaintiffs’ application for a stay, it would not be unreasonable to conclude that either (a) they do not view the Louisiana law as imposing an undue burden under the controlling precedent, Hellerstedt; or (b) they do not view Hellerstedt or the antecedent decisions from which it springs, Planned Parenthood v. Casey and Roe v. Wade, as correctly decided. If you do not believe that the plaintiff’s theory of the case is grounded in a sound constitutional principle, it makes sense that you would not be inclined to permit the most recent articulation of that unsound principle to control.

In his dissent, Justice Kavanaugh made clear that he did not oppose the grant of the stay because he questions Hellerstedt’s constitutional footing. Rather, he viewed the stay as unnecessary given that the plaintiffs had raised a pre-enforcement facial challenge to the Louisiana law. In the absence of actual facts about the law’s effect, Kavanaugh noted, the parties offered, “in essence, competing predictions about whether [the doctors could] obtain admitting privileges” pursuant to the law. He favored denying the stay to see which circumstance would develop—whether the doctors in question would gain the admitting privileges the law required, which would obviate the plaintiffs’ challenge under Hellerstedt; or whether the doctors would be denied admitting privileges, which arguably would impose an undue burden under Hellerstedt.

This line of reasoning distinguishes Kavanaugh’s position in relation to the presumed views of the other dissenters. First, his dissent reflects the importance of factual development to judicial review: with facts in hand, the court can appreciate how regulations work in practice, and whether their enforcement is designed to undermine constitutional values. Second, Kavanaugh’s dissent shows some interest in having the court move incrementally, particularly in a case that implicates a recent precedent. There is value in slowness: as Chief Justice Roberts acknowledged in his confirmation hearings, adherence to precedent “plays an important role in promoting stability,” by showing appropriate respect for the decision-making limits of nine unelected judges.

Indeed, if Kavanaugh’s dissent is any indication, the Chief Justice has another colleague who appreciates that the Court’s ability to perform its constitutionally assigned role is inextricably connected to the esteem in which it is held. Consider the decision last Term in Carpenter v. United States, in which the Court concluded that, even when we share certain information with others, we have not necessarily sacrificed all privacy protections under the Fourth Amendment. Writing for the majority, Roberts made clear that context matters, and Carpenter explicitly saves for another day numerous questions regarding the reach of its holding. At the decision’s end, Roberts quoted with approval Justice Felix Frankfurter’s counsel that the Court, in the face of potentially far-reaching changes, should “tread carefully.” Kavanaugh’s short dissent in June Medical Services suggests that he may well be on board with that program.