The Supreme Court's Current Dilemma
Alexander Bickel, Welcome Back
My topic is the Supreme Court’s dilemma. I am going to offer one understanding of how it might try to manage the current situation, and more speculatively, one understanding of how some member or members of the Court might actually be trying to manage that situation.
For orientation, let us indulge the following assumptions (I think they are correct; if you don’t, please indulge them):
The executive branch, right now, is engaging in an unusually large number of actions that raise serious legal questions.
Some people think, not unreasonably, that there is a risk that the executive branch may not follow court orders.
A large percentage of the country (40 percent? 50 percent? more?) would be on the side of the executive branch, in the event of a conflict between the Supreme Court and the President. (The percentage would depend on the substance of the conflict, of course.)
Taken together, the foregoing points put the Court in an unusually difficult position, and things might get worse over time.
How should the Court respond? Some people think that over the last months, the Court has been “capitulating” to the executive branch. In their view, the Court has been cowardly.
Other people think that this is in some sense Trump’s Court, and some of the justices, or even a majority, are “on his side.” I don’t think that is close to an adequate account.
Other people think that the Court is speaking, as best it can, for the law, and that’s that. In my view, that is a lot of the story, and it might be all of it. But it might not be the whole story. I want to get at what it might be missing, and at what might be more relevant in the coming years.
In 1961, Alexander Bickel wrote a famous essay, called The Passive Virtues, in which he urged that the Supreme Court uses “techniques of avoiding adjudication.” Bickel meant to celebrate the passive virtues.
He thought that the Court did and should refuse to issue rulings, on this ground: “No good society can be unprincipled; and no viable society can be principle-ridden.” The basic idea is that the Court has developed a set of strategies - involving standing, ripeness, the political question doctrine, and the Avoidance Doctrine - by which it declines to rule on fundamental matters.
It does not strike down executive or legislative action. It does not uphold executive or legislative action. It says nothing. It is silent.
Bickel connected his approach with what he called “the Lincolnian tension between principle and expediency.” That was a bold move. In Bickel’s account, Lincoln always believed that slavery was deeply wrong, a moral atrocity (principle). But Lincoln also believed that he had to be prudent, and take account of expediency, in deciding when and how to challenge slavery.
The reason was that to act in the face of substantial public opposition might not be a good idea. Silence might be better. Principle and expediency, both - that is the Lincolnian tension.
Thus, for example, the Court refused to rule on the constitutionality of bans on racial intermarriage, not because the principle was unclear, but because the country was in the midst of a pitched battle over school desegregation, and the justices did not want to add fuel to the fire.
In recent decades, some people, most notably Chief Justice John Roberts, have emphasized an idea that is not Bickel’s, but that is Bickel-adjacent: the Court often does well to issue narrow, theoretically unambitious rulings, leaving a lot of questions undecided.
The Chief Justice likes to say this: “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”
This is judicial minimalism, and it puts a premium on silence.
Note that minimalism, thus understood, calls for two things: (1) narrow rulings, focused on the facts; and (2) shallow rulings, not based on deep theories about (say) constitutional interpretation or the meaning of liberty or equality.
In normal times, of course, a lot of people do not like minimalism. They prefer big, bold strokes. Some people on the left like maximalism, and so do some people on the right. Chief Justice Earl Warren was no minimalist, and neither was Justice Antonin Scalia, and neither is Justice Clarence Thomas.
Let us stipulate that these are not normal times. Let me put it bluntly: There is an unusually strong argument for the passive virtues, and for minimalism, given (1), (2), (3), and (4) above. One reason is to avoid mistakes; the Court might get it wrong either way. Another reason is institutional self-preservation; self-silencing might protect the Court in challenging times. A degree of minimalism might open up space for confrontation in the future.
If you look over the last months, you will notice that notwithstanding its many decisions, the Court has largely been silent, or at least not noisy, about the largest issues. (There are exceptions.)
I do not want to reach a firm conclusion here. There are strong objections, of course, to the passive virtues, which can be seen as the passive vices, and also to minimalism, which might be seen as a form of cowardice, and a recipe for confusion. If the Court is silent in the face of unconstitutionality, many people will ask: Whatever happened to the Constitution? Or: If the executive branch is defying the law, ought not the Court to say so?
These are fair debates. Let’s just offer this suggestion. In unusually challenging times, some justices might think that the argument for judicial self-silencing is heightened, and that minimalism has a lot of appeal.