I've just returned from the roughly biannual Constitutional Theory Conference, hosted this year by the USC Gould School of Law. It was a good time for all involved but I couldn't shake the feeling that our debates over such questions as how much weight should be given by U.S. Supreme Court Justices to original understanding in constitutional interpretation, were largely inconsequential because of the marginal role the U.S. Supreme Court plays in American law and policy.
Of course I don't mean to deny that Supreme Court decisions can have enormous consequences. Bush v. Gore is an obvious example. But note that in Bush v. Gore the importance of the case stemmed from the particular stakes rather than any larger point of law. When the Supreme Court has taken a stand in recent years---as in the cases arising out of the Gitmo detentions, it has mostly taken the position that Congress needs to speak more clearly. Even the detainee case that was most constitutionally freighted---Boumediene v. Bush---left open the possibility that the Court's interpretation of the Suspension Clause could be circumvented simply by holding prisoners closer to battlefields. The district court ruling in Maqaleh v. Gates rejects that distinction but it is quite possible that the Supreme Court would narrowly limit the reach of Boumediene if and when the issue returns.
Consider also the Supreme Court's absence from the legal debate over one of the great questions of constitutional rights these days: whether there is a right to same-sex marriage. Gay rights organizations have avoided even bringing the federal constitutional claim for fear of an adverse Supreme Court decision that would set the cause back at least a few years and possibly much longer. Accordingly, this area of law has been left entirely to state legislatures, state referenda, and state courts (such as the Iowa Supreme Court).
Might statutory cases undermine the hypothesis that the Supreme Court is a marginal actor? I don't think so. My latest FindLaw column discusses Entergy Corp v. Riverkeeper, Inc.---in which the Court holds that Section 316(b) of the Clean Water Act permits cost-benefit analysis in assessing whether to require various technologies to mitigate the harm that power plants cause to aquatic life. That is a non-trivial decision but at most a third-order policy matter. Either Congress or the Obama Administration could readily change the Bush policy that was challenged in Entergy Corp. And as I also explain in the column, the really important regulatory question---whether to regulate through fixed design standards, fixed performance standards, or inherently dynamic best-practice standards---will not be answered by courts.
Finally, it's worth noting that the courts have just about nothing to say about the most important questions of our day: Which industries should get government bailouts and on what terms? What is the right size and shape of the government stimulus? How should the banking rules be rewritten to reduce incentives of executives to take enormous risks with other people's money? What should be done to control the cost and spread the availability of health care? How should we reduce our collective carbon footprint? What should U.S. foreign policy be with respect to Afghanistan? Iraq? Pakistan? China? North Korea?
The complete invisibility of the courts on such questions makes it hard to take seriously the claim that any particular method of constitutional interpretation is illegitimate because of the judicial power grab to which it supposedly leads. Any power grab is very feeble. That's not to say that there is no point at all in thinking and writing about the work of the federal courts, or even in doing so at a high level of abstraction. But as one of the participants in the weekend's conference observed in a different context, much of our fascination with such phenomena as the "counter-majoritarian" difficulty may be a consumption good---something we care about because we derive utility from the fun of constitutional argument rather than its importance to the real world.
Posted by Mike Dorf