Thursday, November 18, 2010

Brennan and Unstructured Balancing

By Mike Dorf

On Tuesday, Seth Stern--co-author of Justice Brennan: Liberal Champion--gave a presentation sponsored by the Cornell chapter of the American Constitution Society.  It was a lively session, and I came away from it eager to read the book.  After I do, I'll report back.

For now, I'll just make an observation inspired by an Adam Liptak article in yesterday's NY Times.  Liptak notes a growing sense of dissatisfaction--both on and off the Court--with some of the opinions of the Roberts Court for their failure to provide clear guidance.  Interestingly, the disagreement over how much of a duty the Court has to provide guidance for future cases does not break down along ideological lines.  Liptak discusses a number of factors that contribute to the lack of guidance, including the perceived need to secure unanimity.  Here, I'll just add a thought about Justice Brennan.

Although Justice Brennan favored rules in the First Amendment area, he was more broadly a balancer.  Partly that was a product of Brennan's famous coalition-building.  Just as efforts to attain unanimity by the Roberts  Court have led to some narrow and muddled opinions (as the price of suppressing disagreement), so Brennan often had to write narrowly and unclearly to get to 5.  Whatever the cause, the result was probably to reduce the long-term influence of Justice Brennan's opinions, because later cases would invariably involve at least some factual distinctions, and those distinctions could then be invoked as the basis for different results.

Two examples of Brennan's maddeningly imprecise methodology are Plyler v. Doe and Baker v. Carr.  In each, Justice Brennan recites a number of factors that lead him to conclude as he does, without saying which of the factors are necessary conditions, which are sufficient conditions, or how much weight is given to each factor.  The individual results may be sensible but they give the lower courts little guidance, and permit the Supreme Court itself in later cases to claim fidelity to the earlier precedent while deciding however the Justices want.

In this respect, Justice Breyer is arguably the closest heir to the Brennan methodology.  Although Breyer is a pragmatist where Brennan was a liberal, both favor the multi-factor approach.  Breyer's opinion last Term in Comstock v. United States describes five factors which "taken together" support the Court's conclusion.  There is no indication of how these factors combine.

Nonetheless, there is much to be said for the Brennan/Breyer multi-factor approach.  In many domains, it is often sensible to make an all-things-considered judgment without attempting to specify what weight each relevant factor receives.  And there are circumstances in law where this is true too.  Custody determinations based on the "best interests of the child" strike me as one.  Sentencing used to be understood this way before the move to (relatively) determinate sentences.  But in the domain of Supreme Court doctrine, all-things-considered multi-factor decision making has a substantial downside that should make it a methodology of last resort.  Brennan was a great Justice despite his penchant for balancing, not because of it.

Postscript: I say all of the foregoing about the sort of unstructured balancing typified by the cases discussed. Balancing can be much more highly structured, as for example in the European approach to civil rights and civil liberties.  (For a good discussion of the point, see works by Alec Stone Sweet or Aharon Barak.)

2 comments:

Can The Church Say Shameful? said...
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Derek said...

Justice Breyer's controlling concurrence in Van Orden v. Perry suffers from the same problem, I think.