By Mike Dorf
Yesterday's ruling in Alleyne v. United States produced an interesting division on the Court. The majority opinion by Justice Thomas was joined by the Court's liberal wing, whereas the four other conservatives dissented. The case holds that factual findings necessary to the imposition of a mandatory minimum sentence must be found by a jury, not a judge, thus overruling Harris v. United States.
It's easy to see the votes of eight of the Justices in conventional liberal/conservative terms, but not the vote of Justice Thomas. He has been a consistently strong supporter of a broad jury trial right. Why? Investigating that question may shed light on a long-running debate in jurisprudence--or at least provide an opportunity for some cheap jokes.
Whatever the reason for Justice Thomas's strong views about the jury, they clearly aren't conventional left/right ideology. Here, as in other cases--like Justice Scalia's writing a dissent re DNA testing of arrestees that was joined by the three female Justices in Maryland v. King--one is tempted to say that we have evidence that Supreme Court Justices are not simply politicians in robes. And they aren't.
But just because politics is not driving the way any particular judge or Justice votes, we should not conclude that law is doing the work. Here we might recall two branches of legal realism. One branch--which we might consider the predecessor to what became critical legal studies--points to political and perhaps other broad social factors (like race, sex or class). In this view, individual judges or Justices are avatars for causes. A second branch of legal realism was more focused on the individual psychology of particular judges or Justices. The pointillism of this view is summed up in the familiar (if silly) idea that a judge's decision is as much the product of what he or she had for breakfast as it is of the legal arguments in the case.
If one thinks that each branch of legal realism holds part of the truth, then one might think that where ideology does not drive a judge's vote, idiosyncratic factors do--but in neither case is the decision driven by law. After all, in a case like Alleyne, five Justices think the Constitution requires juries, while four justices think it does not, so it appears that the law is indeterminate.
Yet Ronald Dworkin famously argued that even in hard cases, there are right answers. In that way, he disagreed with legal positivists--and most centrally with H.L.A. Hart--who thought that in hard cases judges exercised discretion. Although I find myself functionally closer to Hart, I now think that the terms of their debate tended to confuse matters. To explain why, it may help to introduce an analogy.
Suppose you and I are having a discussion about who was the greatest NBA center of all time. There are a number of plausible candidates, depending on how one weights various criteria: Bill Russell played great defense and won the most championships; Wilt Chamberlain had the greatest individual statistics; Kareem Abdul-Jabbar scored the most points over the course of the longest career; Shaquille O'Neal physically dominated opponents in a way that none of the others did. One could make some kind of a case for any of them. But there are some NBA centers who clearly do not belong in the conversation, including Hall-of-Famers like Willis Reed and Robert Parish.
When you and I agree that Wilt Chamberlain was a better center than Robert Parish, we base that judgment on basketball criteria. We use the same criteria when we argue about whether Chamberlain or Russell was the best center ever. You point to Russell's nine championships and success in head-to-head matchups with Chamberlain; I point to the fact that Russell had better teammates and to Chamberlain's truly incredible stats: In a 14-year career, he averaged 30 points and 23 rebounds per game.
Dworkin was interested in basketball, so I regret that I didn't think to pose this example to him during his lifetime, but we can reconstruct roughly how he might have reasoned about it. His point about hard cases was that courts use the same legal tools to decide hard cases that they use to decide easy cases; thus, Dworkin concluded that just as there are right answers in easy cases, there are right answers in hard cases. But thinking about the greatest-center question shows where this reasoning goes wrong. Just because one is posing a basketball question in both the Chamberlain-or-Parish example and in the Chamberlain-or-Russell example does not mean that one is posing a determinate basketball question in both cases.
In the Chamberlain-or-Parish comparison, all but one of the plausibly relevant criteria favor Chamberlain, and the outlier is easily explained away. The outlier is championships. Parish won 4 to Chamberlain's 2, but Parish was at best a third-banana on his Celtics teams, whereas Chamberlain was the franchise player on his teams.
By contrast, in the Chamberlain-or-Russell comparison, reasonable minds can disagree over how much weight to give various criteria. The debate is still a debate about basketball. If someone said that Chamberlain was better than Russell because Chamberlain (by his own account) had vastly many more sexual partners, we would rightly say that this is not a legitimate basketball criterion. That would be like a Justice voting for Bush or Gore in Bush v. Gore because the Justice thought that he would be the better President.
Dworkin was right that in both hard cases and easy cases, judges are guided by law. But it certainly does not follow that judges are as much guided by law in the hard cases as in the easy cases. What makes the hard cases hard is the very fact that the legal guidance is unclear. Basketball criteria rule out Willis Reed or Robert Parish for the title of best center of all time, but they do not clearly settle on Chamberlain or Russell (or perhaps Abdul-Jabbar or O'Neal).
Hart fares better on substance but not in presentation. As Roger Shiner elegantly argues in a recent paper, in The Concept of Law, Hart writes as though the exercise of judicial gap-filling is an exercise of judicial discretion in the sense of a completely unguided decision--what Dworkin called strong discretion. But what Hart should have said--what would have been more consistent with his own position as best articulated--is that discretion itself is guided by law, albeit loosely. That is, Hart only needed to say that judges exercise what Dworkin (later) called weak discretion.
And that brings me to some exciting news (well, exciting for law geeks, anyway): Geoffrey Shaw recently discovered a previously lost paper by HLA Hart on the topic of Discretion. The paper was written for a faculty seminar when Hart was a visiting professor at Harvard during the 1956-57 academic year. In a 2003 paper, I noted that Bill Eskridge and Phil Frickey speculated that Hart's paper may have argued that "much discretion cannot be controlled by law." But it turns out that the paper in fact views discretion as much more subject to guidance than that. Hart had in mind weak discretion after all. The lost paper, along with an analysis by Shaw, will be published in the Harvard Law Review shortly. I have seen advance copies of both, but they are not yet in general circulation.