Monday, October 20, 2014

How an Ordinary Case Becomes a Great Case

By Michael Dorf

My most recent Verdict column compares the cert denials in the same-sex marriage cases to the series of per curiam decisions issued by the SCOTUS after Brown v. Board of Education, in which the Court summarily affirmed the lower court decisions that invalidated segregated facilities in every possible context, even though Brown itself arguably applied only to public education. After some analysis, I conclude that the comparison shows that perhaps United States v. Windsor (the DOMA case) was not a mere half-step as most observers thought at the time, but was, in retrospect, a great case.

The foregoing formulation raises the question of what makes a great case great.  I don't have a good answer to that question. Indeed, I recognize that it's not a very well-formed question. Any criteria for "greatness" will be mostly stipulative, even if what we mean by great is something like "very important." Important for whom? Measured how? Etc. Nonetheless, I think that, at least at the extremes, there would be widespread consensus about what cases are great and what cases are not so important. The point I want to make here is a generalization of the point I make in the column: The status of a cases as great may not be apparent when it is decided.

Marbury v. Madison is a leading example. Today, Marbury is the Ur-case of the constitutional law course, because it establishes the Supreme Court's power of judicial review of acts of Congress. But in its day, Marbury was important, if at all, chiefly for two other reasons: (1) It presented the question whether the Supreme Court could (or would) issue an order to the President (or Secretary of State), and if so, whether the Administration would comply; and (2) the drama in Marbury was connected to the much more important question of the power of Congress (in the Judiciary Act of 1802) to repeal a law creating federal judgeships. The Court's jurisdictional holding ducked question (1), and the Court's capitulation to Congress in Stuart v. Laird gave the Jeffersonian Republicans their victory. Accordingly, although the strong language in Marbury frustrated Jefferson, the resolution of the case was not seen as important. Only later, as the power of judicial review became more important, did Marbury retroactively take on the character of a great case.

More broadly, in the traditional common-law view, the greatness or lack of greatness of a case inevitably emerges over time. Lincoln had something like this phenomenon in mind when he said of Dred Scott v. Sandford, in his first Inaugural, "that it may be overruled and never become a precedent for other cases." Lincoln made that point as part of a broader argument against judicial exclusivity in constitutional interpretation, but putting aside questions about the proper scope of "popular constitutionalism," Lincoln's views with respect to precedent were quite ordinary, reflecting the standard view of precedent in a common-law system: the scope of a precedent is not clear until subsequent cases follow it, extend it, fail to follow it, or change it.

The occasional tendency of modern case law towards rule-ness--such that, as Fred Schauer has observed, precedents are sometimes written and then read as if they were statutes--cuts against the traditional common-law view. It's worth noting here (if only to flag for what might be a follow-up post some day) that Justice Scalia's idea that the rule of law requires rules is in some considerable tension with traditional common-law practices (as Justice Scalia has himself sometimes noted, as in his criticial discussion of the common law in A Matter of Interpretation). My broader point is that, taking the long view, there's nothing especially new or unlawyerly about the SCOTUS treating a case (here Windsor) as establishing a much broader proposition than it was thought to establish at the time.

I'll close with one more example. In modern case law and in constitutional law casebooks, Yick Wo v. Hopkins is typically cited as establishing the proposition that a law that is administered in a manner that discriminates on the basis of race (or national origin) denies equal protection as applied. However, while there is some language in the case that gestures vaguely in that direction, it reads much more like what would today be called a procedural due process decision: the fundamental flaw on which the Court fixated was the arbitrary discretion conferred on government officials to permit (or refuse to permit) the operation of a laundry. That doesn't mean that modern courts and commentators are wrong to cite Yick Wo for the proposition that discriminatory application violates equal protection. The meaning of the case changed over time.

In short, it shouldn't be surprising that the meaning of Windsor appears to have changed since it was decided. What is surprising is how quickly that happened.


David Ricardo said...

Interesting commentary, and a nice response correcting those of us who thought that Windsor was too narrowly decided, that maybe Windsor was not what it seemed to be at the time.

With respect to whether or not a case is ‘great’ it might be helpful to divide cases into one of three categories.

1. Decisions which impact only the parties involved or a small number of similar parties. A large number of Supreme Court decisions fall into this category, such as tax cases and others which leave the vast majority of us unaffected and unaware of.

2. Decisions which impact not only the parties involved but a class of persons where that class is fairly large.

3. Decisions which not only affect the parties involved and not only affect a class of parties that is large in number but cases which are transformational as far as society is concerned.

Decisions that fall into category three could be called what Mr. Dorf describes as ‘great cases’. As he says, Brown is certainly an excellent example. The decision didn’t just end segregation in Topeka schools, it didn’t just end legal segregation in schools nationwide, it resulted in the end (over time) of legal segregation and apartheid in America. Gideon could be called great because it didn’t just result in a new trial for Gideon but in a transformation of the criminal justice system.

Griswold may be a case that is similar to Windsor. The impact of Griswold has been huge and far greater than it was probably imagined at the time of the decision. It is a great case. It was thought by many of us that Windsor fell into category two above which made it an important case but not a great one, the great case being the one that would end state bans on SSM. But Mr. Dorf has a strong and compelling argument that Windsor will be a category three case, a great one that does transform the nation.

Shag from Brookline said...

Regarding Marbury v. Madison, Constitutional Commentary a few years back had a 200 year retrospective of that decision. Jack Balkin and Sandy Levinson had an extensive article on the "facts" in Marbury most of which were not referenced in the decision as reported. If, for example, the reported "facts" had referenced the role of CJ Marshall as a cabinet officer who failed to take certain steps concerning delivery of commissions, might there have been a discussion of possible conflicts of interest on Marshall's part? Also, the case could have been disposed of by the Court without getting into the possibility of James Madison acting illegally in not delivering the commissions that Marshall had himself failed to do. Marbury was an early political decision by the Court, particularly in asserting its powers with the suggestion of judicial supremacy over the Executive and Congress in interpreting the Constitution.

Joe said...

the meaning of Windsor appears to have changed

I question the framing at least somewhat. At least, we need to be careful not to misunderstand.

Did "most observers" not think that -- whatever the immediate ruling -- that the ruling did not in all likelihood, if when somewhat a question, signal what Scalia said?

Yes, it was a "half-step" to the degree the matter at hand was a half-step. The issue wasn't SSM across the board. It was about federal non-recognition of where it already was in place.

It's not the courts' job when deciding A "case" or "controversy" to broadly decide the question. The USSC in Brown didn't have to say ALL types of race based discrimination were wrong & should not have.

That went far beyond what was at issue (likewise, where the right to SSM was more directly at issue, if the Court found they had no jurisdiction, it would be blatant activist dicta to decide the merits).

But, how a case decided can open up the possibility for more. This is where the "half-step" or "tipping point" comes in. In that sense, in hindsight (though I would argue a majority realized this at the time) Windsor etc. can become "great" cases.

That is, later courts build off the opening that the opinion provides. And, since Windsor rested on equal protection arguments that treated same sex couples as in a similar situation as other married couples, this didn't really take much "change."

More a sort of expansion on its shoulders. Windsor was seen by many as a landmark when it was decided. I think perhaps a better example might be Griswold, which was seen as a simple case dealing with an outlier anti-contraception law. Some saw the potential. But, its true greatness would come in time, including by expansive readings by lower courts.

Anyway, I think the general remarks sound including the complications of mixing a "common law" system with one in which the USSC is understood as important largely to in effect set "rules" esp. with its narrow docket.

Shag from Brookline said...

After my earlier comment, I recalled that Sandy Levinson no longer teaches Marbury in his ConLaw course. With Googling, I I located Sandy's "Reply Why I Still Won't Teach Marbury (Except in a Seminar)" 63 Journal of Constitutional Law p.p. 588-603, Mar. 2004. This "Reply" was to Prof. Eric J. Segall, responding to an earlier article by Sandy on this subject. Sandy's "Reply" is very meaty, including on judicial supremacy and judicial review. Sandy refers to his " ... friend and colleague Jack Balkin, who wrote a 'dissent' appended to [Sandy's] original article explaining that is the very protean nature of Marbury, that it can be made to stand for practically anything one wants, that makes it worth teaching." FN. 5. Jack's "dissent " calls for an article on the various ways Marbury has been so used over the years by the Court (and lower courts) and Constitutional scholars.

Sam Rickless said...

I wonder whether Yick Wo is best read in a third way. (Perhaps you will tell me that the way I am about to suggest reduces to one of the other two ways you mention, but I would need to be convinced.) The two ways you mention are these:

1. A law that is administered in a manner that discriminates on the basis of race (or national origin) denies equal protection as applied.

2. Arbitrary discretion in the application of a law violates procedural due process.

But there is a third option:

3. A law that is facially neutral but administered unjustly denies equal protection as applied.

The nice thing about (3) is that, as a principle, it covers and explains both (1) and (2). Administration of a law that reveals hostility to members of a race or nationality purely on grounds of the race or nationality is unjust: this is because race and nationality are characteristics that bear no rational relation to desert with respect to benefits and burdens of social cooperation. But a law that leaves too much in the way of arbitrary discretion with respect to its implementation is also unjust. Justice requires government by laws, and not by human beings, as the decision emphasizes.

I don't see why we need to think that the meaning of the case gads changed over time. It's just that after Yick Wo, courts focused on (1) far more than on (3), perhaps for contingent reasons having to do with the fact that fewer laws leaving a great deal of discretion to its implementers were being passed.

Evin Terna said...

The impact of Griswold has been huge and far greater than it was probably imagined at the time of the decision. It is a great case. It was thought by many of us that Windsor fell into category two above which made it an important case but not a great one, the great case being the one that would end state bans on SSM. But Mr. Dorf has a strong and compelling argument that Windsor will be a category three case, a great one that does transform the nation. Buy FIFA Coins
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