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.