Is my Description of the SCOTUS Conservatives as "Rule Fetishists" and "Petty Sticklers" Unfair? Nope. Maybe it's too Generous.

by Michael C. Dorf

My new Verdict column strongly criticizes last week's Supreme Court decision in the Wisconsin primary case, Republican National Committee (RNC) v. Democratic National Committee (DNC). I give two answers to the question that titles the column, Why Did the U.S. Supreme Court Endanger the Lives of Wisconsin Voters? First, I say that "it would take a particularly na├»ve observer to deny that politics in the crass sense plays a substantial role." After all, five Republican-appointed justices sided with the RNC, while four Democratic-appointed justices sided with the DNC. But second, I acknowledge that "the Court’s breakdown . . . may also reflect a general difference in judicial philosophy." I go on to explain that the judicial philosophy that appeared to drive the conservative majority is one we see in other contexts as well, especially in habeas corpus cases: a fetishistic attachment to the strict application of rules or what I call "petty sticklerism."

Is that characterization of the Court's conservatives unfair? In this companion essay, I'll consider that possibility in light of the familiar debate over the proper roles of rules and standards in the law in general and in the work of courts. I'll conclude  the current SCOTUS conservatives are indeed rule fetishists and petty sticklers--or worse, that they are ideologically selective rule formalists and petty sticklers.

Legal scholars and judges have long argued over the proper role in the law of rules and standards. A rule has an on/off character and sharp boundaries. "Don't drive faster than 55 mph" is a straightforward example. A standard articulates a less determinate proposition. "Don't drive at a speed that is unsafe in light of the road conditions" is a standard. Those are ideal types, however. In practice, propositions of law fall on a spectrum running from rule-like to standard-like. (UVA Law Professor Fred Schauer's terrific book Playing by the Rules helpfully introduces these relative terms.)

Law consists of both rule-like and standard-like terms, often used in combination. For example, in most jurisdictions, a rule-like speed limit (making it legal to drive up to 55 mph, say) comes with a standard-like exception (e.g., unless the road conditions make even the regular speed limit unsafe). And that's before we take account of the distinction between law-on-the-books and law-in-the-streets. The law on the books might be rule-like (55 mph limit), while the law on the streets--meaning the law as it is actually enforced--is standard-like (you can usually drive about 5-10 mph over the posted limit without getting ticketed).

Despite the foregoing important caveats, the distinction between rules and standards is useful in thinking about how to craft and interpret law. Rules and standards have mirroring virtues and vices. Rules provide a greater measure of certainty and thus facilitate planning. They also constrain discretion and thus promote even-handed enforcement. Those are their virtues. But given the rulemaker's inability to anticipate all of the circumstances in which law will apply, rules are both over- and under-inclusive relative to their background justifications. That is their chief vice: rules regularly lead to injustice in concrete cases. Conversely, standards do better in permitting customization at the point of application. That is the virtue of standards. Their vices are the flip side of rules' virtues: standards do not provide as clear guidance and the discretion they confer on those who apply the standards can be abused.

So much for the general distinction between rules and standards. Some proponents of rules say that in a legal system like ours, with separation of powers, judges have a special obligation to favor legal interpretation that reads legal texts as rule-like rather than standard-like. The legislature, not the courts, is supposed to make the law, goes the argument, and therefore when a court reads a legal text as a standard that necessarily confers discretion on the interpreter, i.e., on the court itself, the court usurps the legislative role. We might fairly associate that view with the late Justice Scalia, whose scholarship (if not necessarily all of his jurisprudence) revolved around the dangers of judicial discretion.

I find the Scalian thumb on the scale in favor of rules unjustified. To be sure, I accept that if a legal command takes the form of a rule with hard edges, courts should apply it as a rule. For example, Article III of the US Constitution and a federal statute exercising power conferred on Congress to create and thus establish the jurisdiction of the lower federal courts authorizes those courts to hear cases between "citizens of different States." It would be improper for a federal district judge to entertain a case on that basis between, say, a long-time resident of Los Angeles and a long-time resident of Sacramento. Why improper? Well, obviously, because they are both citizens of California. Even though the purpose of so-called diversity jurisdiction is to give parties a forum free of local bias, and even though cultural differences between Los Angeles and Sacramento could give rise to local bias, the fact that allowing jurisdiction in such a case would fit within a conception of diversity jurisdiction's purpose is beside the point. Here the rule is under-inclusive with respect to the background justification of avoiding bias, but it is a clear rule and thus should be followed. So far so good for rules.

But just as it is improper to read a rule as though it were a standard, so it is improper to read a standard as though it were a rule. Many legal provisions take the form of standards, not rules. That's especially true of the Constitution. It contains some rules. For example, Senate terms are six years; House members must be at least 25 years old; Presidential terms end at noon on January 20th, every four years; etc. However, precisely because they are clear, very rule-like provisions rarely engender litigation. The sorts of provisions that do lead to litigation--"unreasonable searches and seizures"; "cruel and unusual punishments"; "equal protection of the laws"; etc.--are standard-like, not rule-like, and pretending they are rule-like is itself an exercise of discretion that the rule fetishist falsely purports to disavow.

Moreover, even rule-like provisions may be determinate with respect to some but not all circumstances. Californians from Los Angeles and Sacramento are not "citizens of different States" within any fair reading of that phrase, but what about a case pitting plaintiffs from California and Oregon against a defendant from California? Is that a case between "citizens of different States"? Somewhat remarkably, the Supreme Court has said both yes and no. Although the statute establishing diversity jurisdiction uses the exact same language as the Constitution's Article III, the Court has held that the statute requires "complete diversity"--so the case would not be cognizable--but the constitutional language requires only "minimal diversity"--so that Congress can, if it so chooses, authorize jurisdiction over cases like the one described (as it has done in special circumstances).

"Rule fetishists" as I use the term are not merely judges who construe rules as rules. All good judges should do that. A rule fetishist construes a standard as a rule and/or asserts that a proposition of law is more determinate than it is, either in general or as applied to some particular set of circumstances.

In my Verdict column, I invoke Bowles v. Russell as my chief example of the conservatives on the SCOTUS acting as petty sticklers and rule fetishists. I explain that in Bowles
a habeas petitioner complied with a filing deadline given to him by the federal district judge, but, through no fault of the petitioner, the judge had miscalculated the deadline and given him three extra days. In an opinion by Justice Clarence Thomas, the Court’s conservative wing said that the earlier statutory deadline was “jurisdictional” and thus could not be extended. The majority ruled that the petitioner’s appeal had to be dismissed. 
For the four dissenters, Justice David Souter explained that the Court’s approach was not just cruel but misguided. Congress had not expressly provided that the relevant deadline was absolute. Thus, Justice Souter wrote: “It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.”
It is easy to see how Bowles amounts to petty sticklerism. Enforcing a rule as strictly as possible even when it cannot possibly serve its purpose is petty and sticklerish. Still, one might say that if the rule is as clear as possible, then it should be enforced according to its terms. The problem--as Justice Souter's dissent makes clear--is that the legal text in Bowles was not so clear. The time limits were clear enough, but Congress was silent on the question of whether those limits were, as the majority saw them, "jurisdictional," or, as the dissent saw them, subject to waiver or excuse. The majority in Bowles displayed rule fetishism by seeing in the relevant statute more determinacy than Congress put there.

Accordingly, I acquit myself of the charge of unfairness in calling the SCOTUS conservatives rule fetishists and petty sticklers. But now I want to go further by suggesting that those descriptions are too generous to the majority. Although I think a judge should not be a rule fetishist, I acknowledge that if one were persuaded by Justice Scalia's case for rule fetishism, one could try to construe the law in a way that minimizes discretion. One would fail in that endeavor, but if one undertook it sincerely, one would engage in it consistently.

And yet the SCOTUS conservatives are not consistent rule fetishists. They are ideologically opportunistic rule fetishists. Consider habeas cases. As I note in the column, the Court has construed acts of Congress and its own doctrines in various ways that make it very difficult for a habeas petitioner to obtain any sort of relief. Because many of the doctrines (such as "procedural default") are the Court's own inventions, it's difficult to see these as simply following the rules as written. But it's especially difficult to attribute the Court's sticklerism in habeas cases to a general penchant for rules, given the one-sidedness of that sticklerism. Consider that habeas petitioners--typically proceeding without lawyers--will be deemed to have "procedurally defaulted," i.e., forfeited, their claims if they fail to comply with various complex procedural rules or fail to present an issue to a state court even in a discretionary appeal; yet, according to the most conservative justices, it does not matter what grounds a state court relies on for denying petitioner relief so long as there are any reasonable grounds on which the court could have relied. In other words, the Court's conservatives hold uncounseled habeas petitioners to strict rules of their own devising, while giving state court judges who deny remedies to prisoners the benefit of any doubt. That's just one of many many juxtapositions that could be used to show that the Court's petty sticklerism and rule fetishism are ideologically loaded.

And that's not just true in habeas cases. It's true in general. Textualism--which is the fancy term for rule fetishism and petty sticklerism--does not actually constrain judges or determine outcomes. If it did, ideology would not explain so much of the Court's output. That's the short version of the argument, anyway. For the longer version, please consult Part III of the forthcoming Cornell Law Review article by Professor Buchanan and me, A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism.