Of College Football, Legal Realism, and Constitutional Litigation
If you are even a casual college football fan, you are likely aware of the great controversy surrounding the selection of the four teams to make the end-of-the-year playoffs. The committee assigned the unenviable task of making that decision set the sports world on fire when it choose as the fourth and final team a one-loss Alabama team over an undefeated Florida State team (albeit with its first-string quarterback out for the season). Of the other three teams, Washington and Michigan were undefeated while Texas lost once to Oklahoma.
There are thirteen members who serve on the committee to decide what four teams make the end-of-the year playoffs based on the following criteria:
But the committee does not have complete discretion. If it had chosen say the University of Louisville, Cornell, or Georgia State, the decision would have rightly been seen as objectively wrong and people would have been fired and an investigation commissioned by the NCAA. An example in constitutional law might be a decision by the Supreme Court that Congress may (by a simple majority vote rather than through an impeachment proceeding) unilaterally remove a President’s cabinet member. Technically, the Constitution is silent on who gets to remove federal officers who are not guilty of treason, bribery, or other high crimes and misdemeanors, so such a ruling is not incomprehensible, but it would clearly be wrong under all feasible legal materials and cause much chaos and confusion.
But when it came to choosing between an unbeaten Florida State team without its star quarterback and one-loss Alabama, Georgia, Texas, and Ohio State teams, there is simply no right or wrong answer. Alabama’s only loss was early and to an excellent Texas team. Georgia had won 29 games in a row, was the defending champion, and only lost one game--to Alabama, by a mere three points. And Florida State went undefeated and won a major conference (all similarly situated teams to Florida State had made the playoffs before, unless missing a star player makes Florida State dissimilarly situated).
Who you think should have been the fourth team involves a host of reasonably contestable value judgments. Should the committee pick the best four teams at the time of the playoffs, the teams with the best performance over the regular season, or which teams, within reason, will get the best television ratings? How should the committee weigh the multiple, often conflicting factors that comprise the official "principles" it is supposed to follow? There are no necessary answers to these questions, just preferences and often unspoken or unwritten value judgments.
And that process describes constitutional litigation at the Supreme Court almost perfectly. I say at the Supreme Court because lower courts do know how to and generally do follow precedent or at least try to figure out the direction the winds are blowing at the highest court. The Supreme Court is not bound by and does not take precedent seriously. There are permissible factors (text, history, precedent, consequences) and impermissible criteria such as whether some result will enrich a Justice's family members or will help the political party with which a Justice identifies, but the permissible factors will lead to several plausible results in just about every case.