June 15, 2004

Ducking, for Legal Formalists

by Nick Morgan

I think "duck," as PG put it, is exactly the right word for the Supreme Court's pledge opinion [article, not the decision], and I imagine most people reasonably acquainted with the Supreme Courtís behavior in the last century (particularly the last 40 years) would agree that tossing this case on standing grounds is less a ruling about standing and more a dodging of a difficult or controversial issue. I am not familiar with anything in standing doctrine that compels the result in Newdow, but standing is sufficiently malleable to support this ruling given the facts.

The legal realist judge, as commonly conceived, happily navigates malleability in the law to reach a desired result for political or other reasons. This approach to judging has, of course, been sharply criticized throughout the academy and especially in the legal corner of the blogosphere (most notably by Professors Solum and Bainbridge). The question Iím finally arriving at in this post is whether manipulating doctrine to avoid constitutional questions is, to legal formalists or other anti-realists, just as contemptible as reaching a desired result on the merits by manipulating doctrine.

The judicial practice of avoiding certain questions is common enough to have its own name: the constitutional avoidance doctrine (surprise!). My sense is that acts of constitutional avoidance (which are often quite transparently contrary to precedent) do not pinch the same nerve as garden variety realism. But should they? Donít they threaten consistency and the rule of law just the same? It wouldnít surprise me if the truly committed formalist objected to constitutional avoidance just the same, but I somehow doubt this is true for anti-realists across the board.

If you scorn realism but welcome (or tolerate) disingenuous constitutional avoidance, chances are you just scorn the current judiciary (certainly a defensible stance). Or not. Just a thought for formalists.

June 15, 2004 12:18 AM | TrackBack

Whilst not strictly-speaking a formalist but a legal process scholar, Wechsler's debates with Learned Hand cover some of this area. Basically Wechsler's thought was that the Supreme Court should be able to deny certiorari on much narrower grounds, precisely because it gave scope for this kind of realism. When I have Lexis access again, I'd be happy to throw you some links if you'd like?

The question is whether they were manipulating standing, and I'll admit that in reading it at the moment I'm a bit confused. Given our conversations on that before, I'd be interested in knowing your take on the matter.

Posted by: A. Rickey at June 15, 2004 10:41 AM

Yeah, I'd much appreciate a pointer the those debates, which I haven't read.

And hopefully I'll get around to writing something up about Newdow's standing analysis soon.

Posted by: Nick Morgan at June 15, 2004 12:26 PM

But to grant standing would have been to admit that a non-custodial parent has some "super" right to interfere with the parent that has state ordered custody. From an impact perspective, this is a much larger issue. By upholding the state ordered custody issue, the court ruled correctly that Newdow didn't have standing. Unfortunatley, the ancillary issue in this case has a higher profile, but it is the secondary issue.

Posted by: J. at June 15, 2004 03:22 PM

I don't think it's at all obvious (despite Dahlia's best efforts) that "to grant standing would have been to admit that a non-custodial parent has some 'super' right to intefere" with a custodial parent. It seems, as many people have pointed out (including Newdow himself), that 1) he has a cognizable interest in his daughter's education and upbringing apart from any grant of custody or next friend status, and 2) that its hard to figure out what sort of interest a custodial parent could have in subjecting a child to an (obviously) unconstitutional practice . . .

Posted by: Simon at June 15, 2004 06:39 PM

Sorry, Rickey, but the fact is that the supreme "court" should never, ever, be permitted to avoid reviewing a constitutional issue. If they were, there would be no need for them. Get rid of them, in other words.

Posted by: raj at June 16, 2004 08:42 AM

Frequently, I suspect there's no difference between avoidance and realism; Refusing to grant cert. to challenges of realist lower court rulings the Justices happen to like, is just a way of in effect affirming them, without having to take the heat.

Posted by: Brett Bellmore at June 16, 2004 09:09 PM

The Court may have engaged in constitutional avoidance, but it nonetheless issued an opinion that clarified an open issue regarding next-friend standing in federal court. Surely this is not a bad thing?

Posted by: Tom T. at June 16, 2004 11:00 PM
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