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 Court�s 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 I�m 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? Don�t they threaten consistency and the rule of law just the same? It wouldn�t 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
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