Sunday, December 14, 2003

Capitalism & Law: Mired in Judicial Quagmire

This week’s Supreme Court decision upholding restrictions on free speech (aka “campaign finance reform”) should not be taken seriously by rational men. I say this not because of my particular disagreements with any of the opinions, but because the Court itself did not take this case seriously. Consider the head note announcing the justices’ vote:
Stevens and O’Connor, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O’Connor, Scalia, Kennedy, and Souter, JJ., joined, in which Stevens, Ginsburg, and Breyer, JJ., joined except with respect to BCRA §305, and in which Thomas, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). Breyer, J., delivered the opinion of the Court with respect to BCRA Title V, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. Thomas, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion Scalia, J., joined as to Parts I, II—A, and II—B. Kennedy, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which Rehnquist, C. J., joined, in which Scalia, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which Thomas, J., joined with respect to BCRA §213. Rehnquist, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which Scalia and Kennedy, JJ., joined. Stevens, J., filed an opinion dissenting with respect to BCRA §305, in which Ginsburg and Breyer, JJ., joined.
Altogether the Court issued six opinions. Not being a lawyer or an academic, I find this judicial schizophrenia quite irritating and frankly dangerous. When Congress passes a law, it acts as a body to produce a single law reflecting the consensus of its members. Juries are required to pass unanimous verdicts on the most trivial of criminal offenses. Yet when we put nine highly qualified justices on the Supreme Court, they allow themselves to go off in a dozen directions without any commitment to sustaining the common law. That’s just sickening.

The nation’s third and most important chief justice, John Marshall, came to the Supreme Court having never served as a judge. Marshall was a politician, having served in the Virginia and federal legislatures, and as secretary of state for the first President Adams. When he took over as chief justice in 1801, the court still used the English practice of each appellate judge issuing his a separate opinion—known as a seriatim opinion—with the Court as a whole pronouncing a judgment. That practice effectively ended in 1803, when Marshall issued an opinion for the entire Court in Marbury v. Madison, the case that established judicial review of congressional actions. The concept of issuing a single common-law opinion for the Court was perhaps Marshall’s greatest contribution to American culture. It reflected, I believe, Marshall’s view that for the law to have true authority in a republic, the Court’s views must be clearly explained in a manner understood both by the immediate parties to a case and the public generally.

In many 19th century cases, it was common for justices to dissent from the Court’s judgment without issuing a separate opinion. That is obviously no longer the practice. More problematic, however, is the routine practice of issuing concurring opinions, which allow a justice to join the Court’s final judgment but not its reasoning. This practice has led to a breakdown in the common law. There are now cases where the parties and their attorneys don’t know what a court’s decision really means. In major cases, the Court has all but given up on trying to reach a five-justice consensus behind a single opinion. Indeed, the fact that so many major cases are decided by a 5-4 vote is cause for concern. The rights of American citizens should not routinely hinge on how Sandra Day O’Connor is feeling on a particular morning, yet that’s practically what the system has decayed into.

Opinion glut is not simply a matter of bad jurisprudence; it poses a direct threat to the foundation of an individual rights republic. The BCRA case is a prime example. Because of the opinion’s complexity, lack of clear principle, and fractured nature, the inevitable result will be hundreds if not thousands of additional cases designed to figure out just what the Court meant. This creates more work for lawyers, and if history has taught us anything, it’s that more work for lawyers means less individual rights for the rest of us. The common law only works when the common man can understand the rules without having to depend on lawyers. That’s why they call it the “common” law. But more and more, this country is turning into a pale model of the French civil system, where rights exist exclusively at the behest of state regulators.

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