Thursday, August 12, 2010
This essay is an outgrowth of a paper presented at the 16th Annual Clifford Symposium on Tort Law and Social Policy. Its thesis is that our contemporary Supreme Court all too often creates (or fails to reduce) legal uncertainty for no sufficient legal or policy reason. The essay focuses both on uncertainty about what the law is and uncertainty about whether the law will remain the same. The examples it addresses include (1) the Court’s inability consistently to adhere to its multi-factorial test for stare decisis in constitutional cases, (2) the Court’s refusal even to acknowledge that the dubious regime of Chevron deference creates enormous instability in federal regulatory law, (3) the Court’s inexplicable decision to wait twenty years before addressing the unclear and contested meaning of the “intangible right of honest services” mail-fraud statute, and (4) the Court’s precarious punitive-damages jurisprudence, an initiative to which the Court has committed substantial resources, but one whose future remains profoundly uncertain. In each instance, I suggest that the Court’s tendency to undervalue legal certainty and stability can be seen as a symptom of what Craig Lerner and Nelson Lund describe in a forthcoming article as “the Supreme Court’s Cult of Celebrity.” The almost complete freedom Congress has given the Justices to set their own agenda has resulted in a Court whose members tend to behave more like nine independent constitutional oracles than like self-effacing, craftsman-like, certainty-fostering judges. The fact that the Court is closely divided along ideological lines may exacerbate these worrisome tendencies, but they would persist even if a solid majority emerged – and regardless of whether it was liberal or conservative. That is bad news for anyone, of whatever political persuasion, who thinks legal certainty and stability should be among the Court’s top priorities.