Rick Pildes on Georgia, Ayotte and WRtL
on Jan 23, 2006 at 5:48 pm
In response to my take, and Sam Bagenstos’s, on the “as applied” decisions this Term, NYU Professor Rick Pildes writes in with a very different, and provocative, perspective:
I expect these cases will indeed be re-argued before a new Court, though not in the technical sense of re-argument you initially had in mind. My comment is also related to Sam Bagnestos’ comment on the emergence of as-applied doctrinal developments this Term; this emergence is tied to another development in the Court this Term that I have noticed:
It has become clear to me that the Court’s actions are being shaped right now by Justice O’Connor’s unusual position of imminent retirement during the Term. As I see things, the Court is being moved by one or both of two considerations. First, the Court is attempting to get as many decisions handed down as possible before Justice O’Connor retires in cases in which she has participated in argument and conference. Second, the Court is attempting to avoid putting a new Justice in the immediate position of having to resolve 4-4 divisions within the Court–a position that would require re-argument of the cases just for that new Justice and that would force a new Justice to come to a position right away on some of the most charged cases before the Court. That was the miserable position Justice Blackmun found himself in when he first joined the Court and it appears the Justices are looking to avoid re-creating that situation for any new Justice.
The result has been a series of exceptionally narrow, unanimous decisions that are issued much more quickly after argument than typical and that go far out of the way to avoid tackling any issues that might divide the Court and require the writing of lengthy majority and dissenting opinions. This pattern has now been manifested in at least three areas: constitutional federalism; abortion; and campaign finance. The cases include Georgia v. United States, on whether Congress can make the States liable for damages suits under the Disability Act; the abortion statute for minors in the Ayotte case; and now the WRtL decision today. In all three of these areas, among the most controversial before the Court, there is no doubt the Court is internally divided, whatever the particular outcome in particular cases. Yet in all three, the Court this Term has issued short, unanimous opinions that are so narrow, one almost wonders why the Court took the cases in the first place. The answer, of course, is that the Court granted the cases when it assumed it would have a full Court for the Term to resolve these issues.
As a result, I believe one cannot and should not read much into any of these decisions, except that the Court, not surprisingly, is divided. But Justices are bypassing those divisions by agreeing unanimously to temporize and let the lower courts confront these issues again, by which time the Court will presumably be stable again. That the Justice who wrote McConnell, Justice Stevens, was willing to along with the WRtL remand is no more significant for the ultimate merits than is the fact that Justice Scalia was willing to go along in the federalism area with a remand in the Georgia case.
