Constitutional flares: On judges, legislatures, and dialogue

Minnesota Law Review

Volumn 83, Issue 1, 1998, Pages 1-60

  Krotoszynski Jr , Ronald J ^a,b,c  

^a INDIANA UNIVERSITY   (United States)

^b DUKE UNIVERSITY   (United States)

^c EMORY UNIVERSITY   (United States)

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EID: 33750676904     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (341)

1. Benjamin N. Cardozo, A Ministry of Justice, 35 HARV. L. REV. 113, 113-14 (1921).
2. Id. at 114.
3. Id. at 123-26.
4. See Shirley S. Abrahamson, Refreshing Institutional Memories: Wisconsin and the American Law Institute, 1995 WIS. L. REV. 1;
5. Herbert F. Goodrich, Institute Bards and Yale Reviewers, 84 U. PA. L. REV. 449 (1936);
6. Jonathan R. Macey, The Transformation of the American Law Institute, 61 GEO. WASH. L. REV. 1212 (1993).
7. See La. Rev. Stat. Ann. § 24:201-208 (West 1989); see also William E. Crawford, Forum Domesticum: The Louisiana State Law Institute - History and Progress, 45 LA. L. REV. 1077 (1985);
8. J. Denson Smith, The Role of the Louisiana State Law Institute in Law Improvement and Reform, 16 LA. L. REV. 689 (1956);
9. John H. Tucker, Jr., The Louisiana State Law Institute, 1 LA. L. REV. 139 (1938);
10. Fred Zengel, Civil Code Revision in Louisiana, 54 TUL. L. REV. 942 (1980).
11. See Ruth Bader Ginsburg, A Plea for Legislative Review, 60 S. CAL. L. REV. 995, 1012-17 (1987) [hereinafter Ginsburg, Legislative Review];
12. Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. REV. 1185, 1198 (1992) [hereinafter Ginsburg, Judicial Voice];
13. Deanell Reece Tacha, Judges and Legislators: Enhancing the Relationship, 44 AM. UNIV. L. REV. 1537, 1540-45, 1550-55 (1995);
14. see also Proposal to Provide Rights to Victims of Crime: Hearings on H.J. Res. 71 and H.R. 1322 Before the House of Representatives Comm. on the Judiciary, 105th Cong. 42-46 (1997) (statement of George P. Kazen, Chief Judge, United States District Court for the Southern District of Texas) (presenting the Judicial Conference's objection to the proposed "Victims' Rights" amendment to the federal Constitution);
15. Chief Justice's Annual Report Criticizes Senate's Slowness in Confirming Judges, 66 U.S.L.W. 2408, 2408-09 (1998) (describing the Chief Justice's concerns about the shortage of judges in some parts of the nation);
16. Constitutional Victim?, U.S. NEWS & WORLD REP., May 26, 1997, at 18 (describing a letter by Chief Justice Rehnquist and district court Judge George Kazen opposing passage of a "Victims' Rights" amendment to the federal Constitution).
17. See generally Alan F. Westin, Out-of-Court Commentary by United States Supreme Court Justices, 1790-1962: Of Free Speech and Judicial Lockjaw, 62 COLUM. L. REV. 633 (1962).
18. See GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982).
19. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219-34 (1995). "Simply put, the legislature's responsibility in the United States' system of government is to enact statutes. The court's responsibility is to interpret and apply the statutes to resolve disputes." Shirley S. Abrahamson & Robert L. Hughes, Shall We Dance?: Steps for Legislatures and Judges in Statutory Interpretation, 75 MINN. L. REV. 1045, 1092 (1991);
20. see also Laurence C. Marshall, Let Congress Do It: The Case for An Absolute Rule of Statutory Stare Decisis, 88 MICH. L. REV. 177, 201 (1989) ("One of the central premises of the Constitution's division of powers, and the American system of government, is that the primary federal lawmaking authority belongs to Congress.");
21. cf. Frederick Schauer, Refining the Lawmaking Function of the Supreme Court, 17 U. MICH. J.L. REFORM 22-23 (1983) (arguing that a dialogue between the courts and Congress could improve interbranch relations and reduce direct interbranch conflicts).
22. See, e.g., United States v. Butler, 297 U.S. 1, 62-63 (1936). As Justice Roberts explained, the Supreme Court "neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends." Id. at 63.
23. See Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. PA. L. REV. 1513, 1531-40 (1991);
24. Ronald J. Krotoszynski, Jr., On the Dangers of Wearing Two Hats: Mistretta and Morrison Revisited, 38 WM. & MARY L. REV. 417, 429-32, 468-84 (1997);
25. John L. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311, 1313-14, 1396-1405 (1997);
26. see also 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 96, 94-114, 130-47 (M. Farrand ed., 1911) (discussing the necessity of establishing and maintaining a separation of executive, legislative, and judicial functions).
27. See ROBERT H. BORK, SLOUCHING TOWARDS GOMORRAH 95-119 (1996);
28. ROBERT H. BORK, THE TEMPTING OF AMERICA 4-9, 15-18, 261-65 (1990);
29. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 1-20 (1971);
30. cf. Judith S. Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U. L. REV. 1, 34 (1995) ("However much we might prefer in this age of anxiety about 'legislating from the bench' and 'judicial activism' for only our elected representatives to make all the sensitive decisions, so long as human language remains imprecise and the human capacity to predict the future limited, the cascade of cases that call upon judges to fill the gaps - and to do so by reference to social justice - will unquestionably continue.").
31. See Anthony Lewis, Moving the Judges, N.Y. TIMES, Apr. 27, 1998, at A15 ("I'm as strong a proponent of an independent judiciary as there is . . . . But where I get tough is where the judges want to make the law.");
32. Excerpts From Senate Hearings on the Ginsburg Nomination, N.Y. TIMES, July 21, 1993, at A12 (providing Senator Thurmond's understanding of the proper relationship between the branches of the federal government, in which "the role of the judiciary is to interpret the laws");
33. Editorial, Democracy Doesn't Need Bork's Protection, N.Y. TIMES, Oct. 2, 1987, at A34 (describing Senator Hatch's aversion to judges who "make laws").
34. Philip P. Frickey, The Constitutionality of Legislative Committee Supervision of Administrative Rules: The Case of Minnesota, 70 MINN. L. REV. 1237, 1254-55 (1986) ("Although the Minnesota Constitution appears to impose a rigid separation of powers, a realistic analysis must recognize that constitutional law, whether federal or state, is not the product of a mechanical formula. Judges long ago rejected the fiction that a court could avoid consideration of the policies in support of legislation . . . .");
35. see also Steven D. Smith, Courts, Creativity, and the Duty to Decide a Case, 1985 U. ILL. L. REV. 573, 573-75, 577-87 (describing and discussing various competing views on the proper judicial role).
36. Cf. Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 843 (1984) (holding that when recourse to the traditional tools of statutory construction does not yield a single construction of an ambiguous statutory provision, federal agencies may select any reasonable interpretation of the text).
37. See BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 26-30 (1967).
38. See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 161 (1962);
39. CALABRESI, supra note 7, at 101-19, 146-62; Christopher Edley, Jr., The Governance Crisis, Legal Theory, and Political Ideology, 1991 DUKE L.J. 561, 601-04;
40. Neal Kumar Katyal, Judges as Advicegivers, 50 STAN. L. REV. 1709, 1710-12, 1714-23, 1821-24 (1998);
41. Anthony Taibi, Note, Politics and Due Process: The Rhetoric of Social Security Disability Law, 1990 DUKE L.J. 913, 914, 954-55.
42. But cf. Abner J. Mikva, Why Judges Should Not be Advicegivers: A Response to Professor Neal Katyal, 50 STAN. L. REV. 1825, 1826-29 (1998) (arguing that "the judiciary lacks the kind of legitimacy that the legislative branch can claim when it makes policy decisions" and questioning "the notion that there is something in judges' status or stature that qualifies them to give . . . such advice to elected officials");
43. Patricia M. Wald, The New Administrative Law - With the Same Old Judges in It?, 1991 DUKE L.J. 647, 657-59 (questioning both the ability of judges to engage Congress in a dialogue regarding substantive issues of public policy and the legitimacy of such a course of action).
44. See Jed Rubenfeld, Reading the Constitution as Spoken, 104 YALE L.J. 1119, 1130 (1995);
45. Ralph G. Steinhardt, The Role of International Law As a Canon of Domestic Statutory Construction, 43 VAND. L. REV. 1103, 1121 (1990). Professor Steinhardt explains that: [t]he metaphor typically comprehends a "conversation" between the legislature and the judiciary, in which the courts are empowered variously to remand statutes to the legislature for clarification, or to "develop" the statutory scheme envisioned by their legislative co-authors, or to "discuss" with the legislature the "state of legal principle" in the context of a particular statute, or to "give meaning to our public values" or "community consensus" in the process of interpretation. Id. (footnotes omitted).
46. See Edley, supra note 16, at 603; Taibi, supra note 16, at 954, 963-66.
47. See Quill v. Vacco, 80 F.3d 716, 731-32, 738-43 (2d Cir. 1996) (Calabresi, J., concurring), rev'd, 117 S. Ct. 2293 (1997); Abele v. Markle, 342 F. Supp. 800, 805, 810 n.18 (D. Conn. 1972) (Newman, J., concurring), vacated, 410 U.S. 951 (1973). Although the Supreme Court rejected Judge Calabresi's suggestion that the federal courts formally "remand" statutes banning assisting others in committing suicide, Chief Justice Rehnquist essentially endorsed Judge Calabresi's project: "Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society." Washington v. Glucksburg, 117 S. Ct. 2258, 2275 (1997); see also Cass R. Sunstein, The Right to Die, 106 YALE L.J. 1123, 1146 (1997) (arguing that the Supreme Court should defer to legislative decisionmakers when questions of general morality, rather than constitutional principles, are at stake).
48. United States v. Butler, 297 U.S. 1, 62 (1936); see also BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 10-16 (1991);
49. BICKEL, supra note 16, at 16-17; CHARLES L. BLACK, THE PEOPLE AND THE COURT (1960);
50. ROBERT H. BORK, TRADITION AND MORALITY IN CONSTITUTIONAL LAW 9-11 (1984);
51. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 105-06 (1980);
52. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 7-9 (1959).
53. See Mikva, supra note 16, at 1826-29; Wald, supra note 16, at 657-59; Nicholas S. Zeppos, Judicial Candor and Statutory Interpretation, 78 GEO. L.J. 353, 380-89, 397-98 (1989).
54. 56 F.3d 464 (2d Cir. 1995).
55. See infra notes 41-59 and accompanying text.
56. Planned Parenthood v. Casey, 505 U.S. 833, 996 (1992) (Scalia, J., dissenting).
57. See Schauer, supra note 8, at 22-23.
58. See Paul C. Clovis & Clarence M. Updegraff, Advisory Opinions, 13 IOWA L. REV. 188 (1928) (describing the advisory opinion process as it exists in about a dozen states);
59. Oliver P. Field, The Advisory Opinion - An Analysis, 24 IND. L.J. 203 (1949) (same);
60. see also PAUL M. BATOR ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 64-70 (2d ed. 1973) (describing the history of advisory opinions in both the federal and state judicial systems);
61. Felix Frankfurter, A Note on Advisory Opinions, 24 HARV. L. REV. 1002 (1924) (discussing the costs and benefits associated with advisory opinions).
62. It is difficult to state with certainty precisely what constitutes an "advisory opinion." Multiple meanings exist, and different players deploy shifting definitions without much consistency. Essentially, an advisory opinion consists of formal, binding advice from a court of law to other government officials or the general public in the absence of a live case or controversy pending before the court. This definition would not encompass other forms of judicial advice, including dicta, alternative holdings, and the like, which are admittedly in some sense precatory in nature. See generally Michael C. Dorf, Dicta and Article III, 142 U. PA. L. REV. 1997, 2000-09 (1994) (describing the differences between holdings, dicta, and "asides").
63. See, e.g., Public Citizen v. United States Dep't of Justice, 491 U.S. 440 (1989); CFTC v. Schor, 478 U.S. 833 (1986); Paul Gewirtz, Realism in the Separation of Powers, 30 WM. & MARY L. REV. 343 (1989);
64. Peter L. Strauss, Was There a Baby in the Bathwater?: A Comment on the Supreme Court's Legislative Veto Decision, 1983 DUKE L.J. 789 (1983);
65. Peter L. Strauss, Formal and Functional Approaches to Separation of Powers Questions - A Foolish Inconsistency?, 72 CORNELL L. REV. 496 (1987);
66. Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421 (1987).
67. But cf. Martin H. Redish & Elizabeth J. Cisar, "If Angels Were to Govern": The Need for Pragmatic Formalism in Separation of Powers Theory, 41 DUKE L.J. 449 (1991) (defending a flexible formalism in separation of powers theory as a necessary project related to enhancing individual liberty).
68. See, e.g., Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 HOFSTRA L. REV. 1 (1988);
69. Symposium, Making Sense of the Federal Sentencing Guidelines, 25 U.C. DAVIS L. REV. 563 (1992);
70. Symposium, Punishment, 101 YALE L.J. 1681 (1992).
71. See RANDALL KENNEDY, RACE, CRIME, AND THE LAW 364-86 (1997).
72. Gregory C. Sisk et al., Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning, 73 N.Y.U. L. REV. (forthcoming Nov. 1998).
73. See, e.g., Gerald W. Heaney, The Reality of Guidelines Sentencing: No End to the Disparity, 28 AM. CRIM. L. REV. 161 (1991);
74. Paula C. Johnson, At the Intersection of Justice: Experiences of African American Women in Crime and Sentencing, 4 AM. U. J. GENDER & L. 1 (1995).
75. See generally United States v. Armstrong, 517 U.S. 456 (1996) (rejecting a discovery request in the context of a selective prosecution claim alleging racial bias in federal prosecutions involving crack cocaine).
76. See U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c) (1997) (establishing "base offense levels" bearing a 100:1 ratio for powder and crack forms of cocaine). For example, someone attempting to sell 150 kilograms of powder cocaine commits a "Level 38" base offense, whereas a person selling only 1.5 kilograms of cocaine base (i.e., crack cocaine) also commits a "Level 38" base offense. As base offenses fall from Base Level 38 to Base Level 12, the 100:1 ratio remains constant. Hence, section 2D1.1(c) provides that anyone convicted of an offense involving 25 grams of powder cocaine faces the same base sentence as someone convicted of an offense involving only 25 milligrams of base cocaine. See id. § 2D1.1 (c)(14).
77. See KENNEDY, supra note 30, at 364-86.
78. See, e.g., Ari Armstrong, Crack Cocaine: Make the Sentencing Fair, WASH. POST, Aug. 15,1995, at A17;
79. Charisse Jones, Crack and Punishment: Is Race the Issue?, N.Y. TIMES, Oct. 28, 1995, at A1;
80. Toni Loci, Panel Plans to Amend Sentencing Disparity for Crack Dealers, WASH. POST, Mar. 1, 1995, at D3.
81. See Amendments to the Sentencing Guidelines for United States Courts, 60 Fed. Reg. 25,074, 25,076 (1995).
82. See Federal Sentencing Guidelines, Amendment, Disapproval, Pub. L. No. 104-38, 109 Stat. 334 (1995).
83. Roberto Suro, Officials Draft Plan to Reduce Cocaine Sentencing Disparity, WASH. POST, July 22, 1997, at A2.
84. See id.; Drug Sentencing Disparities, WASH. POST, July 30, 1997, at A22.
85. 56 F.3d 464 (2d Cir. 1995).
86. See generally Bolling v. Sharpe, 347 U.S. 497 (1954) (explaining the relationship between equal protection and due process).
87. See Then, 56 F.3d at 465.
88. See id. at 466.
89. See id.
90. In something of a misdescription, Judge Altimari repeatedly refers to Then's constitutional claim as an alleged violation of the "Equal Protection Clause of the United States Constitution." Id. at 465, 466. Of course, the Equal Protection Clause applies only to the state governments and the agents of state governments. Strictly speaking, Then's claim is a substantive due process claim arising under the Due Process Clause of the Fifth Amendment. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213-17 (1995); Bolling, 347 U.S. at 498-500.
91. The federal courts of appeals have been unanimous in rejecting equal protection challenges to the sentencing disparity between offenses involving crack and powder cocaine. See David Cole, The Paradox of Race and Crime: A Comment on Randall Kennedy's "Politics of Distinction", 83 GEO. L.J. 2547, 2548-49 & 2548 n.4 (1995) (noting that no federal court of appeals has ever granted relief under the equal protection argument and citing numerous cases in various circuits);
92. William Schwarzer, Sentencing Guidelines and Mandatory Minimums: Mixing Apples and Oranges, 66 S. CAL. L. REV. 405, 409 & n.19 (1992) (same);
93. David Sklansky, Cocaine, Race, and Equal Protection, 47 STAN. L. REV. 1283, 1302-03 & n.93 (1995) (same).
94. See Then, 56 F.3d at 466-67 (Calabresi, J., concurring).
95. Id. at 467.
96. Id.
97. Id.
98. See id. at 467-68.
99. 426 U.S. 229, 240 (1976).
100. See Then, 56 F.3d at 468-69.
101. See id. As it happened, Congress rejected the Sentencing Commission's proposal to end the disparity and President Clinton concurred. See generally Mary Pat Flaherty & Pierre Thomas, Crack Sentences Angered Inmates, Officials Warned, WASH. POST, Oct. 27, 1995, at A1; Jones, supra note 36, at 1. To date, no court has used this subsequent course of events as a basis for reconsidering the constitutional status of the sentencing disparity.
102. Then, 56 F.3d at 468-69.
103. Id. at 468.
104. Id. at 469.
105. Id. at 466.
106. Id.
107. Id. at 466 n.1 (Calabresi, J., concurring).
108. Id.
109. Id. at 467 n. 1.
110. See letter from Secretary of State Thomas Jefferson to Chief Justice Jay and Associate Justices (July 18, 1793) and letters from Chief Justice Jay and Associate Justices to President Washington (July 20, 1793 and Aug. 8, 1793), in 3 THE CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 1763-1826, at 486-89 (Henry P. Johnston ed., 1971);
111. 10 THE WRITINGS OF GEORGE WASHINGTON 542-45 app. (Jared Sparks ed. 1847) (providing the questions set forth by President Washington to the Justices); see also Muskrat v. United States, 219 U.S. 346, 354 (1911). This Correspondence of the Justices also appears in BATOR ET AL., supra note 26, at 64-67.
112. U.S. CONST. art. III, § 1. See generally ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 1.1, at 5-6, § 2.1, at 42-46 (2d ed. 1994).
113. LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW § 3-9, at 73 (2d ed. 1988) (quoting Alabama State Fed. of Labor v. McAdory, 325 U.S. 450, 461 (1945)); see Muskrat, 219 U.S. at 352-63; Flast v. Cohen, 392 U.S. 83, 94-101 (1968).
114. See TRIBE, supra note 66, at 73.
115. See U.S. CONST. art. II, § 2, cl. 2 (permitting judges to appoint inferior executive officers); Mistretta v. United States, 488 U.S. 361, 390-91 (1989) (permitting judges to serve as Sentencing Commissioners because the power exercised by the U.S. Sentencing Commission is not "judicial" power); see also infra notes 238-57 and accompanying text.
116. Evan T. Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 HARV. L. REV. 605, 644 (1992).
117. See Hayburn's Case, 2 U.S. (2 Dall.) 408, 409-10 (1792); Gordon v. United States, 117 U.S. 697, 698-99, 702-06 (1864) (report of undelivered opinion by Chief Justice Taney).
118. See Letter from Chief Justice John Jay to President George Washington (August 8, 1793), supra note 64; CHARLES WARREN, 1 THE SUPREME COURT IN UNITED STATES HISTORY, 1789-1835, at 108-11 (1937); see also Muskrat, 219 U.S. at 354 (declining to decide the validity of congressional legislation because of the absence of a genuine case or controversy between the litigants).
119. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring); see also Lisa A. Kloppenberg, Avoiding Constitutional Questions, 35 B.C. L. REV. 1003, 1019 (1994).
120. See Flast v. Cohen, 392 U.S. 83, 91-94, 101-06 (1968); Frothingham v. Mellon, 262 U.S. 447, 486-89 (1923).
121. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-402 (1821). Professor Lee also includes federal court review of state court decisions premised on an independent and adequate state law basis and decisions on the merits in the absence of proper standing. See Lee, supra note 69, at 644-45.
122. Lee, supra note 69, at 650.
123. Id.
124. Letter from Chief Justice John Jay to President George Washington (Aug. 8, 1793), supra note 64; WARREN, supra note 71, at 108-11. Chief Justice Jay's letter also appears in BATOR ET AL., supra note 26, at 65-66.
125. See generally Dorf, supra note 27 (critiquing the federal courts' approach to distinguishing between holdings and dicta).
126. Letter from Chief Justice John Jay to President George Washington (Aug. 8, 1793), supra note 64; see also BATOR ET AL., supra note 26, at 64-65 (listing a representative sample of the questions submitted to the Supreme Court).
127. See Letter from Chief Justice Jay and Associate Justices to President Washington (July 20, 1793), supra note 64. Chief Justice Jay explained that because the question of whether the judges could render advice to the executive branch "appears to us to be of much difficulty as well as importance," the Justices felt "a reluctance to decide it without the advice and participation of our absent brethren." Id.
128. Letter from Chief Justice John Jay to President George Washington (Aug. 8, 1793), supra note 64.
129. See, e.g., United States v. The Schooner Amistad, 40 U.S. (15 Pet.) 518, 590-97 (1841) (interpreting bilateral treaty between Spain and the United States in order to determine the legal status of the Amistad Africans).
130. See United States v. Then, 56 F.3d 464, 466 n.1 (2d Cir. 1995) (Calabresi, J., concurring).
131. Cf. Muskrat v. United States, 219 U.S. 346, 354 (1911) (holding that Congress could not waive the Article III case or controversy requirement by passing legislation conferring federal court jurisdiction over cases designed to test the constitutionality of certain federal statutes); Hayburn's Case, 2 U.S. (2 Dall.) 408, 409-10 (1792) (declaring the subsequent revision of judgments by non-judicial personnel fundamentally inconsistent with the independence of the federal judiciary).
132. Cf. Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (Brandeis, J., concurring) ("The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of."); Spectator Motor Serv., Inc. v. McLaughlin, 322 U.S. 101, 105 (1944) ("If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable."); Burton v. United States, 196 U.S. 283, 295 (1905) ("It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.").
133. Lee, supra note 69, at 649.
134. See infra notes 154-97 and accompanying text.
135. See Feltner v. Columbia Pictures Television, Inc., 118 S.Ct. 1279, 1288-90 (1998) (Scalia, J., concurring); Rust v. Sullivan, 500 U.S. 173, 223, 223-25 (1991) (O'Connor, J., dissenting). But see Logan v. Zimmerman Brush Co., 455 U.S. 422, 438, 438-42 (1982) (Blackmun, J., concurring).
136. See United States v. Then, 56 F.3d 464, 466-67 n.1 (2d Cir. 1995) (Calabresi, J., concurring) (citing Computer Assoc. Intl. v. Altai, Inc., 982 F.2d 693, 712 (2d Cir. 1992)); Brock v. Peabody Coal Co., 822 F.2d 1134, 1152-53 (D.C. Cir. 1987) (Ginsburg, Ruth Bader J., concurring); Abele v. Markle, 342 F. Supp. 800, 810-11 n.18 (D.Conn. 1972) (Newman, J., concurring), vacated, 410 U.S. 951 (1973).
137. 411 U.S. 1 (1973).
138. See id. at 29-39.
139. See id. at 17-29.
140. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 58 (1973).
141. Id.
142. Id. at 58-59.
143. Id. at 59. On the other hand, Justice Powell never threatened Congress by implying that congressional inaction on the inadequacies of state school financing mechanisms might lead to a later judicial holding that such mechanisms are unconstitutional. Cf. United States v. Then, 56 F.3d 464, 466-68 (Calabresi, J., concurring).
144. Rodriguez, 411 U.S. at 59 (Stewart, J., concurring).
145. See Then, 56 F.3d at 466-68.
146. See id. at 467-68.
147. See supra notes 77-84 and accompanying text; see also Katyal, supra note 16, at 1803-07 (distinguishing the use of broad dicta from formal advisory opinions).
148. See infra notes 122-29, 238-57 and accompanying text. One could, of course, reasonably inquire as to why Judge Calabresi thought it necessary to use a formal judicial opinion as the vehicle to deliver his advice to Congress. He could easily have employed some other means of conveying his message. A speech, a law review article, or a newspaper editorial could have served as an alternative forum. Judge Calabresi might even have sought to testify before the House or Senate Judiciary Committee should either committee hold hearings on a bill that would retain the existing sentencing disparity for offenders convicted of crimes involving crack cocaine. One possible explanation is that Judge Calabresi viewed a formal concurring opinion as the most effective means of delivering his views; Congress is far less likely to notice a speech or a law review article than direct advice contained in a formal judicial opinion. Several commentators have suggested that even direct advice often escapes Congress's notice. See Robert A. Katzman, Bridging the Statutory Gulf Between Courts and Congress: A Challenge for Positive Political Theory, 80 GEO. L.J. 653, 662-65 (1992);
149. Abner J. Mikva, How Well Does Congress Support and Defend the Constitution?, 61 N.C. L. REV. 587, 609-10 (1983). If Congress routinely ignores judicial advice contained in formal court opinions, it is rather doubtful that alternative, less formal channels of communication would prove more efficacious. Whatever the net effectiveness of judicial advice to Congress contained in formal opinions, the efficacy of such candid advice is likely to be inversely related to the frequency with which federal judges offer it. That is to say, the more often federal judges undertake offering Congress advice, the less likely Congress will be to listen.
150. See Field, supra note 26, at 203-05.
151. See Abrahamson & Hughes, supra note 8, at 1081 n.111; see also BATOR ET AL., supra note 26, at 69-70.
152. See STEWART JAY, MOST HUMBLE SERVANTS: THE ADVISORY ROLE OF EARLY JUDGES 10-50 (1997);
153. Field, supra note 26, at 203; James B. Thayer, The Origins and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, 153-54 (1893);
154. CHARLES ALLAN WRIGHT ET AL., 13 FEDERAL PRACTICE AND PROCEDURE § 3529.1 at 293-93 (2d ed. 1984).
155. The Massachusetts and New Hampshire state constitutions expressly authorized the issuance of advisory opinions, whereas the Pennsylvania Supreme Court offered advisory opinions without the benefit of a formal constitutional authorization. See William A. Fletcher, The "Case or Controversy" Requirement in State Court Adjudication of Federal Questions, 78 CAL. L. REV. 263, 268 n.26 (1990); see also Jay, supra note 104, at 51-56 (discussing the role of state judges prior to 1787).
156. Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633, 654 (1995).
157. Id. at 654-55; see also JAY, supra note 104, at 149-70 (explaining the historical and political factors that led Chief Justice Jay to decline President Washington's request for a formal advisory opinion). It is difficult to explain precisely why some state governments have concluded that formal advisory opinions are constitutionally acceptable. The relative independence of the federal judiciary might provide a partial answer. In many states, judges are elected or subject to retention votes. In this way, the citizenry is able to exercise some measure of control over the state judiciary. These political controls are absent in the federal system. The only way to remove a sitting federal judge is through impeachment proceedings. See U.S. CONST. art. I, § 3, cl. 6-7 & art. III, § 1. Limiting the advisory powers of the federal courts makes some sense if one is concerned with limiting the exercise of relatively unaccountable power. At some abstract level of analysis, Professor Jay suggests that the practice of refusing to render formal advisory opinions reflects the Supreme Court's interest in avoiding political controversy, a project related to institutional self-preservation. See JAY, supra note 104, at 161-70, 175-76. The reasons might, of course, be related: if the lack of political accountability reduces the legitimacy of the federal judiciary's actions, then the judiciary might logically seek to conserve its political capital. The logic of this approach would be especially strong in the context of federal advisory opinions, because of the coordinate branches' ability to disregard such opinions, and because the court's ability to deliver sound advice is handicapped by the absence of a lower court record, lower court opinions, and adversarial briefing.
158. 1 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 10, at 21.
159. See id. at 97 (June 4, 1787) ("Mr. Gerry doubts whether the Judiciary ought to form a part of it [the Council of Revision], as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality.").
160. Id. at 97-98.
161. Id. at 98.
162. Id. at 108.
163. Id. at 111.
164. See id. at 138-40.
165. See 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 10, at 334-35 (referring a proposal for a "Council of State" to the Committee of Detail).
166. On the role and influence of the Committee of Detail, see John C. Hueston, Note, Altering the Course of the Constitutional Convention: The Role of the Committee of Detail in Establishing the Balance of State and Federal Powers, 100 YALE L.J. 765 (1990).
167. 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 115, at 341.
168. This is a standard formulation of the requirement imposed by some state constitutions on state supreme courts to render advisory opinions. See Note, Advisory Opinions, 69 HARV. L. REV. 1302, 1302 n.1, 1307 (1956). The specific language proposed by Pinkney appears in the Massachusetts state constitution. See MASS. CONST. pt. II, cl. III, art. II.
169. See 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 10, at 366-69.
170. Id. at 430.
171. Id. at 575, 599 (draft prepared by the Committee of Style).
172. Id. at 637-39 (September 15, 1787).
173. See id. at 664-65 (listing signatories).
174. See supra notes 69-84 and accompanying text; see also Robert J. Pushaw, Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 CORNELL L. REV. 393, 442-44 (1996);
175. Charles Gardner Geyh, Paradise Lost, Paradigm Found: Redefining the Judiciary's Imperiled Role in Congress, 71 N.Y.U. L. REV. 1165, 1192-94 (1996).
176. Opinion of the Justices to the Senate and House of Representatives, 126 Mass. 557, 566 (1880). See generally Maeva Marcus, Separation of Powers in the Early National Period, 30 WM. & MARY L. REV. 269 (1989) (noting that early federal judges justified their political activities and executive branch service on the theory that they undertook such activities extrajudicially and only in their individual capacities).
177. Fletcher, supra note 105, at 268; see also Thayer, supra note 104, at 153-54 (arguing that advisory opinions are not binding expressions of the law); Note, Advisory Opinions, supra note 116, at 1303-05 (noting that some state supreme courts hold the view that rendering advisory opinions is an extrajudicial function). Professor Maeva Marcus has described a similar justification for the advisory roles undertaken by Supreme Court Justices in the early years of the Republic. See Marcus, supra note 123, at 271-77.
178. See Krotoszynski, supra note 10, at 462-66; Marcus, supra note 123, at 270-77.
179. See Abrahamson & Hughes, supra note 8, at 1081-93; Ginsburg, Legislative Review, supra note 6, at 997-1002, 1017; Tacha, supra note 6, at 1550-55.
180. Geyh, supra note 122, at 1192; see also Jay, supra note 104, at 149-55, 171-77 (noting that there is no absolute constitutional prohibition against federal judges issuing formal advisory opinions).
181. See Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel?, 79 CORNELL L. REV. 1045, 1122-41 (1994).
182. See Krotoszynski, supra note 10, at 468-84.
183. See CHEMERINSKY, supra note 65, §§ 2.1-2.2, at 42-53; WILLIAM H. REHNQUIST, THE SUPREME COURT: HOW IT WAS, HOW IT IS 144-46 (1987);
184. JAMES BRADLEY THAYER, JOHN MARSHALL 106-07 (1920); TRIBE, supra note 66, §§ 3-7 to 3-9, at 67-77; Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 HARV. L. REV. 297, 302-06 (1979).
185. 297 U.S. 288, 346 (1936) (Brandeis, J., concurring); cf. Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 110-15 (1984) (arguing that the federal courts cannot legitimately refuse to decide cases over which Congress has conferred subject matter jurisdiction, even if artfully dodging the controversy via application of an abstention doctrine presents the most attractive course of action). For a comprehensive treatment of the Supreme Court's decision avoidance techniques, see CHEMERINSKY, supra note 65, §§ 2.3.5-2.6, at 88-166; Kloppenberg, supra note 72, at 1006-66.
186. See BICKEL, supra note 16, at 116-21, 127-33, 171-72, 200-07; Alexander M. Bickel, The Supreme Court 1960 Term - Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 47-58, 79 (1961) [hereinafter Bickel, The Passive Virtues];
187. Alexander M. Bickel & Harry H. Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 HARV. L. REV. 1, 8-9, 31-35 (1957).
188. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 575-78 (1992).
189. See Craig R. Gottlieb, How Standing Has Fallen: The Need to Separate Constitutional and Prudential Concerns, 142 U. PA. L. REV. 1063, 1066-1143 (1994); see also Pushaw, supra note 122, at 481-85.
190. See Lujan, 504 U.S. at 560-62; see also National Credit Union Admin. v. First Nat'l Bank & Trust Co., 118 S. Ct. 927, 933-38 (1998) (discussing and applying the requirements for establishing standing).
191. See Muskrat v. United States, 219 U.S. 346, 356-63 (1911) (refusing to reach the merits in manufactured test case brought between the plaintiff and the United States government because the parties to the suit did not really stand in an adversarial relationship and were simply attempting to discern the Supreme Court's views regarding the constitutionality of an act of Congress).
192. See Colegrove v. Green, 328 U.S. 549, 552-56 (1946); Oetjen v. Central Leather Co., 246 U.S. 297, 302-04 (1918); Shaw v. Reno, 509 U.S. 630, 661-64 (1993) (White, J., dissenting); Baker v. Carr, 369 U.S. 186, 280-97 (1962) (Frankfurter, J., dissenting); cf. id. at 208-11 (holding that the political question doctrine did not prevent a federal court from adjudicating a complaint alleging malapportionment of the state legislature). The political question doctrine prohibits courts from adjudicating claims which are essentially political in nature, which lack clear legal rules for the federal courts to enforce, or claims which are demonstrably committed to another branch of the federal government. See Nixon v. United States, 506 U.S. 224, 228-29 (1993); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803); Louis Henkin, Is There a Political Question Doctrine?, 85 YALE L.J. 597, 597-601 (1976);
193. Wechsler, supra note 20, at 7-9; see also Bickel, The Passive Virtues, supra note 132, at 183-89;
194. Martin H. Redish, Judicial Review and the "Political Question", 79 NW. U. L. REV. 1031, 1033, 1039-55 (1985).
195. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring).
196. See Dames & Moore v. Regan, 453 U.S. 654, 668-69, 679-88 (1981); Powell v. McCormack, 395 U.S. 486, 516-22, 548-50 (1969); Baker, 369 U.S. at 211-18; Coleman v. Miller, 307 U.S. 433, 454-55 (1939); Marbury, 5 U.S. (1 Cranch) at 137, 169-71.
197. See, e.g., Baker, 369 U.S. at 204, 208-37; Shaw, 509 U.S. at 641-42, 647-49. Indeed, one might reasonably question whether the modern Supreme Court's districting decisions represent a waiver of basic standing requirements. See Shaw, 509 U.S. at 658-74 (White, J., dissenting). Given that every citizen has a vote and that each vote is roughly equal in strength, it is difficult to piece together how one is injured by being districted in a "minority opportunity" district. Cf. John Hart Ely, Standing to Challenge Pro-Minority Gerrymanders, 111 HARV. L. REV. 576, 576-85, 594-95 (1997) (arguing that standing exists for challenges to minority opportunity districts based on the racial segregation of voters for purposes of conducting federal elections).
198. Although the sentencing disparity certainly presents a politically charged question, it does not constitute a "political question" for purposes of applying the political question doctrine. Political questions are questions that lack discernable legal standards and which threaten to place the judiciary in the midst of a partisan political dispute precisely because no clear legal guidelines exist to cabin the judiciary's discretion when considering how to resolve the problem presented for review. See United States v. Nixon, 418 U.S. 683, 692-97 (1974); Baker, 369 U.S. at 208-11, 228-37; Marbury, 5 U.S. (1 Cranch) at 137, 169-71.
199. See OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881).
200. See INTERPRETING STATUTES: A COMPARATIVE STUDY 171-211 (D. Neil MacCormick & Robert S. Summers eds., 1991);
201. Antonio Baldassarre, Structure and Organization of the Constitutional Court of Italy, 40 ST. LOUIS U. L.J. 649 (1996);
202. John Bell, Comparing Precedent, 82 CORNELL L. REV. 1243, 1248-53 (1997)
203. (reviewing INTERPRETING PRECEDENTS: A COMPARATIVE STUDY (D. Neil MacCormick & Robert S. Summers eds., 1997));
204. Daniel A. Farber, The Hermeneutic Tourist: Statutory Interpretation in Comparative Perspective, 81 CORNELL L. REV. 513, 513-14 (1996)
205. (reviewing INTERPRETING STATUTES: A COMPARATIVE STUDY (D. Neil MacCormick & Robert S. Summers eds., 1991));
206. Giuseppe Frederico Mancini, Crosscurrents and the Tide at the European Court of Justice, 4 IRISH J. EUR. L. 120, 120-21 (1995);
207. Douglas L. Parker, Standing to Litigate "Abstract Social Interests" in the United States and Italy: Reexamining "Injury in Fact", 33 COLUM. J. TRANSNAT'L L. 259, 274-76 & n.56 (1995).
208. See generally Dorf, supra note 27, at 2029-30 (noting that the federal judiciary's obligation to give reasons in support of particular results creates the unavoidable problem of disentangling "holdings" from "dicta").
209. Cf. Cohen v. California, 403 U.S. 15, 25 (1971) (noting that "one man's vulgarity is another's lyric").
210. See P.S. ATIYAH & ROBERT S. SUMMERS, FORM AND SUBSTANCE IN ANGLO-AMERICAN LAW: A COMPARATIVE STUDY OF LEGAL REASONING, LEGAL THEORY, AND LEGAL INSTITUTIONS 21-41, 88-95, 118-50, 267-97 (1987).
211. See id. at 118-50, 283-97, 408-28. English judges also lack access to the secretaries, law clerks, law libraries, and other administrative resources that permit state and federal judges in the United States to produce and publish a blizzard of opinions annually. See id. at 277-83.
212. See supra notes 164-97 and accompanying text; see also Lee, supra note 69, at 648-49.
213. Cf. Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593, 605 (1995) (explaining that "legislatures are frequently too busy, over-extended, or inert to respond to an objectionable judicial interpretation" and, moreover, "there is little reason to believe that legislators systematically monitor judicial interpretations" of statutory and constitutional text).
214. See Schauer, supra note 8, at 22-23.
215. See Abrahamson & Hughes, supra note 8, at 1055-59; Schacter, supra note 149, at 605-06.
216. See Geyh, supra note 122, at 1194 (arguing that Article III limitations have "no bearing upon judges acting as individuals or representatives of the Judicial Conference who render advice and assistance to Congress without exercising Article III powers"); see also Fletcher, supra note 105, at 284-86; Pushaw, supra note 122, at 455-72.
217. See Federal Judges Prefer Law for Victims, N.Y. L.J., June 26, 1997, at 6 (reporting on the United States Judicial Confrence's opposition to a new "victims' rights" amendment to the United States Constitution);
218. Jan Crawford Greenberg, Judges Back on Political Hot Seat, CHI. TRIB., Apr. 3, 1996, §1, at 1 (reporting on the United States Judicial Conference's opposition to the Line Item Veto Act because it could threaten judicial independence by giving the President control of judicial budgets);
219. Neil A. Lewis, Congress, but Not Judiciary, Receives an Increase in Pay, N.Y. TIMES, Oct. 21, 1997 at A23 (describing a letter sent to certain members of Congress by Chief Justice Rehnquist regarding the need to increase judicial salaries);
220. Rhonda McMillion, Two Routes to Victims' Rights, A.B.A. J., Nov. 1997, at 98 (reporting that the United States Judicial Conference prefers adoption of a "victims' rights" constitutional amendment);
221. William H. Rehnquist, The 1997 Year-End Report on the Federal Judiciary, THE THIRD BRANCH (Admin. Off. of the U.S. Cts., Washington, D.C.) Jan. 1998, at 1 (reporting the Chief Justice's opposition to the expansion of the jurisdiction of the federal courts and decrying the slow pace of the confirmation process for new federal judges).
222. See BATOR ET AL., supra note 26, at 68-69 (describing instances of members of the Supreme Court providing advice to executive branch and legislative branch officials); BRUCE ALLAN MURPHY, FORTAS: THE RISE AND FALL OF A SUPREME COURT JUSTICE 186-211 (1988) (describing Associate Justice Fortas's
223. Cf. Schauer, supra note 106, at 655 n.69 (arguing that dicta merely represents one category of reasons that judges offer to legitimate their exercise of Article III power).
224. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring).
225. See John Paul Stevens, The Bill of Rights: A Century of Progress, 59 U. CHI. L. REV. 13, 37 (1992); see also Kloppenberg, supra note 72, at 1027-28, 1036-55; cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165-73 (1803) (providing a tour de force example of extensive dicta wholly unnecessary to the disposition of the case at bar); Dorf, supra note 27, at 2009-24 (noting that Chief Justice Marshall grossly overwrote his opinion in Marbury and describing subsequent Supreme Court efforts to prune back the decision). 158. Abortion and flag burning provide good examples of the willingness of Congress to disregard binding Supreme Court authority incident to the exercise of its legislative powers. See infra notes 231-36 and accompanying text.
226. Marbury, 5 U.S. (1 Cranch) at 177 ("It is emphatically the province and duty of the judicial department to say what the law is."); cf. NEIL K KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY 3-13, 123-50, 232-70 (1994) (arguing that, notwithstanding the strong tradition of judicial primacy in interpreting and enforcing the Constitution, coordinate branches of the federal government might possess attributes that make them better suited for taking the laboring oar in performing certain constitutional duties).
227. See Thayer, supra note 104, at 129, 144-48, 151-56; see also Symposium, One Hundred Years of Judicial Review: The Thayer Centennial Symposium, 88 NW. U. L. REV. 1 (1993).
228. For example, Congress obviously ignored the mandate of Texas v. Johnson, 491 U.S. 397 (1989), when it revised the federal flag desecration statute. See 18 U.S.C. § 00 (1989) (prohibiting and criminalizing flag desecration). As is usual in such circumstances, Congress's effort to evade legislatively a constitutional mandate failed rather miserably. See United States v. Eichman, 496 U.S. 310, 313-319 (1990) (holding the Flag Protection Act of 1989 unconstitutional on First Amendment grounds).
229. See THE FEDERALIST NOS. 47, 51 (James Madison), 78 (Alexander Hamilton);
230. 1 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 10, at 86-87, 144-47.
231. Legislative reaction to court pronouncements on desegregation, school prayer, and abortion were similarly political in nature - and similarly unconstitutional. Compare Robert H. Bork, Constitutionality of the President's Busing Proposals, 24 AM. ENTERPRISE INST. SPECIAL ANALYSIS 1 (1972) (arguing that Congress probably has the constitutional power to enact proposed busing bills and that the federal courts should defer to such legislative limitations on busing as a remedy for school segregation) and 20 U.S.C. §§ 1652, 1714 (1992) with United States v. Texas Educ. Agency, 532 F.2d 380, 394 n.18 (5th Cir. 1976) (holding that federal statutes do not bar or limit court-ordered busing), vacated on other grounds sub nom. Austin Indep. School Dist. v. United States, 429 U.S. 990 (1976); see also H.R.J. Res. 56, 97th Cong. (1982); The Human Rights Statute, S. 158, 97th Cong. (1981); 127 CONG. REC. 496 (Jan. 19, 1981).
232. 989 F.2d 702 (3d Cir. 1993).
233. See id. at 703-04, 708-09; see also N.J. Environmental Cleanup Responsibility Act, N.J. STAT. ANN. §§ 13:1K-6 to 13:1K-14 (West 1992) ("ECRA") (now known as the Industrial Site Recovery Act).
234. See Heldor Indus., 989 F.2d at 703-04, 708-09.
235. Id. at 704.
236. See id.
237. See id. at 705.
238. Id.
239. Id. at 706.
240. See id. at 706-09.
241. Id. at 709 (quoting United Public Workers v. Mitchell, 330 U.S. 75, 90-91 (1947)) (internal quotation marks omitted).
242. See supra note 131.
243. Heldor Indus., 989 F.2d at 709 (Nygaard, J., dissenting).
244. See id. at 710-11.
245. Realistically, of course, a judge might be quite reticent to depart from a prior position that she has expressed publicly, regardless of its formal precedential force. This concern undoubtedly undergirds (at least in part) the prudential rule against deciding constitutional issues unnecessarily. See Russell Wheeler, Extrajudicial Activities of the Early Supreme Court, in THE SUPREME COURT REVIEW 123, 152-54 (Philip B. Kurland ed., 1973). See generally Dorf, supra note 27, at 2005-09 (discussing the rule against overwriting judicial opinions and the concerns that support this rule).
246. See Heldor Indus., 989 F.2d at 709 n.10 (noting with alarm that four courts already had cited the bankruptcy judge's opinion as authority on the constitutionality of the ECRA).
247. 940 F.2d 1471 (11th Cir. 1991), vacated and reh'g en banc granted, 949 F.2d 378 (11th Cir. 1991), appeal dismissed per curiam, 959 F.2d 188 (11th Cir. 1992).
248. See Video Monitoring Serv., 940 F.2d at 1476-80; cf. Pacific & Southern Co. v. Duncan, 744 F.2d 1490 (11th Cir. 1984) (holding that broadcast television newscasts are protected under federal copyright laws and that a broadcaster may obtain an injunction prohibiting the prospective copying of its newscasts against a party found guilty of violating the broadcaster's copyrights).
249. See Video Monitoring Serv., 949 F.2d at 378.
250. See Video Monitoring Serv., 959 F.2d at 188. Evidently, Video Monitoring Services had attempted to appeal a preliminary injunction. See id. Under the well-established case law of the Eleventh Circuit, Video Monitoring Services' appeal on the merits would not be ripe until after the district court conducted a trial and, if CNN were to prevail on the merits, issued a permanent injunction against Video Monitoring Services' taping of CNN's programming. Judge Birch and his fellow panel members seriously jumped the gun by reaching the merits in an appeal of a preliminary injunction - an error the en bane court corrected after hearing oral arguments in the case. Accordingly, the incident not only reflects a kind of gross judicial overreaching as to the merits (i.e., the panel's attempt to overrule a prior panel's decision about the scope of relief available to broadcasters or cablecasters), but also overreaching by using an inappropriate vehicle to reach this result.
251. See, e.g., Kodadek v. MTV Networks, Inc., No. CV 96-1429 DT(SHX), 1996 U.S. Dist. LEXIS 20776, at *6 (C.D. Ca. Dec. 9, 1996); National Basketball Ass'n v. Sports Team Analysis and Tracking Sys., Inc., 939 F. Supp. 1071, 1089-90 (S.D.N.Y. 1996), aff'd in part and vacated in part sub nom. National Basketball Ass'n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997); Trenton v. Infinity Broad. Corp., 865 F. Supp. 1416, 1424 (C.D. Ca. 1994); Gates Rubber Co. v. Bando Am. Inc., 798 F. Supp. 1499, 1503 (D. Colo. 1992), aff'd in part and rev'd in part, 9 F.3d 823 (10th Cir. 1993); cf. Los Angeles News Serv. v. Tullo, 973 F.2d 791, 794-95 (9th Cir. 1992) (criticizing and rejecting in part Judge Birch's reasoning in Video Monitoring Services, notwithstanding the opinion's utter lack of precedential value).
252. Some commentators and legal academics have hailed the panel's holding that unregistered newscasts are not protected under the copyright laws as a bold new direction in copyright law. See Lawrence Lessig, Reading the Constitution in Cyberspace, 45 EMORY L.J. 869, 905 n.104 (1996);
253. Mythili Tharmaratnam, Note, Copyrighting Raw Videotapes: A Restriction of the Free Press?, 1993 U. CHI. LEGAL F. 417, 422 n.29;
254. Amy Adelyn Davis, Comment, Caught in the Crossfire: Cable News Network v. Video Monitoring Services and the Nature of Copyright, 53 OHIO ST. L.J. 1155 (1992).
255. Professor L. Ray Patterson has even urged courts in other jurisdictions to afford the panel decision some measure of decisional value, notwithstanding the fact that the Eleventh Circuit vacated it. See L. Ray Patterson et al., Brief Amicus Curiae of Eleven Copyright Law Professors in Princeton University Press v. Michigan Document Services, Inc. - Editor's Foreword, 2 J. INTELL. PROP. L. 183, 195 n.14 (1994);
256. see also Tracy Lea Meade, Note, Ex-Post Feist: Applications of a Landmark Copyright Decision, 2 J. INTELL. PROP. L. 245, 267 n.163 (1994) (noting that the analysis of Video Monitoring Services has not been contra-dicted).
257. DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE POWERS OF THE FEDERAL COURTS, 1801-1835, at 651 n.41 (1982).
258. DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE POWERS OF THE FEDERAL COURTS, 1801-1835, at 651 n.41 (1982) Id.
259. See Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982).
260. See id. at 422-38.
261. See id. at 438-42 (Blackmun, J., concurring); cf. Marcus v. Search Warrants, 367 U.S. 717, 723 n.9 (1961) (declining to address potentially meritorious First Amendment arguments having already disposed of the case on independent and adequate procedural due process grounds).
262. Zimmerman Brush Co., 455 U.S. at 438 n.1 (internal quotations and citations omitted).
263. Cf. Stevens, supra note 157, at 37 ("The doctrine of judicial restraint, which counsels against the use of unnecessary dicta, also imposes on federal judges the obligation to avoid unnecessary or unduly expansive constitutional adjudication."); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 552 (1975) (declining to address whether the musical "Hair" constituted obscenity because ruling on the question of prior restraint disposed of the case completely). But see Zimmerman Brush Co., 455 U.S. at 438-42 (1982) (Blackmun, J., concurring) (offering a gratuitous and detailed examination of equal protection concerns after having already resolved the case on the basis of procedural due process).
264. Zimmerman Brush Co., 455 U.S. at 438. Justice Blackmun's efforts have not gone unnoticed. Indeed, his concurring opinion receives prominent treatment in one of the principal constitutional law casebooks. See GERALD GUNTHER, CONSTITUTIONAL LAW 633-34 (12th ed. 1997).
265. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 345-48 (1936) (Brandeis, J., concurring) (outlining seven rules the Court has developed to ensure that only ripe and necessary constitutional issues are decided).
266. 388 U.S. 1 (1967).
267. See id. at 7-12 (providing the equal protection analysis and holding); id. at 12-13 (providing a substantive due process analysis and holding, notwithstanding the fact that the equal protection analysis and holding completely disposed of the case).
268. See, e.g., Marcus v. Search Warrants, 367 U.S. 717, 723 n.9 (1961).
269. See Jay L. Koh, Book Note, More Humble Servants: A Second Look at the Advisory Role of Judges, 107 YALE L.J. 1151, 1155-56 (1998).
270. See Bickel & Wellington, supra note 132, at 19-20; see also BICKEL, supra note 16, at 113-127; Bickel, The Passive Virtues, supra note 132, at 50.
271. See, e.g., Quill v. Vacco, 80 F.3d 716, 738-43 (2d Cir. 1996) (Calabresi, J., concurring) (proposing a constitutional remand of New York's statutory ban against physician-assisted suicide in order to permit the New York State Legislature to reconsider the problem), rev'd, 117 S.Ct. 2293 (1997); see also Koh, supra note 197, at 1154-55.
272. See supra notes 41-59 and accompanying text; infra notes 238-50 and accompanying text.
273. See Katzman, supra note 101, at 662-65 (reporting that relevant congressional staffers had little familiarity with judicial decisions noting gaps in various statutory schemes).
274. See id.
275. See id. at 654-55.
276. Mikva, supra note 101, at 609.
277. Schauer, supra note 8, at 9; see also Gerald Gunther, The Subtle Vices of the "Passive Virtues" - A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1, 16-25 (1964).
278. See Redish, supra note 131, at 72-75 (arguing that abstention, whether partial or total, can represent an unacceptable form of judicial activism, particularly when Congress has conferred jurisdiction over the class of cases at issue).
279. See Schauer, supra note 8, at 8-9; see also Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring); cf. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 640 (1943) ("We cannot, because of modest estimates of our competence in such specialties as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed.").
280. See, e.g., The Slaughter House Cases, 83 U.S. 36, 78-80 (1872) (holding that the Privileges and Immunities Clause does not incorporate the Bill of Rights against the states); cf. Washington v. Glucksburg, 117 S. Ct. 2258, 2277-81 & n.6 (1997) (Souter, J., concurring) (noting persistent and lingering doubts about the wisdom of the Slaughter House Cases' interpretation of the Privileges and Immunities Clause).
281. Schauer, supra note 8, at 22.
282. Id.
283. In this respect, perhaps a better coin of phrase to describe the passive virtues would be the "disregarded" or "irrelevant" virtues.
284. Of course, if the issue is otherwise brought to the attention of the legislature, legislative relief might be forthcoming. Such relief would not, however, have any causal relationship to a federal judge's failure to reach the merits in a particular lawsuit. At most, the judge's self-imposed reticence might permit continued legislative consideration of the issue, if the legislature is otherwise inclined to revisit the matter. See CALABRESI, supra note 7, at 16-30, 136-38; see also Ginsburg, Judicial Voice, supra note 6, at 1198-1209.
285. Schauer, supra note 8, at 24.
286. For a variety of reasons, the situation with respect to state supreme courts and state legislatures appears to differ significantly with regard to the possibility of "dialogue." On numerous occasions, state supreme courts have indicated a need for law reform and legislatures have responded. See Abrahamson & Hughes, supra note 8, at 1054-55; Kaye, supra note 11, at 23-26. Justice Abrahamson describes a number of reasons why this is the case, notably including professional legislative staff actively monitoring the work product of a state's appellate courts. See Abrahamson & Hughes, supra note 8, at 1060-70. Nevertheless, "prompt legislative reaction to judicial interpretation is probably the exception, however, not the rule." Id. at 1055. Effective dialogue between a state supreme court and a state legislature is, at least arguably, much easier to accomplish for a variety of reasons. First and foremost, state legislative staff need only monitor the work product of a court or two. At the federal level, the Supreme Court and thirteen separate appellate courts churn out a tsunami of work product. Even the most conscientious congressional staffer could not hope to keep up with the blizzard of opinions emanating from the federal courts. Second, state courts are often less distant than most of the federal courts to Congress. State judges, legislators, and executive branch personnel often move in the same circles, particularly in states with relatively small populations. Dialogue can therefore exist at two levels (at least): an overt dialogue that takes place in formal communications between the branches and a covert dialogue that takes place at professional and social gatherings. Simply put, there is a higher level of mutual cognizance between the branches as to what each branch is doing. Finally, the strong form of separation of powers practiced at the federal level does not necessarily exist at the state level. Perhaps the best example of this is the practice of state supreme courts issuing advisory opinions to the executive and legislative branches of state government. At the federal level, prudential considerations historically have precluded federal judges from rendering similar service. See supra notes 102-29 and accompanying text. It is likely, moreover, that formal interactions through devices like advisory opinions give rise to easier informal relationships outside the regular channels of communication.
287. See CALABRESI, supra note 7, at 141-45, 172-77.
288. See Gunther, supra note 205, at 16-24.
289. See id. at 24-25.
290. For example, the fact that a particular statute is old does not necessarily indicate that it is obsolete. See CALABRESI, supra note 7, at 105-14, 123-35.
291. See id. at 120-62.
292. See, e.g., Robert Weisberg, The Calabresian Judicial Artist: Statutes and the New Legal Process, 35 STAN. L. REV. 213, 249-54 (1983); Zeppos, supra note 21, at 353, 380-406.
293. See Ginsburg, Judicial Voice, supra note 6, at 1204-09;
294. Ginsburg, Legislative Review, supra note 6, at 1015-17;
295. Tacha, supra note 6, at 1540-55; Deanell Reece Tacha, Judges and Legislators: Renewing the Relationship, 52 OHIO ST. L.J. 279 (1991). State court judges have made similar arguments. See Abrahamson & Hughes, supra note 8, at 1048, 1057-81; Kaye, supra note 11, at 21-35.
296. See CALABRESI, supra note 7, at 81-90, 101-14, 163-71.
297. See Weisberg, supra note 220, at 243-54; Zeppos, supra note 21, at 380-85, 406-12.
298. See Zeppos, supra note 21, at 380-81; cf. CALABRESI, supra note 7, at 44-58, 148 (noting the relative expertise benefits associated with administrative agencies but arguing that institutional constraints better suit judges for the task of law reform). The District Court for the District of Columbia demonstrated the scope of this problem-and one potential solution - in a recent antitrust case involving Microsoft. See United States v. Microsoft Corp., 980 F. Supp. 537 (D.D.C. 1997). Rather than attempting to master the inner workings of the software industry, the district court judge instead appointed Professor Lawrence Lessig to serve as a special master. Professor Lessig is responsible for advising the court on technical matters. See id. at 545-46; see also Rajiv Chandrasekaran, Microsoft, Justice Argue Software Issue in Court, WASH. POST, Apr. 22, 1998, at C11;
299. Amy Harmon, Microsoft Pushes to Oust Judge's Adviser, N.Y. TIMES, Jan. 13, 1998, at D2;
300. Amy Harmon, Theorist's Task: Make Old Laws Fit in Digital World of Microsoft, N.Y. TIMES, Dec. 15, 1997, at D1;
301. Steve Lohr, Unbundling Microsoft, N.Y. TIMES, Dec. 13, 1997, at A1.
302. Relying on outside court experts presents one method of reducing the difficulties associated with having generalist judges hearing and deciding cases involving complex technological or scientific materials. To Judge Jackson's credit, he recognized his need for special technical assistance and used his ability to appoint a special master as a convenient device for augmenting his technical competence. The United States Court of Appeals has subsequently put Professor Lessig's efforts to assist Judge Jackson on hold. See Rajiv Chandrasekaran, Ruling Halts 'Master' In Microsoft Case, WASH. POST, Feb. 3, 1998, at D1.
303. See Zeppos, supra note 21, at 380-81, 386, 398.
304. See supra notes 8-15 and accompanying text.
305. As Professor Zeppos puts it, "[b]y jeopardizing the legitimacy of the judicial function, candor raises particularly troublesome implications for the judicial role in the administrative state." Zeppos, supra note 21, at 412-13.
306. Id. at 405.
307. Id.
308. In the words of Chief Justice Marshall: It is most true that this court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821); see also Redish, supra note 131, at 114-15; Steven D. Smith, Courts, Creativity, and the Duty to Decide a Case, 1985 U. ILL. L. REV. 573, 579-87.
309. See Texas v. Johnson, 491 U.S. 397 (1989).
310. See 18 U.S.C. § 700 (1990).
311. See United States v. Eichman, 496 U.S. 310 (1990); see also New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (prohibiting states from imposing tort liability for good faith criticism of government officials, even when such criticism rests on erroneous factual predicates); Harry Kalven Jr., The New York Times Case: A Note On the Central Meaning of the First Amendment, 1964 SUP. CT. REV. 191 (noting that the ability to criticize government officials freely is an indispensable element of a functional democracy).
312. SEE EDWARD KEYNES WITH RANDALL K MILLER, THE COURT VS. CONGRESS: PRAYER, BUSING, AND ABORTION 145-73, 187-205, 219-44, 279-300 (1989);
313. Alphonso Bell, Congressional Response to Busing, 61 GEO. L.J. 963 (1973);
314. Arthur J. Goldberg, The Administration's Anti-Busing Proposals - Politics Makes Bad Law, 67 Nw. U. L. REV. 319 (1972).
315. But see Martin H. Redish, Congressional Power to Regulate Supreme Court Appellate Jurisdiction Under the Exceptions Clause: An Internal and External Examination, 27 VILL. L. REV. 900 (1981-82) (arguing that few internal limits exist on Congress's authority to use jurisdiction-stripping legislation as a means of registering disapproval of Supreme Court decisions and noting that the potential efficacy of external, perhaps constitutionally-imposed, limits is uncertain).
316. The Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb (1994), provides perhaps the most recent example of Congress attempting to use its legislative powers to have the last word in a dispute with the Supreme Court over the Court's interpretation of a particular constitutional provision. See William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 DUKE L.J. 291, 292-303 (1996). For the Supreme Court's reaction to Congress's challenge to the Court's primacy over interpretation of constitutional text, see City of Boerne v. Flores, 117 S. Ct. 2157 (1997).
317. Cf. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1, 7-18 (1996) (arguing that courts seldom, if ever, truly engage in grossly countermajoritarian social policy-making).
318. See Frank M. Johnson Jr., The Alabama Punting Syndrome, JUDGES J., Spring, 1997, at 4-17, 53-54;
319. Frank M. Johnson Jr., In Defense of Judicial Activism, 28 EMORY L.J. 901 (1979).
320. See United States v. Then, 56 F.3d 464 (2d Cir. 1995) (Calabresi, J., concurring).
321. See id. at 466-68; see also CALABRESI, supra note 7, at 163-66, 178-81.
322. Steinhardt, supra note 17, at 1118.
323. See City of Boerne v. Flores, 117 S. Ct. 2157, 2162-64, 2168 (1997); see also Brown, supra note 10, at 1557-66.
324. See generally David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731, 736-38 (1987) (arguing for a strong presumption in favor of candor as a rule of judicial behavior).
325. See THE FEDERALIST NO. 79 (Alexander Hamilton).
326. See THE FEDERALIST No. 78, at 484-89 (Alexander Hamilton) (J. Hamilton ed., 1888).
327. See Wald, supra note 16, at 650-59; Patricia M. Wald, The Role of the Judiciary in Environmental Protection, 19 B.C. ENVTL. AFF. L. REV. 519, 545-46 (1992);
328. Patricia M. Wald, Some Thoughts On Beginnings and Ends: Court of Appeals Review of Administrative Law Judges' Findings and Opinions, 67 WASH U. L.Q., 661, 665 (1989).
329. See generally Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 HARV. L. REV. 386 (1983) (discussing the operation of the Article V amendment process, the respective roles of Congress and the federal judiciary in the amendment process, and proposing a more active role for the federal judiciary in policing the amendment process).
330. See Kaye, supra note 11, at 23-24.
331. See CALABRESI, supra note 7, at 149-58.
332. 426 U.S. 229 (1976).
333. See supra notes 112-14 and accompanying text.
334. See supra notes 115-52 and accompanying text.
335. See Abrahamson & Hughes, supra note 8, at 1055; Katzman, supra note 101, at 654-55, 662-63; Kaye, supra note 11, at 24-25; Schacter, supra note 149, at 605-06.
336. See Krotoszynski, supra note 10, at 468-85; cf. Geyh, supra note 122, at 1192-94 (arguing in favor of federal judges playing a more active role in Congress's policy deliberations); Tacha, supra note 6, at 1550-55 (arguing in favor of the federal judiciary maintaining a more regularized institutional voice in Congress).
337. See Krotoszynski, supra note 10, at 468, 472-75, 477-78.
338. See Tacha, supra note 6, at 1540, 1542-45; Tacha, supra note 221, at 295-97.
339. See Krotoszynski, supra note 10, at 447-56 (describing some of the problems associated with back-channel communications between members of Congress and federal judges); Wheeler, supra note 177, at 144-58 (same).
340. In this regard, Justice Fortas's disastrous involvement in the Johnson Administration is instructive. See MURPHY, supra note 154, at 188-211; cf. Marcus, supra note 123, at 270-77 (describing the overtly political activities of some federal judges in the early years of the Republic).
341. See Geyh, supra note 122, at 1192-94; Ginsburg, Legislative Review, supra note 6, at 1011-17; Tacha, supra note 221, at 290-92.