THE SUPREME COURT REVIEW 1991 is a collection of nine essays written exclusively by law professors. Most of the essays focus on cases decided in the 1990 term; apart from time frame, the essays do not explicitly share a common theme. With one exception, the essays describe and critique doctrinal development in a given area; readership of each essay will vary according to substantive area of interest. Each essay is well constructed and significantly contributes to its doctrinal area. Though primarily doctrinal in approach, several essays incorporate social scientific findings into their analyses. This review offers a brief description and analysis of each essay, in an effort to guide readers to essays relevant to their specific interests.
In "The End of NEW YORK TIMES V. SULLIVAN: Reflections on MASSON V. NEW YORKER MAGAZINE," Lee C. Bollinger argues that MASSON represents a significant departure from the landmark SULLIVAN case. While SULLIVAN restricted quotations falsely attributed public figures that harmed reputation knowingly or recklessly, Bollinger argues that MASSON may allow juries to disregard the harm portion of SULLIVAN's standard.
Bollinger also argues that MASSON departs from SULLIVAN by failing to recognize the relationship between maintaining a free press and fostering self-government. Although Bollinger provides a strong defense of the position that excessively regulating the press can chill active participation in civic life, he fails to recognize that those who argue for greater regulation of the press sometimes do so in the name of self-government. Just as he argues that regulation of the press may diminish the robustness of civic debate, so too do his would-be adversaries argue that hate speech or pornographic speech may chill political participation of groups already marginalized by mainstream society.
Sheldon M. Novick's "The Unrevised Holmes and Freedom of Expression" argues that, current revisionism notwithstanding, Holmes' theory of free speech did not change between SCHENCK and ABRAMS. Using a rousing defense of freedom of speech in a previously unpublished dissent as evidence, Novick argues that Holmes' theory of freedom of speech always contained two aspects: an affirmative defense of speech, grounded in arguments about self-government, individual development, and the sanctity of the marketplace of ideas on the one hand, and a justification for restraining speech, when its harms outweighed its benefits, on the other.
Novick suggests that contemporary scholars may have trouble understanding Holmes because he "treated speech as a form of activity that had practical consequences, and so at least with regard to its intended effects speech was not entitled to protection greater than that afforded to other types of behavior." (360) Nozick links Holmes to the contemporary debate by pointing out that those who argue for greater restrictions on hate speech and pornography seem to embrace a similar theory.
In "Confusion at the Border: Cruzan, 'the Right to Die,' and the Public/Private Distinction," Louis Michael Seidman uses Justice Brennan's dissent and Justice Scalia's concurrence in CRUZAN V. DIRECTOR, MISSOURI DEPARTMENT OF PUBLIC HEALTH to argue that persistent doubts about the legitimacy of judicial review generate confusion about the boundaries between the public and the private spheres. This doubt compels liberals to "translate arguments for the public good into the unfriendly rhetoric of individualism" and conservatives to "denigrate private rights by pretending that they are not rights at all, but rather merely the
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expression of discretionary public preferences." (49)
Brennan argued that Missouri did not provide a compelling interest to offset the fundamental right to die. Yet, by emphasizing the severity of Cruzan's vegetative state, he seemed to show that she was no longer a person and thus no longer a possessor of rights. Scalia argued that since the Constitution does not discuss a right to die Missouri could force Cruzan to continue life support, even against her previously stated wishes. Yet, Missouri's action was premised on the belief that "life is better than death". (54)
Seidman's piece indirectly suggests that the legitimacy obsession also masks liberalism's lack of a solid grounding for individual rights. Just as ROE begs the question about when rights attach, CRUZAN begs the question of when rights detach; the answer to both depends on how one defines personhood -- an issue which, these days, is about as controverted as they come.
In PAYNE V. TENNESSEE the Court stated that evidence about the victim's personal characteristics, the emotional impact of the murder on the victim's family, and the family's opinion about the defendant could be admitted into the penalty phase of capital cases without violating the Constitution. Angela P. Harris argues that PAYNE promotes an unconstitutional "jurisprudence of victimhood," which may unconstitutionally discriminate on the basis of race. (78)
Harris argues that jurors should empathize with both the victim and the defendant, as well as recognize and critique their own biases. Yet, juries are much more likely to identify with the victim's humanity, rather than the defendant's. In addition, Harris argues that victim impact statements can draw upon preconscious social stereotypes that are, by definition, insulated from critical self-analysis. Because black defendants, for example, may "consistently [be] thought of as predators," receiving the death penalty could turn on race or other impermissible factors. (96) This accords with well known empirical studies that suggest bias against black defendants -
particularly those who are charged with killing white victims.
Empirical evidence suggests informants lie with some regularity; in "Regulating Prison Informers Through the Due Process Clause," Welsh S. White argues that prison informants probably lie more, because their unique circumstances create an added incentive to fabricate information. Though White concedes that prison informer testimony is often necessary for successful prosecution, he argues that testimony obtained by promising benefits which dramatically increase the incentive to lie should not be admitted into court.
ARIZONA V. FULMINANTE received attention when it was handed down because it seemed to signal an intensification of the court's conservative approach to criminal procedure. The Court ruled that coerced confessions admitted into court can sometimes be characterized as harmless error, but only under exceptional circumstances, which were not present in this case. Some speculated that the Rehnquist court was going "well beyond undoing the work of the Warren Court." (114)
White criticizes FULMINANTE on the grounds that it does not directly address the specific problems raised by PRISON informers and that when "the government employs an informer on a contingent fee, targets a particular suspect, and holds out the possibility of large rewards for incriminating testimony, the inducement to perjury is obvious." (138) Although he admits that some evidence may be lost that is in fact reliable, White argues that the burden should nevertheless be on the government to show that the testimony is trustworthy. As such, White's essay makes a strong effort at keeping the spirit of the Warren Court alive precisely at the time when many Court watchers are pronouncing it dead.
While the Intellectual Property Clause was once understood as a simply granting power to
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Congress, after FEIST PUBLICATIONS, INC. V. RURAL TELEPHONE SERVICE, it will also be understood as limiting Congress from granting copyrights for works such as the white pages of phone book, on the grounds that they lack originality. In "The Vices of Originality," Paul J. Heald argues that FEIST is problematic because it does not adequately discuss what qualifies as "original."
While the Court contended that creativity rather than "sweat of the brow" characterizes originality, Heald argues that this oversimplifies reality since even the most creative works often draw upon age-old concepts. Heald also notes that the publishing industry encouraged Congress to use the Commerce Clause to overrule FEIST, but later contends that Congress cannot challenge the Court's finality in constitutional interpretation. Yet, history shows that Congress has, on occasion, done just that; the Freedom of Choice Act provides a contemporary example. While challenging judicial finality may not, according to the Court, be an original idea, it may nevertheless be a creative way to find a better balance between keeping facts in the public domain and stimulating discovery through the promise of exclusivity.
In "Vestiges of Beale: Extraterritorial Application of American Law," Larry Kramer argues that in EEOC v. ARAMCO, the Supreme Court chose the version of the law governing extraterritorial application that was least suited to present day realities of international relations. In ARAMCO, an American citizen employed by an American owned company operating in Saudi Arabia brought suit under Title VII, alleging he was fired because of race and religion. The Supreme Court affirmed dismissal on the grounds that the alleged discrimination occurred outside of the territorial sovereignty of the United States.
Kramer argues that once the US became a world power the territorial sovereignty approach should have gone the way of the dinosaur, Jurrasic Park notwithstanding. While the presumption against extraterritoriality was appropriate in the early 20th century, the contemporary Court should have replaced it with a purposive analysis that would allows nation-states to "exercise authority over persons or acts that impinge on its sphere of legitimate concern" rather than solely on its territory. (209)
Noting that presumption allows to Court to claim that it is following congressional intent, Kramer argues that presumption really "indentif[ies] a desirable outcome and force[s] the legislature to go out of its way to do something different." (183) Since this seems rather unlikely, decentralized modern Congress, presumption allows the conservative court to appear in the sheep's clothing of judicial self-restraint, when it is really determining policy like a fox.
Thomas W. Merrill's aim in "The Constitutional Principle of Separation of Powers," is to uncover a unified understanding of the separation of powers. Citing CHADHA, Merrill states that the Court typically usually uses a formal theory of the separation of powers to invalidate congressional attempts "to exercise governmental power by means other than the enactment of legislation"; citing MORRISON, he claims that the Court typically uses a functional theory to approve "duly-enacted legislation that regulates or relocates the functions performed by the other two branches." (228) Because the Court applies neither theory consistently, confusion persists in the most recent separation of powers cases.
Merrill argues that the Court should adopt a third alternative, his "minimalist conception," which holds that Congress "may not create a Fourth Branch of the federal government" (236) and that the Court largely will determine the powers of each branch in instances of conflict. Though Merrill's conception seems, at the level of theory, to favor congressional power, in practice would seem to favor judicial power, and as Merrill directly admits, executive power.
In addition, although Merrill's theory
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accounts very well for most recent Supreme Court separation of powers cases, it does not account for other institutional practices that also serve to constitute the separation of powers. For example, while Merrill's theory accounts for CHADHA, it does not account for the fact that Congress has regularly ignored CHADHA. In order to understand the separation of powers even more fully, Merrill must supplement the minimalist conception with an explanation of broader political practice.
Decided in 1947, SEC V. CHENERY CORP. (CHENERY II) remains the leading case on retroactivity in administrative law. It states that administrative agencies can give meaning to statutes through adjudication, and apply them retroactively, even if the rules applied were not announced previously. Abner S. Greene, in "Adjudicative Retroactivity in Administrative Law," argues that CHENERY II poses a problem for the rule of law. According to Greene, the rule of law requires "notice of legal rules, prospective operation of the rules, and the ability to obey the rules." (263) Adjudicative retroactivity abridges these principles when adjudicators overrule precedent or adopt a novel interpretation.
While some defend CHENERY II on the grounds that the modern administrative state requires the flexibility, efficiency, and fairness that is built into adjudicative retroactivity, Greene claims that the logical consequence of "the argument for regulatory flexibility is an autocracy, that is, a government in which one person develops the rules as cases arise." (284) Thus, he champions CHEVRON U.S.A., INC., V. NATURAL RESOURCES DEFENSE COUNCIL, INC. (1984) which attempts to limit agencies from applying discretionary rulings retroactively in some cases. Although Greene does not directly say so, CHEVRON seems to adopt middle ground between rigid adherence to the rule of law principles that seem out of step with the modern administrative state, and the limitless flexibility that Greene strongly criticizes.
In the frontispiece of THE SUPREME COURT REVIEW 1991 Justice Frankfurter encourages criticism of the Court to keep judges "mindful of their limitations and of the ultimate public responsibility". Judge Hand follows, encouraging critics to understand the difficulties associated with judging, and to "take the trouble to understand" judges. By and large, the essays in this volume follow the recommendations of both Frankfurter and Hand. At the same time, several of the essays discuss indeterminacy and the problems it poses for judging at some length, thus making Frankfurter and Hand's admonitions all the more apropos, if not urgent. Since so many of the essays accept indeterminacy as a given, it is somewhat surprising that the same essays criticize the Court's doctrinal development largely from the basis of expert, scholarly authority; the essays do not draw upon the authority of the public or of political institutions (i.e., democratic sources of authority) to limit judicial power and foster judicial responsibility. This scholarly authority appears to be expert and apolitical, rather than an intersection of law and politics, which, one presumes, advocates of indeterminacy would expect to find.
