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COPYRIGHT 2006 Stanford Law School
INTRODUCTION
I. SPLITTING THE DIFFERENCE A. Splitting the Difference in Result B. Splitting the Difference in Reasoning C. Splitting the Difference in a National Debate D. Doctrinal Tools for Splitting the Difference II. THE LURES OF SPLIT-THE-DIFFERENCE JURISPRUDENCE III. THE PERILS OF SPLIT-THE-DIFFERENCE JURISPRUDENCE CONCLUSION
INTRODUCTION
The departures of Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor from the Supreme Court constitute an event of singular importance for that institution. Rehnquist and O'Connor were by any reckoning highly consequential Justices. Although differing in important respects, each Justice was a public servant of the highest integrity and dedication; each was a patriot to the core; and each at the end reflected credit on the Court, the profession, and, it should be acknowledged, on Stanford Law School. Some of the criticism in this Article is pointed. But it is written in a spirit of respect for all that these two fine people contributed to America and for the Court they so proudly and ably served.
The Rehnquist Court left multiple legacies. One was certainly a commitment to our federal system and to the doctrine of dual sovereignty. Another was the renewal of emphasis on the structural features of the Constitution, after a long period of relative neglect. Yet a third legacy was that of judicial supremacy, in which the Court asserted its own role at the expense of the executive, the Congress, and the states. A final legacy was probably that of pragmatic centrism, in which the Court sought to shape constitutional doctrine to the temper of the times. These legacies are in some tension with each other. Which of them will prove most durable will remain a subject of debate. It is beyond dispute, however, that the course of the Rehnquist Court was not constant. It shifted significantly over time.
By the end of the twentieth century, many observers would have marked United States v. Lopez (1) as the Rehnquist Court's most significant case. In ruling the Gun-Free School Zones Act unconstitutional, the Court reaffirmed that the national government was indeed one of enumerated powers and that there were, in fact, enforceable limits upon the Commerce Clause. The Court likewise imposed limits on the ability of Congress to abrogate the states' immunity from suit (2) and to implement its view of the Fourteenth Amendment through the enforcement power of Section 5. (3)
There were, to be sure, real dangers in this course. The Court risked being perceived as aggrandizing its own power at the expense of the people's representatives. Whether a law had a "substantial effect" on interstate commerce or whether a statute represented a congruent and proportional use of the Section 5 enforcement power could be seen to be largely in the eye of the judicial beholder. On a practical level, an aggressive application of the Lopez restrictions threatened much civil rights and environmental legislation, and ultimately the concept of the United States as a single national economic unit.
Notwithstanding such dangers, the Court's new assertiveness had a healthy aspect. It did not seek to shut down democracy, as the Lochner and New Deal Courts had done. (4) Instead, it sought a restoration of democratic balance and a reinvigoration of the authority of individual states to exercise their residual police powers. In sum, the Court seemed intent on recognizing the American Constitution as a document with enforceable structural features that would bolster this country's enjoyment of democratic liberties and, ultimately, of personal rights.
Thus, prior to the Court's last five years, its dominant jurisprudence was one of revivalism, not compromise. To be sure, cases during the 1980s and 1990s did occasionally adopt a middle ground, (5) but the emphasis remained plainly on resurrection--in this case, resurrection of the doctrines of dual sovereignty and enumerated powers.
At the beginning of the twenty-first century, almost as if on cue, something happened. The Rehnquist Court shifted course. The shift may have begun with Bush v. Gore, where the Court found the imperative of resolving a national election to override the tortuous state process involved in tallying the Florida vote. (6) After that decision, the Court's interest in federalism slowly foundered. Challenges to congressional authority began to meet more frequent rejection. In Nevada Department of Human Resources v. Hibbs, the Court allowed plaintiffs seeking benefits under the Family and Medical Leave Act to subject the states to suit. (7) In Tennessee v. Lane, sovereign immunity likewise proved no bar to plaintiffs seeking access to court under the Americans with Disabilities Act. (8) And in Gonzales v. Raich, the Court upheld the authority of Congress to regulate the production of homegrown marijuana under the commerce power. (9) The same five-Justice majority that rejected assertions of congressional authority in the name of state sovereignty throughout the 1990s had frayed.
The Court's new mood involved more than declining to check the assertion of congressional power in the name of dual sovereignty and federalism. The Court took the affirmative step of overriding state prerogatives on a variety of fronts. It issued a series of finely spun opinions that increasingly constitutionalized some of the country's most volatile political debates. The opinions were not markedly liberal. Many were not significantly out of line with public opinion. Rather, the Court sought to tackle the most controversial issues before it by splitting the difference. Few courts have ever raised this form of jurisprudence to such an art form. It is this persistent tendency of the late Rehnquist Court to split the legal difference that I address.
How did the Court come to embrace this approach? There exist many possible explanations. The Court's drift into fine-shaven outcomes may have owed something to the Chief Justice's ebbing influence and stamina. It may have been that the long tenures of the Court's members produced a growing faith in the powers of judicial wisdom. The Court may have been so shaken by the criticism over Bush v. Gore that it sought to reassure the country with a display of centrist evenhandedness. Whatever the explanation, the Rehnquist Court, without any change in membership, became in its final years a decidedly different institution.
I plan in Part I to discuss examples of the Court's split-the-difference approach. In Part II, I will then attempt to set forth the case for addressing the country's most volatile issues in this fashion. Finally in Part III, I will ask whether this is the way Americans should wish their Supreme Court to proceed in the future. This is not an easy question. There are hard choices over the path that constitutional interpretation should take in this century, and the final years of the Rehnquist Court present the debate with stunning clarity.
I. SPLITTING THE DIFFERENCE
Split-the-difference jurisprudence can manifest itself in several ways. Sometimes, the result of a case, or set of cases, transparently bespeaks a split-the-difference approach. In other cases, an opinion scrupulously balances statements appealing to one side with statements attractive to the other and adopts an in-between approach to resolve the issue before it. A third manifestation of split-the-difference jurisprudence occurs when a court steers a course that obviously threads the needle between two polar positions in a broader political debate. These three categories will, of course, overlap at times, and a given case may appropriately belong in more than one. Nevertheless, as I explain below, each category represents a distinct species of split-the-difference jurisprudence, and I therefore find it useful to consider them separately.
As time went on, the Rehnquist Court increasingly engaged in all three types of splitting the difference. The lineup of Justices naturally varied from case to case. In fact, sometimes only one Justice--often, but not always, Justice O'Connor--actually split the difference. But the reasoning and result would nevertheless hinge on those votes, and the Court's institutional statement remained one of navigating between competing alternatives without appearing to choose sides.
In this Part, I describe recent Rehnquist Court decisions that exhibit each of the three split-the-difference paradigms. These are hardly the only cases I could have selected. The fact that they are illustrative rather than exhaustive is precisely my point. The descriptions will focus not so much on the factual and legal nuances of each case, but instead on how each is an exemplar of the late Rehnquist Court's overarching split-the-difference philosophy. Interspersed throughout is a discussion of the Court's reliance on certain doctrinal tools that are conducive to a split-the-difference approach, a subject I explore more fully at the end of this Part.
A. Splitting the Difference in Result
Recent decisions have often had results that themselves split the difference. In these cases, the Court's actual holdings straddle both sides of a difficult issue, and the outcomes, while perhaps unsatisfying to the adversaries in a polarized debate, nevertheless attempt to settle upon a constitutional middle ground. There are various recent examples that fall into this category, but I have selected four--last Term's Ten Commandments cases, (10) Elk Grove Unified School District v. Newdow, (11) the Michigan affirmative action cases, (12) and United States v. Booker. (13)
In June 2005, the Court decided a pair of Establishment Clause challenges to the public display of the Ten Commandments on government property. Van Orden v. Perry concerned a six-foot-tall stone monument featuring the Ten Commandments. (14) Given to the state in 1961 by a civic fraternal organization, this monument was placed on the grounds of the Texas State Capitol among other commemorative markers, such as war memorials and tributes to state history. (15) At issue in McCreary County v. ACLU was the posting of the Ten Commandments in the hallways of two Kentucky county courthouses. (16) Originally installed in 1999 as stand-alone displays, the Ten Commandments were eventually supplemented with framed copies of other historical documents, such as the Declaration of Independence and the Mayflower Compact. (17)
Despite the evident similarities between the two cases, the Court split the difference in result, upholding the display in Van Orden but striking down the exhibit in McCreary County. (18) In Van Orden, the Chief Justice explained that "[o]ur cases, Januslike, point in two directions in applying the Establishment Clause": one that acknowledges the historical role of religion in our public life and another that reflects the potential for government to imperil religious liberty. (19) His broad characterization only too aptly describes the outcomes in last Term's cases. The Chief Justice's plurality opinion in Van Orden draws on the former, the majority opinion in McCreary County on the latter. The difference in result was the product of Justice Breyer, who alone found a distinction between the two cases based upon the apparent divisiveness or lack thereof of the display at issue in each case. (20) His difference-splitting was made possible doctrinally by emphasizing that "no single mechanical formula" could be used, (21) eschewing reliance on "a literal application of any particular test" (22) and finding instead "no test-related substitute for the exercise of legal judgment." (23)
The Religion Clauses provide fertile ground for split-the-difference results, as the Court's opinion in Elk Grove Unified School District v. Newdow further makes evident. (24) In that case, Michael Newdow contended that a school district's policy of classroom recitation of the Pledge of Allegiance, including the words "under God," violated the Establishment and Free Exercise Clauses. (25) Whereas the Ten Commandments cases split the difference with two divergent holdings, Newdow did so by not issuing a holding at all on the underlying constitutional question. The Court instead concluded that Newdow lacked prudential standing to bring the suit on behalf of his daughter, because the child's mother had sole legal custody and the suit would likely have had an "adverse effect" on the child. (26) The decision split the difference because the Court declined either to condone...
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