The Supreme Court ruled yesterday in Caperton v. A.T. Massey Coal Company that the Due Process Clause of the United States Constitution is violated by the refusal of a judge to recuse herself when the disproportionate campaign contributions of a litigant on behalf of that judge create a serious, objective risk of actual bias. Rick Esenberg has posted on some of the issues raised by the majority opinion here. For me, the most interesting part of the case was actually the dissent by Justice John Roberts. In it, Justice Roberts objects to the uncertainty that federal judges will encounter as they attempt to apply this constitutional right in future cases with disparate fact patterns. In a bit of theatricality worthy of Gilbert & Sullivan, the Chief Justice’s dissent presents a list of 40 questions that the majority opinion leaves unanswered.
The Chief Justice makes a rather stark assertion: “The Court’s inability to formulate a ‘judicially discernible and manageable standard’ strongly counsels against the recognition of a novel constitutional right.” He cites to Veith v. Jubelirer in support of this statement, which of course held no such thing. In fact, as a plurality opinion devoted to the issue of what constitutes a “political question,” the Veith case is a fairly slender reed upon which to rest such a sweeping proposition.
It was another Chief Justice, John Marshall, who famously asserted the traditional common law rule that governed the role of the Supreme Court in the administration of justice. In Marbury v. Madison, Justice Marshall wrote:
The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.
By demanding that the judicial remedy be clear and manageable before the Court should undertake to recognize the existence of a constitutional right, Chief Justice Roberts would transform judicial restraint into judicial timidity. For example, one could easily take the holding of the Supreme Court in Brown v. Board of Education – that the maintenance of segregated schools for blacks and whites violates the Equal Protection Clause – and generate 40 unanswered questions:
1. Is the proper remedy for segregation the forced busing of students to different schools?
2. Should busing plans be designed to achieve the integration of each individual school or is it sufficient that the school district as a whole be integrated?
3. Should busing plans incorporate districts without a history of discrimination if doing so will aid in the creation of a larger integrated educational system?
4. How long should forced busing plans be maintained before integrated school districts are allowed to naturally slide back towards segregation?
5. Can school districts without a history of intentional segregation choose to voluntarily impose busing plans that create integrated schools?
I could go on and on, as there is a two decade history of busing litigation in federal courts that worked through these and countless other questions in the wake of the Brown decision.
These cases constitute the far end of the spectrum in terms of federal judges leaping into the great unknown in order to craft a remedy for a newly created constitutional right. Yet Justice Roberts seems to suggest that the lesson to take away from this experience is that the Supreme Court should not have overturned Plessey v. Ferguson and ordered the desegregation of public schools. He suggests that if the Justices cannot anticipate all of the issues raised by an attempt to remedy the violation of a constitutional right, perhaps the right shouldn’t exist at all. I prefer Justice Marshall’s classic definition of the judiciary. If there is a violation of a legal right, it is the obligation of the federal courts to find a remedy.