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Rule of Law or Rule of Five?

By Mark Tushnet

During her confirmation hearings Ruth Bader Ginsburg repeatedly described the role of the Supreme Court Justice as one of enforcing the rule of law. When she begins to work on the Court's cases, though, she may find that her colleagues have a different idea of the job. Justice Thurgood Marshall's papers at the Library of Congress show that most justices subscribe to William Brennan's reported comment to his law clerks that "the most important rule in constitutional law is that with five votes you can do anything." Every justice at one time or another--and some all of the time--adheres to what may be called the "rule of five." Their decisions result from this desire to get a majority of five votes, not from their detached interpretation of the constitution.

The contrary view--the "rule of law"--was expressed by Justice Lewis Powell in a comment he made on a draft opinion by Justice Marshall. In discussing the standards for determining what the constitution required in death penalty cases, Justice Marshall had written that the court should consult "international opinion" and "our own best judgement." Justice Powell urged Marshall to delete those references, saying, "This court is often criticized by those who say that we base our decisions on such factors rather than on the Constitution and the law itself." Justice Antonin Scalia, perhaps the most conservative member of the court, put it this way: "To hold a statute unconstitutional is not to announce that we forbid it, but that the constitution forbids it."

Powell and Scalia were evoking the hallowed notion that we are a government of laws and not of men and women--that the constitution, not the justices of the Supreme Court, tells us what the law is. Occasionally, though, we can see glimpses in the Marshall papers of justices applying the rule of five. Take Kentucky v. Wharton , a 1979 case. The issue was whether a state court violated the constitution in failing to instruct the jury on the presumption of innocence. The state Supreme Court had held that the instruction always had to be given, and that failing to give it could never be "harmless error." When the case reached the US Supreme Court, the justices unanimously agreed that the state court's decision had to be reversed. They were divided, though, over what legal theory was to be applied. The majority believed that the trial judge wasn't required to give the instruction if, under the "totality of the circumstances," the defendant received a fair trial. Three dissenters thought that the judge must always give the instruction, but that sometimes it would be "harmless error" if the judge omitted it.

It doesn't matter to an appellate court which theory it adopts, but it does matter to trial courts. The "harmless error" theory means that a trial judge should always give the instruction, but convictions won't always be reversed if the judge doesn't. The other theory means that it's sometimes perfectly all right for the trial judge not to give the instruction. The two theories tell trial judges different things.

Chief Justice Warren Burger didn't understand the difference between the theories, though, and, exercising his prerogative as Chief Justice, he asked Justice Potter Stewart to write the court's opinion. Stewart wrote back that he actually held the minority, "harmless error" view, and intended to dissent; however, he genially offered to write the majority opinion. And when he did, the votes rolled in. Then, just as genially, Stewart circulated an opinion dissenting from the opinion he himself had written.

In the end, the pages of the United States Reports (the official publication of Supreme Court opinions) contain two opinions, one for the majority and one for the dissenters, both written by Justice Stewart. To save appearances, though, the majority opinion was signed "per curiam," meaning the author of the published opinion isn't identified.

I doubt anyone could publish opinions going both ways on what "the constitution" means without accepting the rule of five vision of the constitution, rather than the rule of law vision. And I suspect no one could hold firm to the rule of law vision while observing the others following the rule of five. But, as it happens, sometimes even justices we might expect to accept the rule of law vision quite firmly behave otherwise.

In the so-called nude dancing case, decided in 1991, Barnes v. Glen Theatre , the city of South Bend claimed that an Indiana statute prohibiting public indecency made it unlawful for a theater to feature nude go-go dancers. The court had to decide whether the statute violated the defendants' right of free speech under the first amendment. Five justices agreed that it didn't, but they disagreed about why.

Chief Justice William Rehnquist circulated a draft opinion saying that the ban was, in legal jargon, "content based." As the court had used the term, regulations of speech are content based when the reason for adopting them is that people who hear the speech (or see the dancers, dancing being a form of speech) end up thinking bad thoughts, which ordinarily might lead them to do bad things. In finding the nude dancing ban content based, Rehnquist's draft made the sensible point that the city's reason for banning nude dancing was that it's content was erotic, which meant precisely that it led viewers to think bad thoughts.

The problem with Rehnquist's analysis, though, was that the court has frequently said that the constitution permits content-based regulation only if there is a close connection between the speech and bad conduct. Rehnquist's draft did connect viewing erotic dancing to bad conduct, but no one else on the court believed that he had shown that the connection was as strong as the court's prior rulings seemed to require.

No one joined Rehnquist's draft, and so it gathered dust. Justice Scalia circulated a separate opinion, but no one liked it either. Eventually Rehnquist got fed up and sent around still another opinion. This one said that the ban on nude dancing was not content based, which meant that the connection between the dancing and bad conduct didn't have to be nearly as strong. Once the opinion described the regulation that way, justice Sandra Day O'Connor and Anthony Kennedy agreed that the connection between nude dancing and bad conduct was close enough to satisfy the court's previous rulings on that kind of regulation.

Rehnquist's published opinion said, "We do not think that when Indiana applies its statute to nude dancing in these nightclubs it is proscribing nudity because of the erotic message conveyed by the dancers." What the first draft asserted, the second draft repudiated. The rule of five was decisive.

I don't mean to single out Rehnquist for criticism here. The real point is that everybody on the court at least occasionally writes an opinion that, on some crucial point, is directly contrary to what the author had written in an earlier draft--and not because the author changed his or her mind but simply because the opinion "didn't fly." Or, as the saying around the court goes, "five votes are better than four."

When justices write directly contradictory drafts,or join and then "unjoin" opinions for reasons unconnected to what they think about the merits, surely they must think the rule of five describes constitutional law better than the rule of law does.

In an opinion writtin in 1991, Justice Scalia suggested one possibility. He wrote, "I am not so naive as to be unaware that judges in a real sense "make" law. But they make it as judges make it, which is to say as though they were finding it."

This seems to me remarkable. When judges act in this "as though" way, they divide the world into insiders, who know that the judges "make" law "as though" they were finding it, and outsiders, who believe the judges when they say they are finding the law. This division is reminiscent of the political theories of Leo Strauss, who also thought insiders knew things about political truth they could not afford to disclose to outsiders. (Scalia may have slipped when he published his statement for outsiders to read.)

Perhaps the Straussian "as though" approach might be defended: Whenever the court finds a statute unconstitutional, it is saying to the people, "You can't do what you want to do." That statement invites the reply, "why not?" The answer "because the constitution says so" might be conclusive. But the answer "Because we say so" surely invites yet another question: "And who are you to tell us this?" So, if we really are a government of men and women, for the constitution to be an effective limit on what majorities want to do, the people--the outsiders--must believe that we are a government of laws nonetheless.

I don't buy it. We would be better off if people understood that we can' get what we want because, deep down, we know that our temporary desires--what we happen to want right now--are inconsistent with what we really want: the values we believe are imbedded in our constitution. The mature understanding displayed by Justices Marshall and White is, in the end, more attractive than the the Straussian one asserted by Justice Scalia.

Reprinted and edited from The Nation

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