The Vagueness Doctrine in the Roberts Court: Constitutional Orphan

Abstract

In the 2010 United States Supreme Court cases, Holder v. Humanitarian Law Project and Skilling v. United States, the Roberts Court addressed the vagueness doctrine for the first time. Those who study vagueness hoped that from these cases the Court would settle some of the longstanding issues within the doctrine, but were disappointed to find the resulting opinions obfuscate more than illuminate this area of constitutional law. This Article first discusses and develops the downbeat conclusion that, following the death of Chief Justice Rehnquist and the retirements of Justices O’Connor and Stevens, and in light the dreadful legacy of the decisions in Humanitarian Law Project and Skilling, no one on the Court cares enough about the vagueness doctrine to think deeply on it. The Article goes on to sketch how a justice who takes the vagueness doctrine to heart might have analyzed those cases, with careful attention to the doctrine’s rationale of limiting arbitrary and discriminatory enforcement and a balancing of impact on protected or desirable conduct against the significance of the legislative goal.

Keywords: arbitrary, constitutional law, discriminatory, enforcement, Humanitarian Law Project, Skilling, vagueness doctrine

JEL Classification: K10, K19, K30, K39