The Double Effect of Rules and Standards: On Graham, Minimalism and Judicial Control
41 Pages Posted: 23 Jan 2011 Last revised: 12 Dec 2017
Date Written: January 21, 2011
Graham allows us a close look at minimalism, the emerging judicial philosophy of Chief Justice Roberts. Conservative minimalists support decisions based on standards, because they assume that rules denote control while standards mean letting go in terms of Supreme Court supervision over lower courts' decisions.In this article, we argue that this assumption is only partly true. By distinguishing between what we term "vertical control" and "horizontal control," we show that rules and standards have a double effect in terms of retaining control – both positive and negative. Rules allow the Court control over lower courts' decisions (vertical control), but also limit control over its own future decisions (horizontal control). Standards have the opposite effect - they retain control over the Court’s future decisions (horizontal control), but let go of control over lower courts' decisions (vertical control). We further show, using comparative examples, that the extent of control (horizontal and vertical) depends on several contingent variables: the size of the legal system, the size of the Court's docket, the cohesiveness of the Court, and whether the Court sits in panels or en banc. Lastly, we maintain that standards do not fit with the ideological underpinning of conservative minimalism. This is so since standards can be, and often are, (1) broad and deep rather than narrow and shallow; (2) based on a conception of epistemological conceit rather than epistemological modestly; and (3) based on a conception of activism and rule-by-judges rather than judicial restraint and pluralistic democracy. The use of standards by conservative minimalists, we conclude, often results in incoherency.
Keywords: standards, rules, proportionality, minimalism, Sunstein, control, death penalty, Barak Roberts
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