Exit Strategies in Constitutional Law: Lessons for Getting the Least Dangerous Branch Out of the Political Thicket

27 Pages Posted: 27 Feb 2002

Multiple version iconThere are 2 versions of this paper

Date Written: February 2002

Abstract

This essay explores "exit strategies" in constitutional law - ways that the Supreme Court retreats from entanglement in an area of law in which it is already involved. It offers five examples. First, the Court can announce that the difficulty that prompted intervention has been solved, thereby removing the need for further adjudication, as the Court did when it reversed National League of Cities v. Usery in Garcia v. San Antonio Metropolitan Transit Authority. Second, the Court can announce a standard that devolves responsibility onto another actor. I trace here the move from Redrupping to the Miller standard for judging obscenity. Third, the Court can announce rules that have an aura of mechanical application, thereby avoiding the appearance, if not the reality, of judicial policymaking or entanglement, as it did in the one-person, one-vote cases. Fourth, the Court can relax substantive constraints to the point at which cases disappear, because litigants lack any real incentive to bring them. This may describe the commerce clause from 1942 to 1995 and economic due process after the New Deal. Finally, a Court wary of its ability to avoid deeper immersion can announce such factbound rules that it enables future courts to scramble back to the banks. This may describe the Court's opinions in Romer v. Evans and Bush v. Gore.

In addition to cataloging and comparing exit strategies, this essay considers the possible utility of each exit strategy in enabling the Court to extricate itself from the mess it has created in one particularly tangled part of the political thicket: the racial redistricting cases. From among the techniques I examine, only two seem plausible. The Court could recast the form of review in highly deferential terms, and leave enforcement of the constitutional constraint to the political branches, as it did in the areas of economic due process and the commerce clause pre-Lopez. Or it could declare victory and go home, leaving the field to the political branches, as it did in the case of the Tenth Amendment.

Focusing on exit strategies as a genre can be useful. Exit and entry can be quite asymmetric: sometimes it can take decades to put up an edifice and only minutes to demolish it; other times getting in can take but an instant while divorces can drag on forever. Exit poses distinct challenges. The techniques that Alexander Bickel celebrated in his discussion of the "passive virtues" may be useful in keeping a court out of trouble in the first place without providing much of a roadmap for retreat. For example, if the Supreme Court were to refuse to hear redistricting cases (practicing the passive virtue of "declining the exercise of jurisdiction which is given") but were to leave in place the existing legal rules, this would exacerbate current problems. Except for rendering a previously litigable claim nonjusticiable, exit strategies are almost bound to require some revision of substantive legal standards.

Keywords: Exit strategies, constitutional law, passive virtues, race-conscious redistricting, justiciability

JEL Classification: K100, K410

Suggested Citation

Karlan, Pamela S., Exit Strategies in Constitutional Law: Lessons for Getting the Least Dangerous Branch Out of the Political Thicket (February 2002). Available at SSRN: https://ssrn.com/abstract=295163 or http://dx.doi.org/10.2139/ssrn.295163

Pamela S. Karlan (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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