Constitutional Law
Jul. 21, 2001
On High
To state the obvious, the U.S. Supreme Court must do more than simply resolve the controversies in the cases before it; the court pronounces the law of the land. The court, therefore, has a basic duty to issue decisions that inform governments, people and businesses as to how they must behave. Also, of course, the court's rulings must give guidance to lower courts, both federal and state, as to the legal issues that will come before them.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
To state the obvious, the U.S. Supreme Court must do more than simply resolve the controversies in the cases before it; the court pronounces the law of the land. The court, therefore, has a basic duty to issue decisions that inform governments, people and businesses as to how they must behave. Also, of course, the court's rulings must give guidance to lower courts, both federal and state, as to the legal issues that will come before them.
Increasingly, in recent years, the court has failed in this responsibility as it has decided major constitutional cases on very narrow grounds that provide remarkably little to help those who must comply with and apply its decisions.
In its term that ended on June 28, the Supreme Court decided only 77 cases. This is quite similar to the 73 cases decided a year ago and the 75 decisions from two years earlier. This is half the number of cases that the court was deciding each term a decade ago. Less than 2 percent of all petitions for certiorari are granted.
Because Supreme Court review is so rarely available, the justices have the burden of making sure that the cases that they do decide resolve major legal issues in a way that guides all who must follow their decisions. But this the court often is not doing.
Several cases from the just-completed term illustrate the court's unduly narrow approach. In Brentwood Academy v. Tennessee Secondary School Athletic Association, 121 S.Ct. 924 (2001), the court considered whether a private association that regulates interscholastic sports must comply with the Constitution. In other words, the issue was whether the entity was a state actor for purposes of the 14th Amendment.
Over recent decades, the court has identified a couple of situations where private conduct must comply with the Constitution. The "public functions" exception says that the Constitution applies if a private actor is performing a task that traditionally has been done by the government. The "entanglement exception" says that a private entity must comply with the Constitution if the government affirmatively encourages unconstitutional actions.
In Brentwood Academy, the court found that the private entity regulating interscholastic sports in Tennessee is a state actor but applied neither the public-functions nor the entanglement exceptions. Instead, Justice David Souter's majority opinion repeatedly spoke of the "entwinement" of the government with the private entity. He pointed, for instance, to the high percentage of members of the association that are public schools, the large amount of funding from these institutions and the ways in which the state appears to have delegated responsibility to the association.
However, Souter never explains why he uses the word "entwinement" rather than the traditional term "entanglement." Is this a new exception to the state-action doctrine? For example, does the court choose "entwinement" because "entanglement" has been found to require government encouragement, something not present in this case? If so, then the court has greatly expanded the situations in which private conduct must comply with the Constitution.
But then the key issue becomes what factors are to be considered in evaluating entwinement. Here, as with all of these questions, the court is silent. There is absolutely no guidance for lower courts in deciding whether entwinement is a new exception to the state-action doctrine and, if so, when it applies.
A second example of an unduly narrow ruling is Bartnicki v. Vopper, 121 S.Ct. 1753 (2001). Few issues in First Amendment law are more difficult than the situations in which the press can be held liable for invasion of privacy. Bartnicki involved the question of whether the media can be held liable for broadcasting a tape of a conversation that was illegally intercepted and recorded.
The underlying issue arises in many contexts: When may the press be held liable for invasion of privacy, such as for publicly disclosing private information? In Bartnicki, the court held that the media could not be held liable because it did not participate in the illegal taping and because the broadcast involved a matter of public concern, negotiations between a teachers union and a school board.
The court emphasized that its ruling was "narrow." In fact, Justice Stephen Breyer wrote a concurring opinion to emphasize that the holding was very narrow and case-specific. Breyer began his concurring opinion by stating: "I join the Court's opinion because I agree with its 'narrow' holding, limited to the special circumstances present here: (1) the radio broadcasters acted lawfully (up to the time of final public disclosure); and (2) the information publicized involved a matter of unusual public concern, namely a threat of potential physical harm to others. I write separately to explain why, in my view, the Court's holding does not imply a significantly broader constitutional immunity for the media."
The media will face many situations in which it will have to decide what it lawfully can publish or broadcast. Lower courts will need to decide countless cases in which they must resolve privacy claims against the press. Bartnicki provides far too little guidance as to the proper balance between freedom of the press and the right to privacy.
A final example of the court's "one case at a time" jurisprudence is Bush v. Gore, 121 S.Ct. 525 (2000). In deciding the 2000 presidential election, the court held that counting the uncounted votes without legal standards violated equal protection. More generally, the court ruled that variations within a state in conducting a federal election violate equal protection.
This principle can be used to challenge the constitutionality of virtually every election, because counties in all states make choices as to such matters as the type of voting machine to use and the structure of the ballot. For example, after Bush, the claim is that equal protection is violated if one county in a state uses punch-card election machines while another uses touch-screen voting machines because the former fail to read many more ballots than the latter.
But the court gave no guidance as to when such variations are constitutional. Instead, the court emphasized that it was just deciding this case for this day. Indeed, the per curiam opinion expressly declared: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."
Already, several lawsuits across the country, including some in California, have been filed as a result of Bush. Undoubtedly, as the November 2002 elections approach, many more suits will be brought challenging variations in election practices within states. Bush opens the door to these suits but offers little guidance to state and local governments in conducting elections or to courts in deciding challenges.
The Rehnquist Court certainly often decides cases much more broadly than in these examples. But these decisions are typical of many others in which the court seems to forget its responsibility to clarify the law and provide guidance to all who must follow and apply its decisions.
Erwin Chemerinsky is Sydney M. Irmas professor of public interest law, legal ethics and political science at the University of Southern California Law School.
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