PROMOTING PROGRESS: THE SUPREME COURT'S DUTY OF CARE

Ohio Northern University Law Review
23 OHIO N.U. L. REV. 71 (1996).

Table of Contents

     If the Court intends to assist democratic problem-solving, the Court must tailor its decisions to fit the problem-solving situation in the society.²³⁴   Therefore, the Court must recognize that the same case, facts, and decision may have contrasting effects on problem- solving depending on the conditions in the society.   Relevant conditions include the level of disequilibrium, the demanding nature of the problem, and the skill of the factions in negotiating working compromises.

     A. Lest the State Establish Religion

     Whether or not the Court consciously states a theory of problem-solving in the society, generally, the Court's decision imposes a normative statement of the methods for problem- solving that the Court will not allow.   For example, in Lee v. Weisman,²³⁵ the Court declared that the Constitution prohibited public scrutiny of the psychological trauma that public prayer generates.²³⁶   That is, by banning prayer from the ceremonies, the Court prevented the pro-prayer and anti-prayer factions from transacting the business of reaching a compromise on public prayer at graduations.   Moreover, the Weisman Court's effect on problem-solving depended, not on the internally consistent wisdom of a constitutional doctrine of separation of church and state, but rather on the conditions in the society.

     Daniel Weisman disliked religion and had attempted to prevent official prayers at his daughter's graduation from grade-school.   But as part of the formal ceremony at his daughter's graduation, Rabbi Gutterman offered prayers which "opened with an appeal to a God, asked God's blessings, gave thanks to a Lord, and concluded with 'Amen.'"²³⁷   A month later, Mr. Weisman sued, asking the federal court for a permanent injunction to make sure that public prayer did not happen again at graduation.²³⁸   The district court granted the injunction to prevent the "identification of governmental power with religious practice."²³⁹   And the Court of Appeals affirmed.²⁴⁰

     From a problem-solving perspective, the Court might have noted the following.   First, the plaintiff came to court because the problem-solving process in planning the graduation ceremony did not face and resolve the painful realities of public prayers.  

     Second, plaintiff and defendant argued the opposing cognitions of reality of different factions in the society.   Plaintiff Weisman embodied the perspective that religious people should refrain from public prayers because the prayers distress atheists and agnostics.   Defendant Lee, the school principal, embodied the perspective that schools should allow nonsectarian prayers because the suppression of prayer distresses religious persons.

     Third, plaintiff Weisman embodied a perspective that the society had removed from public scrutiny.   That is, though Weisman had pressed for exclusion of the prayers, the graduation ceremony itself neglected the Weisman point-of-view on religion.   Hence, if the Court improved the problem-solving, the Court would have to strengthen the Weisman point of view in the political arena to foster increased public scrutiny of the pain that public prayer causes.

     Fourth, if the Court issued a remedy for either side, the Court unnecessarily would make itself a focus of attention and decrease the public awareness of the underlying problem.   Moreover, a Court remedy would encourage the religious and non-religious factions to fight over the Court order rather than to deal with the problem by compromising with each other.

     Thus, the Court might have promoted progress by lifting the lower court's ban on school prayer and encouraging the parties to negotiate a compromise for graduation ceremonies in succeeding years.²⁴¹   To assist the problem-solving process, the Court might point to the compromises that the parties apparently had not considered, such as giving the podium to a spokesperson from Weisman's anti-religious faction for the same length of time as the religious prayer.

     In other circumstances, the Court's remedy of banning all viewpoints on religion from public scrutiny at graduation ceremonies might have been appropriate to restore equilibrium; for example, if the pain of public prayer was a non-demanding reality.   However, in the case of religious prayer, the problem does not go away merely because the topic is banned.   Hence, the Court should assist the problem-solving in the society.   Thus, the Court should fashion the declaration or remedy to increase rather than decrease public scrutiny of the pain of public prayer.

     B. Avoid Only the "Appearance" of Evil

     Historically, in the area of civil liberties law, the Court can rarely resist the temptation of imposing its view of reality to supplant perspectives of the problem-solvers in the society.   Thus, in Shaw v. Reno,²⁴² the Court asserted that "appearances do matter"²⁴³ and held that the Constitution prohibits drawing lines for congressional districts that appear to "segregate the races for purposes of voting, without . . . compelling justification."²⁴⁴   Though the white plaintiffs had claimed neither exclusion nor likelihood of exclusion from the political process, the Court looked to the symbolic harm of a serpentine congressional district that had the shape of the "most egregious racial gerrymanders of the past"²⁴⁵ and manifested an "uncomfortable resemblance to political apartheid."²⁴⁶  

     The Court concluded that congressional districting need not be in-fact "color-blind" but must have the appearance of being "color-blind."²⁴⁷   Consequently, the Court ignored the reality of the underlying problem.²⁴⁸   Furthermore, the Court ensured that legislatures and governmental agents could not face the reality of the problem.²⁴⁹   The serpentine congressional district had produced, from a black population of greater than 20 percent, only the second black congressperson from North Carolina since 1870.²⁵⁰

     The serpentine congressional district followed the interstate highway and contained a majority of black voters.²⁵¹   After the 1990 census, because of population growth, North Carolina had redrawn congressional district lines to form twelve districts rather than eleven.²⁵²   The legislature had formed one black- majority district.²⁵³   But since the Voting Rights Act required that the congressional districts should not disadvantage persons of color, the Justice Department required that two black-majority districts be formed.²⁵⁴   The legislature replied by forming an additional black-majority district, the serpentine district.²⁵⁵

     Voters, some not from the challenged district,²⁵⁶ sued in federal court claiming that the serpentine shape amounted to a racial gerrymander that violated the Constitution.   When the district court dismissed the suit for failure to state a claim,²⁵⁷ the voters appealed.

     From a problem-solving perspective, the Court might have noted the following.   First, the plaintiffs in the case were the losers in the political struggle within the society.   Evidently the problem-solving process did not resolve the pain of white voters seeing black voters achieve parity with whites.

     Second, blacks and whites in North Carolina have a long history of coming to court instead of transacting practical compromises on the problems between factions.²⁵⁸   Thus, the case represented another attempt to get the Court to do the people's work of negotiating a compromise solution.

     Third, the case resulted from rising urgency, specifically the perception among whites that changes in political representation for blacks could not be postponed.   As a result, the white plaintiffs petitioned the Court to restore equilibrium by neutralizing the problem-solvers that had caused the society to face the troubling reality of discrimination against blacks.

     Fourth, even if the Court's solution of "color-blindness" were the best solution, the Court would be imposing a work avoidance on the society by dictating that solution.   The work of compromise, even to reach a color-blind result, eventually must be done between whites and blacks.   From, a problem-solving perspective, the Court's authoritarian rule possibly might serve to reduce disequilibrium to tolerable levels.   But there was no indication that the serpentine congressional district created dangerous levels of disequilibrium in the society.

     Thus, the Court might have promoted progress by planning, monitoring, and modifying Court action to encourage the parties to negotiate.   Since the Court already had crippled society's problem-solving process by excluding many promising approaches to the problems of voting-rights, the Court should have considered slowly removing the Court's imposition of the one person, one vote rule.²⁵⁹   Alternatively, the Court might have returned the problem to the majoritarian processes by finding that the white voters lacked standing for failure to show a "cognizable injury."²⁶⁰

     Instead, the Court imposed the solution of "color blindness" which removes the problems of race from public scrutiny in redistricting.   Thus, the Court imposed a remedy which the society forcibly must remove before the underlying problems can be faced and resolved.   If the problem is a demanding reality, the urgency for resolving the problem will recur.   In the process, the society likely will challenge the Court's authority and legitimacy and weaken the Court's power because the society will spontaneously perceive the Court as the intervenor and as the immediate problem.

     C. Make the People Do Their Work

     Creating a new constitutional right may give the perspective of the weaker faction a competitive position in the political struggle.   However, when the Court defends a civil liberty against the will of a vociferous faction, the Court invites attacks on the Court's authority and legitimacy.   The attacks on the Court and the Court's self-defense typically remove the nation's problems from public scrutiny and delay problem-solving.   Accordingly, in Webster v. Reproductive Health Services²⁶¹ the Court faced the reality of a vociferous opposition to the abortion right that the Court created in Roe v. Wade.²⁶²   Only the people, not the Court, can do the people's work.

     From a problem-solving perspective, the three-trimester approach of Roe v. Wade realistically could stand only as a temporary Court intervention, if the underlying problem was a demanding reality.   That is, the compromise in Roe could stand only until the cognitions of the opposing factions had turned from the underlying problem to focus on removing the Court's intervention.   Eventually, after finally removing the intervention of the Court, the opposing factions would have to face and resolve any underlying demanding reality or the disequilibrium would rise again.   Possibly, Webster resulted in the Court mobilizing the society so that the Court could hand the problem back to the society.²⁶³

     The challenged Missouri statute in Webster contained a requirement that, before performing an abortion, the physician had to determine whether the fetus had developed sufficiently to survive outside the womb.²⁶⁴   The Court of Appeals had found that the requirement to test for "viability" unconstitutionally infringed the woman's right of privacy.²⁶⁵

     From a problem-solving perspective, the Court might have noted the following.   First, the opposing factions had used the Roe Court to remove from public scrutiny the underlying problems of too many children and too few loving caretakers. However, disequilibrium still resulted from the unfaced and unresolved problems.

     Second, without the Roe decision, the pro-choice factions may not have had the political power to compete with the anti-choice factions.   However, by the time of Webster, the pro-choice factions were becoming competitive even without the Court's assistance.²⁶⁶   Thus, because of the Roe Court's intervention, the Court had forced the society to deal with the reality of unwanted pregnancy.   The issue may have become ripe in the society so that the opposing factions could analyze available evidence and transact business on the problem.   However, only by reality- testing, that is, by slowly relaxing the Court's intervention in Roe could the Court determine whether the society could now face the underlying problems, including the undervaluing of women.

     Third, unless the Court relaxed its imposition of a fixed solution, the factions would not negotiate with each other.   Instead of dealing with each other, the factions vied for the Court's attention while neglecting the problems.   Thus, the Court could promote progress by reducing the level of Court intervention, as long as the polity actually analyzed the problems and transacted business among factions to reach working compromises.

     Fourth, even if the Court should later determine that problem-solving required another fixed solution, the Court should impose a different solution that incorporated what the society has learned since Roe.²⁶⁷   Thus, precedent on privacy rights should apply only if the problem realities and the problem-solving tendencies in the society have not changed.

     Hence, the Court might have promoted progress by inducing the parties to negotiate a compromise among themselves.   Accordingly, the Court gradually might have reduced the Court's intervention to a mere rationality review.   To assist in the problem-solving process, the Court might point to the dysfunctional patterns of the opposing factions.   The patterns were demonstrated by the fact that the factions had attempted for a long time to impose a constructed reality on the opposition.²⁶⁸   Pro-life forces sought to impose a reality of "protected rights begin at conception."²⁶⁹   Pro-choice forces sought to impose a reality of "the fetus has only the protected rights conferred by the pregnant woman."²⁷⁰   Problem- solving would require facing and resolving the perspectives propelling the factions on both side of the opposition.  

     By comparison, the Webster Court reduced the Court's involvement in protecting the abortion right but did not consider the Court's effect on the problem-solving in the society.   Thus, the Court unnecessarily drew attention to the Court's role and deemphasized the underlying problems by phrasing the decision in terms of controversial rights.   Furthermore, the Court unwisely expressed in public the Court's disagreements over whether the Roe decision was sound or workable.   If the Court had attended to its role in problem-solving, the Court would have emphasized the compromises that the factions in the society should make.   Moreover, the open disagreement on the Court over fundamental rights and the wisdom of Roe created the mistaken impression that the resolution of the abortion problem would derive from votes among the Justices rather than from compromises among the factions of society.²⁷¹

     Some commentators have argued that the Court should defer to the majoritarian branches.²⁷⁵   However, the public and the majoritarian branches are subject to several dysfunctions that feature scapegoating, wishful assessments, and false solutions while neutralizing the efforts of problem-solvers in the society.²⁷⁶

     Accordingly, an antimajoritarian Court might catalyze improvements in problem-solving if the Court could cognize some element of the problem better than the society and could intervene without merely imposing the Court's factional and ideological view.²⁷⁷   Presumably, when the Justices can view the underlying problem in the case, free of the Justices' own ideological predilections, the Justices can perceive the unsolved problems that the parties cannot recognize.²⁷⁸   However, when intervening from the traditional view of remedy in the area of civil liberties, the Court typically dictates an ideological solution to the society.²⁷⁹   And furthermore, the Court's imposed solution has little likelihood of being efficient when compared with a solution that the factions in the society could derive if they would work together.²⁸⁰

     Nevertheless, in the area of patent law, the Court has managed to abstain from dictating technical solutions.   Remedies in patent law do not consist of deciding whether an invention or prior art should receive acceptance in the society.   Furthermore, in patent law, the Court does not dictate the approach that problem-solvers must take.   In construing "progress" in the Patent Clause, the Court seeks to induce the people to solve their own problems and negotiate their own accommodations to physical, economic, social, and political realities.

     For patent law, the Court has developed a set of criteria for assessing the quality of the problem-solving by looking at the problem through the cognition of one skilled in the art.   In patent law, where the cognitions of those skilled in the art differ, the Court would hesitate before substituting the Court's cognition of the problem or evaluation of alternative solutions.

     A similar "neutral" approach for the area of civil liberties would require that the Court: 1) refrain from issuing traditional remedies except in exceptional situations,²⁸¹ 2) activate the use of declaratory judgments for restarting public deliberation on problems that the society has neglected,²⁸² 3) increase the use of court orders to induce the parties to negotiate, including more frequent remand to legislatures to conclude any incompletely negotiated agreements,²⁸³ and 4) review Court precedents in light of current problem-solving to nullify those precedents that unnecessarily remove problems from public scrutiny.²⁸⁴   Though the Court's dictation of substantive solutions may have served the democratic needs of prior eras, modern society with the assistance of modern technology very likely will further discredit and ridicule future Courts that become factional players promoting mere ideological views.²⁸⁵   In contrast, the future Court can rise above mere factional politics to assist the nation's problem-solving.   But the Court must attend to its foreseeable effects on problem-solving, within the surrounding technology of news media, instant analysis, and search for scapegoats.

 ²³⁴ See BICKEL, supra note 1, at 175 (describing the problem-solving process in the society as empirical, contradictory, political, and quick to change).   Bickel suggests that the Court's survival requires that the Court accommodate the society's grant of only a limited, uncertain, and temporary power to the Court for policy formulation.   BICKEL, supra note 1, at 181.    (back to text)

 ²³⁵ 505 U.S. 577 (1992).    (back to text)

 ²³⁶ See id. at 587 (stating that the Constitution prohibited the state from coercing anyone to participate in a religious exercise); id. at 593-94 (speculating that peer pressure would compel even students offended by a religious ritual to conform by acting like everybody else).   By declaring that the Constitution prohibited the state involvement in religious matters, the Court removed religious predicaments from the problem-solving agendas of state legislatures and school agencies.   See Note, Rethinking the Incorporation of the Establishment Clause: A Federalist View, 105 HARV. L. REV. 1700, 1706 (1992) (noting that until the Court's interference in Everson v. Board of Education, 330 U.S. 1 (1947), the state legislatures had the power to establish state churches and generally could strike compromises among the religious and anti-religious factions in the state).    (back to text)

 ²³⁷ Weisman v. Lee, 728 F. Supp. 68, 69-70 (D.R.I. 1990).    (back to text)

 ²³⁸   Id. at 70.    (back to text)

 ²³⁹ Weisman,   728 F. Supp. at 73.    (back to text)

 ²⁴⁰ Weisman v. Lee, 908 F.2d 1090 (1st Cir. 1990).    (back to text)

 ²⁴¹ See supra part I.B.3 (arguing that the Court has insisted, sometimes contrary to the patent statutes, that the patent right consists of the "right to exclude").   By declining to settle the negotiation between overlapping patent rights, the Court has increased the probability that patentee and infringer will negotiate a cross-license agreement without the Court dictating the terms of agreement.   See supra Part I.B.3.    (back to text)

 ²⁴² 509 U.S. 630 (1993).    (back to text)

 ²⁴³ Id. at 647.    (back to text)

 ²⁴⁴ Id. at 642.    (back to text)

 ²⁴⁵ Id. at 641.    (back to text)

 ²⁴⁶ Id. at 647.    (back to text)

 ²⁴⁷ See id. at 651-52 (citing with approval United Jewish Orgs. v Carey, 430 U.S. 144, 161, 168 (1977), in which a New York Hasidic community was split to create a black- majority district).   In United, however, the color-sensitive district lines were square and not serpentine.   Shaw, 509 U.S. at 651.    (back to text)

 ²⁴⁸ See Shaw, 509 U.S. at 672 (White J., dissenting) (stating that the majority attended to "looks rather than impact" while ignoring whether any voter rights had been diminished).    (back to text)

 ²⁴⁹ See U.S. CONST. amend. XV, § 1 ("The right of citizens of the United States to vote shall not be denied or abridged by . . . any State on account of race, color, or previous condition of servitude."); U.S. CONST. amend. XV, § 2 ("The Congress shall have power to enforce this article by appropriate legislation."); 42 U.S.C. § 1973(c) (1994) (requiring that a state with a long history of disadvantaging persons of color must have congressional redistricting plans approved by the Justice Department to ensure that the plan does not disadvantage by color); Thornberg v. Gingles, 478 U.S. 30, 38- 40 (1986) (summarizing North Carolina's long history of disadvantaging the voting rights of persons of color); Shaw, 509 U.S. at 679-81 & 681 n.3 (Souter, J., dissenting) (noting that the majority weakened the Voting Rights Act, as codified at 42 U.S.C. § 1973(c) (1988), which requires that congressional district lines be drawn with an eye for the power of persons of color to elect persons of color).    (back to text)

 ²⁵⁰ See Political Pornography II, WALL ST. J., Feb. 4, 1992, at A14 (noting the absence of black representatives from North Carolina before the congressional redistricting that followed the 1990 census and the resulting formation of a new North Carolina district, the twelfth).    (back to text)

 ²⁵¹ 509 U.S. 630 at 635.    (back to text)

 ²⁵² Shaw v. Barr, 808 F. Supp. 461, 463 (E.D.N.C. 1992).    (back to text)

 ²⁵³ Id.    (back to text)

 ²⁵⁴ Id. at 464.    (back to text)

 ²⁵⁵ Ronald Smothers, Fairness or Racial Gerrymander?   Justices Study 'Serpentine' District, N.Y. TIMES, April 16, 1993, at B7.    (back to text)

 ²⁵⁶ Shaw, 509 U.S. at 636-37.    (back to text)

 ²⁵⁷ Shaw v. Barr, 808 F. Supp. 461 (E.D.N.C. 1992).    (back to text)

 ²⁵⁸ See Thornberg v. Gingles, 478 U.S. 30, 38-41 (1986) (summarizing the inflexible positions of blacks and whites regarding voting rights in North Carolina).   On the one hand, the white-faction would not share political power with blacks.   On the other hand, the black-faction would not settle for the continued absence of black-values from congressional discussions.   See GUINIER, supra note 10, at 37 (reporting that North Carolina representatives did such a poor job of representing black concerns in Congress that some North Carolina blacks looked outside the state to the Harlem, New York congressperson for representation of black concerns within the national debate); GUINIER, supra note 10, at 49-50 (summarizing the political exchanges between the white-faction and the black-faction in arriving at the "meaningful vote" criterion of the 1982 amendments to the Voting Rights Act).    (back to text)

 ²⁵⁹ See Reynolds v. Sims, 377 U.S. 533, 567-68 (1964) (imposing the one- person, one-vote standard as part of a district-based solution for problems of voting-rights); GUINIER, supra note 10, at 124-25 (asserting that the Court's imposition of the one-person, one-vote rule has produced a failed democracy by preventing the factions in society from reaching a workable compromise on voting-rights); GUINIER, supra note 10, at 123 (arguing that the one-person, one-vote rule prohibits the public use of proven private-sector compromises, such as cumulative voting, for protecting minority rights).    (back to text)

 ²⁶⁰ Shaw, 509 U.S. at 659 (White, J., dissenting).    (back to text)

 ²⁶¹ 492 U.S. 490 (1989).    (back to text)

 ²⁶² 410 U.S. 113 (1973).    (back to text)

 ²⁶³ See Olsen, supra note 17, at 105 ("Webster is mobilizing more pro-choice people than any previous Supreme Court case on abortion.").    (back to text)

 ²⁶⁴ Webster, 492 U.S. at 513.    (back to text)

 ²⁶⁵ Reproductive Health Servs. v. Webster, 851 F.2d 1071, 1075 (8th Cir. 1988).    (back to text)

 ²⁶⁶ See TRIBE, supra note 7, at 193-94 (arguing that Roe has caused the society to face and partially resolve the problems causing women to unequally bear the burden of unwanted pregnancy).   As a result of the Roe decision, the problems of unwanted pregnancy underwent greater public scrutiny. TRIBE, supra note 7, at 193-94.   By the time the Webster decision decreased the Court's protection of the abortion right, the general public reaction in polls and elections indicated that pro-choice forces could compete better than in the pre-Roe era.   TRIBE, supra note 7, at 194- 95.    (back to text)

 ²⁶⁷ See Olsen, supra note 17, at 119-20 (summarizing arguments that equal protection is an alternative basis for establishing an abortion right).   An antiabortion statute would survive an equal protection requirement if men were required to sacrifice their bodies to the same extent as women for the preservation of life.   See Calabresi, supra note 96, at 95 (hypothesizing that an antiabortion statute would not discriminate against women if the statute required men engaging in sex to make their bodies available for random emergency organ donation at a rate that matched per capita rates for unwanted pregnancies from rape and other haphazard events).    (back to text)

 ²⁶⁸ See Olsen, supra note 17, at 131 ("Antiabortionists present a view of reality--the fetus as person--that they hope will construct reality.   The same could be said of their opponents.   If powerful people successfully assert that the fetus is not just the same as a person, this stance too will construct a reality.").    (back to text)

 ²⁶⁹ See, e.g., Webster, 492 U.S. at 501 (summarizing the Missouri legislature's "findings" and subsequent declarations that the "life of each human being begins at conception" and that "unborn children have protectable interests in life, health, and well-being") (citing MO. REV. STAT. §§ 1.205.1(1), (2) (1986)).    (back to text)

 ²⁷⁰ See, e.g., Webster, 492 U.S. at 537-38 (Blackmun, J., dissenting) (reasserting the "constitutional right of women to decide whether to terminate a pregnancy").    (back to text)

 ²⁷¹ See Webster, 492 U.S. at 518 (declaring that the "Roe trimester framework" is "unsound in principle and unworkable in practice") (quoting Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546 (1985)); id. at 537 (Scalia, J., concurring in part and concurring in the judgment) (asserting that, because of the timidity of the Court majority, the Roe abortion right "must be disassembled doorjamb by doorjamb," rather than in a single decision); id. at 538 (Blackmun, J., concurring in part and dissenting in part) (contending that the "Court implicitly invites every state legislature" to fashion new obstructions to abortion to convince the Court to return abortion control to the states).    (back to text)

 ²⁷² THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).    (back to text)

 ²⁷³ See Chemerinsky, supra note 9, at 75-76 (noting that dominant constitutional features, such as the Bill of Rights, expressly restrict decisions by majority rule).   There is no constitutional requirement that legislative decisions reflect majority rule.   See Chemerinsky, supra note 9, at 78 (arguing that individual legislators can vote contrary to the majority sentiment and that, furthermore, legislators compromise between extreme positions to produce the statutory text that can muster a passing vote; hence, legislation frequently disappoints the majority of voters if the electorate is highly polarized on the issue that the legislation addresses).   Similarly, there is no constitutional requirement, or even preference, that the Supreme Court represent the wishes of the majority of voters.   See Chemerinsky, supra note 9, at 76 (asserting that, if "democracy" consists of advancing the values established in the Constitution, then an anti-majoritarian Court will be "democratic" if promoting constitutional values, even when acting counter to the expectations of the majority of voters).    (back to text)

 ²⁷⁴ See Chemerinsky, supra note 9, at 83-84 (listing the problems that a majority rule frequently neglects).   Majoritarian decisionmaking often fails to face problems that require sustained effort or consideration of the views of innovators.   See Chemerinsky, supra note 9, at 83-84   (stating that an anti-majoritarian Court would be more effective at addressing some problems, such as lack of sustained effort, flaws in normative values, or suppression of minority complaints).             (back to text)

 ²⁷⁵ See CHOPER, supra note 118, at 5-6 (arguing that the Court should promote majority rule as long as minority views are free to organize and appeal to the electorate); JOHN H. ELY, DEMOCRACY AND DISTRUST 104, 181 (1980) (asserting that the Court should judge only the "questions of participation" in the majoritarian process without making "policy").    (back to text)

 ²⁷⁶ See Calabresi, supra note 96, at 121 ("Discrimination and scapegoatism have been our curse and our history.").   The Constitution prohibits scapegoating a land owner to pay for a public benefit.   See U.S. CONST. amend. V (prohibiting the taking of private property "for public use, without just compensation").   However, American legislative majorities often attempt to solve problems by scapegoating minorities unless the minority expresses vehement, even violent, opposition.   See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 387 (1978) (Marshall, J., dissenting) (expressing disbelief that the American Constitution would protect whites from paying for what white society took from blacks); Scott v. Sandford, 60 U.S. (19 How.) 393, 408 (1857)   (noting that, wherever slave labor was profitable, state legislatures had established laws regarding blacks as personal property); MCFEELY, supra note 34, at 14-15 (relating the problems that a white slave owner solved by making blacks yield; enslavement of blacks solved the production problem, depriving blacks of necessities solved the incentive-to-work problem, and beating blacks solved the discipline problem).

     Similarly, legislative majorities, in passing antiabortion statutes, attempt to solve the problems of unwanted pregnancy by scapegoating the women, but not the men, who engage in sex.   See Calabresi, supra note 96, at 147-48 (arguing that the legislature has worked a discriminatory solution in an antiabortion statute if men do not give of their bodies to bear an equal burden with women for protecting life as in unwanted pregnancies).   Moreover, legislative majorities frequently attempt to solve the problems of race relations by making racial minorities, but not the majority, bear the cost of the prejudice.   See Calabresi, supra note 96, at 149-50 (contending that "most laws that discriminate are passed by well-meaning people who favor a given result as long as they do not have to pay for it").

     Theoretically, the American majority-rule process permits even a well-organized minority to scapegoat a majority, if the majority is disorganized.   Thus, the minority may make the majority pay for what the minority takes.   See Easterbrook, supra note 10, at 1337 (arguing that, because of cohesion from forced similarity and a fixed barrier to joining, a racial minority can be more powerful politically than the majority).    (back to text)

 ²⁷⁷ See, e.g., Calabresi, supra note 96, at 82-83 (summarizing "four basic approaches to judicial review" and noting that two approaches permit the Court to mobilize legislatures to rectify the flaws of majority rule decisions without imposing the Court's ideological preferences).   The Court need not impose the Court's solutions if the Court either: 1) requires that statutes make everyone contribute equally toward the statutory goal or 2) returns unclear statutes for the legislatures to complete and document a negotiated agreement among differing interpretations. Calabresi, supra note 96, at 93, 134-35 (arguing that the Court should assert the Court's solution only for protection of the uncontested "enumerated rights" such as the right against the uncompensated government seizure of title to land).    (back to text)

 ²⁷⁸ See, e.g., Calabresi, supra note 96, at 136 (arguing that remanding unclear statutes for the legislature to take a "second look" would support majority rule and enhance the Court's legitimacy in a democracy whether the Justice favored the asserted right or not).   As an authority figure in a democracy, the Court should attend only to the quality of the problem-solving process, not to the substantive outcome, when an issue is hotly contended in the society.   See Calabresi, supra note 96, at 151 (asserting that the Rehnquist Court illegitimately obscures its "results-oriented judicial activism" by deferring to majority rule only when the Court agrees with the substantive outcome).    (back to text)

 ²⁷⁹ See, e.g., Calabresi, supra note 96, at 109 (arguing that, generally, both conservative and liberal American Justices act to impose substantive solutions on the society without regard to assessing the quality of problem-solving in the society).   Whether the Court's imposition of solutions is legitimate in a democracy depends, not on the Constitution nor on the virtue of the Court's reasoning, but rather on the conditions in the society.   See Calabresi, supra note 96, at 110 (asserting that, in nations where the factions maintain a cultural consensus on "what government ought and ought not to do," a court can legitimately impose solutions on a democracy because the polity will consent to the court's mandate).    (back to text)

 ²⁸⁰ See BICKEL, supra note 1, at 175 (asserting that, if the society faces problems, the political process is more effective than the Court at developing working solutions, because the Court has "too narrow a slice of reality" and complaining parties limit when and how the Court "approaches a problem").    (back to text)

 ²⁸¹ See Calabresi, supra note 96, at 134-35 (proposing that, if the Court assesses the quality of the legislative problem-solving, either by an antidiscrimination standard or by inspection for legislative "haste or hiding," the Court remains ideologically neutral to the substantive outcome).   In some exceptional situations the Court's temporary imposition of a solution might assist problem-solving without affecting the eventual outcome.   For example, the Court might assert a temporary substantive right to bring chronic but hidden problems into open public scrutiny.   See, e.g., TRIBE, supra note 7, at 193-94 (suggesting that, even if the control over abortion returns to the states, the public deliberation following Roe v. Wade, 410 U.S. 113 (1973), has caused women to take a more realistic view of the causal link between the "access to abortion" and resulting resources for women, such as general respect and control over personal destiny).    (back to text)

 ²⁸² See Tribe, supra note 6, at 29 (suggesting that the "mere declaration of rights" in Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), without the subsequent attempt at remedy, would have given the problem-solvers in the society, such as Dr. Martin Luther King and the civil rights movement, sufficient resources to mobilize the nation and the legislatures to face and resolve the underlying problems in the society).    (back to text)

 ²⁸³ See Schacter, supra note 12, at 641-42 (summarizing arguments that a legislator's campaign contributions depend on satisfying many rather than few special interest groups, that a legislator can satisfy more special interest groups by negotiating unclear statutory text, and that, hence, legislators "pass off difficult choices of policy to others" by stopping work before the statutory text is clear).   From a problem-solving perspective, where there is evidence of work avoidance, the Court should not intervene to complete the legislature's work by divining possible interpretations, but rather should order the legislature to complete the legislature's work of facing and resolving the underlying problem.   See Calabresi, supra note 96, at 104 (asserting that "when the legislature has acted with haste or hiding in a way that arguably infringes even upon the penumbra of fundamental rights, courts should invalidate the possibly offending law and force the legislature to take a 'second look' with the eyes of the people on it").    (back to text)

 ²⁸⁴ See, e.g., GUINIER, supra note 10, at 127-28 (arguing that the one-person, one-vote rule of Reynolds v. Sims, 377 U.S. 533 (1964), mistakenly associates the voting right with the individual rather than with the region).   By continuing to write decisions based on Sims rather than review the Court's effect on problem-solving, the Court deters problem-solving by maintaining a point-of-view that allows the factions to exclude the problem from public debate.   See, e.g., Guinier, supra note 148, at 112-13 (contending that the Court, in obliviously following Sims to characterize the voting right as an individual right, colludes with the society in refusing to face the underlying problem of obtaining legislative representation of interests and concerns, for both whites and blacks).    (back to text)

 ²⁸⁵ See Eskridge & Frickey, supra note 41, at 76- 77 (arguing that Justice Scalia's idiosyncratic adherence to statutory text provides "a cover for the injection of conservative values into statutes" without meeting the society's expectations for assisting the development of constitutional values).    (back to text)

Copyright ^© 1996.
Ohio Northern University Law Review,
Riley M. Sinder, John K. Lopker, Ronald A. Heifetz.
All rights reserved.