PROMOTING PROGRESS: THE SUPREME COURT'S DUTY OF CARE

     A. Self-Limitation of Power

     According to Article III, the Supreme Court's power "extends" to "cases" arising under the "Constitution" or under the "laws of the United States."⁹³   However, since society looks to the Court as the final arbiter in what the Constitution allows, the Court retains broad discretion over its own power.⁹⁴

     Specifically, the Court has discretion over: 1) whether or not to hear a case⁹⁵ and 2) what factors to consider.⁹⁶   Accordingly, the Court has developed justiciability criteria, such as standing and mootness, to suggest whether the Court should hear a case.⁹⁷   But the Court manipulates the justiciability criteria to include or exclude the case as the situation requires.⁹⁸   Furthermore, earlier Courts have managed to make discretionary even the appeals once mandated by statute.⁹⁹

     Similarly, the Court has developed assorted guidelines, such as "strict scrutiny" and "intermediate scrutiny," for suggesting the extent to which the Court should criticize the defendant's actions and decisions.¹⁰⁰   However, the Court remains free to select from among the various levels of scrutiny or, indeed, to invent new patterns of scrutiny as conditions demand.¹⁰¹

     Though the apparent bounds of the Court's discretion may be broad, still   society limits the Court's influence through political pressure and resistance, or even defiance.¹⁰²   Generally, society converts the Court's effect to a temporary redirection that must contend against opposite views within the overall political process.¹⁰³

     B. Deciding Who Decides

     The parties come before the Court with competing solutions to a problem.¹⁰⁴   And each party asks for the Court's authority to act as decisionmaker.¹⁰⁵   But the Court's ruling in the case reaches beyond the plaintiff and the defendant.¹⁰⁶   Parties similar to the losing party will lose power to act as decisionmaker.¹⁰⁷

     Thus, where an injured baby boy sues the state for failing to protect against a known-to-be-violent father, the Court must decide whether the state agency or the boy's guardian will provide the solution to the problem of fathers known-to-be-violent.¹⁰⁸   But if the Court finds for the baby boy, then guardians everywhere will have a precedent to strengthen their own campaigns against inactive state social services.¹⁰⁹   Therefore, the Court determines who decides even if the Court does not intend to affect the relative strength of factions promoting views and values in the society.¹¹⁰

     Similarly, where a party claims that a state law has violated a constitutional right, the Court must decide whether the party, the voters, or someone else will provide the solution for the problem underlying the case at bar.¹¹¹   For example, where a protestor burns a flag in violation of a state statute, the Court must decide whether the legislative majority or the protesting individual in the society should decide the medium of political expression.¹¹²

     Thus, every constitutional right restricts the power of a voter majority to provide solutions for problems where the state solution would infringe a protected aspect of the right.¹¹³   Accordingly, the Constitution provides both powers for problem-solving and rights that prohibit specified solutions.¹¹⁴   Furthermore, when the Court supplements the constitutional text regarding powers or rights, the Court adds or detracts from the problem-solving resources available for self-government.¹¹⁵

     C. Governing the Society's Resources for Problem-Solving

     Under the Constitution, the popular majority should have control over certain decisions.¹¹⁶   Nevertheless, on occasion, the Supreme Court dodges majoritarian principles to allocate decisionmaking to unelected officials or to private individuals.¹¹⁷   But some scholars object to anti-majoritarian decision-making.¹¹⁸

     However, the decisionmaking of a majoritarian governmental power is prone to dysfunctional¹¹⁹ decisions that do not respond to threatening situations.¹²⁰   The following discussion argues that the analyst can discern within the patterns of dysfunction the prescriptive basis for an effective intervention.¹²¹   That is, by discerning the problem reality that the nation avoids, the analyst can identify the problem that the nation must face and resolve to restore problem-solving in society.¹²²

     Consequently, if the Court intends to assist rather than hinder problem-solving in society, the Court must consider the nation's problem-solving processes.¹²³   Furthermore, the Court must recognize appropriate situations for advancing or retreating on prior Court decisions.¹²⁴

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 ⁹³ See U.S. CONST. art III, § 2, cl. 1 ("The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and . . . .").    (back to text)

 ⁹⁴ See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78 (1803) (asserting that the Court must declare what the Constitution says to provide for nullification of statutes that violate the Constitution).   The Supreme Court's domination of constitutional interpretation does not follow from the text of the Constitution.   See TRIBE, supra note 33, § 3-3, at 27 (arguing that at least two alternative interpretations of the Constitution are valid: 1) the Constitution might be merely "the statement of an ideal political structure" without the force of law or 2) the Constitution might be fixed so that the Court's added detail would have no effect).   That is, the unintentional coordination of the President, the Congress, and the states created the Supreme Court's supremacy for interpreting the Constitution.   See TRIBE, supra note 33, § 3-4, at 39 (contending that, according to the Court's articulation of the separation of powers doctrine, Congress should assume a more competitive role in certain areas for interpreting the Constitution).    (back to text)

 ⁹⁵ See, e.g., Marbury, 5 U.S.   (1 Cranch) at 180 (refusing to hear the case on grounds that the statute giving jurisdiction to the Supreme Court exceeded congressional authority under the Constitution); Poe v. Ullman, 367 U.S. 497, 509 (1961) (plurality opinion) (stating that, if the plaintiff could not show that the defendant's challenged action caused an injury that the Court could redress, the case should be dismissed for lack of standing); United States v. Fruehauf, 365 U.S. 146, 157 (1961) (refusing to give an "advisory opinion" on whether plaintiff's proposed action would violate a federal statute); O'Shea v. Littleton, 414 U.S. 488, 495-99 (1974) (affirming the denial of a cause of action as speculative, even if the defendant judicial officers had applied criminal laws in a discriminatory fashion to stifle a civil-rights economic-boycott, where the plaintiffs could not show certainty of their being charged with another crime so as to come under the defendants' jurisdiction); Hall v. Beals, 396 U.S. 45, 48 (1969) (dismissing the case for mootness where the legislature had reduced the challenged requirement for residency so that plaintiff would have been able to register to vote had the new law been in effect at the time of the claimed injury); Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 149-50 (1912) (refusing to decide "political questions" where the plaintiff challenged taxation by initiative and referendum as renouncing a "republican form of government" as guaranteed by Article IV, Section 4 of the Constitution).    (back to text)

 ⁹⁶ See Guido Calabresi, The Supreme Court, 1990 Term: Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 HARV. L. REV. 80, 82- 83 (1991) (proposing that the Court has applied four general approaches to judicial review, ranging from commanding the society to obeying the political process).   The most active form of judicial review includes interfering with the political process to dictate limits on power.   See, e.g., Marbury, 5 U.S. (1 Cranch) at 178-79 (stating that the Constitution requires the Court to ensure that a challenged statute does not violate a constitutional limitation on legislative power).   Alternatively, the court might refrain from interfering unless there was reason to suspect a defect in the political process.   See, e.g., United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (stating that the Court should scrutinize the fairness of government action when the political process impairs voting or free speech that could correct "undesirable legislation").   In particular, the Court might remand legislation for clarification or correction where the statutory text is ambiguous or contradictory.   See, e.g., Furman v. Georgia, 408 U.S. 238, 239-40 (1972) (declaring that the Constitution did not permit the death penalty procedures used in the case at bar); Gregg v. Georgia, 428 U.S. 153, 179-80 (1976) (recognizing that the political process had made appropriate changes in the death penalty statute since Furman).   At the non- intervention extreme, the Court may defer to the judgment of the political process even though the government has violated traditional rights and values.   See Korematsu v. United States, 323 U.S. 214, 224 (1944) (refusing to interfere with the congressional authorization to incarcerate native-born American citizens of Japanese ancestry even though there was no evidence of wrongdoing).    (back to text)

 ⁹⁷ See, e.g., Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982) (refusing to allow the plaintiff with no personal injury to sue).   The standing requirement ensures that the person asking the Court to implement a solution has direct knowledge of the problem.   See id. (affirming the denial of a cause of action where the plaintiff interest-group could show no unique interest in either the land or the hospital that a government agency had given to a church).   Similarly, the mootness requirement ensures that the plaintiff asking the Court to implement a solution still has a personal injury caused by the problem underlying the case.   See Steffel v. Thompson, 415 U.S. 452, 460 (1974) (stating that on remand, the district court must determine if "this case presents 'a substantial controversy . . . of sufficient immediacy and reality to warrant the issuance'" of relief to the petitioner)).    (back to text)

 ⁹⁸ Compare City of Los Angeles v. Lyons, 461 U.S. 95, 98, 110-11 (1983) (conceding that plaintiff could sue for damages caused when allegedly the police slammed the plaintiff's head and applied a forearm vice-grip against plaintiff's neck and windpipe, choking plaintiff into unconsciousness; but denying standing for injunctive relief because the plaintiff could not show with certainty that a future arrest and similar chokehold would occur in the absence of the injunction) with Roe v. Wade, 410 U.S. 113, 125 (1973) (granting standing to challenge a state anti-abortion law though the plaintiff had already born the child and could not show likelihood of another alleged rape).    (back to text)

 ⁹⁹ See, e.g., 28 U.S.C. § 1257(2) (1982), amended by 28 U.S.C. § 1257(a) (1988) (creating a mandatory right to appeal when the state supreme court has validated a state law over the plaintiff's objection that the state law violates federal law); Naim v. Naim, 350 U.S. 891 (1955) (per curiam), and Naim v. Naim, 350 U.S. 985 (1956) (refusing to consider the constitutionality of a white person annulling marriage to a non- white by invoking the Virginia law forbidding interracial marriage, even though the state supreme court had found that the Constitution allowed the state to prevent "the corruption of blood," Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955)); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 34 (1959) (contending that in Naim the Court refused to honor a mandatory appeal and dismissed on procedural grounds "wholly without basis in the law"); BICKEL, supra note 8, at 174 (suggesting that in Naim the Supreme Court looked beyond the mandatory right of appeal to assess the requirements of leaders attempting to solve the problems of racial prejudice, and to avert the likelihood that whites would use the Court's action to avoid facing the problems of school desegregation).   In 1988, Congress revised the mandatory appeal statute to permit the Supreme Court to decide whether to review a state supreme court's validation of state law against a claim that the state has violated the Constitution.   See 28 U.S.C. § 1257(a) (1994) (making the Supreme Court review of state supreme court decisions "by writ of certiorari" instead of "by appeal"); David D. Siegel, Commentary on 1988 Revision, commentary to 28 U.S.C.A. § 1257, at 96-97 (West 1993) (explaining that the 1988 revision derived from the Court's desire to reduce its workload by refusing to hear constitutional challenges to state law).    (back to text)

 ¹⁰⁰ See Calabresi, supra note 96, at 82-83 (categorizing the Court's approaches to judicial review).    (back to text)

 ¹⁰¹ See Calabresi, supra note 96, at 151 (arguing that the Rehnquist Court has selected different approaches to judicial review in different areas according to the Rehnquist Court's "result- oriented judicial activism").   The Rehnquist Court's activist defense of real-property rights and neglect of personal rights cannot derive from constitutional text, for the Rehnquist Court departs from the text of the Constitution for unstated reasons.   See, e.g., Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 272 (1991) (asserting the "separation-of-powers" doctrine); id. at 287 (White, J., dissenting) (noting that the "separation-of-powers" doctrine of Bowsher v. Synar, 478 U.S. 714 (1986), is not supported by constitutional text).   In any case, the Rehnquist Court puts the decision beyond the reach of the political process when real-property rights become involved but, without explanation, does not intervene with the political process when personal rights are infringed.   Compare Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) (requiring damages to real-property owners, where the state required the owners to grant easements for public access to the beach in exchange for a permit to develop beach-front property) with United States v. Stanley, 483 U.S. 669 (1987) (refusing damages to a person when the state subjected the person to LSD experiments without the person's consent or even knowledge).    (back to text)

 ¹⁰² See BICKEL, supra note 1, at 176 (noting that most of the Court's "major enterprises . . . have not worked out").   The Court can only state, but cannot implement, a decision.   The Court depends on the Federal and state governments for implementation of the Court's decisions. BICKEL, supra note 1, at 92.   Thus, where the Court's decision opposes popular sentiment, the Court can expect a protracted contest that the Court may not win.   See, e.g., BICKEL, supra note 1, at 174 (asserting that the Warren Court should have foreseen the public resistance to the one-person, one-vote edict and, hence, should have formulated a remedy derived from a "careful analysis of the realities" in the society and the likely reaction of the society to the Court's decision); BICKEL, supra note 1, at 92 (stating that the Court's ban on religious prayers in public schools has had only "very minor" cooperation from schools and governments, while the ban created vociferous hostile sentiment); BICKEL, supra note 1, at 92-93 (stating that even Congress resisted the Warren Court's attempts to "govern police behavior").    (back to text)

 ¹⁰³ See BICKEL, supra note 1, at 181 (suggesting that the Court's "survival" depends on the Court's recognizing that the society allows the Court to maintain only "temporary" authority over any particular issue); BICKEL, supra note 1, at 92-93 (illustrating the Court's decisions in school desegregation, school prayer, and police behavior having to compete with differing views of states and federal administrators as well as the opposing views of the public-at- large).    (back to text)

 ¹⁰⁴ See, e.g., Brown v. Board of Educ., 347 U.S. 483, 495 (1954) (rejecting the defendant's argument that separate but equal schools would provide "equal protection of the laws").   Generally, the plaintiff and defendant present competing opinions of 1) the problem and 2) the solution.   Compare Plessy v. Ferguson, 163 U.S. 537, 551-52 (1896) (asserting that "inferiority" resulting from "enforced separation of the two races" was not the judicially cognizable problem in the case at bar; instead insisting that the problem arose from making the races "meet upon terms of social equality" where there was no "voluntary consent of individuals") with Brown, 347 U.S. at 494-95 (declaring that, notwithstanding any implications from the "psychological knowledge at the time of Plessy v. Ferguson," the problem in the case at bar was the deprivation of "equal educational opportunities").   In stating the issue of a constitutional case, the Court intervenes to designate the perception of reality that will inform the Court regarding both problem and solution.   See Wechsler, supra note 99, at 34 (arguing that Brown v. Board of Education neglects the problem of forcing whites against their will to associate with blacks).    (back to text)

 ¹⁰⁵ See POSNER, supra note 12, at 491-92 ("The adversary system places the tribunal in the position of a consumer forced to decide between the similar goods of two fiercely determined salesmen.").   Generally, in a civil case, the defendant has made a decision that the plaintiff asks the court to review and correct.   See, e.g., Brown v. Board of Educ., 347 U.S. 294, 299-301 (1955) (acknowledging that each community faces different "complexities" in eliminating discrimination in education and deciding that the "[s]chool authorities have the primary responsibility for elucidating, assessing, and solving these problems" but declaring that the district court will review and correct the problem-solving of the school authorities when necessary to satisfy the constitutional requirements of equal protection).    (back to text)

 ¹⁰⁶ See Tribe, supra note 6, at 32 (stating that the "doctrine of stare decisis" illustrates the Court's recognition that the Court shifts "expectations" by its decisions); TRIBE, supra note 33, § 3-3, at 28-29 (describing the frequent incremental impact of a case, initially binding "only the parties to the lawsuit" and finally establishing a "norm of broad applicability" for the similarly situated potential parties in the society); POSNER, supra note 12, at 509-10 (proposing that court precedents have value in providing a "stock of knowledge" to inform "potential disputants" of "legal obligations").    (back to text)

 ¹⁰⁷ See Stephen Carter, The Confirmation Mess, 101 HARV. L. REV. 1185, 1197-98 (1988) (arguing that judicial review affects the society by decreasing the perceived authority of those who disobey the Court's decision).   Nevertheless, the Court has only temporary effects on perceived authority.   See id. at 1197 (stating that the Court's decision is "nothing more than an argument" and "an argument can only slow someone down" but cannot prevent "[c]ircumvention of unpopular opinions").    (back to text)

 ¹⁰⁸ Compare DeShaney v. Winnebago County Soc. Servs. Dep't, 489 U.S. 189, 201 (1989) (holding that, if the state agency decides to return a boy to custody of a once-violent father, the Court will not authorize the boy to challenge the agency's decision where the agency "placed him in no worse position than that in which he would have been had it not acted at all") with id. at 209-10 (Brennan, J., dissenting) (contending that, where a state law directs citizens to depend on state agencies to protect children from abuse and where the state agency has intervened and has received detailed evidence of abuse, the Court must face "reality" and permit an abused child to challenge the state's decisions).    (back to text)

 ¹⁰⁹ See id. at 203 (acknowledging the future use of a Court finding for the injured boy in stating that the people of Wisconsin should not have a liability rule "thrust upon them by this Court's expansion of the Due Process Clause of the Fourteenth Amendment"); The Supreme Court, 1988 Term: Leading Cases, 103 HARV. L. REV. 137, 175 & n.73 (1989) (suggesting that concerns for preserving state control over torts against state inaction may have dominated the Court's decision in DeShaney and noting that six states filed amicus briefs warning that a decision for the injured boy would precipitate increased costs for the states).    (back to text)

 ¹¹⁰ See Chemerinsky, supra note 9, at 87 (arguing that the search for "judicial neutrality" is a "specious distraction" from the Court's care for its effect on the society).   Even when the Court authorizes that a decision should be made by a majority-rule legislature, the Court intervenes to impose values that do not derive from the Constitution.   See Chemerinsky, supra note 9, at 74-75 (contending that the abundance of "anti-majoritarian features" in the Constitution indicate that the Framers considered anti-majoritarian decisions to be preferable in certain situations).   Consequently, if the Court is to fulfill its duty as a reasonable actor, the Court must consider which faction in the society "is best situated to decide the issue at stake."   Chemerinsky, supra note 9, at 87; see also Chemerinsky, supra note 9, at 87 (asserting that assigning a decision to a majoritarian legislature without considering the effect on "values" amounts to a Court "dysfunction" that avoids the "critical issues").    (back to text)

 ¹¹¹ See Florida Star v. B.J.F., 491 U.S. 524, 541 (1989) (declaring that neither the newspaper editor, nor the state legislature, could decide whether to publish the name of a rape victim where the victim's name appeared in a public document).   Typically, the plaintiff, defendant, and Court observe the same facts and perceive different problems.   See, e.g., id. at 532-33 (rejecting the defendant's viewpoint that the problem consists of impediments to the distribution of truthful information); id. at 531-32 (rejecting the plaintiff's perspective that the problem is protecting the privacy of rape victims); id. at 541 (stating that the problem is a balancing of interests where, after a state agency has made information public, the state cannot prohibit publication unless the state can show that the prohibition is "narrowly tailored to a state interest of the highest order").    (back to text)

 ¹¹² See Texas v. Johnson, 491 U.S. 397, 418 (1989) (recognizing that protecting the public perception of the flag is a legitimate problem, but objecting to the solution of criminal punishment for flag- burning); id. at 429 (Rehnquist, J., dissenting) (asserting that the Constitution permits Congress and the state legislatures to protect the value of the flag as a unifying symbol by imposing criminal sanctions for publicly burning the flag).   In reserving the decision on flag-burning for the individual protestor, the Court considered flag-burning as a problem-solving resource for the protestor.   See id. at 419-20 (recognizing the "uniquely persuasive power of the flag" and reserving to the individual citizen the choice of how that "persuasive power" is used).   Additionally, the Court assessed the threat that the state sought to abate by imposing the restriction.   See id. at 419 (concluding that the "flag's special role is not in danger").    (back to text)

 ¹¹³ See West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (asserting that the purpose of the Bill of Rights is to preserve decisions for individuals that "majorities and officials" cannot override).    (back to text)

 ¹¹⁴ See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969) (per curiam) (acknowledging the state's power to forbid speech "directed to inciting or producing imminent lawless action and is likely to incite or produce such action" but prohibiting the state from solving the problem of lawless action by forbidding the mere advocacy of lawless action); Terminello v. Chicago, 337 U.S. 1, 4 (1949) (asserting that in the democratic system, speech that "creates dissatisfaction with conditions as they are" functions to stir public debate on problems).    (back to text)

 ¹¹⁵ See Chemerinsky, supra note 9, at 70 (asserting that most of the Court's decisions regarding individual rights amount to personal fabrications that do not derive from constitutional text or evidence of Framer's intent).   To the extent that problem-solving in the society depends on individual efforts, anti-majoritarian rights are crucial in getting unpopular work done.   See Chemerinsky, supra note 9, at 75 (contending that the Court's anti-majoritarian protections of rights will support better democracy if democracy includes self- government rather than reliance on the will of the majority); Sunstein, supra note 22 at 1303-04 (noting that scandals and false solutions likely draw the attention of the majority away from difficult problems such as improving education).    (back to text)

 ¹¹⁶ See, e.g., U.S. CONST. art. I, § 8, cl. 3 ("The Congress shall have Power . . . To regulate Commerce . . . .").    (back to text)

 ¹¹⁷ Ultimately, the Court must recognize that many unelected decision-makers represent varieties of majoritarian decisionmaking.   See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865-66 (1984) (recognizing that, though agencies and judges may both be appointed by majoritarian decision- makers, the "Chief Executive" is "directly accountable to the people" and the Chief Executive has significant influence over agencies); id. at 866 (allocating the decision for method of measurement of pollution to the agency rather than to the courts or to Congress, where the agency made a "reasonable choice within a gap left open by Congress"); Mistretta v. United States, 488 U.S. 361, 412 (1989) (approving the congressional allocation of decisions for federal uniform criminal sentencing guidelines to a panel of presidentially appointed individuals).    (back to text)

 ¹¹⁸ See, e.g., James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, 144 (1893) (arguing that, in a democracy, the Court should not adopt the decision of the anti-majoritarian party in a suit unless the majoritarian party has made a "very clear" mistake); Lochner v. New York, 198 U.S. 45, 73 (1905) (Holmes, J., dissenting) (accusing the Court of perverting the meaning of "liberty" when assigning the decision on maximum workhours to the employer rather than to the majority-rule of the state legislature); JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 5-6 (1980) (arguing that the Court weakens the democratic process when permitting the anti-majoritarian party in the case to overturn the rule that develops from the political bargaining in the legislature).    (back to text)

 ¹¹⁹ For this Article, decisionmaking is dysfunctional if the decision does not address the threat from the reality that prompts the decisionmaking.   See Day, supra note 91, at 10 (stating that if a society does not adapt to the threatening economic and social realities, the society will fail); POSNER, supra note 12, at 495-96 (summarizing general legislative tendencies to impose rules that reduce the ability of society to solve its problems efficiently).    (back to text)

 ¹²⁰ See Easterbrook, supra note 10, at 1330-31 (summarizing the fear of the American Founders that majority- rule would permit factions of self-interested voters to benefit themselves while avoiding the problems that government must solve); Sunstein, supra note 22, at 1303-04 (noting that, when public servants function according to the market for votes, elections and governance degenerate to media circuses that entertain but avoid the real problems in the society).   Factions in a nation do not attend to difficult problems spontaneously.   Sunstein, supra note 22, at 1304.   Instead, simplified issues monopolize the nation's attention so that difficult problems never get a hearing.   See Sunstein, supra note 22, at 1304 (proposing that a government agency should issue a "quality of life report" to focus public attention on the difficult problems that the spontaneous political, economic, and social forces ignore).    (back to text)

 ¹²¹ See Philip Elman & Norman Silber, The Solicitor General's Office, Justice Frankfurter, and Civil Rights Litigation, 1946-1960: An Oral History, 100 HARV. L. REV. 817, 823-24 (1987) (recalling the Justices' appraisal of the problems, solutions, and preferred approaches at the time of Brown v. Board of Education, 347 U.S. 483 (1954)).   A prescriptive approach requires considering: 1) whether the controversy at bar represents a dysfunction in normal problem-solving, 2) what elements of the underlying problem are not being addressed by the parties at bar, 3) what problem-solving factions are likely to be affected by the Court's decision, and 4) what Court action would assist problem-solving without making the Court's power a distracting false issue.   See Elman & Silber, supra at 824 (noting that Congress had abdicated its duty to address Fourteenth Amendment concerns); Brown, 347 U.S. at 492-93 (noting that education is a prerequisite for "good citizenship" in a "democratic society" and insisting that the Court must consider the actual effects on education deriving from the Court's earlier "separate but equal" doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896)); Elman & Silber, supra at 823 (noting that Southern governors continued to improve educational opportunities for blacks, that Justice Frankfurter considered the negative public reaction to a "premature Supreme Court decision," and that the Court waited "for public opinion to form"); id. at 827-28 (describing the Court's search for approaches to minimize the negative public reactions against overrule of the "separate but equal" doctrine, and asserting that "separating the constitutional principle from the remedy" permitted a unanimous Court to keep public attention on the problem rather than create a distracting public spectacle of the Court's dissension).    (back to text)

 ¹²² See Sunstein, supra note 22, at 1303-04 (arguing that market forces are prone to work avoidances such as public spectacles and coordinations for self-interest that obstruct the analysis and solution of real problems such as education).   Analysts independent of market forces and politics must identify neglected problems and intervene to draw attention to problems and solutions.   See Sunstein, supra note 22, at 1304-05 (suggesting that, although "legal provisions" affect "social well-being," the "legal culture" has proceeded with inadequate attention to its effects on social problems and problem-solving, especially in the areas of crime, individual resources, and regulation).    (back to text)

 ¹²³ See Chemerinsky, supra note 9, at 87 (suggesting that the Court is dysfunctional when blindly following a "majoritarian paradigm" while ignoring the comparative strengths and weaknesses of various government branches, private factions, and individuals for solving different problems).   Rather than asserting the rightness of an abstraction, such as "fundamental rights," the Court should consider the constitutional purpose and adopt the legal abstraction that furthers the purpose.   See TRIBE, supra note 33, § 17-1, at 1673 (suggesting that the Court should consider the social and political context of the case at bar and apply the constitutional doctrine that promises the best chance of achieving the constitutional purpose).   For example, the Court should consider that different "social and economic realities" would require different legal abstractions.   See TRIBE, supra note 33,§ 17-1, at 1674 (asserting that "constitutionally meaningful freedom" would require prohibiting government interference at one time in history but would require imposing government interference at a later time).    (back to text)

 ¹²⁴ See Robin West, The Supreme Court 1989 Term: Foreword: Taking Freedom Seriously, 104 HARV. L. REV. 43, 106 (1990) (noting that Court-protected "rights" produce both strengths and weaknesses for the society).   Though the Court's protection of rights may promote stability, extensive Court intervention tends to weaken the "mutual respect" that would protect rights in the absence of Court intervention.   Id.   Hence, the Court's retreat on rights may encourage the polity to take more responsibility for problem-solving in their lives.   See id. (concluding that a Court retreat on rights will require that the "People" take more responsibility for protecting rights, for example in the legislatures).    (back to text)

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