Rick Pildes has a very interesting post at Balkin addressing a phenomenon that I had not given much thought. Think of Caperton v. Massey. The Court relied on a totally vague standard that provides zero guidance as to when judicial recusal is appropriate. The Chief lambasted the majority with a series of 40 hypothetical situations which are not answered by the Court. So the Court created a vague constitutional ruling. But is that necessarily a bad thing? Pildes argues not necessarily:
There are many examples of vague constitutional rulings turning out to generate stable policies and practices, not because the doctrine itself is clear, but because other institutions respond to the Court’s decision in ways that create the clarity and certainty that the law itself lacks.
Now comes along a perfect example to illustrate this phenomenon with respect to Caperton itself. As the New York Times recently reported, New York’s highest court, which has the power to regulate the state judicial system on these matters, is set to issue clear rules that will provide a great deal of certainty about the relationship between money and the need for judicial recusal. For example, these rules will state that “no case shall be assigned” by court administrators to a judge when the lawyers or any of the participants involved donated $2,500 or more in the preceding two years, court officials said. Other state high courts are issuing similar rules. Other state high courts are issuing similar, though less strict, rules. I do not profess to know whether any of these rules are sensible or not; I have not studied them in detail. But they nicely illustrate the point that just because constitutional doctrine itself is vague — and inherently so, with respect to certain kinds of problems, particularly some of the most difficult the Court confronts — there remain sources outside legal doctrine that can take vague constitutional law and turn it into clear, stable, predictable outcomes. It is important to bear that in mind in evaluating Supreme Court decisions that create “vague” doctrine.
I have considered how unpopular court rulings have generated legislative responses. Think of the backlash to Kelo (Ilya Somin has written heavily on this topic), responses to Citizens United (which seem to have petered out), the Civil Rights Act of 1991 in response to a series of employment law decisions in the 1980s and 90s, Religious Freedom Restoraction Act following Smith, etc.
But what about constitutional holdings that are not unpopular, but vague? It stands to reason that legislatures will try to fill in the gaps and holes in the opinion. The New York law seems to be an instance of this approach to generating stable legislation from vague constitutional principles.
Very interesting. I will need to think this through a bit more.