Narrow clauses and trial balloons.

• Author: Novick, Michael

Club Misty, Inc. v. Laski, 208 F.3d 615 (7th Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3157 (U.S. Aug. 18, 2000) (No. 00-270).

The Illinois Liquor Control Act creates a referendum mechanism whereby the residents of a precinct may revoke the liquor license of an individual in that precinct.(1) The process begins when 40% of the precinct's registered voters petition the board of elections for a vote on whether the sale of liquor at a particular address should be prohibited. The question is then put to the precinct electorate at the next election. If a majority thereof votes in favor of prohibition, the liquor license associated with that address becomes void after thirty days.

Soon after the passage of these amendments to the Liquor Control Act, referenda threatened the liquor licenses of three Chicago taverns, which responded by challenging the Act's constitutionality in federal district court.(2) They claimed that the statute violated, inter alia, the Due Process Clause of the Fourteenth Amendment and the nonattainder role of Article I, Section 10. The district court upheld the statute, and two of the plaintiffs appealed the decision. The circuit court, in an opinion written by then-Chief Judge Posner, reversed.(3) Posner's opinion begins with an examination of the attainder challenge: "On the view we take of the case, we shall not have to decide whether the statute is a bill of attainder; but we shall not conceal our skepticism that it is."(4) After briefly indulging this skepticism, the opinion reveals its actual legal underpinning: "We need not pursue the [attainder] issue further, as we think the statute is unconstitutional as a denial of due process of law even if it is not a bill of attainder."(5) The remainder of the opinion defends this assertion.

I take issue here neither with the appeals court's understanding of the nonattainder rule nor with its interpretation of due process. I propose, more abstractly, to outline a theoretical framework within which the following assertion becomes plausible: The court should have pursued the attainder route more thoroughly, and should have invoked due process only if the attainder route proved fruitless or impassable.

My argument proceeds from the assumption that courts ought, at least in certain circumstances, to "leav[e] as much as possible undecided."(6) By deferring decisionmaking to the more electorally tethered legislative branch, judicial silence promotes democratic procedure.(7) This minimalist perspective on the judicial function, championed today by Cass Sunstein, has a venerable pedigree. Already in 1893, James Thayer suggested that a court ought to invoke a constitutional clause against a legislative act only if there is no reasonable interpretation of the former that is consistent with the latter.(8) Later, Alexander Bickel, responding to the counter-majoritarian difficulty, urged Justices to practice the "passive virtues": to deny certiorari; to winnow petitioners through the sieves of standing and ripeness; to avoid questions by making them "political."(9)

Yet the minimalist seems to sacrifice too much when she bids courts to be silent. Judicial silence exacerbates gaps in the rule of law by leaving future courts and litigants without guidance. Moreover, while life tenure argues against judicial decisionmaking by distancing Article III judges from the popular will, life tenure makes their opinions an especially valuable resource in guiding legislatures toward the right answers. Lifetime appointment opens to judges a space for thoughtful deliberation, from which the mechanisms of popular election often bar the politically accountable actors.(10) Furthermore, life tenure not infrequently reflects intrinsic deliberative ability, and necessarily provides valuable decisional experience. These considerations suggest that if judges should not dominate...