OF CASES AND CONTROVERSIES ONCE MORE.

• Author: Greve, Michael S.

What, Judge George Nicholson asked the prospective contributors to this volume several months ago, can judges do by way of ameliorating the bitter contentions and partisan polarization that afflict our politics? My co-contributors have ably discussed the many ways in which judges might promote that urgent endeavor as prominent members of the bar and of professional associations, as civic leaders, as members of their communities, and in other roles. My own selfimposed assignment is to explore what judges might be able to do as judges--that is, in their capacity as public officials who serve on courts of various descriptions and who exercise judicial power.

My answer proceeds from two points of departure. One, judicial doctrine matters in real political life--always beneath the surface and, on occasion, quite dramatically. For example, nary a citizen outside a Federal Courts seminar cared about the finer points of Section 1983 jurisprudence and official immunities--until, in the wake of George Floyd's tragic and violent death, those seeming details did come engage the interest of a broader public and, startlingly, the United States Congress. (1) Two, I urge a bold reframing of near-sacrosanct judicial doctrines that govern what federal courts can and cannot do. Yet that call for judicial innovation is grounded in a plea for judicial caution and modesty. The remainder of this Introduction explicates that seemingly paradoxical thought.

Now more than in less contentious times, I propose, courts--judges qua judges--should strive to remain an institutional haven from a turbulent, divisive politics. To that end, courts must supply impartiality and fairness to litigants, respect for law (not as an instrument of social control but as the foundation of a liberal order), reasoned decision-making, and professional integrity. By and large, the public appears to have confidence that the judiciary, federal and state, will in fact exercise those virtues. (2) However, the virtues require careful cultivation--especially under conditions of intense social conflict, high partisan polarization, and relentless public agitation over a supposedly partisan (federal) judiciary.

Part of that cultivation, in my view, is a common law-ish, constitutionally grounded approach to adjudication: we judges decide this dispute among these litigants under this statute (regulation, precedent, etc.); and we afford these remedies to these parties (and no one else). Put differently: the judiciary might be able to enhance public confidence--to increase its "sociological legitimacy," as Professor Richard H. Fallon, Jr. has put it (3)--if the judges were to maintain a sharper focus on the independent judiciary's core constitutional power of deciding cases and controversies over private rights among adverse parties.

Who could possibly disagree with that proposition? Lots of folks, it turns out; lots of legal scholars; and armies of litigants who would have the courts issue bold proclamations and afford sweeping relief in disputes over congressional subpoenas, executive funding decisions, immigration, same-sex marriages, the Affordable Care Act, presidential emoluments, religious monuments, and other matters of public concern--often in proceedings where no actual plaintiff with a reasonably cognizable right is remotely in sight.

Federal Courts scholars have captured the different visions just sketched by contrasting a modest, partyfocused "dispute resolution model" of adjudication with a "law declaration model," which would have the federal courts and especially the Supreme Court play the far more ambitious role of declaring broad principles of law prospectively and authoritatively for all concerned, including the rival branches of government. (4) There may be a place and time for such a law-declarative jurisprudence. However, this is not that place, and this is not that time. The country, and the judiciary itself, would benefit from a closer re-approximation of a dispute-centered judicial role. That objective is not just a matter of judicial style or disposition, although those factors do matter. It would require a substantial adjustment of often arcane judicial doctrines, foremost having to do with the federal courts' jurisdiction.

The underlying intuition is captured quite well in Chief Justice John G. Roberts's insistence that the judiciary must serve as an impartial "umpire," calling balls and strikes. (5) Beyond the elementary notion that the umpire should not take sides, no one wants an umpire who dominates the game or decides it with technically correct but pedantic calls. Referees in high-stakes basketball games, such as the "Sweet Sixteen" and NBA play-offs, are instructed to "let them play." Perhaps, a comparable prescription ought to apply when courts superintend acute conflicts among contending political parties: cram political disputes back into the institutional venues whence they came. Likewise, no umpire will let some agitated fan group take the field and a turn at bat. In that same spirit, the federal courts may want to guard the legal playing field against interlopers who seek to grind their axes in a judicial forum. (6)

Chief Justice Roberts's frequent invocations of the "umpire" metaphor have drawn dismissive, often sneering and uncomprehending commentary. A more respectful and perceptive response has come from Yale Law School Professor Jack M. Balkin. The "umpire" ideal, Balkin has written, is wedded to a jurisprudential model that had great plausibility to many of the law professors who taught the future Chief Justice at Harvard Law School in the 1970s. (7) Those scholars believed in the institutional settlement of the New Deal, which envisioned the Court as a gentle traffic cop for an orderly, broadly consensual politics. (8) That vision, Balkin contends, is unsustainable in a period of high polarization, gridlocked politics, and deep dissension as to what constitutes a fair, legitimate, republican form of government in the first place. (9)

There is something to this criticism. (10) In our venomous public debate, every judicial decision of consequence will be viewed through ideological lenses and be denounced as a betrayal or a travesty by one-half of the country. Then again, it is hard to see a plausible alternative. Historically, the Supreme Court has tended to play out the program of the dominant political elites and coalitions. (11) That is not an option for this Court because there is no dominant coalition--only a badly and evenly divided country. An even worse option under current conditions--firmly rejected by Balkin--is the notion of a "vanguard" Court that attempts to act as an engine of social progress. (12) The country and its elites disagree vehemently as to what constitutes progress and what is rot, and no sentient Court will want to take sides in that combat.

Thus, the "umpire" ideal is the only realistic option. But the metaphor is somewhat problematic. It requires careful thought both about the institutional context in which the judiciary now operates, and about constitutional underpinnings and doctrines. Paradoxically perhaps, it may also require more judicial fortitude on some margins--in particular, a more confident and consistent articulation of durable, constitutionally grounded doctrines that govern the role of the courts. In a sentence, the judiciary must do more, by way of doctrine, to teach itself to do less, by way of attempting to pacify our politics.

1. AGAINST JUDICIAL HEROICS

   By institutional design, courts cannot do much about pervasive social ills--about economic inequality, family breakdown, out-of-control public debt, waning public confidence in our political institutions, a culture of despair in wide swaths of the country, or for that matter partisan polarization. Courts see pieces of social conflict, never the larger picture. They are too decentralized to be capable of concerted action. Their interventions are episodic, and the legal questions are framed by opportunistic litigants. And, famously, courts possess neither the power of the purse not the power of the sword. (13) In that sense, the judiciary really is the least dangerous branch (14)--and the most impotent.

   Those commonplace observations bear repeating on account of the lingering notion that courts can and should play a much more active role. That conviction of course rests on Brown v. Board of Education (15) and the Warren Court's prominent role in the civil rights revolution. Courts, it appears, can do something meaningful about deep-rooted social injustices. And the Supreme Court did something similar about sexual equality, abortion, school prayer, and gay rights and same-sex marriage--did it not?

   This heroic story is open to considerable doubt. On what I take to be the most convincing account (Professor Alexander M. Bickel's), the courts succeeded in the civil rights revolution--to whatever extent they did--because the Supreme Court successfully anticipated a social consensus on a principle of racial non-discrimination. (16) The arc of history did bend that way, and the idea that the Supreme Court bent it took hold. However, in Bickel's view, the Supreme Court made a grave mistake when it then bet that on questions of sexual morality and especially abortion, the country would again fall in line with the Court's edicts--that the courts would be able to marginalize opposing constituencies in the same way in which they had succeeded in marginalizing. segregationists. (17) That never happened. Instead, the Court's decisions on intensely controverted questions of sexual morality and religion became enmeshed in something resembling a culture war and by some measures fueled it. (18)

   One need not take a position on those incendiary questions to acknowledge that the heroic story is wholly mismatched to the judiciary's current predicament, and the country's. The idea of a judicial vanguard that acts as an intellectual and...