Agreeing With Professor Tribe…

Two months before the Rehnquist Court recessed for the final time, Harvard Law Professor Laurence Tribe announced that he would “not publish, and therefore will not complete, … the third edition of [his] treatise, American Constitutional Law.”  In an “Open Letter to Interested Readers” and a personal letter to Justice Stephen Breyer, Professor Tribe explained his decision to discontinue what veteran Supreme Court reporter Tony Mauro described as “the leading — or at least the most provocative — modern synthesis of constitutional doctrine.”

And, therein lay the rub.

It wasn’t that Professor Tribe’s magnum opus had fallen into obscurity.  No doubt the treatise will continue to be what Slate senior editor Emily Bazelon called “standard reading for judges, lawyers, and students of constitutional law,” just as it has been “since the first edition appeared 27 years ago.”  In fact, the treatise seems to be as influential as ever, being cited by the Supreme Court in each of the last six terms, including, most recently, by the dissent in the last case decided by Chief Justice Rehnquist, the Texas Ten Commandments case.

Nor was it that Professor Tribe’s “views about constitutional issues have fundamentally changed.”  As he emphatically wrote to Justice Breyer, “they haven’t.”  Indeed, Professor Tribe also dismissed the notions that “today’s constitutional controversies lack enduring interest” or that he had become “out of sympathy with some of where the Supreme Court appears to headed” as reasons for giving up on “a Grand Unified Theory” of constitutional jurisprudence.

Instead, Professor Tribe said he called it quits because, “in area after area, we find ourselves at a fork in the road — a point at which it’s fair to say things could go in any of several directions — and because conflict over basic constitutional premises is today at a fever pitch.”  Thus, Professor Tribe came “to the sobering realization that no treatise … can be true to this moment in our constitutional history” because there is no “vision capacious and convincing enough to propound as an organizing principle” for the “conflicts, innovations, and complexities” handed down by the Supreme Court.

With this conclusion, every Court watcher and constitutional scholar must agree.  After all, uncertainty and an ad hoc approach have marked — or plagued — the Supreme Court’s decision-making for years.  Indeed, by the end of the Rehnquist — or should we say O’Connor — era, there appear to be few, if any, definite constitutional or jurisprudential rules that remain.

Perhaps the best example of this minimalist, fact-based, case-by-case approach is the pair of Ten Commandments cases decided on the final day of the last term.  Not only did the Court reach conflicting conclusions as to the constitutionality of displaying the Ten Commandments on government property, but in doing so only a single justice (Breyer) voted in favor of the Court’s judgment in both decisions.  (Be careful, you must read that last sentence literally!)

In fact, it is arguable whether a single opinion — including the entirety of its reasoning — commanded a majority in either of the Ten Commandments cases.  In the Kentucky case in which a bare majority struck down the posting of the Ten Commandments in county courthouses, Justice O’Connor cast the decisive fifth vote but authored her own concurring opinion, which ended with the caveat that she joined the majority opinion “[f]or the reasons given above.”  And, in the Texas case in which another bare majority upheld the display of the Ten Commandments on state capitol grounds, Justice Breyer cast the decisive fifth vote but explicitly refused to join what would have been the majority opinion.  Instead, Justice Breyer issued his own opinion that no other justice joined.  Indeed, the pair of Ten Commandments cases spurred the justices to issue nine separate opinions — not to mention Chief Justice Rehnquist’s quip, “I didn’t know we had that many people on our Court,” that followed his announcement of the opinions from the bench.

This heightened level of constitutional conflict and confusion that has infamously emanated from the High Court is now the norm.  And, it is the difficulty Professor Tribe was referring to when he announced his “profound doubts whether any new synthesis” of Supreme Court decision-making was possible nearly two months before the Ten Commandments cases were decided.

After all, the Ten Commandments decisions are but the latest best examples of the jurisprudential nightmare the justices continue to create.  Just two years before, the Court had similarly split the constitutional difference and ultimate results in another pair of cases involving race-based affirmative action at the University of Michigan.  And the list goes on and on.

With the Supreme Court being led by a new Chief Justice and the nominee for Justice O’Connor’s seat in the midst of her confirmation, there can be no doubt that the Supreme Court is in transition.  But those in the know, like Professor Tribe, understand the Court’s constitutional jurisprudence was in transition long before.