June 08, 2009

Pildes on Caperton

Don't miss Rick Pildes's important post at Balkinization on the Caperton case. A snippet:

    The signal to these differences is Justice Kennedy's emphasis throughout that Caperton presented "extreme facts," "an extraordinary situation" -- and his candid admission that extreme cases test the boundaries of legal principles and sometimes cannot be resolved through any bright-line legal rule that defines the clear content of the principle that is being violated. At this very point, Supreme Court Justices divide. Some Justices -- Justice Scalia most forcefully -- believe that if the Court cannot come up with bright-line legal rules to define the content of a legal principle, then the Court has no sound, principled, indeed legal basis for acting. The best the Court can possibly do, by definition in such cases, is come up with a quite vague gesture that some constitutional boundary has been crossed. But vague guidance, on this view, is not law. In contrast, Justices like Kennedy and O'Connor not only reject this view, but they see as one of the Court's most essential roles the need for the Court to insist that there are boundaries on the conduct of public institutions and actors -- that some lines cannot be crossed, even if it is legally impossible to define those lines with clarity.

Read the whole thing.

Posted by Rick Hasen at June 8, 2009 11:15 AM