Free Speech

The Year of the Punt, or At Least of the Bunt

Very narrow decisions -- or decisions not to decide -- in some more of the Supreme Court's most watched cases.


Masterpiece Cakeshop, as I wrote when it was decided, left almost all the big questions unanswered (even though it was expected to answer them). Today's two partisan gerrymandering opinions were remanded for further proceedings, with basically no substantive guidance from a Court majority. Today's Lozman v. Riviera-Beach was expected to resolve a hugely important question—can someone sue for retaliatory arrest if he there was probable cause to arrest him for some fairly petty crime, but there's lots of reason to think that he wouldn't have been arrested if it weren't for his past constitutionally protected speech?—but instead produced a very narrow opinion limited to the rare cases where plaintiff can show a municipal policy of going after him because of his speech.

Of course, some, both on the left and on the right, have argued that such narrow decisionmaking, or remand or dismissal on procedural grounds, are often a good idea, and that the Supreme Court should indeed often decide as little as possible. And perhaps these were indeed the right answers in these cases. But I just wanted to note that at least so far, a lot of the expected big bangs have fizzled (though of course some of the most-awaited high-profile cases, such as the "travel ban" case and the union agency fee case, still remain to be announced later this week or next).

NEXT: Supreme Court Will Decide: Does the Excessive Fines Clause Apply to the States?

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  1. Given the apparent policy concession Cory Gardner extracted from Trump, maybe this is really the Year of the Blunt?

    (I’ll show myself out)

    1. That pun, to put it bluntly, was a masterpiece. Totally a piece of cake for you.

    2. A real Rocky Mountain high?

    3. Unless Trump bogarts the blunt.

  2. Lozano is a decision on the merits, and probably doesn’t belong in this category. If the Court had decided that a claim of retaliation could never have defeated probable cause, I think we all have agreed that, like it or not, this fully resolved the question presented. Why doesn’t a decision that a claim of retaliation can sometimes do this, but only rarely, also merit being called a resolution of he issue?

    1. I think the holding was narrower than what you are presenting. It looks to me like they merely held that there could be a retaliation claim in this particular type of instance (exceedingly rare as it may be), not that this is the only type of instance that could support a retaliation claim. The broader question is left for another day.

  3. What a feckless punt!

  4. Narrow rulings serve to keep the lower courts honest and discourage them from ignoring details like, um, standing…

    Of course, nothing can deter activists on the Supreme Court from issuing advisory opinions. (I was beginning to have some grudging respect for Elena Kagan, and then…)

  5. I am wondering if the Supreme Court is starting to realize that too many rancorous 5-4 decisions over highly decisive emotional issues that are somewhat peripheral to the Constitution’s core dissipate its energies and contribute to a perception of the Court as a partisan body whose decisions are made for political reasons and change with the Court’s composition.

    Perhaps the court is starting to realize that the more it behaves this way, the more likely the political branches will respond to its decisions by attempting to change its composition rather than accepting its mandate.

    Perhaps the court is even realizes that if it goes on this way, it will lose the perception it needs to intervene and be obeyed in the event of a real constitutional crisis or the rise of an authoritarianish regime.

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