The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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).
