Administration Cost Slippery Slopes

[This month, I'm serializing my 2003 Harvard Law Review article, The Mechanisms of the Slippery Slope.]

An intermediate position A might also be untenable if it is burdensome to administer. One obvious burden might be the effort required to make and review decisions under a nuanced, fact-intensive rule: for instance, the Supreme Court came within one vote of slipping—for better or worse—down the slope to eliminating the obscenity exception, partly because of the perceived difficulties of administering the obscenity test. Another burden may be the risk of error in applying a complex rule, especially when the rule needs to be applied by many lower courts or executive officials.

The decisions that proposal A would require might also prove burdensome if they are seen as too arbitrary or as involving too much second-guessing of others' judgments. Carving out an exception from a criminal procedure rule for especially serious crimes may at first seem appealing; but because courts are properly hesitant to disagree with legislative judgments that various crimes are serious, they may ultimately apply the rule to more and more offenses.

Likewise, a rule that legislatures may set prices only when a business is "affected with a public interest" may sound appealing in principle, but it might require so many contestable judicial decisions that judges may eventually choose to abandon the rule altogether, and give legislatures a free hand. And once a law punishes the display of vaguely defined "pornography"—for instance, on the grounds that such displays constitute sexual harassment—it becomes likely that this law will be applied to "legitimate art" as well.

Similarly, the broad Free Exercise Clause protection established by Sherbert v. Verner and Wisconsin v. Yoder was developed in cases where people wanted to engage in well-established religious groups' traditional practices that were seen as central to their belief systems and as consistent with the groups' other religious tenets. But over the years, the Court extended the potential zone of free exercise protection to cover even idiosyncratic, seemingly not fully consistent beliefs, as well as beliefs that may not be central to people's religions, partly because the Justices concluded that secular courts cannot properly inquire into the religious beliefs' centrality and consistency.

Finally, linking this to equality slippery slopes, consider one prominent Dutch doctor's argument that people should be able to commit assisted suicide simply to avoid burdening their families, just like they may commit assisted suicide to avoid unbearable suffering. There is no principled way, the doctor reasoned, to distinguish "that kind of influence—these children wanting the money now" from other influences "from the past that … shaped us all," such as "religion … education … the kind of family [the person] was raised in, all kinds of influences from the past that we can't put aside."

People naturally hesitate to question others' judgments about what makes their lives worth living or death worth choosing. A rule that doctors may only assist patients who have certain reasons for suicide may seem defensible in principle, and may seem practicable enough that even those who are skeptical of broader assisted suicide schemes would endorse it. But if the public—or part of the public, such as doctors or judges—finds these decisions to be unduly disrespectful of patients' own value systems, then over time this rule may be replaced by a broader deregulation of assisted suicide.

The Relationship Between Equality and Administration Cost Slippery Slopes and Constitutional Equality Rules.—Equal treatment, of course, is sometimes not just a political preference but also a constitutional command. If a legislature exempts labor picketing from a residential picketing ban (A), then a court will likely strike down the ban altogether (B), because content-based speech restrictions are presumptively unconstitutional. If a legislature enacts a school choice program limited to secular public and private schools (A), a court might conclude that religious private schools must also be covered (B), because of the constitutional ban on discrimination based on religiosity. Some administration costs are likewise seen as unconstitutional, for instance if a proposed rule requires a court to determine which practices are central to a religion's belief system.

This equal treatment command also flows from multi-peaked preferences, though preferences held by judges rather than by legislators. The Justices who created the residential picketing rule, and those who choose to follow it, believe that both 0 (all residential picketing is allowed) and B (all residential picketing is banned) are constitutionally acceptable, but that A (only labor picketing is allowed) is the worst position of the three, because it is unconstitutionally discriminatory.

Overlaying the multi-peaked judicial preferences with the legislative preferences, which might be single-peaked, thus produces the slippery slope. Legislators who prefer A over both 0 and B (a single-peaked preference) may enact A, but then an equality rule created by Justices who prefer both 0 and B over A (a multi-peaked preference) commands a shift to B.

{The Court might shift back to 0 instead—for instance, it might strike down a discriminatory school choice program and leave it to the legislature to choose whether to reenact it including the religious schools (move to B) or to abandon it altogether (stay at 0). But the Court might not do this; and even if it does, the parents who had been taking advantage of program A would strongly pressure the legislature to choose position B—which would at least preserve the school choice program that the parents had been using—instead of position 0. Thus, even a legislature that would have at first chosen 0 over B might find itself choosing B over 0 once A has been enacted and then struck down. See infra section V.B (describing this sort of political power slippery slope).}