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Judicial Minimalism and the Double Effect of Rules and Standards

Published online by Cambridge University Press:  20 July 2015

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The aim in this article is to explore the complicated connections between standards and letting go and between rules and control. Both constitute a central tenet of Justice Roberts’ Graham concurrence, as well as a central tenet of the minimalist approach which he implicitly adopts. The tension within Roberts’ position is not conclusive. It may depend on the actual way one uses standards. If Roberts consistently uses standards de facto in a deferential way, and signals that he will not intervene, he may be consistent with the approach. But the tension exists. Standards and minimalism do not always go hand-in-hand. Finally, the article questions the efficacy of minimalism as a workable judicial philosophy. Roberts is, after all, the first Justice who adopted minimalism whole-heartedly. The difficulties with the application of minimalism in Graham and its inherent tensions revealed through this case raise some doubts as to the possibility that minimalism can move effectively from theory to actual judicial practice.

Research Article
Copyright © Canadian Journal of Law and Jurisprudence 2012

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We wish to thank Hanoch Dagan, Alon Harel, Mattias Kumm, Mark Tushnet and Barak Medina for their helpful comments and suggestions on earlier drafts of this paper.

1. Graham v Florida, 560 USSC (2010) [Graham]Google Scholar.

2. Roper v Simmons, 543 US 551 (2005) [Roper]Google Scholar.

3. Atkins v Virginia, 536 US 304 (2002)Google Scholar [Atkins]. See also Coker v Georgia, 433 US 584 (1977)Google Scholar (capital punishment is unconstitutionally excessive for rape); Kennedy v Louisiana, 554 US 407 (2008)Google Scholar (capital punishment is excessive for child rape when the victim was not killed).

4. Solem v Helm, 463 US 277, 290 (1983)Google Scholar; Ewing v California, 538 US 11, 20 (2003)Google Scholar [Ewing]; Lockyer v Andrade, 538 US 63, 72 (2003)Google Scholar; Harmelin v Michigan, 501 US 957 (1991)Google Scholar [Harmelin]. See also United States v Bajakajian, 524 US 321 (1998)Google Scholar; United States v Salerno, 481 US 739 (1987)Google Scholar [Salerno] (examining the issue of for excessive fines).

5. In Roper, supra note 2, Kennedy J delivered the opinion of the Court and was joined by Stevens, Souter, Ginsburg, and Breyer JJ. In Atkins, supra note 3, Stevens J fled a concurring opinion, joined by Ginsburg J and Stevens J delivered the opinion of the Court, joined by O’Connor, Kennedy, Souter, Ginsburg and Breyer JJ.

6. See Justice White’s dissent in Harmelin, supra note 4 supporting a strong case-by-case proportionality assessment. See also Justice Steven’s dissent in Ewing, supra note 4 (“I think it clear that the Eighth Amendment’s prohibition of “cruel and unusual punishments” expresses a broad and basic proportionality principle that takes into account all of the justifications for penal sanctions” at 35).

7. Conservatives in Rope, supra note 2 and Atkins, supra note 3 rejected the liberals’ position that a standard of decency has evolved against capital punishment for juveniles and the mentally retarded. See Roper, supra note 2 (O’Connor J dissenting, Scalia J dissenting, and Rehnquist CJ and Thomas J concurring). See Atkins, supra note 3 (O’Connor J dissenting, Scalia J dissenting, and Rehnquist CJ and Thomas J concurring).

8. Liberals traditionally use a categorical rule, viewing the case as analogous to death penalty cases. Dissenting conservatives use a deferential proportionality test to argue for nonintervention and contend that the case should fall under the standard-based proportionality cases.

9. Justice Thomas is less clear about adopting the case-by-case proportionality test. Regarding the decision that has established the case-by-case proportionality test, he writes: “[a]lthough I do not believe Solem merits stare decisis treatment, Graham’s claim cannot prevail even under that test (as it has been limited by the Court’s subsequent precedents).” Graham, supra note 1 at 25 (Thomas J dissenting). However taken in the context of his entire decision, it seems his position is that this test, rather than the categorical test, is current law, but that the claim fails under either test.

10. See the following rhetoric in Roberts’ opinion in Graham, supra note 1 at 2 (concurring): “[t] his “narrow proportionality principle” does not grant judges blanket authority to second-guess decisions made by legislatures or sentencing courts. On the contrary, a reviewing court will only “rarely” need “to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.” [emphasis in original].

11. A different but unconflicting explanation based on judicial strategy exists. See infra note 52 and accompanying text. On minimalism, see generally Sunstein, Cass R, “Incompletely Theorized Agreements in Constitutional Law” (1995) 103 Harv L Rev 1733 CrossRefGoogle Scholar; Sunstein, Cass R, “Foreword: Leaving Things Undecided” (1996) 10 Harv L Rev 6 Google Scholar; Cass R|Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, MA: Harvard University Press, 1999)Google Scholar; Sunstein, Cass R, “Minimalism at War” (2004) Sup Ct Rev 47 Google Scholar; Sunstein, Cass R, “Comments From Contributors” in Balkin, Jack M, ed, What Roe v Wade Should Have Said (New York: New York University Press, 2005) at 24850 Google Scholar; Sunstein, Cass R, “Beyond Judicial Minimalism”, online: (2008) Harvard Public Law Working Paper 08-40 http://papers. Scholar See also Sunstein, Cass R, “Problems with Minimalism” (2006) 58 Stan L Rev 1899 Google Scholar. For a critical assessment of minimalism, see Siegel, Neil S, “A Theory in Search of a Court, and Itself: Judicial Minimalism at the Supreme Court Bar” (2005) 103 Mich L Rev 1951 Google Scholar; Tushnet, Mark, “The Jurisprudence of Constitutional Regimes: Bickel and Sunstein” in Ward, Kenneth & Castillo, Cecilia, eds, The Judiciary And American Democracy (Albany: State University of New York Press, 2005)Google Scholar; Peters, Christopher J, “Assessing The New Judicial Minimalism” (2000) 100 Colum L Rev 1454 CrossRefGoogle Scholar.

12. Sunstein, Cass R, Op-ed, “The Minimalist”, LA Times (25 May 2006) B11Google Scholar (quoting Chief Justice Roberts: “The broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible ground.”). At his confirmation hearings, Roberts defined a modest role for him as a Chief Justice of the US Supreme Court as an “umpire” who “applies the law” rather than “makes the law.” See “My job is to call balls and strikes and not to pitch or bat”, CNN (12 September 2005), online: CNN International http://edition.

13. See Sullivan, Kathleen M, “Foreword: The Justices of Rules and Standards” (1992) 106 Harv L Rev 22 at 27Google Scholar:

The Justices of rules are skeptical about reasoned elaboration and suspect that standards will enable the Court to translate raw subjective value preferences into law. The Justices of standards are skeptical about the capacity of rules to constrain value choice and believe that custom and shared understandings can adequately constrain judicial deliberation in a regime of standards.

On the distinction between rules and standards, see Kelman, Mark, A Guide To Critical Legal Studies (Cambridge, MA: Harvard University Press, 1987) at 1563 Google Scholar; Schauer, Frederick, Playing By The Rules: A Philosophical Examination Of Rule-Based Decision Making in Law and in Life (Oxford: Oxford University Press, 1991) at 104, n 35Google Scholar; Kennedy, Duncan, “Form and Substance in Private Law Adjudication” (1976) 89 Harv L Rev 1685 at 1687-713CrossRefGoogle Scholar; Radin, Margare t Jane, “Reconsidering the Rule of Law” (1989) 69 BUL Rev 781 at 783-90Google Scholar; Rose, Carol M, “Crystals and Mud in Property Law” (1988) 40 Stan L Rev 577 at 592-93CrossRefGoogle Scholar; and Schlag, Pierre, “Rules and Standards” (1985) 33 UCLA L Rev 379, 379-430Google Scholar.

14. This point is often associated with Scalia, Justice’s attack on balancing and standards. See, e.g., his aversion even toward the highly deferential gross proportionality requirement in the Eighth Amendment (reluctantly supporting this test only “if I felt I could intelligently apply it.”) For a recent example of his critique on standards and balancing see District of Columbia v Heller, [2008] 554 USSC 570 Google Scholar [Heller] “[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon” at 62-63) [emphasis in original]. Scalia accused Breyer’s dissenting opinion which supported a case-by-case proportionality approach to the second amendment to be no more than “a judge-empowering “interest-balancing inquiry”“ (ibid at 62).

15. See Sullivan, supra note 13 at 57:

Rules aim to confine the decision maker …. A rule captures the background principle or policy in a form that from then on operates independently…. A legal directive is “standard”-like when it tends to collapse decision making back into the direct application of the background principle or policy to a fact situation. Standards allow for the decrease of errors of under- and over-inclusiveness by giving the decision maker more discretion than do rules.

See also Kim, Pauline T, “Lower Court Discretion” (2007) 82 NYUL Rev 382 Google Scholar.

16. We borrow the term “double effect” from the famous doctrine of the Catholic Church regarding the permissibility of actions that have both a good and bad effect. According to the Stanford Encyclopedia of Philosophy, “[t]he doctrine (or principle) of double effect is often invoked to explain the permissibility of an action that causes a serious harm, such as the death of a human being, as a side effect of promoting some good end. It is claimed that sometimes it is permissible to cause such a harm as a side effect (or “double effect”) of bringing about a good result even though it would not be permissible to cause such a harm as a means to bringing about the same good end.” See McIntyre, Alison, “Doctrine of Double Effect”, Stanford Encyclopedia of Philosophy (Fall 20011), online: The Stanford Encyclopedia of Philosophy Google Scholar. See also Kamm, Frances M, “Physician-Assisted Suicide, the Doctrine of Double Effect, and the Ground of Value” (1999) 109 Ethics 586 CrossRefGoogle ScholarPubMed.

17. Some might argue that our review is beside the point since Roberts’ commitment to minimalism lies not in deep theory, but mainly in his wish to promote a certain outcome or political agenda. The use of minimalism and of standards in Graham, supra note 1 may have been motivated by Roberts’ preferred outcome in the case. It allowed him to repeal the sentence without committing himself to repealing all sentences in similar cases. Minimalism and standards might have also served Roberts’ strategic goals by placing him in the middle of the Court—neither strictly liberal nor strictly conservative—as might be expected from a Chief Justice. Whether or not Roberts’ use of minimalism is purely strategic, does not affect our main concern in this article. Whatever its motivation, minimalism is a judicial theory that might become prominent in Supreme Court adjudication if Justice Roberts and other justices keep using it, and so should be evaluated as such. To use Tushnet’s and Lynch’s terminology, Roberts wants to be both an intellectual and a social leader of the Court. See Tushnet, Mark V & Lynch, Timothy, “The Project of Harvard ‘Forewords’: A Social and Intellectual Inquiry” (1995) 11 Constitutional Commentary 463, 463-64Google Scholar. Standards allow Roberts to retain enough flexibility to occasionally favor the liberal camp, as he did in Graham, and to avoid seeming as confrontational and inflexible as the rule-favoring originalist justices like Scalia and Thomas. See Biskupic, Joan, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia (New York: Farrar Straus Giroux, 2009) at 30405 Google Scholar (Justice Scalia’s recurrent questions during oral argument before the Court provoke laughter more often than the other justices; see also Ring, Kevin A, Scalia Dissents (Washington, DC: Regnery, 2004)Google Scholar “[w]hat distinguishes Scalia is his ability to communicate the conservative judicial philosophy in a passionate, persuasive, and entertaining manner” at 9); Brisbin, Richard A, Justice Antonin Scalia and the Conservative Revival (Baltimore, MD: The Johns Hopkins University Press, 1997)Google Scholar (referring to Justice Scalia’s well-known “polemic style and the combative confrontation” at 58). Minimalism itself has liberal credentials as a much less controversial doctrine and less associated with right-wing tendencies than with originalism. Conservatives like Scalia often attack judicial minimalism even when it comes from other conservative justices like Roberts. For example, Justice Scalia attacked Roberts’ minimalist approach by which Roberts refused to fundamentally change the structure of campaign finance. Scalia labeled Roberts’ approach “faux judicial restraint” and “judicial obfuscation.” See Federal Election Commission v Wisconsin Right to Life, Inc (2007), 127 S Ct 2652, 2684, n 7Google Scholar [Wisconsin] (Scalia J concurring). See also Rosen, Jeffrey, “The Supreme Court: Judicial Temperament and the Democratic Ideal” (2008) 47 Washburn LJ 1 at 5Google Scholar. On the other hand, minimalism seemed to allow Roberts to remain true to his conservative roots. Using minimalism, he harshly criticized the liberal position in Graham, supra note 1, for its interventionist and morally imperialistic practice of using rules to control state courts. In other cases where Roberts’ preferred outcome and strategic goals did not utilize minimalism, he seems to abandon minimalism and standards altogether. See, e.g., Citizens United v Federal Election Commission, 551 USSC 29 (2010)Google Scholar [Citizens United] (Roberts CJ, concurring in judgment) (a broad rule—based in campaign finance).

18. Roper, supra note 2. In this respect, Roper (and to some extent Atkins, supra note 3) overruled the ruling in Stanford v Kentucky, 492 US 361 (1989), in which the court “emphatically reject[ed]” the suggestion that the court should bring its own judgment to bear on the acceptability of the juvenile death penalty. (Ibid at 377-78) (opinion of Scalia J joined by Rehnquist CJ and White and Kennedy JJ).

19. Graham, supra note 1 at 8 (Kennedy J opinion of the court): The Court’s cases addressing the proportionality of sentences fall within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty.

20. Ibid at 24.

21. Ibid at 26.

22. Ibid at 27.

23. Ibid at 26.

24. Roper, supra note 2, cited in Graham, supra note 1 at 27 (Kennedy J opinion of the court). Kennedy mentions two other considerations for opting for a categorical rule in Graham. The first is a case-by-case approach which “does not take account of special difficulties encountered by counsel in juvenile representation.” And second, that “a categorical rule gives all juvenile nonhomicide offenders a chance to demonstrate maturity and reform” (ibid at 28).

25. Graham, supra note 1 at 9 (Roberts J concurring in judgment).

26. Ibid at 10.

27. Ibid at 11.

28. Ibid at 2-3.

29. Ibid at 2.

30. (Alito J dissenting) Alito J joined Parts I and III of Thomas’ dissent but fled a separate dissenting opinion on Part II of Thomas’ opinion noting first that “[n]othing in the Court’s opinion affects the imposition of a sentence to a term of years without the possibility of parole”; and second, “[the] petitioner argued for only a categorical rule banning the imposition of life without parole on any juvenile convicted of a nonhomicide offense. Because petitioner abandoned his as-applied claim, I would not reach that issue” [emphasis in original]. Graham, supra note 1 at 1 (Alito J dissenting).

31. Ibid at 23 (Thomas J dissenting).

32. Ibid.

33. Duncan Kennedy has famously equated standards with “altruism” and rules with “individualism”, suggesting that standards favor distributive and paternalist motives, whereas rules favor efficiency and the status quo. See Kennedy, Duncan, “Form and Substance in Private Law Adjudication” (1976) 89 Harv L Rev 1685 at 1737-51, 1753-56CrossRefGoogle Scholar. Morton Horwitz argued that rules “promoted substantive inequality by … enable[ing] the shrewd, the calculating, and the wealthy to manipulate its forms to their own advantage.” See Horwitz, Morton J, “The Rule of Law: An Unqualifed Human Good?” (1977) 86 Yale LJ 561 at 566CrossRefGoogle Scholar (reviewing Thomson, EP, Random House, Whigs and Hunters (London: Allen Lane, 1975)Google Scholar). (Note that Professor Horwitz may have backtracked from this position in his later work.) Carol Rose promotes a similar argument in the realm of property in Rose, supra note 13 at 601-04; see also Baird, Douglas & Weisberg, Robert, “Rules, Standards, and the Battle of the Forms: A Reassessment of § 2-207” (1982) 68 Va L Rev 1217 Google Scholar.

34. See Sullivan, supra note 13; Kim, supra note 15.

35. Fallon, Richard H, “The ‘Conservative’ Paths of the Rehnquist Court’s Federalism Decisions” (2002) 69 U Chi L Rev 429 CrossRefGoogle Scholar; David Gelfand, M & Werhan, Keith, “Federalism and Separation of Powers on a ‘Conservative’ Court: Currents and Cross-Currents from Justices O’Connor and Scalia” (1989-1990) 64 Tul L Rev 1443 Google Scholar; West, Robin, “Progressive and Conservative Constitutionalism” (1990) 88 Mich L Rev 641 CrossRefGoogle Scholar.

36. Baker, Lynn A, “Should Liberals Fear Federalism?” (2001-2002) 70 U Cin L Rev 433 Google Scholar.

37. Our use of the term “control” may seem a bit confusing since it changes from the vertical to the horizontal level. I have vertical control when I tell others what to do. It is an exertion of control. I have horizontal control when no one tells me what to do. It is a retention of control. But when we are concerned with the aggregate possibilities (i.e., power) of a particular body, control is actually the combination of both. While we choose to focus on one aspect of the horizontal level and on another aspect of the vertical level, we do so to highlight all the aspects of power or control and the combination of these two meanings for each choice (rules and standards).

There exist two pairs of terms, “exert control/let go” and “retain control/lose control,” that are applicable to rules and standards. The Court limits the discretion of lower courts when it sets rules. In other words, it exerts control taking away control of the lower courts over their own decisions. However, the Court also limits its discretion by exerting control over its own future decisions, therefore losing control over those decisions. When the Court sets standards, it does not limit discretion of the lower courts. Rather, this is a letting go of control over their decisions, allowing lower courts to retain decision-making authority. In the same vein, however, the Court does not limit its own decisions. It simply lets go of future decision-making, therefore retaining authority. When we talk about the double effect, we mean only the terms highlighted above.

38. The choice between rigid rules as a method of business control is sometimes called “formalization” in management literature. See Jones, Jeffrey D & Slocum, John W Jr, “Size, Technology, Environment, and the Structure of Organizations” (1977) 2 Academy Mgmt Rev 561 Google Scholar (defining organizational formalization as the level of formal administrative rules, policies, and procedures that determine work activities); Jackson, Susan E, Schuler, Randall S, “A Meta-Analysis and Conceptual Critique of Research on Role Ambiguity and Role Conflict in Work Settings” (1985) 36 Org Behav & Hum Decision Processes 16 CrossRefGoogle Scholar (explicit rules and procedures clarify role expectations and reduce role ambiguity); Michaels, Ronald E et al, “Influence of Formalization on the Organizational Commitment and Work Alienation of Salespeople and Industrial Buyers” (1988) 25 J Marketing Res 376 CrossRefGoogle Scholar (argues that “control of employee behavior does not seem to alienate marketers from their work or reduce their commitment to the organization. … [F]ormalization influenced organizational commitment indirectly through its effects on role ambiguity and role conflict” at 381) [emphasis in original]). Anthony, Robert N, The Management Control Function (Cambridge, MA: Harvard Business School Press, 1970)Google Scholar (assessing management and control more generally).

39. By now, it is an undisputable fact that the docket of the American Supreme Court is steadily shrinking. See Liptak, Adam, “The Case of the Plummeting Supreme Court Docket”, The New York Times (28 September 2009), online: New York Times http://www.nytimes. com/2009/09/29/us/29bar.html Google Scholar. See also Stras, David R, “The Supreme Court’s Declining Plenary Docket: A Membership-Based Explanation27 Const Commentary 151 (2010)Google Scholar. According to Starr, Kenneth W, “The Supreme Court and Its Shrinking Docket: The Ghost of William Howard Taft” (2006) 90 Minn L Rev 1363 at 1368Google Scholar, the Supreme Court issued judgments in 2004 in only 1% of the cases disposed of by Signed Opinion, while in 1926 the percentage was much higher at 18.9%.

40. For a general overview of the Israeli judicial system, see Zamir, Itzhak & Colombo, Silvian, eds, The Law of Israel: General Surveys (Jerusalem; Haifa: The Harry and Michael Sacher Institute for Legislative Research and Comparative Law and Haifa University, 1995)Google Scholar; Shapira, Amos & DeWitt-Arar, Keren, eds, Introduction to the Law of Israel (The Hague: Kluwer Law International, 1995)Google ScholarPubMed. In Israel, there are also several regional labor courts of the first instance and one National Labor Court for appeals from the first instance. Decisions from the National Labor Court can be appealed to the Supreme Court sitting as a High Court of Justice. Additional information is available at “Final Report” The Center for Public Management and Policy, online: [PDF in Hebrew].

41. Note that using rules, the Court would only lose horizontal control and be bound in systems that practice stare decisis. Also note that the same considerations of size and docket apply to assessing the control of the judiciary over decisions made by administrative bodies as well.

42. See The Judiciary in Israel: A Report for the Year 2010, 15 (2011) available at http://elyon1. (in Hebrew) (these numbers refers to the number of new cases opened in each calendar year.). The dramatic increase of the size of the docket is not unique to Israel but can be seen globally in many constitutional democracies. See Blankenburg, Erhard, “Mobilization of the German Federal Constitutional Court” in Rogowski, Ralf & Gawron, Thomas, eds, Comparison: The U.S. Supreme Court and the German Federal Constitutional Court (Oxford and New York: Berghahn Books, 2002)Google Scholar (examines the scope of individual constitutional complaints in Germany—about 5,000 per year—which account for 95% of the Court’s case load). See Helfer, Laurence R, “Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime” (2008) 19 Eur J Int’l L 125 CrossRefGoogle Scholar (argues that the European Court of Human Rights now faces a docket crisis of massive proportions). Israel is, however, unique in the extent of the increase vis-à-vis the small size of its legal system. Elsewhere we have argued that the increase in the size of the dockets in new democracies is tied to the emergence of what we termed, following Mureinik, a “culture of justification.” See Cohen-Eliya, Moshe & Porat, Iddo, “Proportionality and the Culture of Justification” (2011) 59 Am J Comp L 463 CrossRefGoogle Scholar.

43. For a good overview see Mautner, Menachem, Law and the Culture of Israel (Oxford: Oxford University Press, 2011).CrossRefGoogle Scholar

44. On the liberalization of the standing requirement in Israeli public law, see Barak, Aharon, A Judge in a Democracy (Princeton, NJ: Princeton University Press, 2006) at ch 9Google Scholar. For the relaxation of the non-justiciability requirement, see ibid at ch 8. Barak’s general approach for judicial review is expansive, arguing that there are no black holes where there is judicial review (ibid at 194, 198). On the dramatic transition of Israeli constitutionalism from formalism to values and hence from a rule-based system to standard-based system, see Mautner, Menachem, The Decline of Formalism and the Rise of Values in Israeli Law (Tel Aviv: Ma’agalay Da’at, 1993) (in Hebrew)Google Scholar. The transition is connected to the prominence of Aharon Barak’s theory of balancing.

45. The Israeli system of nominating judges is unique in that political control over the judicial nomination process is very limited. Only four of the nine members of the judges’ nomination committee are politicians (two ministers and two members of the Knesset, one of whom is usually from the opposition). Two others are representatives of the Israeli Bar Association and three are Supreme Court Justices (including the President of the Supreme Court). See Edelman, Martin, Courts, Politics, and Culture in Israel (Charlottesville: University Press of Virginia, 1994) at 3435 Google Scholar.

46. Robert J Aumann is a game theorist and Israeli recipient of the Nobel Prize. He argued at the hearings of the Israeli Knesset Constitutional Committee that the fact that the three Supreme Court Justices vote as a block raises their influence from 33% (3 out of 9) to 43%. See “Protocol no. 573” Knesset Constitutional Committee (17 June 2008), online: http://www.knesset.govil/protocols/data/html/huka/2008-06-17.html (in Hebrew).

47. The President of the Israeli Supreme Court made a controversial remark against the nomination of Ruth Gavison to the Israeli Supreme Court, claiming that she “has an agenda.” By agenda, he meant an agenda opposite to the prevailing doctrines found in Israeli constitutional law. See Yoaz, Yuval, “Barak says he was misunderstood on Ruth GavisonHaaretz (12 December 2005), online: Haaretz Google Scholar. Gavison is known for her ferce criticism of what she views as the hyper-activist Barak Court. See, Gavison, Ruth, The Constitutional Revolution: A Reality or a Self-Fulflling Prophecy? (Jerusalem: The Israel Democracy Institute, 1998)Google Scholar (in Hebrew). Eventually, Ruth Gavison was not nominated because all Supreme Court Justices opposed her nomination. On the cohesiveness of the Israeli Supreme Court Justices, see Shachar, Yoram, Harris, Ron & Gross, Meron, “Anatomy of Discourse and Dissent in Israel’s Supreme Court—A Quantitative Analysis” (1997) 20 TA U L Rev 763 (in Hebrew)Google Scholar. On the relative cohesiveness of the Canadian Supreme Court, see Ostberg, Cynthia L, Wetstein, Matthew E, Attitudinal Decision-Making in the Supreme Court of Canada (Vancouver: University of British Columbia Press, 2007).Google Scholar

48. Tushnet, Mark V, A Court Divided: The Rehnquist Court and the Future of Constitutional Law (New York: WW Norton & Company, 2005)Google Scholar; Johnson, Timothy R, Black, Ryan C & Ringsmuth, Eve M, Hear Me Roar: What Provokes Supreme Court Justices to Dissent from the Bench? (2009) 93 Minn L Rev 1560 Google Scholar; Epstein, Lee, Segal, Jeffrey A & Spaeth, Harold J, “The Norm of Consensus on the U.S. Supreme Court45 Am J Pol Sci 362 at 362-63 (2001)CrossRefGoogle Scholar; Epstein, Lee, Landes, William M & Posner, Richard, “Why (and When) Judges Dissent: A Theoretical and Empirical Analysis” (20 January 2010), online: (University of Chicago Law & Economics, Olin Working Paper No. 510) Google Scholar; Maltzman, Forrest, Spriggs, James F, & Wahlbeck, Paul J, Crafting Law on the Supreme Court: The Collegial Game (New York: Cambridge University Press, 2000)Google Scholar; Wahlbeck, Paul J, Spriggs, James F II & Maltzman, Forrest, “The Politics of Dissents and Concurrences on the U.S. Supreme Court” (1999) 27 Am Pol Q 488 CrossRefGoogle Scholar. For the federal lower courts, see Sunstein, Cass R et al, Are Judges Political? An Empirical Analysis of the Federal Judiciary (Washington, DC: Brookings Institution Press, 2006).Google Scholar

49. Of course a doctrine of stare decisis is also necessary for such a type of control. “Locking in” is an oft-used term in marketing. See, e.g., Johnson, Eric J, Bellman, Steve & Lohse, Gerald, “Cognitive Lock-In and the Power Law of Practice” (2003) 67 J Marketing 62 CrossRefGoogle Scholar.

50. Citizens United v Federal Election Commission (2010), 555 USSC 1028 Google Scholar [Citizens United] (corporations are entitled to first amendment constitutional rights protections). For criticism on the broad nature of the line of reasoning in Citizens United, see, e.g., Pollman, Elizabeth, “Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech”, online: (2009) 119 Yale LJ Online 53 Scholar

51. On the other hand, one can think of the commerce clause jurisprudence as an area of law in which, currently, there are no entrenched camps and no divided court. The jurisprudence is emphatically standard-like. In this way, the Court can proceed on a case-by-case basis and retain horizontal control over its own decisions. In the 19th century, the commerce clause was a hotly debated area of constitutional law. Today, the dormant commerce clause is much less debated and the prime doctrine here is of balancing and standards. See Redish, Martin H & Nugent, Shane V, “The Dormant Commerce Clause and the Constitutional Balance of Federalism” (1987) 4 Duke LJ 569 CrossRefGoogle Scholar.

52. On strategic use of panels in appellant and supreme courts, see Cross, Frank B & Tiller, Emerson H, “Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals” (1998) 107 Yale LJ 2155 CrossRefGoogle Scholar; Hettinger, Virginia A et al, “Attitudinal and Strategic Accounts of Dissenting Behavior on the U.S. Courts of Appeals” (2004) 48 Am J Pol Sci 123 CrossRefGoogle Scholar; Lindquist, Stefanie A & Martinek, Wendy L, “Response: Psychology, Strategy, and Behavioral Equivalence” (2009) 158 U Pa L Rev 75, 80Google Scholar; Kim, Pauline T, “Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects” (2009) 157 U Pa L Rev 1319 Google Scholar.

53. Rule 35 of the Federal Rules of Appellate Procedure provides the following: “An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.”

54. See Shachar, Yoram, “Solidarity and Generational Sequencing in the Israeli Supreme Court” (2001) 16 Bar Ilan U L Rev 161, 166Google Scholar (in Hebrew). See also, generally, Shachar, Yoram, “The Dialectics of Zionism and Democracy in the Legal System of Mandatory Palestine” in Kedar, A, Lahav, P & Likhovski, A, eds, The History of Law in a Multicultural Society: Israel 1917-1967 (Dartmouth, UK: Ashgate, 2002) 95.Google Scholar

55. See infra at text accompanying footnote 58.

56. Assuming of course, he could muster a majority for his view in future cases. See supra Part II.2. Horizontal Control = f (the coherence of the court).

57. This is similar to adopting the seemingly deferential “rational review” test but overturning the decision. See City of Cleburne v Cleburne Living Center Inc. [Cleburne], 473 US 432 (1985)Google Scholar (disability); Romer v Evans, 517 US 620 (1996)Google Scholar (sexual orientation). If you adopt this approach, you do not take the deferentialism of this test too seriously. You might do the same by not intervening in cases of strict scrutiny, thus, signaling that it is not “fatal in fact.” See Winkler, Adam, “Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts59 Vand L Rev 793 (2006)Google Scholar. The idea of the three tiers is that the two outliers should function more like rules, while the middle test should function like a balancing test. If you start disobeying these rules, they become balancing tests to the narrow proportionality rule of deference, which is arguably what Roberts did in Graham.

58. Kahn, Paul W, “The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell” (1987) 97 Yale LJ 1 at 35CrossRefGoogle Scholar.

59. Sunstein, Cass R, “Problems With Minimalism” (2006) 58 Stan L Rev 1899, 1909Google Scholar.

60. This aspect of standards may reveal a tension between the two main features of minimalism. Applying a standard may be narrow (i.e., limited to the facts of the case) but deep, in that it resorts to deep values in making the particular decision. See infra Part III.1.2. Shallow.

61. This seems to be Thomas’ position too in his criticism of Justice Roberts’ concurrence: “Both the Court and the concurrence claim their decisions to be narrow ones, but both invite a host of line-drawing problems to which courts must seek answers beyond the strictures of the Constitution.” Graham, supra note 1 at 27 (Thomas J dissenting) (Note that Thomas may be criticizing the reasoning here both for being broad rather than narrow and for being deep rather than shallow. See infra Part III.1.2. Shallow).

62. Actually, we can say that in the first case where you change the doctrine into a standard, you may have set a rule. This rule would say that all such cases will be governed by a standard. Consequently, there would be no need for rules and the court would proceed on a case-by-case basis. The influential German constitutional theorist, Robert Alexy, advanced a similar argument regarding his theory that views all constitutional provisions as “principles,” requiring an approach of standard-based proportionality in constitutional adjudication. The only rule in this system requires that everything be balanced or proportional. See Alexy, Robert, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002).Google Scholar

63. Note that there is an interesting analogy to be made here on the difference between rules in first and subsequent cases. In the first case, which sets a rule, the reasoning might be based on a standard such as open-ended balancing. However, in subsequent cases there would be no further need for balancing since a rule has been set. In the literature, Nimmer called this “principled balancing” and compared it to ad hoc balancing, in which the first-case balancing does not produce a rule. See Nimmer, Melville B, “The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy” (1968) 56 Cal L Rev 935 at 943-44CrossRefGoogle Scholar.

64. Roberts CJ in Graham, supra note 1 at 10:

A holding this broad is unnecessary because the particular conduct and circumstances at issue in the case before us are not serious enough to justify Graham’s sentence. In reaching this conclusion, there is no need for the Court to decide whether that same sentence would be constitutional if imposed for other more heinous nonhomicide crimes.

65. Sunstein, Cass R, “Incompletely Theorized Agreements in Constitutional Law” (1995) 103 Harv L Rev 1733 CrossRefGoogle Scholar. See also Rosen, Jeffery, The Supreme Court: The Personalities and Rivalries That Defined America (New York: Times Books, 2007)Google Scholar (in an interview with the author of this book, Chief Justice Roberts expressed his admiration to Chief Justice John Marshall who managed to unify a fractious group of justices. Roberts also expressed his hope in encouraging his fellow Justices to narrowly construe their decisions in order to achieve unanimity).

66. See Cartabia, Marta, “The Italian Constitutional Court and the Relationship between the Italian Legal System and EU” in Slaughter, Anne-Marie et al, eds, The European Courts and National Courts (Oxford: Oxford University Press, 1998) at 138 Google Scholar; Guarnieri, Carlo, “Justice and Politics: The Italian Case in a Comparative Perspective” (1993-1994) 4 Ind Int’l & Comp L Rev 241 Google Scholar.

67. The Italian Court decides in legal “questions” addressed to it by lower courts, rather than in entire cases. Here, it is less likely that the possibility of a standard-like decision depends on the particularities of the case. Francesco Amirante, The Italian Supreme Court, online: (2009) (Translation from the Italian by Clare Tame),

68. We believe that a better understanding of the distinction between narrow and broad comes not from that of rules and standards but from the distinction between ratio juris and obiter dictum. Narrow reasoning would say no more than is necessary to decide the case, regardless of whether it is based on a rule or on a standard.

69. Of course, the scope of the decision, and whether it should be read widely or narrowly, is notoriously tricky. See Alexander, Larry, “Constrained by Precedent” (1989) 63 S Cal L Rev 1 Google Scholar.

70. Sunstein, Cass R, Legal Reasoning and Political Conflict (Oxford: Oxford University Press, 1996) at 3561 Google Scholar.

71. Beatty, David, The Ultimate Rule of Law (Oxford: Oxford University Press, 2004) at 169 CrossRefGoogle Scholar argues that standard-based doctrines, such as the influential global doctrine of proportionality, emphasize factual analysis: “Testing the legitimacy of laws through the prism of proportionality creates a framework of analysis around which a very powerful theory of judicial review can be built. … On this model of judicial review, it is the formulation of minor premise, where the facts and details of the government’s behavior are scrutinized and probed, that all the hard work is done.” See also Robert Alexy, who argues that balancing can be conducted rationally within the framework of what he terms the “weight formula,” primarily because it involves assessing facts rather than making value-judgments. See Alexy, Robert, “Balancing, Constitutional Review and Representation” (225) 3 I-CON: Int’l J Con L 572 Google Scholar.

72. See, e.g., the Mephisto Case, 30 BVerfGE, 173 (1971) and the Microcensus Case, 27 BVerfGE 1 (1969). Also, see 4 BVerfGE 7, 15-16 (1954): “The Basic Law’s idea of man is not the idea of an isolated sovereign individual; rather, The Basic Law has decided the tension between individuals and society in favor of the individual being community related and community bound”.

73. R v Keegstra, [1990] 3 SCR 697, 755Google Scholar(Can.) (the reference point for applying the standard-based principle of proportionality in a hate-speech case is the characterization of Canada as a “multicultural society in which the diversity and richness of various cultural groups is a value to be protected and enhanced.”) See also R v Butler [1992] 1 SCR 452, 509Google Scholar (Can) (same with regard to pornography).

74. Basic Law: Human Dignity and Liberty, art. 1, 1A, 8 1992, S.H. 150 amended 1994 S.H. 90. English translation of the law, online: http://www.knesset.govil/laws/special/eng/basic3_eng. htm; Barak, Aharon, The Judge in a Democracy (2006) at 28-32Google Scholar. See also HCJ 5016/96 Horev v Minister of Transportation [1997] IsrSC 51(4) 1; English translation online: http://elyon1. (“[t]he general purposes are the values of the State of Israel as a Jewish and democratic state; the specific purposes refer to the specific “proper purpose” specifed by the limitation clause. The principle of proportionality, as provided for in the Basic Law, is another expression of the reasonableness standard according to which we generally interpret any piece of legislation.”)

75. Consider, for example Justice Holmes’ shallow reasoning for the rule he has set—the driver must stop and look—in his famous debate with Justice Cardozo over the standard of behavior for drivers at a railroad crossing. Compare Baltimore & Ohio RR v Goodman, 275 US 66 (1927) with Pokora v Wabash Ry, 292 US 98 (1934).

76. Contrary to this assumption of minimalism, one may argue that it is easier to secure a wide agreement over high level and abstract principles, such as democracy and free speech, than over lower level principles. However, such agreement may turn out to be hollow since these principles are so broad that when the time comes to decide actual cases, conflict will immediately rise again. See Sunstein, Foreword, supra note 11 at 20 (argues that sometimes, especially in constitution-making, it would be easier for people to agree on deep principles: “[people] accept the principles of “freedom of speech” or “equality” despite their uncertainty or disagreements about what these principles specifically entail.” But these abstractions cover deep disagreements over values, only delegating power to the court to make difficult moral judgments).

77. Because facts alone cannot determine what considerations are relevant and legitimate for the purpose of decision-making, any form of balancing cannot avoid value judgments. Thus, the result of a standard-based approach would push judges to be involved in some subjective value judgment on a very large scale.

78. Sunstein, Cass R, The Constitution of Many Minds (Princeton, NJ: Princeton University Press, 2009)CrossRefGoogle Scholar; Sunstein, Cass R, “Burkean Minimalism” (2006) 105 Mich L Rev 353 Google Scholar.

79. Vermeule, Adrian, Law and the Limits of Reason (Oxford: Oxford University Press, 2008).CrossRefGoogle Scholar

80. Hayek, Friedrich, The Constitution of Liberty (Chicago, IL: University of Chicago Press, 1960)Google Scholar; see also Hardin, Russell, “Representing Ignorance” (2004) 21 Soc Phil & Pol 76, 85-87CrossRefGoogle Scholar describing Hayek’s argument against market regulations. Hayek claims that it is difficult to see issues from above. Without receiving true input on essential matters and dilemmas, representatives will not know nor will they understand reality, particularly that of the citizens in their community.

81. Compare Hayek, Friedrich, Law, Legislation and Liberty (London: Routledge, 1973)Google Scholar; Postema, Gerald J, “Some Roots of Our Notion of Precedent” in Goldstein, Louis, ed, Precedent in Law (Clarendon Press, Oxford, 1987)Google Scholar and Vermeule, Adrian, “Many-Minds Arguments in Legal Theory” (2009) 1 J Legal Analysis 1 at 6-9CrossRefGoogle Scholar.

82. Graham, supra note 1 at 23 (Thomas J dissenting).

83. Ibid.

84. Graham, supra note 1 at 11 (Roberts CJ concurring in judgment).

85. The debate over the size of the Supreme Court’s planetary docket is a debate over the extent of control needed to be exercised over lower courts. For an overview, see a summary of this debate in J Harvie Wilkinson III, “If It Ain’t Broke …”, 119 Yale LJ Online 67 (2009), online: J Harvie Wilkinson III shows that the non-interventionist camp sides with what Bickel’s called “the passive virtues of the Court.” See Alexander Bickel, “The Least Dangerous Branch: The Supreme Court at the Bar of Politics” (2d ed 1986) at 71; Frost, Amanda, “Overvaluing Uniformity” (2008) 94 Va L Rev 1567, 1571, 1597-600Google Scholar (argues that most circuit court splits are trivial and hence there is no need to increase the Supreme Court’s docket). The interventionist camp is composed of both liberals and conservatives who believe that Supreme Court intervention is needed to secure their goals. For a liberal interventionist approach, see, e.g., Lazarus, Richard L, “Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar” (2008) 96 Geo LJ 1487 at 1554-62Google Scholar (the Court should hear more pro bono cases); For a conservative interventionist approach, see Starr, supra note 39 (the Court should hear more cases to restrain lower court’s judicial activism).

86. New State Ice Co v Liebmann, 285 U. S.SC 262, 311 (1932)Google Scholar (Brandeis J dissenting) (“It is one of the happy incidents of the federal system, that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”)

87. Thomas also justifes his position on democratic grounds. See Graham, supra note 1 at 24 (Thomas J dissenting) (“The question of what acts are “deserving” of what punishments is bound so tightly with questions of morality and social conditions as to make it, almost by definition, a question for legislative resolution”).

88. Dworkin, Ronald, Law’s Empire (Cambridge, MA: Harvard University Press, 1986)Google Scholar. The former President of the Israeli Supreme Court, Aharon Barak, is like Hercules in many respects. He based his jurisprudence on standards rather than on rules. Interestingly, the level of praise for Barak has turned out to be one of the major attacks in Elena Kagan’s Supreme Court confirmation hearings. Kagan was criticized by conservatives for a lean toward judicial activism, in part because in 2002 she praised Aharon Barak as her “hero” when she introduced him at a Harvard Law School event. However, liberals referred to praises made by conservatives like Justice Scalia (describing Barak as the jurist who has the greatest impact on his country’s legal system) and Charles Fried (describing Barak as a Dworkinian Hercules). See “Drudge Hypes Discredited Attack on Kagan’s Admiration for a Judge that Scalia, Fried also Praised” Media Matters for America (24 June, 2010) Media Matters, online:

89. Such position was held during the New Deal Era by several judges. See JusticeStone’s, Harlan Fiske coupling of standards with a reasonableness-based, highly deferential standard of review, in Stone, Harlan F, “The Common Law in the United States” (1936) 50 Harv L Rev 4, 23-24Google Scholar (“[t]he great constitutional guarantees of personal liberty and of property … are but statements of standards …. The chief and ultimate standard which they exact is reasonableness of official action and its innocence of arbitrary and oppressive exactions…. They do not prescribe formulas to which governmental action must conform …. [They should] enable government, in “all the various crises of human affairs,” to continue to function and to perform its appointed task within the bounds of reasonableness…”) [emphasis in original]; a similar position was held by Judge Learned Hand and Justice Felix Frankfurter with regards to the First Amendment. See Learned Hand, The Spirit of Liberty (1952) at 177-78; Dennis v United States 341 US 494, 540 (1951)Google Scholar (Frankfurter, concurring in judgment).

90. The test itself is a test of gross disproportionality, but what we are looking for is a standard of clear mistakes in the application of this test by the lower court. This seems to be lacking in the opinion.

91. Guthrie, Chris et al, “Inside the Judicial Mind” (2001) 86 Cornell L Rev 777 Google Scholar; Schauer, Frederick, “On the Supposed Jury-Dependence of Evidence Law” (2006) 155 U Pa L Rev 165 CrossRefGoogle Scholar.

92. Elster, Jon, Ulysses and The Sirens: Studies in Rationality and Irrationality (Cambridge: Cambridge University Press, 1979)Google Scholar; Holmes, Stephen, “Precommitment and the Paradox of DemocracyElster, Jon & Slagstad, Rune, eds, in Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1988) at 195 CrossRefGoogle Scholar; Sunstein, Cass, What Constitutions Do (Oxford: Oxford University Press, 2001) at 96101 Google Scholar.

93. In Olmstead v United States, Justice Holmes acknowledged that there is a gap in the law, and created a rule to fill the gap. Holmes writes that “there is no body of precedents by which we are bound, and which confines us to logical deduction from established rules. [Therefore] … we are free to choose between two principles of policy.” See Olmstead v United States, 277 US 438, 469 (1928)Google Scholar [Olmstead] (Holmes J dissenting).

94. See supra note 33 and citations.

95. David Beatty is one of the foremost supporters of the global standard-based doctrine of proportionality, or balancing. The following quote (David Beatty, supra note 71 at 169) reveals the degree of optimism is aligned with a standard-based approach:

[P]roportionality permits disputes about the limits of legitimate law making to be settled on the basis of reason and rational argument. It makes it possible to compare and evaluate interests and ideas, values and facts, that are radically different in a way that is both rational and fair. It allows judgments to be made about ways of thinking that are as incommensurable as reason and faith.

96. In Graham, supra note 1 at 2-3, Roberts (concurring in judgment) emphasizes the primacy of the legislature in setting sentences and “the state-by-state diversity protected by our federal system.” He argues that such approach “does not grant judges blanket authority to second-guess decisions made by legislatures or sentencing courts.” (Ibid at 2-3).

97. See Thomas’ dissent in Graham, supra note 1 at 24 (“The question of what acts are “deserving” of what punishments is bound so tightly with questions of morality and social conditions as to make it, almost by definition, a question for legislative resolution.”).

98. Gardbaum, Stephen, “A Democratic Defense of Constitutional Balancing” (2010) 4 L & Ethics Hum Rts 79 Google Scholar.

99. Sunstein makes a similar point. He argues that “[o]ne of the major advantages of minimalism is that it grants a certain latitude to other branches of government by allowing the democratic process room to adapt to future developments, to produce mutually advantageous compromises, and to add new information and perspectives to legal problems.” Sunstein ties minimalism to “the post-New Deal, neo-Thayerian effort to limit the role of judges in political processes and forms part of the project of Justices Brandeis and Frankfurter,” but also characterizes it as “democracy-forcing, and in that way continuous with Carolene Products footnote four.” See Sunstein, Foreword, supra note 11 at 19 n 66. See also Winter, Steven L, “The Metaphor of Standing and the Problem of Self-Governance40 Stan L Rev (1988) 1371 at 1447-52CrossRefGoogle Scholar.

100. For a general overview of these debates, see Aleinikoff, Alexander T, “Constitutional Law in the Age of Balancing” (1987) 96 Yale L J 943 CrossRefGoogle Scholar. As to the decline in the use of balancing in the early 1990s, see, e.g., Gottlieb, Stephen E, “The Paradox of Balancing Signifcant Interests” (1994) 45 Hastings LJ 825 Google Scholar.

101. For a general review of the use of balancing during the McCarthy era, and for objections on the Court, see Urofsky, Melvin I, Division and Discord: The Supreme Court Under Stone and Vinson 1941-1953 (Columbia: University of South Carolina Press, 1997)Google Scholar; Frantz, Laurent B, “The First Amendment in the Balance” (1962) 71 Yale LJ 1424 CrossRefGoogle Scholar; Mendelson, Wallace, “The First Amendment and the Judicial Process: A Reply to Mr. Frantz” (1964) 17 Vand L Rev 479 Google Scholar.

102. Dennis v United States, 341 US 494 (1951)Google Scholar (Black J dissenting).

103. Ibid (Frankfurter J concurring in judgment).

104. Ibid at 540.

105. Lochner v New York, 198 US 45 (1905)Google Scholar.

106. Ibid at 75 (“I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.”) (Holmes J dissenting).

107. See Nixon v Shrink Missouri Government (2000) 528 US >sp>377 at 403sp>377+at+403>Google Scholar (Breyer J opinion) (“Rather, … [the Court] has balanced interests. And in practice that has meant asking whether the statute burdens any one such interest in a manner out of proportion to the statute’s salutary effects upon the others.”).

108. Heller, supra note 14 (Breyer J dissenting) (“Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented,… the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases.”).

109. Grutter v Bollinger, 539 US 306 (2003)Google Scholar.

110. Michelman, Frank I, Brennan and Democracy (Princeton, NJ: Princeton University Press, 1999)Google Scholar. Brennan worked well with Chief Justice Warren and with his fellow justices. His writing style at this time rarely invoked absolutes. This differentiated him from Justices Hugo Black and William O Douglas. By “balancing” the competing interests of the government and the individual, Brennan’s opinions made him appear more centrist than he probably was. This “balance,” however, usually tilted in favor of the individual and against the government. Online: See also Cleburne, supra note 57. (Marshal J dissenting in part and concurring in the result) (criticizing the use of rigid categories in the equal protection jurisprudence and arguing for a linear approach for the equal protection clause, emphasizing assessment of degree).

111. See, e.g., Neuborne, Burt, “Notes for a Theory of Constrained Balancing in First Amendment Cases: An Essay in Honor of Tome Emerson” (1988) 38 Case W Research L Rev 576 at 578Google Scholar (arguing that “judicial balancing has been subjected to deserved academic criticism, … because it licenses a judge to engage in overtly subjective decision-making that replicates, and occasionally displaces, identical thought-processes already carried out by a politically responsible official.”); Ducat, Craig R, Modes of Constitutional Interpretation (St Paul, MN: West, 1978) at 119 Google Scholar (“The approach to judicial decision-making, taken by interest balancers, is much like that taken by political actors staffing coordinate institutions of government who must themselves choose between rival group interests on issues of the day.”).

112. For a recent example, see Heller, supra note 14 at 62-63 (Scalia J delivering opinion of the court rejected a balancing test in the context of the Second Amendment for watering down constitutional rights. Scalia said, “The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”).

113. One may question whether the majority’s use of rules is analogous to Black’s categorical approach. The difference lies, however, in the text being interpreted. The First Amendment is drafted as a rule, and its interpretation as a standard is an anti-formalistic act. In contrast, the Eighth Amendment is drafted as a standard so that the introduction of a rule in its interpretation becomes the anti-formalistic act. The majority opinion in Graham (supra note 1) therefore differs from Black’s in not being able to portray itself as “literalist” or “textualist.”

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