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Can Moderation Give Us Justice?

American Bar Association, The Journal of the Section of Litigation
Robert E. Shapiro

Reprinted with permission from the American Bar Association, The Journal of the Section of Litigation.

The Greek philosopher Aristotle famously described moral virtue as a mean between extremes. The extremes comprised either too much or too little. A fine example of this was the virtue of "liberality," what we might call generosity or even charity. A person who gave too much was a spendthrift or possibly a too-conspicuous consumer. One who gave too little was a miser, a Scrooge, more worried about his purse than other persons. Between these two vices of excess and deficiency was the virtue of proper giving, no more than, but at least as much as, one could afford.

The Goldilocks-like simplicity of this formula is deceiving. Knowing just how much one can afford is often the hard part. And what makes the porridge "just right"? How much is too much? Or not enough? Not coincidentally, Aristotle's apparent rule works least well, indeed not at all, with the all-important moral virtue of justice. Speaking of too much justice or too little seems to make no sense at all, even if "just right" is exactly what justice seems to be about. So it seems that the key to moral virtue is not really a matter of quantity, after all, but of quality. Finding just the right balance, the "just right" approach to a situation, whether one is concerned with giving or courage or friendship or justice, is really the heart of the matter.

This is not to say that the qualitative shares nothing with the quantitative. Moderation bears a certain resemblance to self-restraint, and when we think of justice, we can see that self-restraint in both directions makes a great deal of sense. Take sentencing, for example. Finding the right sentence requires finding the mean between a penalty too harsh and one too lenient, too many years and too few. And, as a judge approaches sentencing, we want the judge to be neither too angry nor too demure. We want self-control, but not total detachment. Moderation, we might say, in these and all other things.

The conclusion might be that moderation is not a determinant or a pure substitute for justice but is somehow part of it and, on occasion, a useful stand-in. Thus, in the sentencing example, a judge may not have sense enough to discern the fairest sentence, but moderation will often get him or her at least part of the way there. And a moderate tone will likely facilitate a fair consideration, even if it by no means ensures the right outcome. Moderation is not itself the knowledge of what is right or fair, even if intemperance seems never to be so. The substance of justice is not mere process or style. But knowing how to approach the most difficult matters is an aid to reaching a correct conclusion, even if it is not that fair conclusion itself.

In this lesson, we might find a useful tool for thinking about the close of the Supreme Court's 2012-2013 term. More than one commentator has remarked that the spate of dramatic decisions at the end of June provided something for everyone to like and dislike, lots to get excited about pro and con. The decision in United States v. Windsor, 133 S. Ct. 2675 (June 26, 2013), for example, striking down the federal Defense of Marriage Act (DOMA), thrilled progressives and infuriated conservatives. The invalidation of Section 3 of the Civil Rights Act in Shelby County v. Holder, 133 S. Ct. 2612 (June 25, 2013), turned this calculus around. And both sides of the partisan divide seemed dissatisfied with the Court's decision in Fisher v. University of Texas, 133 S. Ct. 2411 (June 24, 2013), to demur on affirmative action in higher education. Might this all signal a Court pursuing a middle road, a more moderate course, a mean between extremes, in the application of our most fundamental guaranty of justice, our Constitution?

Not the Rhetoric of Moderation

Certainly, the rhetoric used on the Court would suggest otherwise. Far from being moderate, it sometimes failed basic rules of civility. Whatever one thinks of [*57] the outcome of the aforementioned decisions, no one could describe the manner in which a majority of the Court conducted its business as restrained or "just right." Chief Justice Roberts openly lamented that the majority decision in the DOMA decision made broad charges of prejudice against Congress and members of the Court. Justice Ginsburg's dissent in the Voting Rights decision was loaded with acerbic charges and even sneers about a supposedly willful blindness by others to discrimination. Not to be outdone, the conservatives on the Court indulged in a series of fulminations about liberal obtuseness or constitutional illiteracy. There was quite literally a war of words, hardly the stuff of a well-considered rationalism or anything we might call "just right."

The declining civility on the Court not only is worrisome but ranks as one of the changes in the function of our governmental structure that the framers might find most disturbing. The appointment procedures and "good behavior" tenure afforded the justices were designed to produce a panel of learned and sober, indeed moderate, jurists to interpret the Constitution, far from the madding crowd of partisan sparring. There are some conclusions to be drawn about the status of the Constitution--and not particularly pretty ones--from the current tenor of Supreme Court decision making in and of itself.

But, here again, we can see the problematic relationship between moderation and justice. One political campaign a half century ago argued--somewhat to its misfortune, it must be added--that "moderation in the pursuit of justice is no virtue." The disagreements in this trio of cases were not mere partisan spats; they touched on some very significant issues of equality and prejudice in America. There are times when restraint is unjustified, no more fitting in a qualitative sense than a billionaire touting his charity in purchasing a StreetWise. No one could quarrel if one of the dissenters in the Dred Scott decision, for example, had intemperately condemned its outrageous conclusions about the status of African Americans. Should we really expect such issues to be carried on in a civil or moderate tone?

In a word, yes. Even leaving aside that the dissenting justices in Dred Scott found a moderate way of rebuking their brethren on the Court, there is some question whether the matters at issue here, important though they may be, really justify such departures from civility. The historical example only underscores the concern. Have we really reached a divide in our understanding of our most basic principles comparable to the one that spawned the Civil War? Stepping back from this idea, we should all question whether partisan fulminations really benefit Supreme Court decision writing in our day and age, even given the important matters involved.

Rhetoric aside, however, and perhaps with the idea of "confidence-building" measures in mind, there does seem to be a trend among some members of the Court to find a middle ground on its most fundamental decisions. Start again with the Windsor decision on DOMA. This was one of two cases in which the Court was called upon to consider the status of gay marriage under the Constitution. In the DOMA decision itself, the Court actually used its harsh rhetoric to sidestep that issue. It found that it was Congress's singling out of a particular group--in this case, gay couples--for special condemnation that was unconstitutional. There was no decision made on the constitutionality of gay marriage itself. The very immoderation of the speech concealed a certain restraint in law. Meanwhile, in a companion case, where the Court was called upon to consider the constitutionality of California's Proposition 8, which had attempted to outlaw gay marriage altogether, the Court continued its cautious course. It refused to decide on standing grounds, though this did leave intact the decision of the lower courts striking down the ban on constitutional grounds.

The Voting Rights Act

The decision on the Voting Rights Act might appear to follow a similar middle path. Those who attacked the 50-year-old act claimed it was completely wrong-headed and outdated. Under Section 4, the act provided that states and other governmental units with a documented history and/or the measurable effects of discrimination were subject to a preapproval requirement for any and all changes in their voting rules and qualifications. The Justice Department had the right to say "yea" or "nay" before any new provision took effect. According to the law's detractors, this close scrutiny of particular states was, if ever justified, no longer fair, given that discrimination had diminished so significantly.

Proponents of the act, Justice Ginsburg foremost among them, thought this conclusion overhasty, to say the least. The evidence of what she called secondary forms of discrimination was powerful indeed. It is not clear, however, what this undeniable discrimination, which would seem to exist everywhere, had to do with the decision to single out individual states and counties. A better course may have been to point out the opponents' "Containment [*58] Fallacy," ignoring how the act itself may have been the reason voter laws in the target areas had become less pernicious. But her point was that the act still served vital purposes and had to be upheld.

In the event, Chief Justice Roberts found himself a seeming middle ground. He mustered a 5-4 majority for the proposition that, while the act's general mechanism was constitutional, its formula for determining which governmental units would be subject to preapproval scrutiny was not. The act itself was upheld, on this basis, subject to Congress devising a new formula that considered 2013 realities. The Chief Justice therefore struck down Section 3, which created the existing formula, while leaving intact the act's broader salutary purposes as set out in Section 4.

Affirmative Action

The Court's third major decision concerned affirmative action in admissions at the collegiate level. Here the evidence of restraint seemed very prominent indeed. The question was whether the University of Texas's admission requirements utilizing race met the strict scrutiny standards for the use of a racial element in making such determinations. This standard was applied by an earlier decision in Grutter v. Bollinger, 539 U.S. 306 (2003), which reviewed a program at the University of Michigan. Under the strict scrutiny test, use of a race element was permissible only if it could be demonstrated as essential to serve some paramount goal such as diversity. The Texas case was more challenging than the Michigan one because UT already applied a "10 percent rule" whereby the top 10 percent of every high school class in Texas gained automatic admission to the school. Given the number of schools where minority students predominated, this meant that the university's interest in racial diversity was already being met, at least in part.

The Court in Fisher therefore had a whole smorgasbord of options. It could have struck down the program altogether, as discriminatory in itself. Justice Thomas issued a fiery opinion (more strong rhetoric!!) condemning the program on exactly these grounds, excoriating any use of race. At the other extreme, Justice Ginsburg advocated that the Court stop pussy-footing around (ditto!!) and recognize affirmative action for what she says it is, an obvious and well-justified use of race for salutary purposes. Each of these advocated a new and more extreme standard, Justice Thomas's more strict and Justice Ginsburg's more lenient. Still another option might have been the striking down of the Texas program on the narrow factual ground that its unique 10 percent rule made the use of race in this instance insufficient to meet existing constitutional requirements for using race as a factor.

The Court rejected this latter fact-based solution but still steered a "moderate" course, reiterating its existing strict scrutiny standards but remanding the case to the lower court, which had seemed not to have applied them. It thereby rejected the no race/all race extremes and adopted a kind of middle ground. As in the Voting Rights Act decision, it reaffirmed the existing general principle but required a more precise application of it.

Is this a new policy of moderation on the Court? It would seem that this is precisely what the Chief Justice has in mind. Like his decision in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), upholding on traditional tax grounds Obamacare's individual health care mandate, Chief Justice Roberts seems determined to avoid extreme measures by the Court one way or the other, even as he tries to lower the temperature of the Court's rhetoric. Although Chief Justice Roberts was in the minority on the DOMA case, he chided the majority mostly for the sharp language the decision required. Certainly, a more restrained Court, shunning harsh language and stunning substantive reversals, seems to be his idea, and not a bad one at that.

Yet, will this kind of moderation give us justice? In the DOMA case, the Court found a way not to consider the fundamental question of whether gay marriage, by itself, is protected by the Constitution. The actual role race may play in admissions to college remains unclear after Fisher. The Voting Rights Act decision left the fundamental rule of the act in place at least in theory, but it is now inoperative in practice, as no state is subject to the act's mechanisms unless and until our sharply divided Congress can reach agreement on what new formula to use. As the post-decision rush by previously covered states to adopt new voting rules shows, what appears to have been a moderate decision was actually a rather dramatic one, which one will cheer or fret over depending how one believes the fundamental issue should be decided.

What is so striking is how little agreement there is on that. Moderation is appealing now because perceptions on what is "just" in these circumstances can seemingly find no common ground, no "just right." But, again, moderation is not justice. Partisan disputes are not so much a problem when there are common principles beneath them. Sober reflection by an insulated Court should find those principles. But if they are not there, what then?

In this respect, the Court faces a more daunting challenge than can be met by cooler rhetoric and restrained decisions. With both sides of the Court having rejected the founders' self-evident truth of natural rights theory--itself a theory of justice--the Court needs a new consensus on what is just, or not, on which to found its most important decisions. And while moderation in tone and substance may be useful as the Court seeks after what that theory is to be, it will never by itself satisfy the country's need for a resolution of, let alone consensus on, the most fundamental political and constitutional issues.

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Litigation, published quarterly, is the preeminent journal in the field of trial practice. The publication offers practical yet lively information on common problems and interests for the lawyers who try cases and the judges who decide them.

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