In his confirmation hearings, Chief Justice Roberts testified about the importance of judicial modesty to legal change. Indeed, conservative and liberal Justices alike subscribe to this goal, which is also referred to as judicial humility or judicial restraint. Despite these intentions, the Supreme Court has not developed sufficient, effective doctrine to achieve judicial modesty. Justices have significant discretion over whether legal change should be made, and bias and preferences may influence the legal change. Several recent high-profile cases, including Bell Atlantic Corp. v. Twombly, Wal-Mart Stores, Inc. v. Dukes, and Ricci v. DeStefano, illustrate these problems. Each of these cases had extraordinary facts, those extraordinary facts motivated legal change, and the legal change now affects typical cases without such extraordinary facts. And no doctrine of judicial restraint prevented the legal change in these cases. Although these cases have been criticized extensively for their individual holdings, to date, scholars have failed to see that this lack of judicial restraint ties all of these cases together.
What tools for judicial restraint presently exist? First, looking backward, stare decisis has been the fundamental manner to restrain the judiciary. However, there are problems with stare decisis. Scholars have discussed the discretionary nature of stare decisis such that courts sometimes do not seriously consider precedent in cases. Additionally, at times courts will completely ignore stare decisis.
In cases where stare decisis may not be relevant, other tools of modesty—such as constitutional and statutory interpretation tools—look forward. These tools are often malleable, with courts having discretion to apply them or not. Furthermore, none of the current tools of modesty may apply to the issues in the particular cases at hand.
Twombly, Wal-Mart, and Ricci are examples of cases in which the Court lacked sufficient effective doctrines of judicial restraint. The Court was not restrained from making legal changes in these cases where the facts were atypical, the facts motivated the legal change, and the legal change affected typical cases.
To counter the problem of a lack of effective judicial restraint, this Article argues that the Court needs more doctrine to guide when legal change should not be made in cases that involve constitutional or nonconstitutional issues. The Article begins the discussion by arguing for a new doctrine—the establishment of an “atypical doctrine”—such that the Court should not make legal change motivated by atypical or oddball facts when the change will affect typical cases. One may think of the saying “hard cases make bad law.” While my doctrine may fall within some definitions of “hard cases make bad law” and may not fall within others, further discussion is needed of what is a hard case that makes bad law and how such cases can be avoided.
Under the atypical doctrine, the Court should not have made the legal changes in Twombly, Wal-Mart, and Ricci. The Court should not have accepted the cases on certiorari, or the cases should have been decided more narrowly. Moreover, the change, if appropriate, should have been accomplished in another case or by a different institution—for example, Congress or a rule-making body. Making legal change when motivated by extraordinary facts threatens the legitimacy of the Court, interferes with the authority of other institutions, and adds unaccounted-for costs to the justice system.
While Twombly, Wal-Mart, and Ricci were controversial cases—especially to certain constituencies—all controversial cases are not atypical cases. Citizens United v. Federal Election Commission is an example of another controversial case opposed by some of the same constituencies that opposed Wal-Mart, Twombly, and Ricci. However, the atypical doctrine would not have prevented legal change in Citizens United.
