In a debate between Justices Scalia and Breyer that took place almost a 9 months ago, both Justices declared that they were more concerned with establishing broad precedence than reaching a sound conclusion in a single case. Here are the comments from the Justices:

Scalia: I don’t much care about your particular case. I am not about to produce a better result in your case at the expense of creating terrible results in 100 other cases because thats what appellate courts do, they set forth principles that govern an immense number of other other cases. So, what I’m concerned about as an appellate judge is a legal principle that will produce justice in the sense of giving the fairest interpretation of the statute over a large number of cases.

Breyer: What we decide affects 300 million people. If you try to worry about the equities between the two people just before the court you could really get it wrong in respect to 299 million others.

What?! I had always been under the impression that the primary responsibility of the Court was solving the conflict between two parties. In Ashwander v. TVA (1936), Justice Brandeis established a set of rules that every are now referred to as the Ashwander Rules:

1) The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding,

2) The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.

3) The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.

4) The Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.

5) The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional.

6) The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. [My first Constitutional Law textbook, American Constitutional Law, rephrased this rule as "The Court will not pass upon the constitutionality of a statue at the instance of one who has accepted its benefits."]

7) When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.

I removed the internal quotation marks within the various rules to enhance thei readability, but all of those rules were drawn from the assertions made in previous cases. In fact, the seventh rule is merely a direct quotation from a case that came before the court years before Justice Brandeis.

It surprises me that two Justices would so readily accept a judicial philosophy that was frowned upon throughout much of my legal education. I have always believed that an unnecessarily broad ruling was the sign of an over-zealous court. To be honest, this is the first time I have ever heard someone speak in favor of the notion that the Court should forsake the case in front of it in order to establish broader precedent.

I believe that the Court should always rule as narrowly as possible. If Justices Scalia and Breyer is concerned about “get[ting] it wrong” then he should narrow his opinion to apply to only cases that are similar to the one in front of the court at the time.

This comes a bit of a shock to me, so I’d love to hear comments from other people about this topic. Why is it okay for judges to use the facts of a case as a loose framework for ruling on a broad topic?


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