More Minimalism from the Roberts Court
Yesterday's Supreme Court decision in Norfolk Southern Railway Co. v. Sorrell was unremarkable in what it said, but striking in what it did not say. The case presented the question of whether the same standard of causation applies to the defendant's negligence and the plaintiff's contributory negligence in actions under the Federal Employers' Liability Act (or FELA). The Missouri Court of Appeals had said a different standard applies and the Court reversed.
So far so good. Yet the Court, in a majority opinion by Chief Justice Roberts, declined to address the question of what that standard is, going so far as to chide the railroad's lawyers for trying "to smuggle additional questions" into the case beyond those expressly described in the cert petition and grant. There is something to be said for not deciding difficult issues not squarely before the Court, but the question of how one proves negligence is not exactly a novel legal issue. It's something covered in nearly every first-year torts class, often in the first few weeks of law school. Moreover, as Roberts himself acknowledged, one can fairly characterize the question of what the standard is for plaintiffs and defendants as part of the question of whether they're the same. To say that this is outside the scope of the cert question is a little like saying that someone who used a scale to weigh a pail of apples and then to weigh a pail of oranges has gone beyond a mandate to ascertain whether the two pails (and their contents) are equal in weight. Yes, you could put the pails on opposite ends of a balance and thus determine their equality or inequality without determining their weights, but determining the actual weights is a perfectly valid alternative approach.
The Roberts opinion in Norfolk Southern is thus a rather extreme (albeit fairly harmless) example of the favorite maxim of Chief Justice Roberts: If it's not necessary to decide an issue, it's necessary not to decide the issue. The case shows that the maxim is at best an overstatement.
So far so good. Yet the Court, in a majority opinion by Chief Justice Roberts, declined to address the question of what that standard is, going so far as to chide the railroad's lawyers for trying "to smuggle additional questions" into the case beyond those expressly described in the cert petition and grant. There is something to be said for not deciding difficult issues not squarely before the Court, but the question of how one proves negligence is not exactly a novel legal issue. It's something covered in nearly every first-year torts class, often in the first few weeks of law school. Moreover, as Roberts himself acknowledged, one can fairly characterize the question of what the standard is for plaintiffs and defendants as part of the question of whether they're the same. To say that this is outside the scope of the cert question is a little like saying that someone who used a scale to weigh a pail of apples and then to weigh a pail of oranges has gone beyond a mandate to ascertain whether the two pails (and their contents) are equal in weight. Yes, you could put the pails on opposite ends of a balance and thus determine their equality or inequality without determining their weights, but determining the actual weights is a perfectly valid alternative approach.
The Roberts opinion in Norfolk Southern is thus a rather extreme (albeit fairly harmless) example of the favorite maxim of Chief Justice Roberts: If it's not necessary to decide an issue, it's necessary not to decide the issue. The case shows that the maxim is at best an overstatement.
posted by Michael C. Dorf @ 12:43 AM
4 Comments:
At 10:34 AM,
David C. said…
I could be mistaken about this, but wasn't Roberts a proponent of having the Court accept more cases (and more business cases) to settle important issues and provide guidance to affected interests? If that's a worthy goal, it seems to be frustrated by a zealous commitment to minimalism, even if in this example the restraint is pretty harmless. That said, minimalism may be the more important goal than final, clear, and comprehensive resolution of circuit splits. It just seems odd that one Justice would be devoted to both values, unless it's some way to split the difference---i.e., we'll decide less, but in order to compensate, we'll take more cases. (But I may be confused about whether it was Roberts with the commitment to a larger case load.)
At 11:21 AM,
Michael C. Dorf said…
Dave is absolutely right about the tension between these goals that Roberts has set.
At 5:59 AM,
David C. said…
Jeffrey Rosen reported on an interview he had with Roberts in which he concluded that Roberts's commitment to consensus in the Court's decisions is a source of his minimalism: "To encourage consensus, Roberts often tries to define the principle in question as narrowly as possible. 'In most cases, I think the narrower the better, because people will be less concerned about it,' [Roberts] said."
This may be one reason why Roberts has adopted seemingly conflicting goals.
Article at: http://www.theatlantic.com/doc/200701/john-roberts
At 2:50 AM,
Andy said…
""To encourage consensus, Roberts often tries to define the principle in question as narrowly as possible."
I thought it was the job of the Court to confront tough issues and say what the law is, rather than find the narrowest grounds possible to dispose of a case. I'm not suggesting that courts should go off and decide issues that aren't related to the case, but i think Prof. Dorf's post shows an example in which minimalism may have gone too far.
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