From ad hoc balancing to incoherence.

[James G. Wilson]

   The judicial creation and application of legal doctrine, particularly 
constituitonal concepts, will always remain profoundly unpredictable.   
The Garcetti decision demonstrates that the forms of indeterminacy will 
change over time.  For years, we lived with Justice O'Connor's numerous 
balancing tests, ranging from "undue burdens" to "reasonable observers" 
 who remarkably seemed very similar to Justice O'Connor.   Although 
O'Connor always gave herself and the Court a great deal of flexibility 
to deal with future issues, her overall constitutional doctrine was 
reasonably predictable:  a center-right libertarian approach sensitive 
to mainstream public opinion.   Now that Justice Kennedy appears to have 
the swing vote, we have entered far murkier waters.   Kennedy's opinions 
are extremely hard to grasp--whether it be the failure to discuss 
precedent (as in Romer), obscure distinctions of precedent (as in 
Garcetti, Casey, and many others), or periodic sentences/paragraphs that 
appear, at least to this reader, to have little or no meaning.  Even 
when he speaks clearly, we can never be sure what he will do next.  He 
has always opposed affirmative action, but what will he do now that  he 
probably has the fifth vote?

      Garcetti may well herald that the Kennedy Court is going to be far 
more aggressive than the O'Connor Court in protecting both public and 
private power from meddlesome individuals.  Aside from the merits--and 
the actual case is not an easy one--the decision is filled with 
disturbing "dicta."  Consider what Kennedy may have casually done to 
faculty prerogatives that currently exist under "tenure" and "academic 
freedom."  He seemingly concedes that the First Amendment probably 
protects, to some degree, "academic scholarship" and the classroom.  But 
what about "faculty governance?"   Although the primary purpose of 
tenure is to protect  faculty from partisan political attacks so they 
can freely pursue their intellectual interests, another function of 
tenure is to empower the teachers to some degree so Universities do not 
degenerate into the corporate model.  There are many disputes--over 
staffing, internet learning, student admissions, allocation of resources 
to administration versus teaching, transperancy of spending, 
fund-raising, and so forth--which are not directly related to 
scholarship and teaching.  Does this mean that University Presidents and 
Deans can fire or demote tenured professors who oppose their vision 
statements?  

     Finally, Garcetti, like Hamdi v. Rumsfeld, has a dismaying narrow 
conception of citizenship.  Kennedy stated that the plaintiff was acting 
as a governmental employee, not as a citizen.  I thought joining the 
army and serving society through governmental work were exemplary acts 
of citizenship.  But these modern so-called conservatives (with the 
notable exception of Scalia in Hamdi) are ignoring Machiavelli's point 
that republics gain their power through empowering and protecting their 
citizens.  My only hope is that Kennedy will not completely abandon his 
erratic jurisprudence.



-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20060609/d01ac0c1/attachment.htm