Strange Bedfellows #8: Precedential Floors and Ceilings

The strange bedfellows presented so far in the series have been pairings of cases that reveal something interesting or unexpected about the substance of constitutional law.  But as we all know, courses in Constitutional Law are required at most schools only in part for their substance.  Since the substance is subject to (comparatively rapid) change, much of the value in the course is in how it can teach the set of legal skills necessary when dealing with a controlling text that where “majestic generalities” predominate.  The next few posts looks at cases that could be taught together (or at the very least, linked together orally if not taught the same day) for their similarities of legal reasoning.

A recurring issue in any young area of law—and US Constitutional Law is young when compared to the common law topics like contracts and property—is how to reason from sparse precedents.  Specifically, in an area with only a handful of decisions on point, do those precedents represent a ceiling or a floor?

The question is presented unusually cleanly in Caperton v. Massey Coal (2012), which asked whether an elected judge violated procedural due process by failing to recuse himself from a case where one of the litigants had spent millions on advertising to put that judge into office.  Two earlier SCOTUS decisions involved the due process ramifications of judicial recusal.  Tumey v. Ohio (1927) found that it violated due process for a judge sitting without a jury to decide cases under a system where his compensation would be greater if he convicted than if he acquitted.  (As it happens, this structure was also part of the federal Fugitive Slave Act of 1850, but the due process implications were not explored at the time.)  In re Murchison (1955) found that a due process violation where a judge tried a criminal contempt charge that occurred before him during an atypical grand jury proceeding.  For the Caperton majority, these two cases represented a floor: due process might require recusal in other settings as well.  For the Caperton dissenters, the two cases were a ceiling: “Until today,” wrote Chief Justice Roberts, “we have recognized exactly two situations in which the Federal Due Process Clause requires disqualification of a judge.”

 In Ingraham v. Wright (1978), the plaintiff secondary school students argued that their public school district’s use of corporal punishment amounted to cruel and unusual punishment.  All of the previous SCOTUS decisions decided under the Cruel and Unusual Punishment Clause involved criminal defendants objecting to their sentences or the methods by which the sentences were carried out.  For the majority, the precedents represented a ceiling, indicating that the Clause would protect no more than the criminal defendant, and hence offer nothing to a public school student.  For the dissenters, the precedents were a floor: they meant that, at least, cruel and unusual punishments could not be inflicted on criminal defendants, but perhaps others were protected against them as well.  (Ingraham is an excellent showcase for a number of other methods of interpretation, including disagreements over the meaning of text, history, consequences, values, and constitutional structure; for this reason I have had good success starting my courses with it, and now my casebook.)

Similar floor/ceiling debates occur in canonical cases involving other constitutional topics, such as the state action doctrine—Jackson v. Metropolitan Edison (1974)—and substantive due process—Moore v. East Cleveland (1977) and Michael H. v. Gerald D. (1989).

Once you have sensitized students to how different judges can approach precedential ceilings and floors, you can then see a very similar contrast of interpretation with regard to the text of the Constitution itself, particularly with regard to enforcement of unenumerated principles.  If the two precedents from Caperton are a ceiling, limited to their facts, then perhaps Bill of Rights should be read the same way: as precise enumerations of narrow principles without Griswold-style penumbras that form a subterranean rational continuum.  And the same could be said for the various Art. I, §10 limitations on state commerce regulation: they mean only what they say (no duties of tonnage, no non-essential imposts on imports or exports), and do not contribute to a larger rule against state laws that impose burdens on interstate commerce in unenumerated ways.

Sure enough, one often sees exactly this combination: Justice Scalia opposes broad applications of the dormant commerce clause doctrine and substantive due process, and frequently reads precedents narrowly as well.  The reverse combination is usually true for Justice Breyer.