Issue 8

Changing the Vocabulary of the Vagueness Doctrine

The usual “tests” for vagueness—fair notice to ordinary citizens from the language of the statute and fear of arbitrary enforcement—provide superficial explanations for applications of the vagueness doctrine. We believe that the Robinson conduct requirement and the Bouie–Shuttlesworth correlation requirement have significantly greater explanatory power in supporting a conclusion that a statute is or is not unconstitutionally vague. Attention to these principles can provide meaningful insight into whether a statute has transgressed acceptable vagueness limits. They are not, of course, mechanical or coldly analytical. Judgment is still required, in part to take into account countervailing factors such as the necessity of the chosen means to accomplishment of the legislative objective and the legitimacy and seriousness of that objective. And additional considerations beyond the four corners of the vagueness doctrine, however it is explained, will often be determinative of the outcome. In any event, we submit, explicit consideration of the two principles we have advanced will give much more fulsome content to the vagueness doctrine than is revealed by the traditional manner in which it is described. Thinking about vagueness in this manner may not change outcomes or make hard cases any easier, but it will assist deliberation and will provide a more convincing rationale once a conclusion is reached.

The vagueness doctrine serves important rhetorical purposes. It is embedded in more than a century of litigation that for the most part has led to defensible results. Our claim is that analytical clarity can be achieved and that more meaningful exposition will occur if the traditional analysis is employed with the conduct requirement of Robinson and the correlation requirement of Bouie more transparently in mind. The rest we would leave as it is.

Federalism, Due Process, and Equal Protection: Stereoscopic Synergy in Bond and Windsor

Few constitutional themes have galvanized popular political factions—and, consequently, have been perceived to be in natural tension with each other—as much as federalism, on one side, and the substantive due process and equal protection doctrines, on the other. The concepts have assumed these polarized and competing public associations through their practical interactions over the twentieth century, often serving as both the targets and the weapons of charges of judicial activism. However, the Supreme Court’s recent opinions in United States v. Windsor and Bond v. United States, read together, reveal an attempt to reconcile these two seemingly disparate constitutional themes. Specifically, Justice Kennedy’s writings in both cases suggest an ironic conservative salvaging of the fundamental interest strand of the equal protection doctrine. In this modern take on the doctrine that first gained popularity under the more liberal Warren and Burger Courts but attracted little attention since, an individual’s fundamental interest in the rights created by her state within its reserved powers is fused with equal protection concerns to motivate a heightened tier of judicial scrutiny. This Note argues that such “stereoscopic synergy” may serve as a value-free, representation-reinforcing judicial mechanism: It provides a framework by which courts may correct defaults in the political process’s protection of minorities’ interests when federal law discriminately recognizes validly enacted state regulations based on the suspect or quasi-suspect class of the burdened individuals. This same analysis can be applied to advance causes championed on opposite ends of the political spectrum, such as medical marijuana use and private gun ownership. As such, this conservative twist on a historically liberal concept disrupts the popular culture’s perception of federalism and substantive due process-equal protection as necessarily conflicting doctrines. 

The Trouble with Amicus Facts

The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?). To answer these questions, the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision making.

The goal of this Article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This Article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and addresses the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for its new purpose.

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