Eminent Domain

Over at the University of Chicago Law Faculty blog, Prof. Cass Sunstein is talking about the effects of the New Jersey gay marriage decision. There is a fairly widespread belief that this decision will energize conservative voters to get to the polls to vote for their states' marriage initiatives and Republican candidates. Sunstein is concerned about the practice of releasing "controversial" decisions before elections...

Suppose finally that the court is aware that the ruling will have at least some degree of relevance to voters. Should the court refuse to issue the opinion until after the election?

Sunstein says that there are two possible ways that a court could go on this issue...

1. The court should issue an opinion whenever it is ready to do so. It does not matter whether an election is imminent. It is no more neutral to hold the opinion than to issue it immediately. If the court's decision is controversial, the voters deserve to know about it before they vote, not after. "Holding" an opinion is too strategic; it smacks of opportunistic behavior on the court's part, an effort to avoid electoral reprisal.

Or...

2. It is appropriate and possibly the better practice for the court not to issue a controversial opinion in the period immediately preceding an election, simply because of the risk that the timing will give the opinion undue salience, in a way that will distort the process. Of course any particular event might have such a distorting effect, if it occurs immediately before an election. But if judges can control the timing of their intervention to avoid the risk of that distorting effect, they should do so.

Sunstein then endorses option 2. He thinks 1 is reasonable, but is concerned that the timing will "distort the whole process by making one development especially salient."

Personally, I think that option 1 is the correct view. And as bizarre as this is, Prof. Geoffrey Stone agrees with me in the comments section...

A court should issue its opinion when it is ready. It should not manipulate the timing of the release for what are essentially political reasons. If courts followed approach #2, they would be tempted to act on the basis of partisan considerations. That, in my view, would be the worst of all possible outcomes.

The courts should operate on their own schedule, not on a national election schedule. Our appeals courts are backed up enough (and understaffed in the judges department) to be screwing around with their calendars even more. I think that it's also unfair to withhold a decision, a decision based on a case brought by real people with real concerns at stake in the case, in order for some amorphous "greater good" of the political landscape. As I understand it, the decision also had to be released before the New Jersey Supreme Court Chief Justice retired this week. I can't believe that Sunstein would want the decision held back and force a reargument of the case with the new court. The opinions should be issued as they are completed.