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The Supreme Court and the Butterfly Effect
By MICHAEL C. DORF
----
Monday, Sep. 24, 2007
Next week, the Supreme Court begins its third Term with John Roberts in the
Chief Justice's seat. Court watchers wonder whether Roberts will be able to
build on a string of 5-4 conservative victories last Term, and thus
consolidate a conservative majority. How the Court decides the cases on its
docket will, of course, have profound consequences for the parties involved
and for those subject to the rules of law it lays down. Yet Supreme Court
decisions can also have consequences well beyond the parties and principles
directly involved.
To take one obvious example, the Court's ruling in Bush v. Gore handed the
Presidential election to George W. Bush, and thus may have altered the
course of history. Granted, it is possible that Bush would have won without
the Justices' intervention--either because he might have won the recount
mandated by the Florida Supreme Court, or because the Republican-dominated
House of Representatives would have declared him the winner in the face of
competing Florida slates of electors. However, it is also possible that Al
Gore would have won the recount and that political pressure would have then
forced a Bush concession. Had the Court not acted as it did, the last 81
months might have unfolded very differently.
Though the potential far-reaching consequences of a decision like Bush v.
Gore were to some extent foreseeable, the consequences of other Supreme
Court decisions are not. Supreme Court cases, like all other events in the
world, can trigger "butterfly effects." In the butterfly effect, seemingly
small events have enormous consequences because they set history on one
course, rather than another. In this column, I will look at the butterfly
effect of some past Supreme Court decisions and speculate about the
potential butterfly effect of two cases currently before the Court.
What is the Butterfly Effect?
The term "butterfly effect" was made popular by the film of the same name,
as well as by the earlier Jurassic Park. The phenomenon is also well-known
to science fiction readers from the 1956 L. Sprague de Camp short story, "A
Gun for Dinosaur," and other tall tales of time travel.
In most such stories, a time traveler journeys to the past and inadvertently
causes some small effect--such as killing a butterfly--that has momentous
consequences as time goes by, so that the he returns to a radically-altered
future. Or perhaps the time-traveler never returns at all: The dead
butterfly does not beat its wings, causing a minute impact on the weather
which, through the magic of chaos theory, ramifies down the ages, eventually
leading a storm to make landfall on one rather than another shore, killing
the time traveler's great-grandfather, and thus leading to the time
traveler's own disappearance in a puff of logic.
The time travel version of the butterfly effect is, of course, fictional,
but the effect itself is quite real. Natural and social scientists refer to
it as "path dependence." Initial conditions make large differences over
enough time, even without the paradox of time travel. To give a dramatic
example, had a comet not struck the Earth 65 million years ago, leading to
the extinction of the dinosaurs, our squirrel-like ancestors would never
have emerged to fill the niches vacated by the giant beasts, and human
beings almost certainly would not have evolved (although super-intelligent
lizards might have).
Is Campaign Finance Reform the Butterfly that Gave Us Bill Clinton's
Presidency?
Butterfly effects undoubtedly have arisen as a consequence of past Supreme
Court decisions, although one can never pinpoint them precisely. History is
not a controlled experiment and so we cannot know exactly what would have
happened absent a particular Supreme Court decision (or any other event for
that matter). Nonetheless, we can make educated guesses.
Consider, in this context, the Supreme Court's 1976 decision in Buckley v.
Valeo. That case invalidated a number of post-Watergate campaign finance
restrictions, including a provision that prohibited a Presidential candidate
from spending more than $50,000 of his own money to get elected. The ruling
was hardly a slam-dunk, for as numerous critics of Buckley have noted,
restrictions on spending money are not identical to restrictions on speech,
even though money can be spent on speech. Regardless of who has the better
of this argument, it is certainly conceivable that, in 1976, the Court might
have upheld, rather than struck down, the $50,000 limit.
Suppose it had done just that. Such a ruling might well have altered the
outcome of the 1992 Presidential election. In the general election campaign
that year, third-party candidate Ross Perot spent over $60 million of his
own money--more than the total amount of money spent by either of the two
major party candidates--and won 19 percent of the popular vote.
Then-Governor Bill Clinton garnered 43 percent to President George H.W.
Bush's 38 percent, and the fiscally conservative Perot probably drew more
support from potential Bush voters than potential Clinton voters.
Moreover, even if one thinks Perot drew support more or less equally from
the Bush and Clinton camps, many observers at the time thought that Perot's
candidacy helped Clinton by, in the words of a 1992 Baltimore Sun article,
"distracting the public enough . . . to give the Arkansas governor a chance
to get back on his feet after a brutal primary season, and stirring up a
call for change." It is thus at least plausible that a different result in
Buckley--one that would have had the effect of drastically limiting how much
of Perot's own money he could spend, and thus preventing his independent
candidacy --would have led to a second term for George H.W. Bush, and a host
of resulting dramatic differences in the years since then.
Butterflies and Backlash: When Supreme Court Decisions May Be
Counterproductive
Critics of liberal judicial activism by the Supreme Court sometimes argue
that decisions like Roe v. Wade are not only illegitimate but actually
counterproductive. When the Justices constrain the options of elected
officials on morally divisive questions, the argument goes, they lull
supporters of the Court's substantive decisions--abortion rights supporters,
in the Roe example--into a false sense of security that the right they back
is protected. Opponents, meanwhile, become energized, seeking radical
changes to the constitutional order.
On this view, the growth of the national political power of the religious
right over the last three decades was fueled by Supreme Court decisions on
abortion, school prayer, gay rights, and other hot-button issues. Had the
Court not constitutionalized, and thus nationalized, such questions, the old
New Deal coalition might have held together: Socially conservative but poor
Southern Whites and Catholic "Reagan Democrats" could have voted for
economically- progressive Democrats at the national level, even as they
continued to support social conservatives at the state level, because the
federal government would have had little to say about the key social
questions.
To be sure, this counter-narrative may be wrong. The realignment of socially
conservative White voters was originally the product of candidate Richard
Nixon's "Southern Strategy" to use race (and racism) as the wedge to drive
apart the New Deal coalition. It is thus quite possible that the strategy
would have succeeded even if the Supreme Court had never said a word about
abortion, school prayer or gay rights.
Still, even if we recognize that backlashes are impossible to predict with
precision, they are real phenomena nonetheless. We cannot say with any
certainty how the last 34 years would have unfolded had the Supreme Court
not recognized a right to abortion in Roe. We can, however, say with
certainty that they would have unfolded very differently.
Butterflies on the Docket
The very unpredictability of butterfly effects means that we cannot say
which decisions the Supreme Court will make in the current Term will, in the
end, prove to be most consequential. Nonetheless, we can say that two cases
before the Court could have a large impact beyond the precise issues they
resolve because, depending on the outcome, they could make certain issues
more salient in the 2008 Presidential campaign.
One such case is Boumediene v. Bush. The case presents the question whether
the Military Commissions Act of 2006 violates the Constitution's provision
governing the circumstances under which the privilege of the writ of habeas
corpus may be suspended. Should the Court hold that the Act
unconstitutionally deprives detainees of the right to habeas corpus (or its
legal equivalent), one could well imagine the Republican nominee holding the
ruling up as an example of why he should be elected--namely, to ensure that
a tough-minded President names Justices to the Court who won't stand in the
way of the tough measures that need to be taken against suspected
terrorists.
Likewise, one could imagine the Democratic candidates praising the decision
in Boumediene to gain political support from civil libertarians--if the
decision is handed down before a nominee has effectively been selected. And
whenever the decision comes down, it is likely that the eventual Democratic
nominee would have to find some way to support it without appearing too
"soft" to the general electorate.
A Supreme Court decision in District of Columbia v. Heller could play an
even larger role in the 2008 Presidential election. In March of this year,
the D.C. Circuit decided Parker v. District of Columbia, holding that the
District's gun control law violates the Second Amendment. Although the
Supreme Court has not yet decided whether to review the case, it likely will
hear it, given that the ruling creates a division of authority among the
federal appeals courts on the meaning of the Second Amendment and the scope
of permissible gun control.
Should the Court rule in favor of the District, that ruling will likely be
denounced by the Republican Presidential nominee, and even if the decision
is broadly popular, it could be extremely unpopular with key swing voters in
key swing states.
Thus, as Supreme Court litigator Tom Goldstein argues on Scotusblog, liberal
results in Boumediene and Heller could work to the advantage of the
Republican candidate in 2008, and in a very close election, could make the
difference.
Judges Should Ignore Butterflies and Backlashes
Accordingly, a Machiavellian liberal Supreme Court Justice might sometimes
think that the best way to move the law in a liberal direction would be to
vote for conservative results, thus avoiding a conservative backlash effect.
On the immediate issue at hand, the law would become more conservative, but
that result would be outweighed by the more liberal direction that politics
would take. Likewise, a Machiavellian conservative Supreme Court Justice
might sometimes take the exact opposite approach, voting for liberal results
to help elect conservatives via backlash. (We can also imagine the reverse
dynamic, where one anticipates liberal backlash to a very conservative
decision.)
Yet this approach would be reprehensible, no matter who tried it. Even if
political backlash is a potential consequence of a controversial Supreme
Court ruling, that hardly means that a Supreme Court Justice should make his
or decision based on the desirability or undesirability of such a backlash.
We have an independent judiciary precisely because we hope that the judges
will not be driven by likely political consequences.
Moreover, making decisions based on projected second-order, third-order and
more remote consequences is guesswork at best. Unpopular rulings sometimes
spark backlash but at other times, they move public opinion, by placing the
Supreme Court's moral authority behind a position.
At a more fundamental level, the butterfly effect shows why calculations
about the likely long-term impact of any decision are misguided. Ramified by
the passage of sufficient time, any decision, indeed any action, will have
large but inherently unpredictable consequences.
Even the decision to topple a clearly despotic regime may prove disastrous,
as we are discovering in Iraq, but even then, today's catastrophe may pave
the way for tomorrow's nirvana. The point was nicely summed up by the late
Chinese Prime Minister Zhou Enlai's cagey answer to a question about the
effect of the French Revolution: "Too soon to tell."
The Supreme Court and the Butterfly Effect
By MICHAEL C. DORF
----
Monday, Sep. 24, 2007
Next week, the Supreme Court begins its third Term with John Roberts in the
Chief Justice's seat. Court watchers wonder whether Roberts will be able to
build on a string of 5-4 conservative victories last Term, and thus
consolidate a conservative majority. How the Court decides the cases on its
docket will, of course, have profound consequences for the parties involved
and for those subject to the rules of law it lays down. Yet Supreme Court
decisions can also have consequences well beyond the parties and principles
directly involved.
To take one obvious example, the Court's ruling in Bush v. Gore handed the
Presidential election to George W. Bush, and thus may have altered the
course of history. Granted, it is possible that Bush would have won without
the Justices' intervention--either because he might have won the recount
mandated by the Florida Supreme Court, or because the Republican-dominated
House of Representatives would have declared him the winner in the face of
competing Florida slates of electors. However, it is also possible that Al
Gore would have won the recount and that political pressure would have then
forced a Bush concession. Had the Court not acted as it did, the last 81
months might have unfolded very differently.
Though the potential far-reaching consequences of a decision like Bush v.
Gore were to some extent foreseeable, the consequences of other Supreme
Court decisions are not. Supreme Court cases, like all other events in the
world, can trigger "butterfly effects." In the butterfly effect, seemingly
small events have enormous consequences because they set history on one
course, rather than another. In this column, I will look at the butterfly
effect of some past Supreme Court decisions and speculate about the
potential butterfly effect of two cases currently before the Court.
What is the Butterfly Effect?
The term "butterfly effect" was made popular by the film of the same name,
as well as by the earlier Jurassic Park. The phenomenon is also well-known
to science fiction readers from the 1956 L. Sprague de Camp short story, "A
Gun for Dinosaur," and other tall tales of time travel.
In most such stories, a time traveler journeys to the past and inadvertently
causes some small effect--such as killing a butterfly--that has momentous
consequences as time goes by, so that the he returns to a radically-altered
future. Or perhaps the time-traveler never returns at all: The dead
butterfly does not beat its wings, causing a minute impact on the weather
which, through the magic of chaos theory, ramifies down the ages, eventually
leading a storm to make landfall on one rather than another shore, killing
the time traveler's great-grandfather, and thus leading to the time
traveler's own disappearance in a puff of logic.
The time travel version of the butterfly effect is, of course, fictional,
but the effect itself is quite real. Natural and social scientists refer to
it as "path dependence." Initial conditions make large differences over
enough time, even without the paradox of time travel. To give a dramatic
example, had a comet not struck the Earth 65 million years ago, leading to
the extinction of the dinosaurs, our squirrel-like ancestors would never
have emerged to fill the niches vacated by the giant beasts, and human
beings almost certainly would not have evolved (although super-intelligent
lizards might have).
Is Campaign Finance Reform the Butterfly that Gave Us Bill Clinton's
Presidency?
Butterfly effects undoubtedly have arisen as a consequence of past Supreme
Court decisions, although one can never pinpoint them precisely. History is
not a controlled experiment and so we cannot know exactly what would have
happened absent a particular Supreme Court decision (or any other event for
that matter). Nonetheless, we can make educated guesses.
Consider, in this context, the Supreme Court's 1976 decision in Buckley v.
Valeo. That case invalidated a number of post-Watergate campaign finance
restrictions, including a provision that prohibited a Presidential candidate
from spending more than $50,000 of his own money to get elected. The ruling
was hardly a slam-dunk, for as numerous critics of Buckley have noted,
restrictions on spending money are not identical to restrictions on speech,
even though money can be spent on speech. Regardless of who has the better
of this argument, it is certainly conceivable that, in 1976, the Court might
have upheld, rather than struck down, the $50,000 limit.
Suppose it had done just that. Such a ruling might well have altered the
outcome of the 1992 Presidential election. In the general election campaign
that year, third-party candidate Ross Perot spent over $60 million of his
own money--more than the total amount of money spent by either of the two
major party candidates--and won 19 percent of the popular vote.
Then-Governor Bill Clinton garnered 43 percent to President George H.W.
Bush's 38 percent, and the fiscally conservative Perot probably drew more
support from potential Bush voters than potential Clinton voters.
Moreover, even if one thinks Perot drew support more or less equally from
the Bush and Clinton camps, many observers at the time thought that Perot's
candidacy helped Clinton by, in the words of a 1992 Baltimore Sun article,
"distracting the public enough . . . to give the Arkansas governor a chance
to get back on his feet after a brutal primary season, and stirring up a
call for change." It is thus at least plausible that a different result in
Buckley--one that would have had the effect of drastically limiting how much
of Perot's own money he could spend, and thus preventing his independent
candidacy --would have led to a second term for George H.W. Bush, and a host
of resulting dramatic differences in the years since then.
Butterflies and Backlash: When Supreme Court Decisions May Be
Counterproductive
Critics of liberal judicial activism by the Supreme Court sometimes argue
that decisions like Roe v. Wade are not only illegitimate but actually
counterproductive. When the Justices constrain the options of elected
officials on morally divisive questions, the argument goes, they lull
supporters of the Court's substantive decisions--abortion rights supporters,
in the Roe example--into a false sense of security that the right they back
is protected. Opponents, meanwhile, become energized, seeking radical
changes to the constitutional order.
On this view, the growth of the national political power of the religious
right over the last three decades was fueled by Supreme Court decisions on
abortion, school prayer, gay rights, and other hot-button issues. Had the
Court not constitutionalized, and thus nationalized, such questions, the old
New Deal coalition might have held together: Socially conservative but poor
Southern Whites and Catholic "Reagan Democrats" could have voted for
economically- progressive Democrats at the national level, even as they
continued to support social conservatives at the state level, because the
federal government would have had little to say about the key social
questions.
To be sure, this counter-narrative may be wrong. The realignment of socially
conservative White voters was originally the product of candidate Richard
Nixon's "Southern Strategy" to use race (and racism) as the wedge to drive
apart the New Deal coalition. It is thus quite possible that the strategy
would have succeeded even if the Supreme Court had never said a word about
abortion, school prayer or gay rights.
Still, even if we recognize that backlashes are impossible to predict with
precision, they are real phenomena nonetheless. We cannot say with any
certainty how the last 34 years would have unfolded had the Supreme Court
not recognized a right to abortion in Roe. We can, however, say with
certainty that they would have unfolded very differently.
Butterflies on the Docket
The very unpredictability of butterfly effects means that we cannot say
which decisions the Supreme Court will make in the current Term will, in the
end, prove to be most consequential. Nonetheless, we can say that two cases
before the Court could have a large impact beyond the precise issues they
resolve because, depending on the outcome, they could make certain issues
more salient in the 2008 Presidential campaign.
One such case is Boumediene v. Bush. The case presents the question whether
the Military Commissions Act of 2006 violates the Constitution's provision
governing the circumstances under which the privilege of the writ of habeas
corpus may be suspended. Should the Court hold that the Act
unconstitutionally deprives detainees of the right to habeas corpus (or its
legal equivalent), one could well imagine the Republican nominee holding the
ruling up as an example of why he should be elected--namely, to ensure that
a tough-minded President names Justices to the Court who won't stand in the
way of the tough measures that need to be taken against suspected
terrorists.
Likewise, one could imagine the Democratic candidates praising the decision
in Boumediene to gain political support from civil libertarians--if the
decision is handed down before a nominee has effectively been selected. And
whenever the decision comes down, it is likely that the eventual Democratic
nominee would have to find some way to support it without appearing too
"soft" to the general electorate.
A Supreme Court decision in District of Columbia v. Heller could play an
even larger role in the 2008 Presidential election. In March of this year,
the D.C. Circuit decided Parker v. District of Columbia, holding that the
District's gun control law violates the Second Amendment. Although the
Supreme Court has not yet decided whether to review the case, it likely will
hear it, given that the ruling creates a division of authority among the
federal appeals courts on the meaning of the Second Amendment and the scope
of permissible gun control.
Should the Court rule in favor of the District, that ruling will likely be
denounced by the Republican Presidential nominee, and even if the decision
is broadly popular, it could be extremely unpopular with key swing voters in
key swing states.
Thus, as Supreme Court litigator Tom Goldstein argues on Scotusblog, liberal
results in Boumediene and Heller could work to the advantage of the
Republican candidate in 2008, and in a very close election, could make the
difference.
Judges Should Ignore Butterflies and Backlashes
Accordingly, a Machiavellian liberal Supreme Court Justice might sometimes
think that the best way to move the law in a liberal direction would be to
vote for conservative results, thus avoiding a conservative backlash effect.
On the immediate issue at hand, the law would become more conservative, but
that result would be outweighed by the more liberal direction that politics
would take. Likewise, a Machiavellian conservative Supreme Court Justice
might sometimes take the exact opposite approach, voting for liberal results
to help elect conservatives via backlash. (We can also imagine the reverse
dynamic, where one anticipates liberal backlash to a very conservative
decision.)
Yet this approach would be reprehensible, no matter who tried it. Even if
political backlash is a potential consequence of a controversial Supreme
Court ruling, that hardly means that a Supreme Court Justice should make his
or decision based on the desirability or undesirability of such a backlash.
We have an independent judiciary precisely because we hope that the judges
will not be driven by likely political consequences.
Moreover, making decisions based on projected second-order, third-order and
more remote consequences is guesswork at best. Unpopular rulings sometimes
spark backlash but at other times, they move public opinion, by placing the
Supreme Court's moral authority behind a position.
At a more fundamental level, the butterfly effect shows why calculations
about the likely long-term impact of any decision are misguided. Ramified by
the passage of sufficient time, any decision, indeed any action, will have
large but inherently unpredictable consequences.
Even the decision to topple a clearly despotic regime may prove disastrous,
as we are discovering in Iraq, but even then, today's catastrophe may pave
the way for tomorrow's nirvana. The point was nicely summed up by the late
Chinese Prime Minister Zhou Enlai's cagey answer to a question about the
effect of the French Revolution: "Too soon to tell."