One of the healthiest developments in constitutional thinking of the last decade or so has been a discernable movement by scholars toward undertaking more rounded empirical studies and crafting more capacious normative theories of constitutional government and constitutional adjudication. Not too long ago, it was easy to separate the "conservative" scholars who were skeptics about judicial power and who paid serious attention to matters of constitutional structure from "liberal," court-positive scholars who devoted almost all their attention to constitutional rights. Now, however, things are far less predictable. Leading lights (and liberals) like Akhil Amar (1998) and Cass Sunstein (1999) insist that a rich understanding of American constitutionalism requires that we simultaneously take both rights and structure seriously. Other prominent scholars, like Mark Tushnet (2000), Keith Whittington (1999), and Gerald Rosenberg (1991), have argued, to various ends, that constitutional meaning and constitutional adjudication are not synonymous. The new disposition towards taking both rights and institutions seriously has spurred more fruitful discussion between law professors and political scientists than the field has seen in a very long time. Lisa A. Kloppenberg's PLAYING IT SAFE is a book about institutions and rights, and, as such, the reader may crack the cover hoping for a contribution to this new discussion.

Kloppenberg's thesis is that, in the Burger and Rehnquist years, the U.S. Supreme Court has gone out of its way to avoid making substantive decisions in hard and important cases. It has done so by recourse to "avoidance strategies" which, for Kloppenberg, include doctrines of justiciability, such as standing, ripeness, and mootness, as well as appeals to constitutional federalism and separation of powers. The author makes her case by demonstrating the Court's use of avoidance strategies to avoid substantive rulings in a number of select areas. There are chapters on Court non-rulings in cases involving English-only laws, environmental actions, racial justice and gender equity, and gay rights. After these, there is an additional chapter on "The Court's Aggressive Expansion of State's Rights."
The book concludes with the call for a presumption against avoidance.

Kloppenberg makes two criticisms of the deployment of avoidance strategies in these areas. First, she argues that avoidance is undesirable in and of itself. As the book moves through its examination of a large number of selected cases in the above-described substantive areas, a list of drawbacks to avoidance accumulates. These

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drawbacks include the creation of uncertainty regarding the underlying issues, the problem of a lack of national uniformity on a question when it is not definitively resolved by the Supreme Court, the wasted costs, burdens, time, and expense of parties who have asked for a substantive ruling but don't get one, and the continuing injustice that results when the Court refuses to vindicate the claims of minorities against interested and overbearing majorities. Along these lines, the author is also careful to argue against affirmative defenses of avoidance, such as the virtues of "percolation," which the author dismisses because, she argues, it underestimates the cost to litigants of leaving the issue unresolved, and, as Cass Sunstein has argued, the promotion of democratic deliberation by either non-decisions of minimalist decisions, because the link between such deliberation and either minimalist or non-decisions from the Supreme Court is far from clear.

After arguing that avoidance is undesirable in and of itself, the author then argues, second, that the Court employs malleable avoidance mechanisms unequally. It has used them in the service of the powerful and of states and localities and against the weak an oppressed and the power of the national government seeking to solve national problems.

The book's strongest contribution is in the careful and patient outlines it provides of the arguments made by both plaintiffs and defendants in a large number of justiciability and other cases raising questions of constitutional structure. This provides the reader with ready access to the whole panoply of doctrinal and policy arguments contemporary lawyers make concerning whether the Court should rule on the substantive matters implicated in particular case. The book also does a good job in many cases of pointing out weaknesses and inconsistencies in the application of these arguments.

Despite these virtues, however, the book has some serious flaws. First, it evinces little appreciation for the way in which the Court is situated in a complex web of social, political, and economic institutions. And, second, its argument turns out to be driven not by a focus on the Court's avoidance of hard cases, but rather on the Court's failure to reach certain substantive results. The problem is not so much that these results are undesirable (a matter on which readers of differing political persuasions will disagree), but rather that the book's undertow toward substantive results ends up carrying off the institutional argument being made about
structure and rights. What the reader is left with is a broad call for an aggressive federal judiciary acting broadly on behalf of a specific (and familiar) liberal-left conception of social justice.

The author's disposition toward institutions is a significant problem. In its decision to focus on the whether the Supreme Court decides an issue, (typically a rights issue) or instead leaves it to be decided by other social and political actors, the book would seem to be taking institutional questions seriously. But the book reads as if the author believes that institutional issues and considerations are smokescreens or subterfuges that the Court uses to obscure the fact that it is not moving aggressively to reach the right substantive result.

So, for example, when an amicus brief is filed in one case which cites THE FEDERALIST PAPERS to makes a structural argument on behalf of state (as

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opposed to federal) powers, Kloppenberg scores those who filed the brief for "calling upon a very Anglo-American portion of our shared heritage" (a suitable retort, apparently, because the case involved Arizona's English only law) (p. 20). Against the raising of federalism and separation of powers concerns in another case, readers are instructed that, in a world in which science has long since proved that everything is connected to everything else, these structural considerations are anachronistic (p. 65). As for questions of justiciability, which are derived from Article III's "case or controversy" requirement, the author is similarly dismissive of
institutional arguments. We are told, for example, "traditionally, standing has been treated as a threshold device to ensure that litigants care enough about their case to present issues with skill, zealousness, and appropriate resources [true enough]." But we are then told immediately that "standing doctrine is not the right place to work out the role of the federal courts vis-a-vis the other federal branches or local police departments," which is plainly false (at least if we were to substitute "take into account" for "to work out). Institutions, in short, are treated as excuses.

Another important weakness stems from a failure of intellectual discipline. The author, again apparently driven by a focus on outcomes, fails to adequately cabin the category of behaviors she takes to be "avoidance strategies." As noted, much of the book centers on the Court's uses of doctrines concerning justiciability, such as standing, ripeness, and mootness. But the author also classifies federalism and separation of powers arguments as "avoidance strategies." In several cases she considers the Court's failure to grant certiorari to a (disfavored) appellate court opinion an avoidance strategy. And even when the Court both grants certiorari and
issues a bold ruling on a highly controversial issue, such as in BOWERS v. HARDWICK (1986), she cannot forbear from taking on that opinion for all the usual reasons one might criticize it, and for reasons that have nothing to do with "playing it safe." There is, for example, a long section in the introductory chapter taking on the Court's far from "safe" decision in BUSH v. GORE (2000). The bold (but substantively distasteful) BOY SCOUTS OF AMERICA v. DALE (2000) does not fare well in these pages. Nor does the ostensibly bold anti-affirmative action appellate court decision regarding California's Proposition 209, which upheld a state referendum outlawing the use of racial preferences in state institutions. We must add, apropos of the implicit standard of evaluation here, that even reaching the right conclusion is no guarantee that one has met the book's implicit test. The Court reached the right result in ROMER v. EVANS (1996), striking down Colorado's Amendment Two, but the author is quick to criticize it anyway for its "silence about important elements of the gay rights controversy ." (p. 159).

If justiciability arguments, separation of powers arguments, federalism arguments, the failure to grant certiorari, and the failure to reason correctly on any substantive gay rights, women's rights, environmental, racial, and immigration issue are all "avoidance strategies," then the category has lost its analytical bite. The book (to parse its title) is not about "Playing it Safe." Nor is it about "How the Supreme Court Sidesteps Hard Cases." But it is certainly about what the author considers to be "the
development of the law." The real grievance here, the alpha and omega of PLAYING IT SAFE, is that (as the author frankly tells us on the book's very first page) "the Court has

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refused to expand the Warren Court's constitutional vision."

This is apparent not just in the uncabined nature of the book's analytic categories but also in the modus operendi of its substantive chapters. In each of these chapters, the author selects an area of the law in which the Court has not issued the sort of substantive rulings that the author clearly wants it to make. The author then surveys an array of cases in that area, including cases in which the plaintiff's claim to have suffered direct injury (as opposed to the plaintiff's desire to alter public policy) is dubious. She then discusses the ongoing damage done by the conservative position that was not defeated because the Court refused to issue a bold,
substantively liberal ruling in the case (the degradation of the environment, ongoing racism, sexism, etc.). This is followed by the further argument that the Court should have acted vigorously to prevent that side from winning regardless of the raising of diversionary issues involving judicial power, competence, or legitimacy. To line the reader up behind this endeavor, the author attempts to ply the hearts of her readers by "sharing the stories of litigants who struggled unsuccessfully to raise before the Supreme Court constitutional matters of the utmost importance." So, for example, in one case that did involve justiciability issues, we are confronted with the heart-rending story of two litigious American environmentalists who were cruelly denied standing to halt construction projects in Sri Lanka and Egypt (in part funded by American development aid) because they alleged "injury" from the possible loss of an endangered species (one woman hoped to return to the area to see Egyptian crocodiles that might not be there in the future if the people in these impoverished countries had electricity and running water).

After all is said and done, at the end of the book, it remains an open question whether the Court has been "playing it safe" over the last thirty or so years. Perhaps it has, at least as compared with the atypical Warren Court--but perhaps not. To know this, we would at least need to begin with a more disciplined definition of "playing it safe" than the one offered in PLAYING IT SAFE. It is at least plausible to contend, for example, that, despite the inclusion here of a chapter on the Court's avoidance of gender issues, the Court has been very active indeed in this area, particularly as it relates to sexual harassment law. And, in fact, the Court has been at its most active in this area during the very Burger and Rehnquist years treated in this book. Similarly, I think it is fair to ask if the Court has really "played it safe," so far as affirmative action is concerned. It is very clear that the Court has been rather hostile to affirmative action programs in recent years - but that is not the same thing as "playing it safe."

In the end the argument is really that there are people out there (with whose politics the author is in deep sympathy) who want things, who want them from judges, and who want them immediately and with as sweeping a legal and rhetorical victory as is humanly possible. We could get into the problems with this vision, which amounts to an argument for unlimited judicial power. We could question the author's apparent assumption (ignored consciously, but acknowledged unconsciously in her dismissal of bold "conservative" opinions) that bold judges will be liberal judges. We could get into the scholarship that seriously questions the capacity of judges to effectuate the results they desire through ringing declarations and fiat. We could talk about problems of democratic and constitutional legitimacy. The author does not engage the literature on these questions in any sustained

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way, but her argument implicitly brings it all of that literature back into play. And on that literature, it turns out, her case will either stand or fall. We are, in short, back where we were before Amar, Sunstein, Tushnet and others sought to offer more rounded pictures of American constitutionalism and to situate constitutional adjudication, both descriptively and normatively, within our broader system of American institutions which structure our unique system of constitutional government.

REFERENCES:

Amar, Akhil Reed. 1998. THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION. New Haven: Yale University Press.

Rosenberg, Gerald. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

Sunstein, Cass. 1999. ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE U.S. SUPREME COURT. Cambridge: Harvard University Press.

Tushnet, Mark. 2000. TAKING THE CONSTITUTION AWAY FROM THE COURTS. Princeton: Princeton University Press.

Whittington, Keith E. CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING. Cambridge: Harvard University Press, 1999.

CASE REFERENCES:

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

BOY SCOUTS OF AMERICA v. DALE, 530 U.S. 640 (2000).

BUSH v. GORE, 531 U.S. 98 (2000).

ROMER v. EVANS, 517 U.S. 620 (1996).

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Copyright 2001 by the author, Ken I. Kersch.