Lisa A. Kloppenberg<*>;
Introduction
The avoidance doctrine instructs federal judges at all levels to avoid "unnecessary" decisions of constitutional issues.<1>; The Supreme Court created this doctrine as part of an ongoing, self-monitoring effort to identify the appropriate scope of the federal judicial power. The doctrine thus reflects the Court's predominant view of its own role in formulating constitutional law: it does so merely as a byproduct of resolving concrete disputes. However, in adopting this view, the Court minimizes its important function of providing guidance on federal constitutional questions.
In this Article, I focus on a component of the avoidance doctrine which instructs federal judges to decide constitutional issues, when necessary, as narrowly as possible.<2>; The Supreme Court in 1885 declared that federal courts should "never . . . formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.<3>; I term this component of the avoidance doctrine the "rule of measured steps.<4>; This Article assesses what measured constitutional steps might entail and examines the justifications for "narrow" constitutional rulings.
Part I of this Article introduces the complexity of identifying measured steps and applying the rule. The justifications offered by the Supreme Court for measured rulings provide a starting point. A ruling might be classified as measured because it promotes deference to other constitutional interpreters, or because it results in only gradual change in constitutional law, or advances a limited institutional role for the federal courts. But any analysis of the rule of measured steps is incomplete if it ignores the various kinds of measuredness furthered by a court decision. First, a ruling may be measured in that it does not depart significantly from precedent. Second, measured steps might concern the narrowness or breadth of a particular constitutional holding. A third aspect of measured steps is whether a court's decision offers a flexible substantive legal standard which entails discretion in implementation or a more rigid rule. Finally, the scope of relief a court affords a constitutional violation could be measured or broad.
Part II then provides context by assessing the relationship between the rule of measured steps and doctrines based on the case or controversy requirement. The rule of measured steps (the "rule") is closely related to the justiciability requirement of standing. In fact, the rule often serves as a supplement to prudential aspects of standing. The rule is based explicitly on a theory of the federal courts' institutional role and the judicial duty to construe narrowly the federal judicial power. I conclude that the best characterization of the rule of measured steps is as a predecessor to the highly developed standing inquiry that has emerged in recent decades. It nevertheless retains independent significance for the Court: even when plaintiffs have established standing, the Court uses the rule of measured steps to gauge how broadly or narrowly to frame a constitutional ruling.
Part III establishes the inconsistency in the Supreme Court's use (and neglect) of the rule of measured steps. I found no clear patterns in the Court's application of the rule during the last century and little explication of the rule. Part III focuses on Webster v. Reproductive Health Services because it represents the case in which the Justices most directly debate the meaning of the rule;<5>; five members of the Court claimed to rely on the rule of measured steps to avoid overruling Roe v. Wade.<6>; The five, however, disagreed among themselves about the appropriate application of the rule and were attacked by other Justices for irresponsible use of the rule. In dissent, Justice Scalia offered a flexible approach for applying the rule of measured steps and argued that the Court should not take a measured step in Webster. These varying approaches to the rule adopted by the Justices in Webster show the difficulty of determining what constitutes a measured step and the significance of disputes about the rule's application. Although the rule of measured steps is often referred to as a straightforward maxim, Webster illustrates why it is more accurate and useful to think of the rule as a collection of competing factors which must be balanced on a case-by-case basis. The remaining sections illuminate these factors by analyzing the costs and benefits of measured constitutional steps.
Part IV explores justifications for measured constitutional rulings and evaluates their implications for the roles of the Supreme Court, lower federal courts, and other constitutional interpreters. First, measured constitutional rulings might promote deference to other decisionmakers, thus encouraging them to participate more fully in the development of constitutional law. Second, measured rulings might allow for more gradual development in constitutional law by promoting laboratories for decisions in many forums across the country. As an example, Part IV focuses on Webster to assess whether it was a measured ruling that promoted deference and gradual development of constitutional law. I conclude that Webster was a measured ruling in certain respects and that it promoted a temporary kind of deference to other constitutional interpreters and advanced at least one principle of gradualism. However, I also show that some would classify these effects as disadvantages of measured steps and would reject application of measured steps in the abortion context.
I argue that use of the rule of measured steps in Webster influenced the long-term constitutional "dialogue" about abortion in several ways. First, the majority result in Webster showed weak support for Roe but did not completely overrule Roe. It announced no clear new constitutional principle to replace Roe. Rather, it signaled a directional shift in constitutional law without formulating a rigid rule. Some other constitutional actors thus perceived the Court in Webster as transferring to or sharing with them the power of constitutional law development. Second, the measured result in Webster afforded time for the Court to listen to the reaction to Webster before it decided future abortion cases. Between Webster and the next landmark abortion ruling—which reaffirmed parts of Roe—numerous constitutional actors voiced their views on abortion regulation; the composition of the Justices changed; the vote of one Justice changed; and new litigation provided further factual development of challenges to abortion regulation.
But analyzing Webster also demonstrates the difficulty of weighing the competing factors. The negative effects of gradualism and deference in the abortion context could lead a jurist to find that the disadvantages of taking a measured step outweigh the justifications for doing so. In Webster, the Court provided less clear guidance, leaving the content of federal law ambiguous and less uniform. Justice Scalia argued that the failure to directly overturn Roe by departing from the rule of measured steps retained the status quo and did not recognize appropriately the power of the states. Others who disagree with Scalia on the merits of abortion rights might also reject a measured approach for the federal courts in that context. When federal courts are ambiguous, move gradually, and defer too extensively to other constitutional actors, they fail to secure a fundamental individual right. Thus, weighing the costs and benefits of measured steps will depend on the substantive issue and a jurist's view of the merits of that issue.
Part V explores the disadvantages of measured steps, such as the failure of courts to provide guidance when they avoid constitutional decisionmaking, as well as the ambiguity and lack of uniformity in federal law resulting from some measured rulings. In particular, when the Supreme Court refuses to fully address a constitutional issue, the status quo remains intact; change is only incremental under the rule of measured steps. A decision to take a measured step is not neutral—application of the rule is inextricably linked to the substantive constitutional issue at stake. This Part considers harms resulting to individual litigants and others by delayed resolution of constitutional controversies, the instability engendered by certain approaches to the rule, and the inefficiencies the rule poses for the courts and other constitutional actors. Specifically, this Part focuses on recent litigation in the lower federal courts involving gays and lesbians in the military. This litigation is useful to contrast the Supreme Court's use of the rule with that of the lower federal courts, thus advancing consideration of differentiated uses of the rule at various court levels. The Court's pronouncements sometimes serve a symbolic function in our polity, and the effects of Supreme Court rulings can differ from those of other courts. For example, the costs in terms of lessened guidance and uniformity for federal law are sometimes greater when the Supreme Court fails to address an issue because of the rule. Courts should heed those differences in employing the rule of measured steps.
I urge courts to consider explicitly the advantages and costs of taking a measured step in each case. I argue that the Supreme Court (and in some circumstances, other courts) should depart from the rule in certain contexts. This flexible analysis will enable courts to balance their sometimes competing functions of providing guidance on constitutional questions and resolving particular disputes as narrowly as possible.<7>; And by explaining the value choices they make in applying the rule, courts will advance a discussion of the appropriate role of the courts in a dialogue about federal constitutional issues.
I. Defining the Rule of Measured Steps
Formulating a definition of measured constitutional steps is complex. The justifications occasionally referenced by the Supreme Court in support of measured constitutional rulings provide a starting point.<8>; Narrow rulings may give more deference to administrative decisionmakers or other constitutional interpreters, thus promoting a sharing of power.<9>; Courts may issue measured rulings when they have insufficient information to consider the broader ramifications of a ruling. Measured constitutional rulings are sometimes justified because more gradual changes in precedent allow for stability and satisfy reliance expectations.<10>; Measured rulings may also insulate the federal judiciary from charges of inappropriate political activism.<11>; Thus, the judiciary may use the rule to protect itself, relying on the countermajoritarian difficulty and institutional competence arguments to transfer the responsibility for struggling with a constitutional problem to the states, another federal branch, or other constitutional decisionmakers. A ruling might be considered a measured step to the extent it advances these types of justifications.
But that analysis is insufficient if it does not assess the varied aspects of measuredness. A second axis by which to define measured rulings should include the kind of measuredness furthered by a court decision. For example, a ruling might be classified as measured if it does not depart significantly from precedent. But is a ruling measured if it departs from current precedent in order to return to a preexisting constitutional ruling—that is, does the direction of the change matter? Is a ruling measured if it purports to preserve precedent but signals a large shift in the direction of constitutional law or the type of protection the Constitution affords?<12>;
Whether a decision is a measured step also involves how narrowly or broadly a court construes a constitutional provision. For example, a court could issue a ruling that is consistent with precedent, but broad in its holding. Roe is often criticized due to its broad holding,<13>; although it was consistent with earlier privacy rulings.<14>;
A third aspect of measuredness is whether a court propounds a flexible legal standard involving discretion in implementation or a more rigid rule requiring automatic application. Thus, some might characterize Roe as a nonmeasured ruling both because the Court articulated a broad principle and because the Court set out a relatively rigid trimester scheme to apply that principle. In contrast, the Court arguably used a flexible standard—the "undue burden" standard—when it announced a new constitutional interpretation in Casey.<15>; The lower federal courts and state courts construe the "undue burden" standard as they apply it to new factual situations. In considering whether Casey's flexible standard is a kind of measured step, however, we must also ask how much discretion it affords other constitutional interpreters. The range of discretion may be so limited that the choice left to others is illusory or insignificant.
The scope of relief afforded by a court ruling is another way to gauge measuredness. A remedy may apply to a class of persons or only to an individual litigant. The ruling may have a broad or narrow precedential effect. Implementation of the remedy may be swift or deliberate. All of these factors are relevant to determining whether a ruling is measured in its effect.
Defining measuredness is further complicated by the intersection of these various axes. For example, did the Court take a measured step in Brown v. Board of Education?<16>; Most people would probably characterize Brown as a departure from measured steps because the Court overruled the precedent of Plessy v. Ferguson.<17>; Brown, however, followed a series of Court cases paving the way to its new precedent.<18>; Further, while Brown's holding that separate public education facilities were inherently unequal could be characterized as a broad rule, its implementation was narrow. When the Court refused to order a fully effective remedy in the 1955 case, Brown v. Board of Education ("Brown II"),<19>; the outcome of the decision in Brown became more measured.<20>;
Despite the difficulties in defining the rule of measured steps, the Court has spoken of the general avoidance doctrine as an unquestioned mandate, part of a wise tradition validated by time and experience.<21>; In Webster, Justice O'Connor termed the rule one of the fundamental rules of judicial restraint.<22>; But the Court's own inconsistent approach to the rule during the last century shows that the rule's application is not straightforward. As a prudential technique, the rule is subject to flexible interpretation by each judge in every lawsuit.<23>; The rule of measured steps, like other avoidance techniques, appears highly manipulable and sometimes appears to be used when a majority of the Justices find the rule convenient to support their end.<24>; That result might be a conclusion on the merits of a particular substantive constitutional issue; in contrast, it might be simply the result of avoiding a decision, which retains the status quo and rejects (at least temporarily) further development of constitutional law.<25>;
I conclude that the problem with the Court's application of the rule during the past century is that the rule is often referenced as a given—as a rule of mechanical application—without sufficient explanation of (1) whether a court has taken a truly measured step and (2) the costs and benefits of the court's measuredness. I argue instead for a flexible, context-dependent application of the rule of measured steps. For some, flexibility may be valuable because it allows courts to sidestep "political" controversies.<26>; In my view, flexibility in applying the rule is valuable because it allows courts to shift between their sometimes competing public guidance and dispute resolution functions.<27>;
This Article offers no easy solutions to the difficulty of precisely defining what constitutes a measured step, but these axes of measuredness provide a useful basis for discussing what factors should be involved in applying the rule of measured steps. Although the following Parts of this Article develop and examine these axes of measuredness, it is important to remember the underlying definitional difficulty and the multiple aspects of measuredness.
II. Placing the Rule of Measured Steps in Context
Before examining the controversy among current Supreme Court Justices over the rule of measured steps, it is helpful to consider the rule's link to the case and controversy requirement and to separate it from similar doctrines of judicial restraint. The avoidance doctrine lists seven ways in which judges should avoid deciding constitutional issues.<28>;
As I noted in an earlier article, some of the avoidance rules overlap entirely or in significant measure with doctrines flowing from judicial interpretation of the case or controversy requirement of Article III.<29>; These related doctrines include the justiciability doctrines of standing, ripeness, and mootness, the political question doctrine, and the ban on advisory opinions.<30>;
For example, the first rule of the avoidance doctrine—which requires an adversarial, noncollusive dispute—overlaps with the ripeness and mootness requirements to ensure that a controversy is "live" and in need of judicial resolution.<31>; The second component of the avoidance doctrine mirrors the ripeness requirement by obliging federal courts to refrain from deciding a dispute until it is ready for resolution.<32>; The first two rules of the avoidance doctrine are alternative, but not distinctive, types of justiciability limitations on the federal judicial power.<33>; They appear to function primarily as supplemental versions of the ripeness and mootness requirements.<34>;
The third component of the avoidance doctrine is the rule of measured constitutional steps. It correlates most closely to the justiciability requirement of standing, which obliges a litigant to allege that she has personally suffered or imminently will suffer a concrete injury fairly traceable to the defendant's conduct, and that the court's decision will likely redress her injury.<35>; In requiring federal courts to rule no more broadly than the precise facts require when they reach constitutional issues, the rule appears to reflect the fact-specific focus of the standing inquiry.<36>; The rule of measured constitutional steps is based on concerns addressed by both the constitutional and prudential limitations of standing and ripeness.<37>; The fifth component of the avoidance doctrine, which requires that the challenged legislation injure the plaintiff,<38>; is closely linked to the concrete injury and causation requirements of standing.
While standing purportedly centers on the qualification of litigants,<39>; the rule of measured constitutional steps is more closely linked with third-party standing. The rule sorts out the issues to be determined. The avoidance doctrine is based on separation of powers and federalism principles, as well as on assertions about the delicate and final nature of constitutional review, the judiciary's limitations, and the importance of constitutional adjudication.<40>; Thus, the rule of measured steps emphasizes that courts must carefully safeguard their own institutional role. The federal courts' competence is limited in this essentialist view.<41>; Indeed, Justice Brandeis familiarized the modern judiciary with the avoidance doctrine in cases in which he was concerned about litigant abuse of the federal courts' limited power, including collusive suits and requests for advisory opinions. In an earlier article, I explored the historical context in which Justices Brandeis and Frankfurter, and then Professor Alexander Bickel, emphasized avoidance techniques.<42>; They shared concerns about the countermajoritarian difficulty and advocated a limited role for the federal courts in reviewing the acts of elected officials.<43>; Nevertheless, the Supreme Court's recent construction of another component of the avoidance doctrine, the last resort rule, arguably transferred some of this responsibility for safeguarding the courts' power from judges to litigants.<44>; In contrast, the rule of measured steps highlights the judicial duty to construe narrowly the federal judicial power.
Thus, it is difficult to define precisely the relationship of the rule of measured steps to other aspects of the case or controversy requirement. As mentioned in the Introduction, the rule may be best characterized as a predecessor to the recently emerged, highly developed standing inquiry.<45>; The rule serves as a supplement to prudential aspects of standing, but it focuses on issues rather than parties. Nevertheless, the rule retains some significance independent of the standing inquiry. Through use of the rule, some constitutional issues that form part of a justiciable case or controversy are not decided for prudential reasons. Even if a litigant has standing to bring a constitutional issue to federal court, the rule affords the court discretion to issue a broader or narrower ruling; to rule on one constitutional issue and avoid another; to depart to a greater or lesser extent from precedent; and to issue a broad and speedy remedy or a narrow and gradual remedy. Moreover, the Supreme Court sometimes speaks of the rule of measured steps as a restraining principle that is independent of justiciability requirements. As shown below, for example, the justiciability doctrines were not at issue in Webster, yet the Justices fiercely debated the rule of measured steps.
III. Dispute over the Rule in Webster
In examining Supreme Court cases invoking the rule of measured steps from 1885 to 1995, I discerned no clear patterns in the Court's application of the rule other than inconsistency. I found surprisingly little discussion of the rule, although dissenting Justices often point out that the majority ignored the rule in order to issue an overly broad decision.<46>; In Webster v. Reproductive Health Services, Justice Scalia provided the only extensive analysis I found of the Court's prior use of the rule. Citing cases from 1803 to 1989, he argued persuasively that there has been significant inconsistency in the Court's application of the rule and that it should be applied flexibly.
Thus, Webster demonstrates the Court's long-term inconsistency toward the rule. This Part also evaluates Webster because it highlights, to date, the Justices' most pointed and direct debate on the meaning of the rule of measured steps. Their varying approaches to the rule highlight the difficulty of determining what constitutes a measured step and the importance of disputes about the rule's application. For example, the Justices in the plurality adopted a dispute-specific model which narrowed the value of precedent and allowed easier departure from previous rulings.<47>; O'Connor, on the other hand, used the rule to support her refusal to retreat completely from Roe or supplant Roe with a clear new constitutional principle.<48>; Scalia advocated a flexible approach to the rule whereby the Supreme Court could depart from measured steps when certain factors constituting good cause exist.<49>;
This disagreement underscores that the rule of measured steps has not and cannot be applied mechanically with a simple reference to its traditional justifications. The Justices fiercely debated the rule in Webster because of the rule's potential impact on the Court's role in formulating constitutional law regarding abortion regulation. Webster shows why application of the rule of measured steps cannot be separated from the context of the substantive constitutional issue in a given case. It thus illustrates the need to approach the rule as a collection of factors to balance on a case-by-case basis.
The Bush administration and the State of Missouri urged the Court to overrule Roe v. Wade in the Webster case.<50>; A five-member majority of the Court upheld Missouri's abortion statute, including its viability testing provision. Justice O'Connor concurred in the Court's judgment, but refused to join the plurality's opinion to the extent it "reexamine[d] the constitutional validity of Roe v. Wade.<51>; Apparently, her refusal to join in a draft majority opinion circulated by Chief Justice Rehnquist attacking Roe was instrumental in preventing the Court from expressly overturning Roe in Webster.<52>; As explained below, O'Connor relied on the second rule of the avoidance doctrine (mirroring the ripeness inquiry) and the rule of measured constitutional steps to argue that the Court should affirm the constitutionality of the Missouri statute without reaching the broader constitutional issue of Roe's validity.<53>;
A. The Plurality's Approach to the Rule in Webster
Both Justice O'Connor and the Justices in the plurality claimed to be abiding by the rule of measured steps in Webster, but they disagreed on the methods of doing so. In its cryptic Section III, the plurality applied the rule of measured steps and rejected the invitation from Missouri and the United States to overrule Roe because the "facts of the present case . . . differ from those at issue in Roe.<54>;
Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother's life was at stake. This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases.<55>;
With this emphasis, the plurality appeared to confine Roe's precedential value very narrowly to its facts, claiming an ability to "modify" and "narrow" Roe without disturbing its holding. The plurality's approach to Roe and the rule of measured steps drew vehement criticism from many quarters. The dissenters charged that the plurality used the rule to eviscerate Roe while claiming to preserve it.<56>; The dissenters also accused the plurality of manufacturing a controversy between the Missouri statute and Roe in order to needlessly address constitutional questions that were not actually presented.<57>; Thus, the dissenters directly contested the proposition that the plurality took a measured step in Webster. As shown below, O'Connor and Scalia also disputed the plurality's approach to the rule of measured steps.
B. Justice O'Connor's Approach to the Rule in Webster
Justice O'Connor concurred with the plurality's judgment upholding the statute's viability testing provision as constitutional.<58>; She refused to join in the plurality's reasoning, however, arguing that the rule of measured steps did not require the plurality's broad constitutional ruling. Because she found no conflict between the statutory provision and precedent, she found no necessity "to reexamine the constitutional validity of Roe.<59>; O'Connor did not give any general theory about applying the rule of measured steps, and she rejected Scalia's argument that compelling reasons existed in Webster to depart from the rule. Instead, she responded that, although Missouri asked the Court to overrule Roe, the Court could uphold the statute as Missouri interpreted it under existing precedent.<60>; She did suggest, however, that "[w]hen the constitutional invalidity of a State's abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully.<61>; Thus, her application of the rule led to a different result than the plurality's narrow confinement of Roe to its precise facts.
O'Connor argued that the State has a compelling interest in determining whether if the fetus is viable. By adopting the nonmandatory interpretation of the extremely costly portions of the testing provision urged by Missouri and by emphasizing that plaintiffs did not challenge the twenty-week presumption of viability on appeal, O'Connor confined the potential constitutional dispute.<62>; Her narrow interpretation of the meaning of the viability testing provision was crucial to avoiding reconsideration of Roe and other precedent.<63>; She thus preserved some part of Roe for reconstruing in a later case and allowed time for further factual development in separate litigation.
C. Justice Scalia's Approach to the Rule in Webster
Justice Scalia urged the Court in Webster to reach the validity of Roe, and termed O'Connor's reliance on the avoidance doctrine in order to evade reconsideration of Roe "irresponsible.<64>; He argued that the doctrine did not apply because the Court could not avoid deciding the constitutionality of the Missouri statute.<65>; The only dispute, Scalia maintained, was over the breadth of the constitutional ruling once the Court determined it would reach the merits of the constitutional issue.<66>; Justice O'Connor, as noted above, agreed that some constitutional ruling was necessary, but urged a narrow ruling, relying in part on the rule of measured steps.
Scalia argued that the rule of measured constitutional steps "is a sound general principle, but one often departed from when good reason exists.<67>; He characterized the rule as having a "frequently applied good-cause exception" and criticized the Court for venerating the rule in Webster to avoid overruling Roe, which he viewed as a paradigm of broad constitutional decisionmaking.<68>; Scalia provided numerous examples of cases in which the Court departed from the rule, spanning from Marbury v. Madison to the 1989 term.<69>; He noted that "[t]he Court has often spoken more broadly than needed in precisely the fashion at issue here, announcing a new rule of constitutional law when it could have reached the identical result by applying the rule thereby displaced.<70>; Scalia continued: "It is rare, of course, that the Court goes out of its way to acknowledge that its judgment could have been reached under the old constitutional rule, making its adoption of the new one unnecessary to the decision, but even such explicit acknowledgment is not unheard of.<71>; He concluded that it is difficult or impossible to name all the cases when the Court has ruled more broadly than necessary.
The task of evaluating the Court's use of the rule of measured steps is complicated because there is likely to be substantial disagreement in coming up with a list of overly broad or "unnecessary" rulings, in part due to the definitional problems discussed in Part I.<72>; Scalia demonstrates persuasively, however, that the Supreme Court has not used it in a consistent and coherent manner. The Court, at least in practice, has refused to "never . . . formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.<73>; Instead, there is considerable flexibility in the Court's application of the rule, although standards remain unarticulated. This Article urges courts to develop definitions of measuredness and assess how they apply the rule, balancing its competing concerns, in light of the proper role of the federal courts.
Scalia, in considering whether to apply the rule of measured steps in Webster, asked "whether there are valid reasons to go beyond the most stingy possible holding today.<74>; He advocated a flexible approach toward the rule which requires jurists to examine whether it is appropriate to issue a broad or measured constitutional ruling on a case-by- case basis. Using specific factors, he concluded that "valid and compelling" reasons for departure from the rule existed in Webster.<75>; Part IV.B examines the factors offered by Scalia for applying his flexible approach to the rule.
D. Other Avoidance Techniques in Webster
The rule of measured steps was not the only technique used to avoid constitutional adjudication in Webster. The Court found nonjusticiable a challenge to the statute's preamble, which provided that life begins at conception.<76>; The Court also found moot the challenge to the portion of the statute forbidding public employee abortion counseling.<77>; Moreover, O'Connor concurred on narrow grounds with the plurality's rejection of plaintiffs' facial challenge to the statute's ban on the use of public facilities and public employees for abortions.<78>; She noted that a facial challenge to a statute is the most difficult type, "?since the challenger must establish that no set of circumstances exists under which the Act would be valid.<79>;
Finally, the Justices relied on another component of the avoidance doctrine in interpreting the viability testing provision. In discussing the testing provision's meaning, both O'Connor and the plurality referenced the component of the avoidance doctrine which provides that "?statutes will be interpreted to avoid constitutional difficulties'" when possible.<80>; The five Justices construed the testing provision in a way that saved it from constitutional infirmity. The dissenters found application of this rule improper because they found the viability testing provision unambiguously mandatory. They reasoned that the rule of avoiding constitutionally infirm interpretations of statutes only applies when the statute is ambiguous.<81>;
Webster serves as a good illustration of the need to develop a coherent approach to the rule of measured steps. The debate among theJustices about the rule has important ramifications for the scope of the Court's holding and the development of constitutional law on abortion regulation. Thus, application of the rule is inextricably linked to the direction and development of constitutional law in a given context. Webster also demonstrates the complexity of defining measuredness.
Now that the stakes of the debate are set out, the next Part of this Article uses Webster to assess the rule's justifications. It examines whether Webster can be classified as a measured step and evaluates the rule's impact on the constitutional dialogue about abortion.
IV. Advantages of Measured Constitutional Rulings
This Part explores the two primary policies underlying the rule of measured steps, which overlap with justifications for the broader avoidance doctrine.<82>; First, measured constitutional rulings by courts might promote deference to other constitutional decisionmakers, thus encouraging them to participate more fully in the development of constitutional law. Second, measured rulings might allow for more gradual development in constitutional law by promoting laboratories for decisions in many forums across the country. I consider whether and how measured rulings promote a long-term dialogue about constitutional issues among multiple participants. Do measured steps by the Court increase the deference afforded other participants? If so, what type of deference is afforded? Do measured steps by the Court increase gradualism in development of constitutional law?
Although I reference other cases involving the rule of measured steps, I focus primarily on Webster for the reasons explained in Part III. I conclude that the necessary inquiries are complex, and suggest some ways in which Webster was a measured step, although I dispute the plurality's claim that it took a measured step. The majority result in Webster was measured in that it signaled that other constitutional actors shared with the Court the responsibility for determining the scope of abortion rights and restrictions. The majority's approach also allowed time for new developments and fervent political response while preserving some core of Roe.
Part V uses the current litigation in the lower federal courts regarding gays in the military to consider further the costs and benefits of measured rulings. Taken together, Parts IV and V argue that courts employing the rule of measured steps must undertake a multifactored analysis. Courts should determine in what way their rulings are measured before invoking the rule. The courts should consider both how their rulings promote the justifications for measured steps and at what cost. Both Parts IV and V demonstrate that the effects of avoidance can differ depending on the level of the court using the rule. Finally, these Parts show that the rule is not neutral and that the substantive context of decision cannot be divorced from application of the procedural rule.
The Supreme Court's primary justification for the rule is that narrower decisions on constitutional issues promote deference to other decisionmakers. For example, in FCC v. Pacifica Foundation, the Court found constitutional the Federal Communication Commission's regulation of a broadcaster for airing George Carlin's "Filthy Words" monologue.<83>; A father who heard the broadcast with his young son complained to the FCC. The FCC found the broadcast indecent but not obscene, and imposed a penalty on the broadcaster. The Court's decision is a measured step in the sense that the ruling extended only to the FCC's regulation of that particular monologue via radio at a time when children were likely to be present. The Court did not consider whether the content of the broadcast would be unprotected at other times or through another medium. The two concurring Justices relied explicitly on the rule of measured steps in emphasizing the narrowness of the 5-4 ruling in the FCC's favor.<84>; They reasoned that their narrow ruling allowed for deference to administrative decisionmakers and Congress in a developing field of law, reflecting regard for separation of powers by affording other actors the opportunity to develop law concurrently with the Supreme Court in this area.<85>;
Earlier, in Ashwander v. Tennessee Valley Authority,<86>; Justice Brandeis similarly relied on the rule of measured steps and other portions of the avoidance doctrine in his famous concurrence. In Ashwander, the Court considered a federal constitutional challenge to an important New Deal program, the Tennessee Valley Authority ("TVA").<87>; The plaintiffs essentially claimed that the federal government had exceeded its powers at the expense of state power. The Court affirmed the validity of some contracts the TVA had entered into and refused to reach the broader challenge to the TVA program. By avoiding the broader challenge, the Court allowed Congress and the TVA to retain control over the program, at least pending further legal challenges. This use of the rule demonstrates Brandeis' concern with the countermajoritarian difficulty and his desire to defer frequently to the legislative branch, particularly when reviewing the constitutionality of statutes. He joined the Court at the end of the economically libertarian Lochner era, and as a strong supporter of progressive legislation, he urged the Court to play a more restrained, self-censoring role in reviewing the acts of legislatures for constitutional compliance.<88>;
Later, Justice Frankfurter and Professor Bickel often advocated a similar role for the Court, relying heavily on Brandeis' views of the federal courts' institutional competence.<89>; During the last fifty years, the Court has often used the deference rationale when it applies the rule.<90>; In Staub v. City of Baxley, for example, the Warren Court struck down a municipal ordinance in Georgia as violative of the First Amendment.<91>; Justice Frankfurter dissented:
This is one of those small cases that carry large issues, for it concerns the essence of our federalism—due regard for the constitutional distribution of power as between the Nation and the States, and more particularly the distribution of judicial power as between this Court and the judiciaries of the States.<92>;
He accused the Court of ignoring a Georgia procedural rule requiring explicit particularity in pleadings in order to raise constitutional issues. The state courts relied on this rule to reject the litigant's general challenge to the ordinance's constitutionality.<93>; Frankfurter insisted that this was an adequate and independent state ground for the decision, which the Georgia courts had not adopted merely to evade the federal constitutional issue, and that therefore the Supreme Court had no jurisdiction to consider the federal issue.<94>; Frankfurter argued that the Georgia rule was consistent with the Court's own practices of "keeping constitutional adjudication, when unavoidable, as narrow as circumstances will permit.<95>;
In Frankfurter's view, deference to state procedural rules, including state techniques for avoiding decision of constitutional issues, not only respected federalism concerns, but also permitted the Court to "protect itself from the necessity—sometimes even the temptation—of adjudicating overly broad claims of unconstitutionality.<96>; He deemed this critical because "declar[ing] a law unconstitutional is `the most important and delicate duty of this Court'" and because the Court does not sit to render advisory opinions over the action of Congress and the states.<97>;
The deference rationale supporting measured steps, however, does not completely transfer the judgment of constitutionality to another branch of government or to the states, as the use of the political question doctrine does. Instead, reliance on the rule postpones a court judgment of constitutionality to a later lawsuit. Thus, other decisionmakers act knowing that the constitutional issue can and often will return to the courts. In the meantime, the courts leave room for change and gradual development of law concerning constitutional issues. On the other hand, some measured steps can result in ambiguity or uncertainty in the content of constitutional law. Similarly, measured steps may produce less uniform application of constitutional law. The costs of measured steps will be explored as the disadvantages are assessed more fully in Part V.
1. A Description of Constitutional Dialogue
When the federal courts defer by use of the rule, other constitutional actors can participate more fully with the Court in interpreting the Constitution over time. This type of deference encourages others to lead in developing constitutional law, or at least be more active partners with the Court in doing so. Justice Ginsburg, while an intermediate appellate judge, similarly urged federal courts to engage primarily in measured decisionmaking—advocating small, incremental steps in constitutional law—in part because such steps afford the opportunity for more constitutional "dialogue.<98>; For example, after the Court issued its Pacifica ruling, broadcasters could still air the Carlin monologue in different circumstances, and the FCC could draw lines about what conduct was punishable. Similarly, Webster left ambiguities for abortion regulation and created a vacuum to be filled by the reaction of other constitutional actors. Before studying that reaction, this Part sets forth an initial definition of constitutional dialogue as a process with multiple facets.
Potential dialogic participants from outside the federal judiciary include the President, Congress, administrative agencies and executive officers, state courts, state executive and legislative officials, police officers, attorneys general, academics, the media, lobbyists, interest groups, and the general public.<99>; When the Supreme Court defers, it also affords other courts a more significant role in the dialogue. The back-and-forth among the federal courts and these other actors is part of a complex, long-term process of constitutional conversation or colloquy.<100>;
For example, while a judicial decree binds the litigants in the case, it is not necessarily the last word on the constitutional issues decided in the case.<101>; Law-trained judges and scholars focus too much attention on the Supreme Court's role as principal and final—almost sole—arbiter of constitutional values.<102>; Instead, we need to understand the process of constitutional interpretation from a broader perspective and assess the development of constitutional law "over the long haul.<103>;
In every constitutional ruling, the Court announces principles of constitutional law. But those principles are developed as they are applied in subsequent litigation involving different factual or legal arguments.<104>; The Court has revised its own pronouncements on constitutional principles over time—it regularly distinguishes precedent and occasionally makes a significant alteration in its former interpretation of a constitutional principle.<105>; Moreover, in response to constitutional rulings, legislatures may enact slightly different laws and executive officials may promulgate new regulations which pose new challenges to those principles in the state and federal courts.<106>;
Congress occasionally may need to address a constitutional ruling through the more cumbersome, "super majoritarian" process of amending the Constitution. But frequently Congress can respond to the Court's constitutional decisions without amending the Constitution. If the Court implies a private cause of action for damages in the Constitution, Congress might be able to provide a meaningful alternative and preclude such relief.<107>; Congress can provide greater rights by statute and has substantial power to enact legislation to implement equal protection guarantees.<108>; The President's enforcement, criticism of, or inattention to a Court decision can also be important.<109>; Moreover, the interaction between the Court and executive branch members may also influence the development of constitutional law.<110>;
The public may play a critical role in bringing about significant constitutional change, whether through the formal amendment process or through informal alterations of constitutional meaning.<111>; Those dissatisfied with a court's rulings can often take a constitutional issue to a different forum in new litigation. For example, when a Supreme Court decision concerns the meaning of a right guarantee, citizens of states with the same or similar state guarantees can respond at a state constitutional level.<112>; Nonjudicial actors sometimes respond via nonenforcement or deliberate resistance to judicial decisions.<113>; There is also a more diffused public role in the process of developing constitutional law, which surely includes press and public reception to a court's rulings on specific issues.<114>; At another level, justices and scholars have recognized that, to some extent, the federal courts are dependent upon the public and nonjudicial political actors to make their constitutional rulings effective.<115>;
This description contains several facets of long-term interaction between the federal courts and other actors on constitutional issues. One aspect of this long-term dialogue about a constitutional issue is how others respond to a court decision—from heightened public awareness of an issue to formulation of specific responses by concerned groups or individuals through lobbying, new litigation, and other political acts. A second facet involves legislative or executive action specifically addressing a court decision. A third is an exchange of views over time between courts and other governmental actors on an issue via enforcement efforts and funding decisions. This Part and Part V examine some problems with a dialogic vision of constitutional law development, but they do not fully explore the many forms of dialogue or assess the conditions necessary for a fair and meaningful long-term dialogue.<116>; However, I am convinced that some kind of dialogue, exchange, or long-term interaction occurs between these various actors on constitutional issues. The description should help us consider whether and how the rule of measured steps influences or advances that process.
For example, some measured rulings by the Supreme Court promote deference by simply allowing time for others to respond to the ruling. During that time, new factual patterns may develop to challenge application of the Court's earlier holding. Underlying social beliefs, conditions, or moral consensus may change. Some Justices and/or the views of some Justices may change. A measured ruling could invite new challenges on other grounds, leaving ambiguity in some aspects of constitutional law but creating the perception that the Court makes room for the participation of others or will be cognizant of the reactions of other constitutional interpreters. Although Webster was not measured in all its aspects, this Article contends below that it used the rule of measured steps to influence the constitutional conversation about abortion in several ways.
2. Use of the Rule in Webster and Its Impact on the Abortion Debate
The Webster decision appears to have generated substantial reaction. This Part of the Article considers whether Webster was a measured ruling which provided deference to other constitutional actors, and whether the use of the rule influenced the constitutional conversation about abortion. I argue that Webster was a measured ruling in certain respects. The plurality's approach was not a measured step because it treated precedent extremely narrowly. However, O'Connor's approach to precedent and her construction of the Missouri statute made the majority result in Webster more measured. The majority result in Webster was measured in that it did not completely overrule Roe, nor did it announce a clear new principle to replace Roe. Instead, it signaled a directional shift in constitutional law without formulating a rigid rule. Some other constitutional actors thus perceived the Court as transferring to or sharing with them the power of developing the constitutional law regulating abortion. The decision sparked intense reaction which forced some formerly neutral politicians to make their positions clear on abortion regulation.
This sharing of power was not a complete abdication of the federal courts' role in addressing the abortion issue. The measured result in Webster afforded time for the Court to listen to the reaction to Webster before it decided another major abortion challenge. Between Webster and the next major ruling<117>;—which affirmed parts of Roe—numerous constitutional actors voiced their views on the abortion issue, the composition of the Justices changed, one Justice altered his position, and new legislation provided further factual development of issues and new legal challenges. This Part evaluates whether these effects are desirable.
a. Response by the Public to Webster
After the Webster decision, individuals and organizations engaged in a spirited debate with public officials and political candidates about the constitutionality of abortion restrictions. Pro-choice advocates strenuously lobbied to force politicians to protect a woman's choice.<118>; Pro-choice advocates who had entrusted this "choice" to the Supreme Court realized it was not secure and began demanding that their representatives protect their right to choose.<119>; Pro-life advocates engaged in similar activities, and the National Right-to-Life Committee proposed model legislation.<120>;
Joining the dialogue, the press was also active in reporting on the abortion issue, predicting what was likely to happen in the states regarding abortion after Webster.<121>; Likewise, academic writers heavily critiqued the Court's decision.<122>;
b. Suddenly the Big Issue in Electoral Politics at Federal and State Levels
Politicians immediately felt pressure to formulate positions on the abortion issue.<123>; For example, David Frohnmayer, former attorney general of Oregon and Republican candidate for governor, had been involved in state politics for twelve years prior to the Webster decision. Although he strongly supported choice, he did not consider abortion a significant political issue in Oregon prior to Webster because of the perception that the Court had essentially foreclosed state legislative and executive action in the area with Roe. After the Court's display of weak support for Roe in Webster, abortion suddenly became a dominant and defining issue for local politicians in Oregon.<124>; Two restrictive initiatives went on the next Oregon ballot, and the issue was critical to the next governor's race.<125>;
Significant time and money were devoted to the issue of abortion in other state electoral races in the aftermath of Webster.<126>; Candidates' decisions on their political stances may have affected decisions to pursue, or not pursue, litigation challenging abortion regulation.<127>; Pro-choice Republicans argued that the party's pro-life stance would prove to be "political suicide.<128>; Professor Laurence Tribe characterizes this as a change from the past, when pro-life advocates had held politicians accountable for their votes in a way that pro-choice voters did not.<129>; Perhaps this is because pro-choice advocates had previously relied primarily or exclusively on the Supreme Court to guard the right of choice.<130>;
c. State Responses to Webster
Incumbent governors responded quickly to Webster by fighting attempts to ban abortions from public hospitals<131>; and promising to veto any restrictions on Medicaid funding.<132>; Several governors refused to allow their legislatures to take up the abortion issue in fall special sessions,<133>; and another governor promised to veto any antiabortion law.<134>; In some states, governors tried to use their veto power to prevent pro-life legislation from becoming law.<135>; Other executive officials who presided over legislative bodies blocked consideration of antiabortion bills.<136>; In sum, the gubernatorial demographics regarding the abortion issue appeared to change considerably during the two years after Webster. In 1989, only sixteen governors were openly pro-choice. Two years later, twenty-six governors supported choice, while the number advocating restrictions on abortion remained constant at twenty-three.<137>; Thus, some formerly "neutral" governors seemed to "get off the fence," at least in part in reaction to Webster.
After Webster, state legislatures debated the abortion issue extensively.<138>; Within six months of Webster, only Pennsylvania had passed a statute restricting access to abortion, resulting in the Court's undue burden formulation in Casey.<139>; One year after Webster, South Carolina<140>; and Guam<141> enacted statutes restricting abortions. Within the next year, Utah,<142>; Louisiana,<143> and Ohio<144> passed restrictive statutes.<145>;
Two years after Webster, two states had passed pro-choice legislation: Maryland<146>; and Connecticut.<147> In addition, some choice advocates reported that the demographics of state legislatures had made a pro-choice swing in the Webster aftermath.<148>;
The legislative response, in turn, spurred response by executive officials and courts, with mixed results. In Idaho, the legislature passed a statute that almost totally banned abortion, but the Governor vetoed the bill.<149>; In Mississippi, the legislature overrode the Governor's veto and passed a statute requiring informed consent and imposing a twenty- four hour waiting period.<150>;
The next major Supreme Court abortion decision after Webster concerned a challenge to Pennsylvania's restrictive abortion statute.<151>; The Court in Casey upheld most of the provisions of the statute, finding that it did not place an undue burden on a woman's right to have a pre-viability abortion. The Court found only the spousal consent provision unconstitutional. The Court formulated a new due process standard and specifically reaffirmed parts of Roe.<152>;
After Webster, Louisiana passed a statute that criminalized abortion unless the pregnancy resulted from rape or incest, the abortion was necessary to save the life of the mother, or termination of the pregnancy was necessary to "preserve the life or helath of the unborn baby or to remove a dead unborn child." Louisiana defended the statute by arguing that Webster overruled Roe sub silentio. After the Supreme Court decided Casey, the federal appellate court deemed Louisiana's law unconstitutional.<153>; Thus, the dialogue did not end with Webster. The federal and state courts, including the Supreme Court, remained active in construing the Constitution.
Other antiabortion statutes were invalidated, both before and after Casey. A federal trial court invalidated parts of the Utah statute restricting abortion, including (1) its wide prohibition against abortions except under certain circumstances, and (2) its spousal consent requirement.<154>; Before Casey, a federal appellate court invalidated Guam's statute, which prohibited abortions except when the mother's life was in danger.<155>; Although the Supreme Court had not yet decided Casey, the court invalidated the Guam statute, rejecting Guam's contention that Webster overruled Roe.<156>;
State courts also reviewed legislative responses to Webster.<157>; After Casey, the Ohio Court of Appeals upheld the constitutionality of the Ohio statute.<158>; Pro-life groups in Oklahoma tried to bypass the state legislature and pass a restrictive abortion statute by initiative. Before the voters voted on the initiative and after the Supreme Court's decision in Casey, the Supreme Court of Oklahoma declared the initiative unconstitutional and prohibited its submission to the voters.<159>; The court implicitly noted that its outcome under Webster might have been different.<160>;
Amending state constitutions to protect a woman's choice is an alternative to pro- choice legislation.<161>; No state has an amendment explicitly acknowledging a right to abortion. At least ten state constitutions, however, contain explicit textual privacy provisions.<162>; Of these ten states, two state supreme courts have explicitly held that those provisions protect abortion rights. The California Supreme Court (pre-Webster) held that it was unconstitutional to withhold Medi-Cal benefits from poor women who seek to obtain an abortion.<163>; The Florida Supreme Court recognized a fundamental right to an abortion after Webster.<164>; The timing of this case was particularly interesting. In response to Webster, Florida's Governor Bob Martinez was the first to call a special session of the legislature to consider enacting measures restricting access to abortion.<165>; Only a few days before the special session, the state court interpreted the state constitution to provide women with the fundamental right to an abortion. The court thus blocked any legislative attempt to pass restrictive abortion regulation.<166>; An Ohio court, in contrast, refused to find that the Ohio Constitution provided broader protection than the Federal Constitution provides for a woman's right to choose.<167>;
d. The Federal Response
For the remainder of President Bush's administration after Webster, he and Congress battled over the abortion issue. One important change, potentially attributable to public response to Webster, was that twenty-three House members, who supported banning both federal and local funds just one year earlier, switched sides and voted not to ban local funding in the Webster aftermath.<168>; Similarly, both houses of Congress passed a Health and Human Services appropriations bill in the same year which allowed Medicaid funding for abortions in cases of rape and incest. Historically, Medicaid funding for abortions was limited to instances when the mother's life was in danger.<169>; However, when Bush vetoed both the District of Columbia appropriations bill and the Medicaid funding bill, there was not enough support for either bill to override his veto.
The abortion issue was also prominent in Bush's unsuccessful campaign for reelection.<170>; Within days of entering office, President Clinton—an open advocate of choice—issued three memoranda to the Secretary of Health and Human Services regarding abortion rights, providing for fewer restrictions on abortions and fetal tissue research.<171>; However, the issue remains politically volatile and unresolved, as demonstrated by various forms of noncompliance with Clinton's pro-choice decisions.<172>;
3. Assessing the Response to Webster
The substantial response to Webster extended to lobbying, declarations of politicians' positions, legislative proposals, enactment of statutes, and further court challenges, including the Court's elucidation of the undue burden test in Casey. Thus, Webster involved constitutional actors other than the Court in a continuing process of constitutional interpretation. Did the Court's approach to the rule of measured steps contribute to this reaction? Did it promote deference to others, at least for a temporary period?
Five members of the Court claimed to apply the rule of measured steps in Webster. The plurality's approach, standing alone, demonstrated the Court's weak support for Roe—it rendered precedent unstable. This approach was not a measured step because it signaled that a large change from precedent or directional shift in the law had occurred or was imminent. What if the Court had overruled Roe completely in Webster rather than just coming close to doing so? Justice Scalia urged a broad ruling which would take away federal constitutional protection for abortion rights and transfer the abortion issue entirely to the States. The plurality's approach is fairly equivalent in its result to Scalia's desired result because it severely narrows Roe. The primary difference is that Scalia wanted the federal courts completely out of the abortion dialogue. But the plurality did not provide a new rule, and so failed to get courts out of the abortion debate. Just as the plurality confined Roe to its exact facts, future courts would have to confine Webster to its exact facts under the plurality's "dispute resolution" approach to the rule of measured steps.
If instead we focus on the majority result in Webster, then Webster appears closer to a measured step. That is, Justice O'Connor's refusal to fully retreat from Roe because she wanted to take a measured step meant that the Court announced no clear new constitutional principle. Her vote thus prevented a complete retreat from federal constitutional protection for abortion rights. The resulting ambiguity in federal constitutional law may have generated the substantial public response described above. The decision invigorated pro-choice voters and spurred some formerly neutral politicians to make clear their positions on abortion regulation.
Moreover, the ambiguous state of constitutional law produced by Webster allowed time for gradual development of the law. Over time, the Court could listen to the response Webster generated. Other courts could consider new legislation and new fact patterns before the Court had to resolve the next major abortion challenge. During that time, Justice Kennedy's vote changed and Justice Souter joined the Court. The Court then reaffirmed the core of Roe in Casey.
Thus, one critical effect of Webster was that it was perceived by some as signaling a transfer or sharing of power on an important and sensitive constitutional issue from the Court to others, although not signaling a complete abdication of the Court's role in the debate. The participation of these others had not previously been completely foreclosed by Roe. Active pro-choice and pro-life forces existed before Webster. But the perception of who held significant power in the debate and who could influence constitutional law development appears to have shifted as a result of Webster.<173>; For example, at the annual summer meeting of the National Conference of State Legislatures in 1990, abortion legislation and the recent Webster decision were a significant issue. Many legislators, however, did not want to deal with the issue. One official said, "I really resent the fact that the Supreme Court dumped this whole issue back on the states.<174>; Another legislator said: "The vast majority of legislators don't want to deal with the issue. They want to stay away from it. That's a political fact.<175>; Prior to Webster, elected officials could more credibly tell their constituents that the Court's ruling in Roe foreclosed other possibilities, thereby evading shared responsibility for debating the constitutional issue with the Court. Thus, nonjudicial political capacity for response may not have been as dwarfed by Roe as some claim.<176>;
The rule of measured steps aims to avoid broad rulings which might foreclose dialogue or at least make the responses of others less authoritative.<177>; Justice Ginsburg recently advocated a judicial approach closely resembling the rule of measured constitutional steps.<178>; She critiqued the Court's decision in Roe in part because a more "moderate and restrained" approach would have afforded more deference to other constitutional actors.<179>; She characterized the federal courts as participating "in a dialogue with other organs of government, and with the people as well.<180>; But Ginsburg viewed Roe as "invit[ing] no dialogue with legislators,<181>; contrasting the Roe ruling with "the Court's more cautious dispositions, contemporaneous with Roe, in cases involving explicitly sex-based classifications.<182>; In Roe, as in the Lochner era, she saw the Court as stepping "boldly in front of the political process," resulting in outcries against the judiciary and exposing its "precarious position as final arbiter of constitutional questions.<183>; Thus, Ginsburg relies in part on deference to others and in part on the Court's fragile political viability as an institutional justification for measured constitutional steps.
Frankfurter and Bickel shared her concern for preservation of the Court's political credibility and used that concern as a primary justification for narrow constitutional rulings. They warned that the Court should wait until a decision is more politically acceptable and should allow some issues to simmer so that gradual acceptance can be built;<184>; conceivably Bickel and Frankfurter extended or at least magnified the importance of that justification for constitutional avoidance. Brandeis, for example, advocated the most caution when a federal court was considering invalidating legislation, hoping to avoid direct collisions with the more political branches.<185>; He demonstrated less hesitancy in deciding broader constitutional issues when the Court was not reviewing legislation.<186>;
Ginsburg recognizes some drawbacks in deferring too extensively to the more political branches and thus makes an exception to her measured judicial approach. She would sometimes find it acceptable for the Supreme Court to "step ahead of the political branches in pursuit of a constitutional precept," citing Brown as the paradigmatic example.<187>; Her other example is the legislative reapportionment cases of the early 1960's when the "Court confront[ed] blocked political processes.<188>; She reasons that those situations presented the Court with constitutional protections for nonmajoritarian concerns, where prospects for political change were slow or perhaps impossible.<189>; In general, however, she urges the Supreme Court to follow, not lead, in societal changes.<190>;
Webster demonstrates why any analysis of the impact of measured steps must be context-specific. In the abortion context, it is likely that both broad and narrow constitutional rulings lead to intense response. Regardless of the rule of measured steps, Webster might have generated substantial response due to the nature of the issue rather than to Justice O'Connor's confining the majority to a measured step. Abortion is both particularly important for women's self-determination and morally charged.<191>; Similarly, one could view the abortion dialogue from a more long-term perspective, beginning the story with Roe or even with earlier privacy rulings.<192>; In this view, Roe animated the antiabortion movement. Since Roe, antiabortion forces successfully secured restrictive waiting periods and consent requirements, as well as limitations on public funding for abortion.
Justice Ginsburg posits that a narrower ruling might have prevented or lessened the twenty-year controversy ensuing from Roe.<193>; If the Court had not intervened in such a heavy-handed manner, progressive legislative efforts liberalizing abortion statutes might have continued.<194>; Instead, "[t]he sweep and detail of the opinion stimulated the mobilization of a right-to-life movement and an attendant reaction in Congress and state legislatures.<195>; Again, Roe did not foreclose dialogue completely. However, one central difference between Roe and Webster is that the majority in Webster used the rule of measured steps to signal that the Court intended to limit its role in the abortion dialogue. Although the majority did not remove the federal courts from reviewing abortion legislation, the majority indicated that it would be more deferential to legislators than the Roe scheme envisioned. And O'Connor used the rule to proceed slowly. Rather than pronouncing a clear principle with which to review abortion legislation, the Court left the law in a state of ambiguity. Use of the rule of measured steps in Webster thus forced other constitutional actors to be more active participants in the development of abortion law.
Each person's analysis of Webster's promotion of deference and gradualism will be influenced by whether she likes its outcome on the merits. The dissenters argued in Webster that the plurality opinion decimated Roe by transferring or sharing with the political branches responsibility for determining protection for abortion rights. The political branches are sometimes deficient in protecting liberty interests, particularly when those who need the protection are not adequately represented in the political process.<196>; For example, Ginsburg acknowledged that (due to Court interpretations upholding public funding restrictions on abortion) for poor women, "a group in which minorities are disproportionately represented, access to abortion is not markedly different from what it was in pre-Roe days.<197>; Even if women as a monolithic group are politically well-represented, a smaller subset of women is capable of becoming pregnant and desiring access to abortion at any given time. Professors Susan Estrich and Kathleen Sullivan argue that abortion is a fundamental right which should not be left to the political process.<198>; Moreover, abortion is an intimate right—indeed, a privacy right—and one filled with moral difficulty for some individuals.<199>; It may be difficult, even for some who support the right, to champion the right in public, political activity. One disadvantage of measured rulings—the resultant lack of national uniformity when the Supreme Court fails to give broad protection for a constitutional right or provide a clear statement on a constitutional issue—thus seems particularly problematic for abortion rights.
Another disadvantage in allowing legislators to dominate the constitutional debate about abortion is that the political branches sometimes provide a cumbersome, impeded, ineffective process for resolving constitutional issues. Note that the vast majority of legislation proposed after Webster, both pro-choice and pro-life, was not enacted.<200>; Moreover, to the extent that the abortion issue dominated electoral politics after Webster, politicians, candidates, organizations, and individuals may have been distracted from effectively dealing with, or even debating, other important issues.<201>; Abortion positions became a litmus test for many political candidates; those positions were used as short- hand political indicators of a candidate's views on multiple issues, regardless of accuracy.<202>;
Applying Justice Ginsburg's approach to broad rulings is helpful but remains complex. In my estimation, Roe presented an instance in which the Court justifiably took the lead in developing constitutional protection for abortion rights. Because it was the Court's first enunciation of this fundamental right, a strong statement of federal protection was necessary for symbolic import. It served a signaling function and promoted quick and nationally uniform protection of a federal right. Roe was effective in quickly protecting constitutional rights and can be seen as a desirable contrast to the Court's more measured, gradual approach to providing a desegregation remedy in Brown II.<203>;
In many contexts, agreement on what issues are truly nonmajoritarian and when the political process is failing will not be easy to reach. Courts must draw those difficult distinctions as they apply the rule of measured steps. Gradualism and respect for maximizing deference to other decisionmakers is not appropriate when other decisionmakers will not allow full participation in constitutional dialogue or have blocked access to the dialogue. In each context, courts should consider whether they must address constitutional issues to provide guidance, promote uniform and speedy federal protection of rights, and advance more effective remedies.
4. Conclusion
Determining whether the rule of measured steps promotes deference and gradualism in the abortion context depends on the definition of measuredness chosen or emphasized. The plurality approach to the rule in Webster was not a measured step to the extent that it severely limited precedent. The majority result advanced gradualism in that some part of Roe was preserved in Webster and then reaffirmed in Casey due to O'Connor's reliance on the rule of measured steps. And Webster promoted a temporary kind of deference in which other potential participants perceived that they could influence the constitutional dialogue on abortion.
In sum, Webster was significant because interested observers and potential dialogic participants saw it as an indication that the Supreme Court was stepping away from having the last word on abortion rights.<204>; The responsibility for construing how much protection the Constitution affords for abortion was shared with others. It bears emphasis that the courts did not abdicate their future role in the dialogic process on the abortion issue after Webster. The lower federal and state courts were still involved in reviewing aspects of the legislation passed in response to Webster. And within three years of Webster, the Supreme Court issued Casey, with its new undue burden test.<205>;
But measuredness is not a prerequisite for dialogue and participation by actors outside the federal judiciary in constitutional development in every context. Even broad rulings such as Roe can yield significant opportunities for dialogue. The dialogue was different after Roe than after Webster—the loudest voices, participation of formerly neutral politicians, and the extent to which the dialogue was conducted "in the shadow of the Justices" all differed. Even if the Court had overruled Roe in Webster, it is likely that significant dialogue would have ensued. Pro-choice voters would focus their efforts on persuading legislators not to enact restrictive legislation; the battle would shift to fronts other than the courts. I conclude that, at least in the abortion context, dialogue is not dependent on the Supreme Court consistently taking measured steps. Although some types of measured rulings might elicit more participation in dialogue, other factors are critical for promoting dialogue—including the nature of the substantive constitutional issue. It is not axiomatic that measured steps produce deference and nonmeasured steps foreclose others' participation in dialogue. Courts should not equate departure from the rule of measured steps with a total rejection of deference. Instead, they should consider their rulings—broad or measured—as a single step in a long-term dialogue on a given constitutional issue. Both when courts temporarily avoid constitutional issues and when they address them, multiple, long-term opportunities for participation exist as long as the Court and other actors do not perceive that only the Court has the last word on a given constitutional issue.
In some circumstances, it is appropriate for the Supreme Court to dominate the dialogue by announcing a less deferential role for the courts in a particular substantive context. Justice Ginsburg approves of the Court having done so in Brown. Similarly, I view the Court's broad statement in Roe as appropriate to protect a newly recognized fundamental right. Yet, even those bold steps did not completely foreclose long-term dialogue on racial classifications and abortion regulation. This Article revisits these conclusions after examining the other primary advantage supporting measured constitutional rulings: the promotion of gradualism in constitutional law.
In addition to justifying the rule of measured steps because it may promote deference to other constitutional interpreters, Supreme Court Justices have claimed that the rule promotes more gradual development of, and stability in, constitutional law. This Article contends, however, that sometimes the opposite is true—measured steps can result in less stability in constitutional law.
The gradualism justification for the rule of measured steps is predicated on several principles. First, measured steps promote "orderly development" of the law's content and keep constitutional law from being "confused.<206>; Second, measured steps may make federal courts' decisions more palatable because the pace of change in constitutional law will be controlled.<207>; I argue, however, that this type of concern for the courts' political viability is misplaced; it is less significant than the first principle of gradualism. Specifically, when federal courts focus excessively on political viability concerns, they neglect their role in protecting constitutional values. Because Justice Scalia's factors address both aspects of gradualism, in this Part I will critique the factors he deems important in applying the rule of measured steps.
The several components of gradualism will be in tension at times. When the Supreme Court chooses to move gradually and deferentially in an area of law, there is likely to be less uniformity because many issues are not "resolved" by the Court. For example, in an effort to move at a measured pace, the Court in Webster left significant ambiguity in the content of constitutional law, thereby undercutting stability. The varied aspects of measuredness must be considered when the gradualism justification is invoked. For example, I argue that the Webster plurality did not promote gradualism. Instead, it used a "dispute resolution" approach to the rule of measured steps which greatly devalued precedent. Only O'Connor's attempt to retain some precedential value for Roe by relying on the rule of measured steps made the majority result measured in this respect, and thereby advanced gradualism.
1. Elements of Gradualism
In Webster, Justice Scalia set forth a five-factored approach to measured steps which encourages the Supreme Court to depart from the rule when "good cause" exists. First, Scalia noted that the rule normally "avoids throwing settled law into confusion.<208>; If the content of constitutional law changes in a gradual manner, constitutional law is more stable and uniform.<209>; The concern for promoting uniformity in federal constitutional law is grounded on a fairness principle: like cases should be decided alike.<210>; Uniformity also promotes people's reliance interests—people can gauge their conduct by past constitutional rulings.<211>; In contrast, Scalia argued that using the rule to preserve Roe would not promote stability, but would preserve only "chaos" in the area of abortion regulation. If measured rulings truly promote stability in the content of constitutional law, how does a judge determine when preserving the status quo constitutes preserving only chaos, as Scalia concluded in Webster? A sufficient number of Justices could agree that a given constitutional rule is confusing or chaotic. Then they could develop a standard allowing them to issue a changed constitutional framework or principle when the prior constitutional rule becomes "unworkable" or "unsound.<212>; Using any such flexible measure, however, presents a "five-vote problem" at the Supreme Court. Five jurists' votes on the merits of the current constitutional rule will directly influence whether the old rule is "unsound.<213>;
Thinking about stare decisis and its close link to the rule of measured steps can certainly inform this inquiry.<214>; The plurality in Webster recognized that the Supreme Court is less bound by stare decisis in constitutional adjudication because the Court leads in making constitutional changes.<215>; This principle directly undercuts the stability the rule of measured steps seeks to promote. Only three years after Webster, the Justices engaged in an intensive debate about stare decisis in another major abortion ruling, Planned Parenthood v. Casey.<216>; Indeed, Scalia's flexible approach to the rule of measured steps in Webster was a prelude to the elaboration of his views on stare decisis in Casey, where he showed more willingness than other Justices to depart from constitutional precedent.<217>;
Scalia's "chaos" standard would present a magnified problem if it were to be adopted by the lower federal courts or state courts, which issue most constitutional rulings today.<218>; If each trial judge and appellate tribunal were to determine when a current constitutional rule is "unsound" or the current framework has become "chaotic," stability in federal constitutional law might decrease. In a related context, Professor Evan Caminker suggests that we consider different rules about adhering to precedent for courts at different levels.<219>; Similarly, the Supreme Court should use a flexible approach in determining whether departure from the rule of measured steps is appropriate, weighing competing considerations. Generally, I view departures from the rule as more appropriate for the Supreme Court than for lower federal courts, because of the Court's unique role in promoting uniformity and providing guidance on constitutional issues. Part V therefore explores the symbolic function of the Court in our polity. The Court provides standards and recognizes areas of constitutional protection. In some contexts, a broad statement (like the one in Roe) is important to ensure uniform protection of federal rights and interests, or to ensure access to the political process for nonmajority interests. Lower federal courts, state courts, and other actors more appropriately implement the Court's broad statements and standards, using measured steps to apply them to new fact situations.
The Justices and commentators have not reached any clear consensus as to the force of stare decisis in constitutional adjudication or the conditions for appropriate departure from precedent.<220>; In considering justifications for the rule of measured steps, however, it is important to note that many agree that the principle of stare decisis is of lesser force in the constitutional context because one of the federal courts' important functions is the development and redirection of constitutional law, sometimes at the expense of stability in the law.<221>; Development of the law is valuable in constitutional interpretation because it can make the Constitution's values meaningful and effective over time.<222>;
Justice Scalia relied upon a second factor for departing from the rule in Webster: to the extent the Court avoided reconsidering Roe, it would retain some of Roe in its constitutional interpretation.<223>; He noted that the majority's decision to avoid dispensing completely with Roe in Webster was itself a significant constitutional decision.<224>; While Brandeis would have welcomed avoidance because he believed that one of the most important functions of the Court is avoiding "unnecessary" constitutional questions, Scalia concluded that avoidance was the least responsible course in Webster.<225>; With his second factor, Scalia makes a critical point: the choice to use the rule to avoid a broader issue is itself an exercise of power and a form of constitutional interpretation.<226>; It retains the Court's prior ruling as the status quo.
Justice Scalia's first two factors for applying a flexible rule of measured steps correlate with the first principle of gradualism, which is concerned with changing the status quo slowly so as to preserve a stable content in constitutional law. His other three factors correlate more closely with the second principle of gradualism, which is concerned with maintaining a slow pace of change in constitutional law in order to make changes more palatable. Measured changes purportedly will find the widespread public acceptance which does not attach to sudden or haphazard shifts in constitutional law. When the groundwork has been carefully laid in prior decisions for redirection or development of the law, the Supreme Court's credibility arguably is preserved.<227>;
These arguments about the federal courts' political viability are not espoused only by the politically "conservative" Justices. Brandeis, Frankfurter, and Ginsburg—the more politically "liberal" Justices—have also emphasized avoiding constitutional rulings in order to escape political entanglements. As noted earlier, they applauded avoidance and measured rulings because they worried about the countermajoritarian difficulty and believed that one of the primary functions for the federal courts was to safeguard their limited judicial power. By doing so, federal courts preserved their political viability and respected the powers of other federal branches as well as the states.<228>; Similarly, Scalia advocated a broader ruling in Webster to remove the courts from the political arena of abortion decisions. This second principle of gradualism is based on federalism and separation of powers concerns. When the federal courts protect the spheres of the other branches and the states, they also protect their own political capital.
Thus, Justice Scalia's other factors ask whether an issue can be classified as a political issue that is best handled by the majoritarian branches.<229>; Scalia classified abortion as a political issue which distorted the public perception of the Supreme Court's role. With a broad ruling, he sought to ensure that federal courts would in the future avoid the abortion issue entirely. Consideration of "political" questions do "great damage" to the Court by "mak[ing] it the object of the sort of organized public pressure that political institutions in a democracy ought to receive.<230>; Scalia also voiced a federalism concern, which is linked to his view of the merits of the abortion issue. He argued that a broader ruling in Webster would signal to the states that, in his opinion, they have constitutional power to restrict abortion beyond that previously recognized by the Court.<231>;
Despite these reservations, there is less justification for using the rule of measured steps as a separate barrier to constitutional rulings based on political classifications of issues, because the political question doctrine and other highly developed justiciability doctrines sufficiently address Scalia's concerns.<232>; Additionally, the political viability arguments are not as weighty as other justifications for avoidance of constitutional issues. I have previously argued that concern for federal courts' credibility is a less weighty justification than promotion of deference because courts are not extremely fragile, they are not clearly exposed to greater danger by constitutional adjudication than by other types of adjudication, and they should not be concerned with their own credibility at the expense of protecting certain constitutional rights.<233>; The federal courts, as well as other constitutional actors, have a duty to be involved in deciding constitutional issues and developing constitutional law.<234>;
Justice Scalia's factors highlight both principles of the gradualism justification. Although I have noted where I disagree with some of his reasoning, I agree that the rule of measured steps must be applied in a flexible, context-based manner. The next subsection explores the tensions between the several elements of gradualism.
2. Tensions in Preserving Gradualism
In considering whether it is taking a measured step, a court must examine the competing principles of gradualism. When the Supreme Court chooses to move gradually and deferentially in an area of law, there could be multiple, inconsistent applications of constitutional law among other constitutional interpreters such as legislators, lower federal and state courts, and executive officers enforcing laws. Even if those other interpreters take incremental steps in applying the Court's interpretation of the Constitution, there is likely to be less uniformity because the Court leaves many issues unresolved. This problem may be compounded when the Supreme Court issues an ambiguous measured ruling.
For example, the majority in Webster could not reach consensus on a clear principle of constitutional law to replace existing law. In an effort to move at a measured pace, the Court left significant ambiguity in the content of constitutional law, thereby undercutting one form of stability. Moreover, the approach of the Webster plurality toward the rule of measured steps meant that precedent only applied to the extent later challenges reflected something close to the precedent's exact facts and an almost identical statute or regulation. The dissent accused the Webster plurality of evading Roe on untenable fact- based differentiations between the two cases.<235>; The dissenters charged that the plurality pretended to preserve Roe, citing the rule of measured steps, but in fact overruled Roe. That is, the plurality "modified" and "narrowed" the old rule so drastically that it created a new rule.<236>; In this sense, as argued earlier, the plurality's approach in Webster was not measured.<237>; In a related approach, some argue that a decision of the Court imposes no legal duties except on the parties to that case.<238>; By confining the precedent to its exact facts, courts use measured steps to lessen the force of precedent and thus undercut stability and predictability in the content of constitutional law.
Although I classify the plurality's "dispute resolution" approach to the rule as not measured, it is useful to compare it to the approach in Pacifica.<239>; The Court's ruling in Pacifica prohibited future airings of George Carlin's monologue only at the same or closely similar times, in the same media and under similar circumstances.<240>; While it left issues unresolved, Pacifica did not narrow precedent as the Webster plurality did. It dealt with a novel situation and took a measured step to resolve only the facts presented and allow the FCC to take the initial step in resolving the next challenge. Like the Webster plurality, some Justices have recently construed precedent narrowly or revised precedent in a manner that shifts protection for federal rights "backward" in several areas of racial classification law.<241>; These significant shifts undercut stability and may be best classified as nonmeasured movements.
At the other extreme from such a specific "dispute resolution" approach, broad constitutional decisions likewise could fail to secure some legal rights by undermining gradualism and adherence to precedent.<242>; Courts should consider different types of broad and measured rulings. For example, Justice Ginsburg has distinguished Roe from the more open-ended Griswold ruling because the latter left more ability for others to respond and fill in the details.<243>; Measured rulings by the Court could also promote uniformity in federal law when the rulings are clear and the Justices are largely in consensus. Those rulings could signal a stability in the direction of the law. Alternatively, the Court's rulings could also promote uniformity by closely adhering to precedent. Although the status quo preservation inherent in this molecular movement can be a significant problem in some substantive areas, a measured ruling which greatly respects precedent advances the gradualism justification for the rule.
The Supreme Court could also achieve uniformity in the content of federal law by addressing constitutional issues broadly and by using a flexible approach to the rule of measured steps, but urging the lower federal courts and state courts to use only measured steps in constitutional adjudication. The state and lower federal courts could then serve as laboratories, experimenting with implementation of the Court's broad rulings and flexible standards in limited factual circumstances. The next Part emphasizes a heightened role for the Supreme Court in ensuring uniformity through broader statements which provide guidance on constitutional issues.
Although I argue that heightened guidance and promotion of uniformity through a flexible approach to broad rulings is most appropriate for the Supreme Court, it may sometimes be important for other courts to employ a similar contextual approach to the rule. The bulk of federal constitutional decisions are currently made by the lower federal and state courts. Additionally, the Supreme Court, with its discretionary certiorari policies and limited resources, faces only a small portion of the constitutional questions raised in litigation. Indeed, the Court has heard a declining number of cases in recent years. Federal circuits may have differing constitutional pronouncements on the same issue for a considerable period of time without Supreme Court intervention.<244>; State rulings on federal constitutional issues may conflict with federal pronouncements on the same issues.<245>; Lack of uniformity in constitutional decisions may be beneficial because more measured rulings encourage experimentation with constitutional interpretation in many forums.<246>; To the extent uniformity is important to secure fairness and promote reliance, however, a federal appellate court may need to address the lack of uniformity in its own circuit by issuing a broader constitutional ruling which provides guidance and advances uniformity. The Supreme Court could still address intercircuit conflicts under this approach. And, in some circumstances, trial courts and state courts should depart from the rule when there is a great need for speedy and uniform protection of a federal right. Part V develops this suggestion by exploring lower court rulings challenging the military's ban on gay and lesbian service members.
3. Conclusion
Measured steps do not guarantee stability in constitutional law. Both measured and broad rulings can cause upheavals in constitutional law when they signal significant departure from precedent and generate less uniformity. Specifically, the "dispute resolution" approach to the rule used by the Webster plurality undermines stability because it lessens the value attached to precedent. Even if this approach to the rule promotes some elements of gradualism, it undercuts uniformity. To balance the tensions identified above, we need to consider seriously differing roles for different courts at different levels in terms of applying the rule and advancing its justifications. Thus, the Supreme Court should adopt a flexible approach to the rule, balancing its justifications in each context. In contrast, the lower federal courts and state courts should depart from the rule more cautiously because of the potential for disrupting stability. Part V focuses on the disadvantages of measured rulings in order to develop criteria for applying a flexible rule of measured steps and suggests why lower level courts should sometimes use a flexible, context-dependent approach to the rule.
V. Disadvantages of Measured Constitutional Rulings
The potential disadvantages of measured constitutional steps include: (1) slowness in changing the status quo; (2) less uniformity in the content of federal constitutional law; (3) lessened judicial guidance on constitutional issues; (4) failure to secure rights; and (5) inefficiencies for courts, litigants, and other actors. In discussing the advantages of measured steps in the context of abortion rights, Part IV considered many of these items. For example, lessened judicial guidance is a tradeoff which sometimes results from courts deferring so that other constitutional actors can lead in developing an area of law. Part IV additionally showed how some measured rulings may advance one principle of gradualism but produce ambiguity and weaken the uniformity of law. The slow pace of change offered by some measured rulings can be viewed as an advantage or disadvantage, depending on the substantive constitutional issue and depending on the viewer. This Part first identifies the potential disadvantages which have not yet been fully described. It then analyzes the effectiveness of measured rulings in the series of cases involving gay and lesbian service members. As a contrast to the Webster analysis, this Part uses a series of lower court rulings to highlight the differing ramifications of measured steps at various court levels.
Providing guidance on constitutional issues is a preeminent function of the federal courts, particularly the Supreme Court.<247>; The "lawsaying" function of the Supreme Court dates at least back to Marbury.<248>; Bickel described the Court as being "engaged in an endlessly renewed educational conversation" with other institutions as it decides constitutional issues.<249>; When a court focuses on one constitutional issue, and deems others unnecessary to reach, it fails to give guidance on those other issues. If a hierarchy or ranking in significance is possible for constitutional issues, a measured ruling can neglect more important constitutional issues.<250>; The Webster dissenters complained that the plurality did not even mention, let alone reach, the more important constitutional issue of "whether the Constitution includes an ?unenumerated' general right to privacy.<251>;
Some dispute that a primary mission for the courts is giving guidance. Justice Stevens has stated that the Justices "do not sit to expound our understanding of the Constitution to interested listeners in the legal community; we sit to resolve disputes.<252>; The avoidance doctrine, based in part on the prohibition against rendering advisory opinions, is grounded on this dispute resolution emphasis.<253>; Similarly, the strengthening in recent decades of judicial management techniques, judicial encouragement of settlement, and alternatives to litigation demonstrates the judiciary's heightened concern with its role in providing efficient dispute resolution services.<254>; A rich literature explores the tension between these functions of resolving private disputes and providing public guidance by articulating constitutional values.<255>;
A court does not have to issue a broad holding to provide guidance. Courts can provide guidance in measured rulings with clear, incremental holdings. They can provide guidance by consistently respecting precedent, by speaking with less ambiguity, and by issuing measured rulings which employ flexible standards for later courts to develop. Again, the perception that others are able to respond to court rulings is critical. What the federal courts say is not necessarily the last word on a constitutional issue: their statements can generate further interaction.
Although it is difficult to measure the impact of constitutional rulings,<256>; they are important in two senses: both because of their effect on the litigants and their potential national import. At a minimum, constitutional rulings by the Supreme Court serve a practical function of providing guidance to the extent other courts and constitutional actors closely adhere to those precedents. The importance of constitutional issues therefore argues for a heightened duty of the Supreme Court to decide—not avoid—significant constitutional challenges which have ramifications beyond the immediate dispute.<257>; As noted earlier, Justice Scalia argued in Webster that the Court should provide more guidance by clarifying the chaos of Roe, and he indicated that states could exercise more power through a nonmeasured ruling. In contrast, Justice Stevens has argued that the rule of measured steps should be followed most closely when courts are asked to decide "problematic" (i.e., controversial and important) constitutional questions.<258>; Justice Ginsburg appears to advocate a position between those poles. Although Justice Ginsburg praises measured motions for the federal courts, she argues that the Supreme Court should lead when minority rights are not adequately protected by majoritarian branches.<259>;
The Court has recently declined to provide constitutional law guidance in several ways. In addition to using avoidance techniques, the current Court has almost complete discretion in selecting which issues to hear. And the Court has used the discretionary certiorari policy to decide a declining number of cases in recent terms.<260>; Further, the problem of lessened guidance is exacerbated by the splintered opinions and close votes among the Justices in recent terms.<261>;
The Court could provide increased guidance in several ways. Congress, of course, could require it to hear certain federal issues rather than allowing the Court great discretion in choosing the cases it hears. Second, the Court can provide its analysis of a constitutional challenge more quickly when a speedy resolution would be beneficial. For example, the Court heard the term limits challenge on an expedited basis during the 1994- 95 term.<262>; Additionally, Congress can control the timing of Supreme Court review by providing for early resolution of a constitutional challenge to a statute, as it did with the flag burning statute.<263>; Alternatively, the Court itself could speak in a more uniform voice and work hard to build consensus and speak in clear majorities. However, that may not be feasible because of disagreements among the Justices on the merits of some constitutional issues, and open disagreements may be valuable to the extent the Justices' differing perspectives inform the constitutional debate. Finally, Congress and the federal judiciary could explore the Article III constraints on the Supreme Court issuing some form of advisory opinions.<264>;
However, there is danger in seeking guidance too readily from the Supreme Court.<265>; When one constantly looks to the Supreme Court to have the last word on a constitutional issue, other constitutional actors can more plausibly avoid participating in the constitutional dialogue. When the Court offers limited guidance—as in Webster—others may be forced to participate more actively in debating a constitutional issue.
Additionally, measured constitutional rulings may pose harms because they leave some claims of federal rights unresolved. Justice Frankfurter once recognized that the Court's avoidance techniques "may result in the disadvantages and embarrassments of keeping open doubtful questions of constitutionality.<266>; These disadvantages constitute more than just lack of guidance. Many measured rulings allow unconstitutional conduct to continue and thus leave some constitutional rights less secure.<267>; This harm can extend beyond the immediate litigants because of the precedential effect of rulings.<268>; In contrast, a measured ruling leaves the status quo in place.
Others argue that federal courts have a special duty to protect the federal rights of individuals and minorities from majoritarian resolutions of rights debates.<269>; Justice Ginsburg's approach to measured decisionmaking reflects this vision of the federal courts' role. Similarly, this Article urges federal courts to depart from the rule of measured steps when necessary to protect such interests. And, as noted above, some measured rulings may generate nonuniform protection of federal rights. Like cases, even if decided simultaneously, may be treated differently by various courts.<270>; In addition to causing instability, this generates unfairness.
Finally, some types of narrow rulings increase the amount of litigation and delay the securing of rights by forcing each person to litigate individually. In contrast, broader rulings or remedies that pertain to a larger segment of people similarly situated resolve questions for more potential litigants. From an individual autonomy perspective, it may be beneficial to afford each person a day in court and to increase the opportunities for participation and response between courts and other actors.<271>; But participation rights may not be so valuable to all litigants because participation comes with costs. The litigant and her story are deemphasized as the law is applied and developed by lawyers and judges in an adversarial and hierarchical system based on rationality and abstract reasoning.<272>; Multiple, duplicative litigation poses costs and risks not only for litigants but for the judicial system as a whole.
This canvassing of potential harms was designed to introduce multiple effects of measured steps without unduly repeating harms previously addressed in Part IV's analysis of the benefits of measured steps. The remainder of this Part is more concrete, evaluating potential problems of measured rulings through a series of cases in the lower federal courts involving the constitutionality of the military's policy concerning sexual orientation.
B. Effects of Measured Rulings in Litigation Involving Gay and Lesbian Service Members
Recent litigation involving gay and lesbian military service members presents the federal courts with a choice between fashioning narrow injunctions affecting only individual litigants or broad injunctions concerning the constitutionality of the military's ban as applied to all service members. The scope of injunctive relief in this context is thus similar to the scope of precedent discussed earlier—an injunction applying only to an individual service member is like the Webster plurality's "dispute resolution" approach to Supreme Court precedent. We cannot evaluate whether measured injunctive relief is beneficial without considering the potential harms of such rulings.
1. Meinhold v. United States Department of Defense
One of the early cases which has commanded significant attention was brought by V. Keith Meinhold.<273>; Meinhold publicly declared his homosexuality in May 1992 and the Navy immediately began discharge proceedings against him.<274>; The trial judge initially granted a preliminary injunction for Meinhold upon finding that the Navy had failed to follow its own procedural regulations and that the Navy's regulations violated the equal protection component of the Fifth Amendment.<275>; Meinhold was reinstated pending resolution of the case.<276> The trial judge then issued a preliminary injunction forbidding the Department of Defense ("DOD") from "discharging or denying enlistment to any person based on sexual orientation in the absence of sexual conduct which interferes with the military mission of the armed forces of the United States.<277>;
The Ninth Circuit upheld the preliminary injunction upon appeal by the DOD.<278>; The trial judge then issued a permanent injunction barring the DOD from taking any action against a homosexual service member based on sexual orientation, effectively nullifying the Department's regulations in this area.<279>; The government appealed the judge's ruling on the scope of the injunction immediately; the Supreme Court granted an emergency stay of the injunction as it pertained to anyone other than Meinhold.<280>; Later, when the Ninth Circuit considered the merits of Meinhold's challenge, the court significantly narrowed the trial court's ruling and held that the injunction was proper only to the extent it enjoined the Navy from discharging Meinhold based on his declaration that he is a homosexual.<281>; Thus, the constitutional ruling was limited to benefit only Meinhold due to the measured form of relief employed.
The proper scope of injunctive relief against government actors is a complicated and unsettled area, partly because of the equitable foundations underlying injunctive relief. As the Ninth Circuit noted when it overturned Judge Hatter's nationwide injunction in Meinhold, courts must balance an injunction's burden on the defendant against the effectiveness of the relief it awards the plaintiff.<282>; Because Mr. Meinhold sought relief only on his own behalf, the court reasoned that effective relief was obtained by upholding the injunction as to him.<283>; The appropriate scope of injunctive relief against a governmental defendant thus overlaps with other considerations, including whether relief is pursued on behalf of a class, whether other aggregation techniques are available, whether future litigants will be able to use nonmutual offensive issue preclusion to bind the government defendant, and how future courts will respect an earlier injunction as a matter of precedent. Because traditional equity concerns may not adequately reflect all the considerations important when courts issue injunctions against governmental actors involved in public law litigation,<284>; this Article argues that the scope of injunctive relief is a critical factor in assuring or rejecting measuredness in constitutional rulings. Thus, this Article considers whether courts hearing challenges to the federal government's bans against homosexual service members are able to effectively assure adequate relief by analyzing the effects of measured injunctive relief.
2. Other Contemporaneous Litigation
Numerous other individual challenges to the military's policy were simultaneously pending in federal courts while the government appealed Meinhold to the Ninth Circuit. Consideration of these other rulings is necessary to evaluate the effectiveness of the narrow injunction in Meinhold. In the District of Columbia Circuit, the beleaguered case of Joseph Steffan wound its way up and down the system for six years.<285>; In reasoning similar to that in Meinhold, the Court of Appeals reversed the district court's decision in favor of the government, ordering that Steffan be reinstated with his diploma and commission. In a rehearing en banc, a fragmented court affirmed the district court decision, holding that Steffan's discharge and denial of his academic degree for merely admitting his homosexuality was not unconstitutional.<286>; This ruling directly contradicted the Ninth Circuit's constitutional ruling in Meinhold.<287>;
In April, 1994, a district court in New York issued a preliminary injunction for six plaintiffs challenging the new "don't ask, don't tell" policy put in place by the Clinton administration while Meinhold's challenge to the old policy was pending.<288>; In analyzing the new rule, the New York court found it similar in application to the old one and therefore likely to be an unconstitutional violation of the plaintiffs' Fifth and First Amendment rights.<289>; The judge declined to enjoin the application of the regulation to other service members, stating that "[w]ere this a class action affecting all homosexuals in the Services the balance of hardship analysis might be different.<290>; The ultimate resolution of Able on the merits bore out the court's judgment. In a decision similar in tone and force to that of Judge Hatter in Meinhold, the trial court held two provisions of the new rule unconstitutional, but enjoined enforcement only against the plaintiffs.<291>; Thus, the ruling was consistent with part of the trial court's ruling and with the Ninth Circuit's ruling in Meinhold, and the injunction was of similar scope.
Another service member, Margarethe Cammermeyer, was discharged for admitting her homosexuality in 1989.<292>; The trial judge ruled in Cammermeyer's favor and reinstated her as a National Guard Colonel in June 1994.<293>; On appeal, the Ninth Circuit put her case on hold pending the outcome of appeals in Meinhold.<294>;
Much related litigation is still pending, and the Supreme Court has not yet considered either ban. However, what has transpired so far demonstrates that, with the measured scope of injunctive relief ordered by the Supreme Court and the Ninth Circuit in Meinhold, numerous lower federal courts continued to participate in determining whether the policies violate the Constitution. While the government appealed Meinhold, the courts considered other factual situations and challenges to both policies on a variety of constitutional grounds. The courts issued opinions both consistent with and contrary to portions of Meinhold. Additionally, the courts appear to be adopting several different standards in reviewing the military's actions concerning homosexual service members in this litigation.<295>;
3. Reaction of Other Constitutional Actors
Judge Hatter's broad injunction encouraged the new Clinton administration to study the ban on homosexual service members. The administration then recommended a new policy while freezing all activity on discharge cases involving homosexuals except the Meinhold litigation. President Clinton had promoted an end to the ban during his campaign.<296>; Clinton said that Judge Hatter's ruling in Meinhold "draws the distinction that I seek to draw between status and conduct.<297>; Shortly thereafter, however, under pressure from Congress and the Pentagon, Clinton determined that an outright end to the ban was politically impossible to achieve. The administration, faced with increasing public pressure, sought to find a way to eliminate unconstitutional elements of the rule while satisfying the Pentagon's concern for military order.<298>; Clinton also had to contend with the efforts of a gay rights coalition which urged the administration to construct a new policy that targeted misconduct, not private behavior.<299>;
In negotiations with the DOD and the Senate Armed Services Committee, the Clinton administration did not bring the Justice Department into the dialogue until very late in the process. The Administration made an agreement with the DOD to freeze enforcement of the "old" ban—the one found unconstitu