Editorial: Fuzzy Law from the High Court

Abstract

Since the 1950s, a great deal of American public administrative practice has been constitutionalized, or regulated directly by constitutional (Rosenbloom, 1983). Concomitantly, the Supreme Court has emphasized that a reasonably competent public official should know the governing his and has ruled that almost all public administrators can be held personally liable for conduct that violates clearly established ... constitutional rights of which a reasonable person would have known (Harlow v. Fitzgerald 1982; 818). In recent years, however, the quest for clear constitutional principles in public administration has been frustrated by the Supreme Court's own fragmentation. In some cases, the justices, efforts to paper over the divisions in their ranks with general terms have led to decisions that dissenting justices have found devoid of any principles which will either instruct or endure (Cleveland Board of Education v. Loudermill, 1985; 562, Chief Justice Rehnquist), by rule, and hence ungoverned by law (Morrison v. Olson, 1988; 733, Justice Scalia), and so devoid of content as to produce[] rather than eliminate[] uncertainty (O'Connor v. Ortega, 1987; 73; Justice Scalia). Some of the Court's holdings have also been obscured by a plethora of separate opinions and partial concurrences and dissents. Consider, for example, the following headnote: O'Connor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-B, and IV, in which Rehnquist, C.J., and White, Stevens, and Kennedy, JJ., joined, an opinion with respect to Part II, in which Rehnquist, C,J., and White, J., joined, and an opinion with respect to Parts III-A and V, in which Rehnquist, C.J., and White and Kennedy, JJ., joined. Stevens, J.,...and Kennedy, J.,... filed opinions concurring in part and concurring in the judgment. Scalia, J., filed an opinion concurring in the judgment.... Marshall, J., filed a dissenting opinion, in which Brennan and Blackmun, JJ., joined.... Blackmun, J., filed a dissenting opinion, in which Brennan, J., joined ... (City of Richmond v. Croson, 1989). Key decisions during the October 1993 term illustrate the Court's tendency to couple constitutionalization with turbidity. The Court handed down groundbreaking decisions on the Fifth Amendment's protection of real property rights and on public employees' freedom of speech. But it articulated standards that are too fuzzy to be used effectively as a guide to administrative action. Further, based on the justices' voting, it appears that narrow majorities used the Fifth Amendment as a device to outlaw administrative action to which they are opposed without displaying a serious commitment to property rights per se. Although some ambiguity is inevitable and has always been present, vague constitutional standards and values are bound to be problematic when the administrative emphasis is on employee empowerment and public entrepreneurship. The Fifth Amendment: Take It or Leave It? Dating from the 1950s, the constitutionalization of new property, such as welfare benefits, public employment, and occupational and other licenses, has revolutionized American public administration (Reich, 1964; Rosenbloom, 1983). It is anomalous that property has sometimes enjoyed greater constitutional protection than traditional, or real property. During the 1993 term, the Supreme Court moved to restrain constitutionally administrative action in civil forfeitures and individual zoning decisions, thereby affording more protection to landowners in seizure and cases. However, the Court's standard with regard to takings is inherently unclear and openly invites litigation. Its divisions also reveal less interest in property owners rights than in constraining administrative action found objectionable by one or another line-up of justices. Consequently, its decisions do not clearly signal to public administrators that real property rights are to be highly valued. …