Of College Football, Legal Realism, and Constitutional Litigation

If you are even a casual college football fan, you are likely aware of the great controversy surrounding the selection of the four teams to make the end-of-the-year playoffs. The committee assigned the unenviable task of making that decision set the sports world on fire when it choose as the fourth and final team a one-loss Alabama team over an undefeated Florida State team (albeit with its first-string quarterback out for the season). Of the other three teams, Washington and Michigan were undefeated while Texas lost once to Oklahoma.

There are thirteen members who serve on the committee to decide what four teams make the end-of-the year playoffs based on the following criteria: conference championships; strength of schedule; head-to-head results against common opponents; head-to-head matchups if they happened; and a catchall of "[o]ther relevant factors such as unavailability of key players and coaches that may have affected a team’s performance during the season or likely will affect its postseason performance." Obviously, these considerations give the committee much discretion to determine the final four (the NCAA is moving to 12 teams next year but the arguments in this post will likely apply to who should be the last couple of teams to make the 12-team playoff as well).

But the committee does not have complete discretion. If it had chosen say the University of Louisville, Cornell, or Georgia State, the decision would have rightly been seen as objectively wrong and people would have been fired and an investigation commissioned by the NCAA. An example in constitutional law might be a decision by the Supreme Court that Congress may (by a simple majority vote rather than through an impeachment proceeding) unilaterally remove a President’s cabinet member. Technically, the Constitution is silent on who gets to remove federal officers who are not guilty of treason, bribery, or other high crimes and misdemeanors, so such a ruling is not incomprehensible, but it would clearly be wrong under all feasible legal materials and cause much chaos and confusion.

But when it came to choosing between an unbeaten Florida State team without its star quarterback and one-loss Alabama, Georgia, Texas, and Ohio State teams, there is simply no right or wrong answer. Alabama’s only loss was early and to an excellent Texas team.  Georgia had won 29 games in a row, was the defending champion, and only lost one game--to Alabama, by a mere three points. And Florida State went undefeated and won a major conference (all similarly situated teams to Florida State had made the playoffs before, unless missing a star player makes Florida State dissimilarly situated). 

Who you think should have been the fourth team involves a host of reasonably contestable value judgments. Should the committee pick the best four teams at the time of the playoffs, the teams with the best performance over the regular season, or which teams, within reason, will get the best television ratings? How should the committee weigh the multiple, often conflicting factors that comprise the official "principles" it is supposed to follow? There are no necessary answers to these questions, just preferences and often unspoken or unwritten value judgments.

And that process describes constitutional litigation at the Supreme Court almost perfectly. I say at the Supreme Court because lower courts do know how to and generally do follow precedent or at least try to figure out the direction the winds are blowing at the highest court. The Supreme Court is not bound by and does not take precedent seriously. There are permissible factors (text, history, precedent, consequences) and impermissible criteria such as whether some result will enrich a Justice's family members or will help the political party with which a Justice identifies, but the permissible factors will lead to several plausible results in just about every case.

The sports world does not question that the committee has enormous discretion to choose four teams out of the six to ten that could plausibly be ranked among the top four but the legal world hasn't quite caught up. For example, a lawyer friend of mine tweeted the following: "The Committee started with a conclusion (there has to be an SEC team in the Playoff) and then worked backwards to fill in the reasoning. If UGA would have won, then they would have invented an entirely different rationale to omit Texas."

My friend claims the unspoken value judgement at play was the need for an SEC team (Alabama) to be in the playoffs (perhaps for television ratings purposes). But there could have been all kinds of other biases at play doing work behind the scenes. The point is the committee's decision on the fourth team cannot correctly be called right or wrong. 

All one can say is whether one agrees or disagrees with the choice. Now listen to Judge Posner describe constitutional law in his 2005 Foreword to the Harvard Law Review (sorry for the length):

Constitutional cases in the open area are aptly regarded as "political" because the Constitution is about politics and because cases in the open area are not susceptible of confident evaluation on the basis of professional legal norms. They can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms. Almost a quarter century as a federal appellate judge has convinced me that it is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly. When one uses terms like "correct" and "incorrect" in this context, all one can actually mean is that one likes (approves of, agrees with, or is comfortable with) the decision in question or dislikes (disapproves of, disagrees with, or is uncomfortable with) it.  

One may be able to give reasons for liking or disliking the decision ... and people who agree with the reasons will be inclined to say that the decision is correct or incorrect. That is just a form of words. One can, for that matter ... give reasons for preferring a Margarita to a Cosmopolitan. The problem, in both cases, is that there are certain to be equally articulate, "reasonable" people who disagree and can offer plausible reasons for their disagreement, and there will be no common metric that will enable a disinterested observer (if there is such a person) to decide who is right. 

Judge Posner is exactly right. When the Constitution's text is crystal clear (e.g., each state gets two Senators) we don't need to argue about methods of interpretation or likely consequences. Judges have an obligation to follow clear text (unless it is obviously absurd to do so).  And much of constitutional law is clear.

But constitutional litigation is rarely clear. Does the Constitution protect a right to abortion, the right to own guns, or the right of the President to have unilateral power to fire heads of agencies? How do we balance free speech with fair elections not sullied by wealth? What is a "case or controversy?" What should be the appropriate legal relationships between and among the three branches of the federal government (separation of powers) and the national government and the states (federalism)? These are all questions that must be resolved through values and judgment, not syllogisms, formalisms, or logic.

Cases raising these kinds of issues are decided by the Court in a similar manner to how the college football selection committee decided on the fourth eligible team or in other years made other hard decisions. Both groups of people often do not disclose the true reasons for their decisions (see my friend's tweet), they have to decide among more than one possible reasonable option, and there are some choices that could be accurately characterized as off the table. That is why the personal values and biases of the people we put on the selection committee and on the Court matter so much. That is also why Supreme Court-made constitutional law is nothing more and nothing less than the aggregation of the values and ideologies of those on the Court. The sooner those studying constitutional law catch up to sports on the indeterminacy of hard choices, the more transparent our government will be.

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Postscript: I'd be thrilled to have a 13-member Supreme Court, like the selection committee. Just saying.