Leah Litman (University of Michigan Law School) has posted The Passive Vices (115 Georgetown Law Journal (forthcoming)) on SSRN. Here is the abstract:
Alexander Bickel celebrated the Supreme Court’s mechanisms for deciding not to decide a matter as the Court’s “passive virtues.” Using case studies on the modern Court’s decisions not to decide matters during the second Trump administration, this Article revisits Bickel’s influential work and develops an account of the “passive vices.” The passive vices are occasions where passivity carries significant costs that Bickel either overlooked or undervalued. This Article develops a taxonomy for the modern mechanisms of the passive vices and their costs. Passivity may contribute to troubling expansions of executive power and allow the executive branch to achieve many of its questionable, problematic goals because a policy’s effects may not be reversible even if the policy only goes into effect for a limited period of time. Passivity may also reduce public engagement and oversight in public law by sending different messages to different groups: Passivity encourages the executive branch to soldier on while minimizing the Court’s role and softening public pushback on the executive branch and the Court. Constructing an account of the passive vices adds to constitutional theory by surfacing how scholarship on government aims, purposes, and motives is relevant to assessments of the courts themselves. Thus far, the literature has focused on the difficulty of courts’ analysis of legislatures’ motives. This Article expands those frames to include the Supreme Court’s role in the constitutional system and the decisions of the Court.