Last week, I posted about the extraordinary facts section in Kansas v. Carr, No. 14-449. Carr, a death penalty case, started with a five-page recitation of the heinous details of a beyond-brutal crime. That facts section accomplished several objectives (as previously explored), but it undoubtedly injected an analytical element into Carr that is glossed over in many other capital cases–the moral culpability of the murderer. Of course, that culpability is always relevant at the mitigation stage, but it previously has not been an important part of Eighth Amendment analysis when the Court determines if a procedural aspect of a capital case passed muster.
I believe that this invocation of the murderer’s moral culpability represents an attempt to inject a new moral/legal input into the capital calculus. And these attempts are more common in the law then are commonly realized. They are, I believe, an inputs-based parallel to an outputs-based political science theory: the Overton Window. The Overton Window theory posits that there is a range (window) of acceptable public policy outcomes, and that public policy debate occurs within that window. Policy outcomes within the window range from unthinkable, to radical, to acceptable, all the way to popular or desired policy outcomes. See, e.g., Wikipedia, see also Biography of Joseph Overton, Mackinac Center. Ideas are only acceptable (and therefore actionable) if they are within the current Overton Window. But the Window can shift. Change agents who float initial radical or beyond-radical ideas can set an anchor point that drags the window right or left. For a recent example, see National Review, Trump Shifting the Window.
Justice Thomas is the Supreme Court’s top provocateur in terms of moving the Supreme Court’s substantive Overton Window. His radical ideas frequently become the Court’s policy years later, as the ideas are normalized and the Window shifts right. Compare Printz v. U.S., 521 U.S. 898, 936 (1997) (Thomas, J., concurring) (arguing alone that Second Amendment confers an individual right), with Heller v. District of Columbia, 554 U.S. 570 (2008) (Court finally agrees).
Like Justice Thomas’s substantive anchoring, most Overton Window analysis in the public policy realm focuses on public policy outputs. “Should we have a socialized healthcare system,” “should abortion remain legal,” and “should there be a national right to same-sex marriage” are questions of policy outputs. People spend decades moving the Overton Window as to these substantive outcomes. 30 years ago, same sex marriage was unthinkable. 15 years ago, it was radical and illegal. Now, opposing same-sex marriage falls somewhere between an extreme faux pas and a hate crime. The Window shifted on the policy itself.
But lawyers have another option besides moving the substantive Overton Windows–they can shift the acceptable inputs that govern where the Window ultimately falls. That is what Justice Scalia was attempting to do (and has been joined before before by Justices Thomas and Alito) in the Kansas v. Carr facts. I am generally against capital punishment on moral grounds; Kansas v. Carr made me rethink that position. Scalia, by shifting the acceptable inputs (i.e., factoring in the moral culpability inherent in the Carr brothers’ brutality) changed where the substantive Window ultimately ends up.
Or take Scalia’s efforts to move inputs on textualism and originalism. Many commentators noted that, in the wake of District of Columbia v. Heller, both the Court and the dissent employed deeply originalist analyses. These originalist sources–Blackstone, period-specific text, etc–should be likewise viewed as Overton Inputs. Scalia, in 30 years on the Court, has moved these originalist inputs from marginal, to persuasive, to required/normative.
The Roberts Court has quietly moved other Overton Inputs. For example, in the preliminary injunction setting, the Court has emphasized the importance of the first factor–likelihood of success on the merits–at the expense of other factors, like public policy. See Winter v. Natural Resource Defense Council, 555 U.S. 7, 20-21 (2008); see also id. at 51 (Ginsburg, J., dissenting) (noting prior existence of “sliding scale” for preliminary injunction evaluation). This factor favors those who already have an advantage in law, which are also the groups the Roberts Court favors–corporate defendants and the military, to name two. And it critically wounds groups that the Roberts Court disfavors, like environmentalists and plaintiffs. The Roberts Court has influenced how the substantive outcomes will settle out by altering which inputs are required, and by making a normative case for those inputs. It is no coincidence, for example, that Winter involved a challenge to a naval training exercise that, if upheld, could jeopardize the nation’s anti-submarine capabilities. The Roberts Court picked a prime case to normalize a new input, and thus ensured a series of outputs that fall more in line with conservative orthodoxy.
Lawyers know how to influence the factors that go into an ultimate decision. For decades, they have attempted to pick the proper “vehicles” to present cases to courts, argued for certain modes of interpretation, and sought to humanize their plaintiffs. These efforts should be viewed in a more unified sense–they are all ways of influencing Overton Inputs, and they are specifically designed to make normative certain factors that influence a decision and ultimately ensure that the decision will land in a place the litigant wants. The conservatives of the Rehnquist and Roberts Court have mastered the art of manipulating Overton Inputs, and that mastery helps explain the rightward trajectory of the law over the past 30 years.