There's none to soothe my soul to rest,
There's none my load of grief to share
Or wake to joy this lonely breast,
Or light the gloom of dark despair.

The voice of joy no more can cheer,
The look of love no more can warm
Since mute for aye's that voice so dear,
And closed that eye alone could charm.

--from Hullah's Song-Book

In other more deeply moral worlds than this pellet of muck, there might exist restraints, principles, transcendental consolations, and even a certain pride in making happy someone one does not really love; but on this planet [they] are doomed.

Vladimir Nabokov-- Ada or Ardor 498

There's been an interesting debate in the comments at Pandagon, Punkassblog, Prettier Than Napoleon, and others (links too numerous to exhaustively catalogue, so click around through those posts if you're still interested) about the unegalitarian distribution of emotional maintenance of relationships. The claim is that women spend lots of time worrying about the relationship, and making sure that their partner is happy and satisfied, and that men-- intentionally or not-- just sail through.

Because this interesting discussion is largely conducted via anecdote and generalization rather than via data, it is difficult to tell whether this really is distributed asymmetrically across genders. My own anecdotal speculations gibe more with Ted Frank's observation here. It sounds as though what these participants describe are really just particular cases of the general phenomenon of bad relationships, in particular, unhealthy unequal relationships where one member wants the relationship much more than the other and therefore walks through fire while the other one lounges about with blase indifference.

So those asymmetric relationships are likely to crop up anyplace where one party is happier with the relationship than the other. Some factors that influence this (societal pressure to settle down, disparate economic power, factors associated with child-bearing, sexual proclivities, etc.) are obviously not independent of gender, but is not obvious to me what the first order effect is. Almost all of us have known very dear women who put up with endless amounts of crap from a man who didn't like them very much but who they nonetheless adored; but have also known guys who worshipped and waited on somebody who was rather indifferent to him, but liked the attention. (Repeat examples for other gender combinations, as appropriate.) Many have even been on one or both ends of those relationships.

What makes all of this particularly hard to flatly condemn or praise is this: While some unequal relationships are pretty clearly unhealthy and not joint-welfare-maximizing, other times the parties involved are really happier-than-not to take what they can get, whether out of desperation, low bargaining power, or the elusive and irrational constraints of love. And sometimes people feel entitled to a particular kind of treatment from their significant other because that treatment was an explicit or implicit bargaining term of the original relationship. If a woman who adamantly didn't wish to have children married a man on that condition, he could hardly complain ten years later when their child-bearing program met her needs but not hers. Leave, yes. Complain, no. See also Gabriel Garcia Marquez, Love in the Time of Cholera ("I will marry you if you promise never to make me eat eggplant.")

So anyway, while I sometimes have sympathy for those who believe that broad social problems are properly and profitably viewed through a feminist lens, I am not convinced that that is true here. It seems to me that the question of conscious and unconscious use (and abuse) of one's bargaining power within a romantic relationship is best confronted on its own terms, and I haven't yet seen enough evidence that those terms are as systematically one-sided as some of the commenters appear to believe.

I finally listened to Chief Justice Roberts funny commencement speech last night (it's available here) wherein he praises what Cass Sunstein would call "Judicial Minimalism". The speech has gotten some attention from Jonathan Adler, Dan Filler, Cass Sunstein, Orin Kerr, and Peter Lattman. Among other things, Roberts said: “If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.”

I think that this might be an entirely healthy attitude for a lower federal court to have, but I wonder if it is quite the right approach for our modern Supreme Court. A lower court, whose docket is large and unselective, is probably right to think of each case as being "disposed" of. Once a clear rule resolves a substantive dispute between two parties, wham, bam, the case is done. But the Supreme Court doesn't work like that-- cases don't fall on it from the sky, or even reach it very frequently through mandatory jurisdiction. It carefully selects its own docket via certiorari, according to the guidelines of Rule 10. So it seems odd to carefully select cases (and not very many of them) and then turn around and dispose of them on the narrowest ground possible. That would be wholly appropriate if the Court were in the simple business of error correction, but as it regularly tellls us, it has grander aims, like settling unsettled disputes throughout the circuits.

Example: Imagine that there is a dispute among the lower courts about when, for example, below-guidelines sentences are "reasonable" under Booker. Accordingly, the Court eventually takes a case from the lower courts where a defendant received a below-guidelines sentence, but had the sentence overturned on appeal. As I understand Roberts's minimalism, the Court should not use the case to enunciate broad rules for how reasonableness should be construed in a range of contexts. Instead, if it can simply decide in the context of this particular defendant whether or not this particular sentence was a reasonable one, it should do that, just as if it were a kinda big and kinda important panel of the Tenth Circuit. It is not necessary, to decide the case, anything more than whether one randomly chosen wrongdoer got a reasonable sentence. Therefore, per Roberts, it is necessary to do nothing more.

If that's so, then why should the court bother taking the case at all? If it is pre-committed to providing as little actual decision as possible, then the decision is likely to be little more than a data point. If the court were going to take a whole lot of reasonableness cases, as it does with death-penalty-sentencing cases, or with various fourth-amendment cases, and as it used to do with sedition cases, then it is possible that a workable doctrine would nonetheless emerge over time from a series of minimalist decisions. But in a lot of areas of law-- patents, tax, the enumerated powers-- the Court speaks relatively infrequently when it speaks at all.

Basically, I think the modern Supreme Court docket-- with little to no mandatory jurisdiction, and a smallish docket that is selected in order to resolve disagreements between lower courts rather than concrete disputes among litigants-- is inconsistent with judicial minimalism. I am not sure that the modern docket practice is the right one, but given the way the Court chooses to hear cases, it seems to me deeply counterproductive to then think of them as disputes to be disposed of on the narrowest ground one can manage.

Now, to be sure, there might be other benefits, ceteris paribus, to unanimity whether on broad grounds or narrow ones. And sometimes the Court does proceed to opinionate about lots of things that it shouldn't in the course of a case. But I think that sort of free-ranging dicta is often bad not because it is unnecessary to resolve the particular dispute in question, but because it is often disconnected from the law at all. If, in the course of a reasonableness case, the Court wants to give a lot of input on what constitutes reasonableness, that can be very helpful to the lower courts, to future litigants, and so on, which is allegedly the reason the Court picked that reasonableness case in the first place. If, on the other hand, the Court uses a reasonableness case as a platform with which to berate Congress, federal prosecutors, or bloggers for their inattention to the question, or to deliver its own musings about the meaning of life, that can be inappropriate. But again, it's inappropriate not because it's more than is necessary to decide this particular question, it's inappropriate because it's not something that derives from a law that the Court is supposed to interpret; it's just free-form musing.

Judicial minimalism is a very counter-productive way to deal with a small, hand-crafted docket. It's a procedure that makes some sense for courts that primarily resolve disputes between parties, rather than try to lay down rules so that their subordinates can resolve disputes between parties. For better or worse, our Supreme Court has successfully lobbied to become the latter. It should probably act like it.

UPDATE: Of course, Orin Kerr's commentary on the Supreme Court's fascinating opinions in Youngsblood raises the serious possibility that Chief Justice Roberts recognizes that minimalism only makes sense if the Court is engaged more in error correction than in law-clarification-- and intends to shift the Court's practice in both regards.