But
someone
has
to
do
it
—
and
urgently
—
so
I
guess
I’m
the
guy:
Despite
what
Justice
Gorsuch
apparently
thinks,
the
Supreme
Court
does
not
write
rules
for
the
ages.
The
Supreme
Court
decides
cases.
Then
it
goes
home.
Legislatures
write
rules
for
the
ages.
Legislatures
draft
broad
laws
that
govern
conduct
generally.
Legislative
drafting
is
thus
hard.
Legislators
must
anticipate
all
of
the
ways
in
which
laws
could
be
evaded
or
misused,
or
ways
in
which
laws
could
be
used
appropriately,
but
harmfully,
because
the
legislative
language
was
inartful.
Legislatures
write
broad
laws.
That’s
what
legislatures
do.
Courts
don’t
do
that.
Professor
Alexander
Bickel
famously
titled
his
grand
treatise
The
Least
Dangerous
Branch
precisely
because
courts
don’t
act
in
the
abstract.
As
the
Amazon
page
for
Bickel’s
book
tells
you,
“Bickel’s
most
distinctive
contribution
to
constitutional
law
was
to
stress
what
he
called
‘the
passive
virtues’
of
judicial
decision-making
—
the
refusal
to
decide
cases
on
substantive
grounds
if
narrower
grounds
exist
to
decide
the
case.”
I’m
not
asking
you
to
read
the
whole
book,
Chief
Justice
Roberts
and
the
rest.
Just
read
the
Amazon
page;
that’ll
do.
Courts
rule
only
on
the
facts
before
them
in
the
narrowest
possible
way.
Then
they
stop
writing.
Decades
ago,
when
I
clerked
in
the
Ninth
Circuit,
a
judge
on
one
of
our
panels
would
sometimes
write,
“I’ll
go
along
with
this
opinion
so
long
as
you
say
that
the
rule
applies
only
to
‘the
facts
and
circumstances
of
this
case.’
”
We’d
always
agree
to
that
request,
because
it’s
self-evident:
Every
decision
applies
only
to
the
facts
and
circumstances
of
the
case.
That’s
how
the
common
law
works.
When
a
later
case
comes
along,
the
judge
in
that
later
case
must
decide
whether
the
earlier
decision
is
binding, i.e.,
whether
the
decision
announced
in
the
first
case
controls
the
second.
If
the
second
case
cannot
be
distinguished
legally
from
the
first,
then
the
earlier
precedent
controls
the
result.
If
the
second
case
is
legally
distinguishable
from
the
first
in
a
relevant
way,
then
the
earlier
precedent
does
not
control.
That’s
the
common
law.
So
how
could
Gorsuch
have
said,
during
the
Trump
immunity
argument
last
week,
that
the
Supreme
Court
was
“writing
a
rule
for
the
ages”
and
that
Gorsuch
was
“not
concerned
about
this
case
as
much
as
future
ones“?
That’s
wrong,
and
he
should
know
it.
There’s
a
good
reason
why
courts
do
no
more
than
decide
the
case
before
them.
In
the
case
before
the
court,
lawyers
have
presumably
thought
hard
about
the
particular
facts
involving
their
clients.
After
all,
those
facts
are
the
essence
of
the
dispute.
The
facts
will
dictate
what
the
court
decides.
The
issues
surrounding
those
facts
are
thus
presented
cleanly
and
intelligently.
The
court
decides
the
result
based
on
those
facts.
Period.
If
the
court
tries
to
do
more
than
that,
the
court
will
screw
up.
The
lawyers
are
concerned
only
with
the
interests
of
their
clients.
The
lawyers
are
not
thinking
carefully
about
the
interests
of
future
litigants
who
might
be
affected
a
broad
rule.
The
court
doesn’t
have
any
information
about
future
litigants.
The
court’s
imagination
is
too
limited
to
anticipate
future
situations
in
which
a
broad
rule
might
(or
might
not)
make
sense.
So
courts
don’t
write
broad
rules.
Don’t
ask
me.
Ask
Bickel.
Or
any
lawyer.
Legislatures,
of
course,
are
entirely
different
from
courts.
Legislatures
hold
hearings
to
gather
information
from
people
interested
in
broad-ranging
laws.
Lobbyists,
who
know
the
interests
of
constituents
who
will
be
affected
by
laws
now
and
in
the
future,
talk
to
legislators.
Legislatures
have
the
power
to
be
informed
generally,
so
legislatures
have
the
ability
(and
authority)
to
draft
general
laws.
Legislatures
can
write
for
the
ages.
Courts
know
only
the
facts
before
them,
so
courts
decide
cases.
They
don’t
write
for
the
ages.
Gorsuch
should
draw
two
conclusions
from
this:
First,
everything
I’ve
just
written
is
stuff
they
teach
you
in
the
first
month
of
law
school.
Maybe
Gorsuch
doesn’t
remember
these
principles
because
it’s
been
so
long
since
he
studied
them.
If
so,
he
should
take
a
refresher
course
because
these
rules
matter.
The
Supreme
Court
should
do
only
what
it
is
empowered
to
do
and
what
it
has
the
capacity
to
do
intelligently.
It
should
not
try
to
draft
a
broad
rule
to
govern
all
possible
future
situations.
Second,
that
should
make
the
Trump
case
much
easier.
Decide
whether
Trump
can
appropriately
be
prosecuted
on
the
facts
pleaded
in
the
indictment.
If
Trump
can
be
prosecuted,
then
explain
why,
and
affirm
the
appellate
court
decision.
If
Trump
cannot
be
prosecuted
on
the
pleaded
facts,
but
the
mistake
in
the
indictment
can
be
fixed,
then
reverse
the
decision
and
remand
to
let
the
prosecutor
try
to
fix
the
error.
But
be
careful
here.
This
is
where
you’re
speculating,
because
you
don’t
know
what
a
new
indictment
—
in
this
case,
or
in
future
ones
—
might
say.
Give
a
suggestion
of
what
the
prosecutor
must
plead
in
a
revised
indictment,
making
clear
that
you
are
not
yet
articulating
a
hard-and-fast
rule.
The
Supreme
Court
won’t
actually
know
if
a
new
indictment
is
sufficient
until
it
sees
what
the
new
indictment
says
and
lawyers
have
argued
about
the
sufficiency
of
the
new
indictment.
Lastly,
of
course,
if
Trump
cannot
be
prosecuted
on
the
pleaded
facts,
and
it’s
impossible
for
the
prosecutor
to
fix
the
error,
then
say
so.
Explain
your
decision,
and
reverse
the
appellate
court’s
decision
without
remanding
for
further
proceedings.
Affirm.
Reverse
and
remand.
Reverse
without
remand.
Those
are
three
pretty
good
choices,
don’t
you
think?
Now
that
you
mention
it,
those
are
the
choices
the
professors
talked
about
in
law
school
and
the
judges
talked
about
on
the
Ninth
Circuit.
But
writing
“a
rule
for
the
ages”?
It’s
not
what
courts
are
empowered
to
do.
It’s
not
what
courts
have
the
tools
to
do.
And
your
limited
imagination
almost
guarantees
that
writing
a
rule
for
the
ages
will
lead
to
a
bad
result
—
which
would
be
unfortunate,
for
the
ages.
Mark Herrmann spent
17
years
as
a
partner
at
a
leading
international
law
firm
and
is
now
deputy
general
counsel
at
a
large
international
company.
He
is
the
author
of
The
Curmudgeon’s
Guide
to
Practicing
Law and Drug
and
Device
Product
Liability
Litigation
Strategy (affiliate
links).
You
can
reach
him
by
email
at inhouse@abovethelaw.com.