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The Contingency of Plainness
Chris Green

The Supreme Court's decision this morning in Henderson v. US, on the timing of plainness determinations under plain-error review, concerned an issue structurally analogous to one of the important issues in the judicial-restraint literature, and which John McGinnis's paper at the originalism conference last weekend discussed: whether the plainness of an error is to be assessed at the time of an error, or at the time of later review. James Bradley Thayer, for instance, seemed to want courts to limit themselves to plain errors from the perspective of the legislature at the time of the legislation, without allowing for further clarification of constitutional issues by courts. Lots of earlier cases, however, stressed the ability of courts to clarify the law, and the need, therefore, for very careful judicial consideration of issues that might not be clear at first glance. For instance, here is Bliss v. Commonwealth, from Kentucky in 1822: 

Whether or not an act of the legislature conflicts with the constitution, is, at all times, a question of great delicacy, and deserves the most mature and deliberate consideration of the court. But though a question of delicacy, yet as it is a judicial one, the court would be unworthy its station, were it to shrink from deciding it, whenever in the course of judicial examination, a decision becomes material to the right in contest. The court should never, on slight implication or vague conjecture, pronounce the legislature to have transcended its authority in the enactment of law; but when a clear and strong conviction is entertained, that an act of the legislature is incompatible with the constitution, there is no alternative for the court to pursue, but to declare that conviction, and pronounce the act inoperative and void.

Here is In Re Wellington, from Lemuel Shaw of Massachusetts in 1834:

[W]hen called upon to pronounce the invalidity of an act of legislation passed with all the forms and solemnities requisite to give it the force of law, courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light on the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.

Of course, there are reasons for preferring a time-of-error rule for plainness under Criminal Procedure Rule 52 that do not apply to a plainly-unconstitutional rule for judicial review, and Scalia's dissent this morning in Henderson elaborated on them. The parallel of the issues, however, is striking; the very fact that the Court is discussing the issue in Henderson presupposes that the plainness of error is contingent and can be increased with analysis.