Jennifer Jaff


This term, the Supreme Court had an opportunity to affirm the approach of the plurality in Arnett v. Kennedy in Cleveland Board of Education v. Loudermill. In Arnett, Justice Rehnquist's plurality opinion articulated the rule that statutorily-created entitlements can be limited by and conditioned upon the procedural rules that accompany those entitlements.

This article argues that the Supreme Court should have adopted Justice Rehnquist's approach in Arnett because it articulates a clear rule of law. Such clarity would have two effects. First, holders of entitlements would know what procedures they would be afforded at the time the entitlement was granted thereby allowing them to fully appreciate the nature and contours of that entitlement. Second, and more significantly, a clearly articulated rule would enable the public to appreciate the political nature of the judicial process. If the Court revealed itself as a political body to the public, people could then react appropriately by attempting to change the judicial system in America. Because adopting Justice Rehnquist's approach would have exposed the political nature of the Supreme Court and thereby encouraged political action aimed at changing the nature of the judicial process, the Court declined to do so, at least in terms as stark as those used by Justice Rehnquist.