Tuesday, November 11, 2008

Certiorari Division, Take 2

Last week, I blogged about the forthcoming Cornell Law Review article by Paul Carrington and Roger Cramton, arguing that responsibility for selecting the Supreme Court docket should be reassigned from the Justices (and their law clerks) to a special division within the Supreme Court made up of rotating experienced circuit court judges. As I explained then, there may well be some merit to the proposal, although it's not clear that it would address what Carrington and Cramton believe ails our legal system, namely a too-confident Supreme Court that makes too much constitutional law (whether liberal or conservative). The live proceedings on the topic last week more or less confirmed this analysis, with the two responders making variations on this point (per their written papers).

Here I'd like to pile on with an afterthought to my post yesterday about litigating same-sex marriage issues. There I observed the difficulty that civil rights organizations have in controlling the timing of issues reaching the Supreme Court, because they do not control all the litigants. Some of the comments noted both how successful groups like the Lambda Legal Defense Fund have been at reining in rogue litigants and at getting good arguments before the courts via amicus briefs even if they're not lead counsel. I mostly agree, although I would emphasize that: a) a truly determined litigant will bring a case no matter what the movement lawyers want, and so amicus representation can't stop the case from appearing before the Supremes (or any other court) when the rogue brings it; and b) amicus presentation just isn't a full substitute for being lead counsel, especially if oral argument makes a difference.

But now I want to stress a different point by way of critique of Carrington and Cramton. My original skepticism of their proposal to reassign the Court's control of the docket was that this proposal was irrelevant to the issue that was driving it--what they see as rampant judicial activism. On reflection, I think their proposal may actually undermine their substantive goals here.

Both in their paper and at the panel, Carrington and Cramton repeatedly insisted that they want the Supreme Court to act more like an ordinary "court of law," and less like a constitutional court of the sort one sees in other countries, or as they put it less charitably, a "superlegislature." Discretionary control over the docket, they say, is more characteristic of a superlegislature/constitutional court than a law court. Yet part of what discretionary control over the docket enables is the exercise of what Alexander Bickel famously referred to as "the passive virtues," i.e., the ability to manipulate the docket to avoid deciding socially controversial issues. If you were a Justice who thought that same-sex marriage prohibitions were unconstitutional but you worried that actually holding so would inspire terrible backlash against the Court, same-sex marriage, and the Constitution, your best option might well be to deny certiorari until a clearer social consensus emerged. Under the Carrington and Cramton proposal, however, you can't do that. Applying any plausible criteria, the certiorari division (i.e., the appeals court judges) will say the Supreme Court has to decide a same-sex marriage case if a state or federal appeals court finds a federal constitutional right to same-sex marriage. And this issue is hardly unique. Thus, the Carrington and Cramton proposal will make it more, rather than less, likely that the Supreme Court will put its foot into socially divisive questions.

Posted by Mike Dorf