Saturday, May 23, 2015

What would you do if you were a Supreme Court Justice?

By Eric Segall

Last week on this blog, Mike and I debated the role that personal values and prior law play in Supreme Court decision-making. This issue, of course, has been a major source of contention among legal academics, political scientists and Court watchers for generations.

This discussion is important because we accept the Court’s authority, at least in part, because the Justices claim to be judges making legal decisions, not politicians making policy decisions. I have spent the better part of the last decade, however, trying to demonstrate that our Supreme Court is not really a court at all, and thus we should re-examine the premises that allow these governmental officials we call judges to so often make such important decisions that affect us all.

One way to think about the question is to ask, “What would you do if you were a Supreme Court Justice?” But, first some background.

The Supreme Court of the United States is a unique political institution. Our Justices are the only judges in the free world who serve on a nation’s highest court for life. In addition, the power of judicial review (the authority of courts to set aside laws of elected governmental officials), began with our Constitution and in no other country has that authority been wielded for so long and in so many important ways. As Alexis de Tocqueville said in the 19th century, “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”

Since 1803, Supreme Court Justices (left and right, republican and democrat) have consistently decided cases based on a complex array of personal, political, and professional values, not prior law. This idea, which I detailed at length in a book, is neatly captured by the advice Justice William Brennan used to routinely give his new law clerks about the most important rule of the Supreme Court. That rule wasn’t “study the law,” or “make sure everything we say has a sound legal basis.” The rule, in effect, was “with five votes we can get anything done around here.” That is advice for a political veto council not a court of law.

Although most political scientists who study the Court agree that personal values, life experiences, and politics drive Supreme Court decisions not the law, legal academics push back on my project with two major critiques. First, they argue that appellate judges at all levels possess similar discretion as the Justices (and at the federal level also hold their positions for life), and thus the Justices may be a bit more “political” but the difference is only a matter of degree not kind. I responded fully to this argument in a conversation with Judge Richard Posner here. My main point was that it is the confluence of life tenure, deciding the most important cases, and being effectively unreviewable that makes the Court different in kind from all other courts (none of which possess all those characteristics).

The second critique is that my account of how the Justices make decisions is an “external” not “internal” one, and thus flawed. The argument is that the Justices believe that they are doing the best they can to make decisions under the law, and that they view themselves as judges. Thus, who am I to suggest otherwise?

I have two answers to this critique the second of which leads to the title of this essay. First though, since when do we accept the self-promoting statements of important governmental officials at face value? When President Obama or Senator Cruz or Governor Christie explain why they made an important decision, do either the media or the American public simply say, “oh sure that is obviously the reason?” When is the last time a politician said that she made a particular choice because it will “get me more votes?” We have a healthy skepticism about the rationales offered by public servants and the same should be true for Supreme Court Justices. It is true they don’t have to be re-elected but neither do second term Presidents and term-limited mayors and governors.

More importantly though, what would we expect these Justices to do when faced with many of this country’s most important and difficult legal (capital punishment), political (campaign finance reform, voting rights and redistricting), social (affirmative action, guns, abortion), and economic (health care) issues? What would you do if the following was your job description?

You hold your office for life and you can never be fired unless you commit a high crime or misdemeanor. Your constitutional decisions are functionally unreviewable. The cases you are called upon to decide are by definition usually the hardest our legal system has to offer as a matter of legal doctrine and the most important for public policy (on a national level).

Unlike other judges, you are not bound by prior cases that are directly on point (the Court is allowed to reverse its own precedent and frequently does so in the most important areas). The legal texts you are called upon to interpret are usually hopelessly vague (“unreasonable searches and seizures,” “establishment of religion,” “due process,” “equal protection,” etc.,) and those provisions have deeply contestable historical origins (the Second Amendment for example). Finally, you have before you dozens of briefs written by this country’s smartest and most persuasive lawyers, litigators, and legal academics on both sides of every important case. In other words, the country’s most engaged and knowledgeable legal experts are telling you the law supports their (or your) side.

Now imagine an issue of deep importance to you personally. For Chief Justice Roberts maybe it is voting rights restrictions on the states (he wrote a memo in 1981 evidencing his distaste for the Voting Rights Act of 1965). For Justice Kennedy, it is gay rights and personal liberty which he evidenced great fondness for before he was nominated to be a Supreme Court Justice. For Justice Ginsburg, it is issues uniquely pertaining to women which she fought for valiantly before she became a judge. Is it really a surprise that Chief Justice Roberts authored the opinion striking down a major part of the Voting Rights Act twenty-five years after he wrote that memo, or that Justice Kennedy has written all three Supreme Court decisions in history favoring gay rights, or that Justice Ginsburg proudly wrote the decision requiring VMI to accept women to its military institute?

You know you have the last word. You know you cannot be fired for the decisions you make. You know these cases raise fundamental questions that define who we are as a people and what our country stands for. You know you are not bound by prior cases and you have countless briefs justifying both sides of the argument. Are you going to somehow be able to put your personal values and strongly held political views aside or are you either consciously or unconsciously going to do what you sincerely and in good faith believe is best for this country (all things considered law be damned). What would you do?

18 comments:

Shag from Brookline said...

This post ties-into judicial supremacy over the federal elected Executive and Legislative branches, which is not specifically provided for in either Article III or any other part of the Constitution. The Paulsens (father and son) challenge judicial supremacy in their new book "A Introduction: ... " on the Constitution. Jack Balkin has an interview with the Paulsens posted at Balikinization. Mike Paulsen has followed up with guest posts at the VC (to which the Originalism Blog provides links. I would add to this Balkin's recent "The Framework Model and Constitutional Interpretation" addressed to a philosophy audience in which he does not directly challenge judicial supremacy but outlines other actors, including not only elected officials and the legal community but also others, in disagreeing with decisions of the Court interpreting the Constitution. So this is a discussion/debate worthy of pursuing.

As to what I would do, I would find it difficult avoiding my progressive views. The Constitution has evolved after it was first enacted via formal and informal amending. The Court has also evolved, with more zigging and zagging that seems political. We presently have political dysfunction at a time of great complexity world-wide and not just domestically. The 2016 presidential election process, particularly on the Republican side, points to exacerbation of political dysfunction, as the next president may be in a position to nominate several justices that may make the Court more conservative of to lean liberal. I assume current Justices on the Court have political preferences for who should be the next president, particulaly as s/he may be in a position to change the Court. But would that influence how a Justice might vote on a particular case in the interim? I think the answer is probably "yes." That's a lot of pressure. I think back to Bush v. Gore and the Court's 5-4 decision which in effect "elected" Bush/Cheney and with the Jeb Bush brouhaha on the wisdom on invading Iraq in 2003 that seems to be reviving what Bush v. Gore wrought with the 8 years of Bush/Cheney. So what would I do? I don't know and I'm glad not to be in the position of the Justices.

But I do welcome this post and the discussion that may follow.

Joe said...

I would realize I am part of a large system, one of nine, having no power of the purse or army to carry out my commands, and will be influenced by many factors, including professionalism, the sense of duty arising from my place & yes personal opinions, experiences and values.

ALL judges will in some fashion have such things. All federal judges have life tenure. As to important cases. Loads of them are not. Even constitutional cases repeatedly are small. Some narrow issue of the 4A. The legitimacy of some state tax law promoting an end that could be done in some other fashion etc.

A district judge has important duties too. S/he can preside over a trial and determine (with broad discretion) how much time to lock a person in a hellhole or any number of lesser things. Many "interesting questions" are only decided by appellate judges, particularly since the USSC avoids them. GITMO has largely been overseen by the DC Court of Appeals.

And, when the USSC decides, a large number of cases are decided by supermajority votes. Yes, there are close cases, some that are very important. And, personal factors influence this along with the weight of the office itself. But, this is the nature of the system. Life tenure, e.g., is supposed to make them more independent. I'm unsure though what change would occur if instead they had let's say a 15 year term. It might help -- Scalia seems to have gotten worse lately and Douglas got lazy.

And, it would bring in new blood, especially now that modern realities result in judges able to spend much more time on the bench. But, only so much.

So, how would I act? Bottom line, I would try to honestly carry out my affirmation (I wouldn't swear an oath) to do my job. And, partially knowing I'm 1 of 9 and part of an ongoing institution, that would mean I couldn't just do what I thought best is some perfect world. Yes, my personal views would influence me. And, sometimes I would act pragmatically or by compromise, as people do, including in juries and multimember judicial panels.

Joe said...

BTW, though I disagree to some degree of the tenor of the argument, I like Shag welcome the post. It helps provide some honesty. But, this "not a court" business still turns me off.

JMcG said...

What value do lawyers and other "internal point of view"-ers get from that particular objection? I always imagine an interview with CJ Roberts in which he explains that the Justices exercise subjective good faith that they're simply following the law, etc. And then the interviewer responds: so what? Surely a wealth of psychological and other social science data have told us that we don't know ourselves as well as we think we do, and that we should trust data more than our intuitive impressions. Surely a smart person exercising good faith would, when confronted with consistent and empirically robust evidence of their own bias, stop claiming that they aren't biased.

Maybe the "internal point of view" stuff is a knowing lie told to maintain legitimacy. Even then, the resistance of many lawyers to recognizing it as such boggles my mind. This legitimacy rationale would also lead lawyers to embrace the old fiction that the common law is "found" rather than invented, but relatively few lawyers are ready to defend that position.

Eric Segall said...

One theory (which I think is interesting)is of cognitive dissonance. The Justices were raised (law school practice, etc.) believing they are following the law and that their job is to follow the law and that formnalism explains results so that is what they sincerely believe they are doing, even if all evidence points to the contrary.

JMcG said...

But before law school, the justices attended fancy colleges, where they learned that their personal experience should not trump all the evidence that points to the contrary. And plenty of people who go through the same law school/practice experience don't experience dissonance. If cognitive dissonance is right, then it means that the confirmation process weeds out those who recognize and thwart self-deception in favor of those who do not.

Joe said...

We in effect require a certain dance here regarding personal experiences not affecting judges but some honestly accept that it will affect them. Sotomayor had to do the dance too, but she openly talks about that now.

The Roberts umpire thing was annoying and it's a problem with "originalists" too. A person like Breyer or O'Connor at times is sneered at for being so subjective as is Kennedy when he talks about judges based on their judgment deciding 8A issues.

But, it's an honest accounting of what judging entails. We need to factor that in when determining things like life tenure. Change there will require more honestly of just what is involved.

egarber said...

If I were a Justice, my first order of business would be finding some way to lock Lebron away for the ECF. Jeesh. :)

Then I would go through this mental exercise:

I would read federalist 78 and see that the judiciary plays an intermediate role between the people and the legislature. My job would therefore be to ensure the latter acts within its constitutional ambit. If that is difficult, so be it; my "common law" development of standards is still better than the legislature defining both the definition of its power and instantiations of it.

I would also read the ninth amendment as a "lean" toward the individual when the issue is intimate space and liberty. I would work to resolve the tension in some logical way between that safeguard and enumerated power. Unlike a legislature pressured by short-term politics and special interests, my job would be to solely consider that balancing question for posterity.

In all of this, if I go too far against majoritarianism, the system will self correct, via balancing or constitutional amendment in extreme cases. What's more likely however, is that I would hue closely enough to public sentiment to promote long-term stability in the rule making scheme.

egarber said...

*hew, I mean.

Would be good if we could edit comments.

qwoijzacxoi said...

If I were a Justice I'd try to promote interaction between all nine of us to minimize these shenanigans with debate and comraderie. Assuming only reclusive Justices would go rogue here.

Samuel Rickless said...

Eric, I do find this post a little puzzling. I could draw on my experience as a professor, but instead, let me draw on yours. When you grade your students' papers/exams, you know you have the last word, you know you cannot be fired for the decisions you make, you know that the cases you ask your students to discuss are of fundamental importance, you know you are not bound by prior judgments about past student papers/exams, and you have read countless very smart papers/exams on many sides of the relevant issues. Are you somehow going to be able to put your personal and political views aside when grading these papers?

Shag from Brookline said...

Samuel seems a little reckless with his comparative. Don't students have some recourse in the posited situation? Tenure at a law school is a tad different from a Justice's appointment for life.

And where is it specified in Article III or the rest of the Constitution that judicial supremacy reigns horizontally over the federal Executive and Legislaative branches?

Joe said...

I think the fact some lowly (with respect) professor will be influenced by personal factors w/o neutral principles including precedent being only the basis of decision-making only furthers his point on what motivates justices, which he flags as a major concern.

Samuel Rickless said...

Shag from Brookline: There is no real effective way of challenging a professor's grade, unless there is evidence of dereliction of duty (USSC justices are impeachable for similar offenses). But you're missing the point. Professors routinely, regularly, and unproblematically put their personal and political views aside when grading papers/exams, even though their decisions are practically unreviewable. But if Eric is right, this couldn't happen. His argument therefore proves too much.

Shag from Brookline said...

Samuel, your comparative fails to make a valid debating point or challenge. Rather, it is a feeble verbal barb aimed at Eric in his role as a tenured - I presume - law professor. Back in the early 1950s as a law student my name did not appear on blue books responding to exams. Nor did my name appear on blue books while a part-time student at a local law school's graduate program stretched out over 4 years for an LLM. Nor, when later serving as an adjunct/lecturer in that program for 7 years in the 1970s-80s, did my students' names appear on blue books on my exams that I graded. I don't know if this system still prevails but it served well to minimize personal impacts of a law professor/lecturer with respect to students.

Also, while politics may exist in legal academia, such politics are of a different type than is the case with a Justice who is nominated by a president engaged in politics to get elected him/herself, and approved by the Senate whose members engaged in politics to get elected. While a tenured law professor going "off the wall" can impact a student's career, consider the impact of a SCOTUS 5-4 "off the wall" political decision (e.g., wiping out healthcare subsidies for 7+ million). Proportionality?

In your second comment, you seem to accept that professors put aside their personal and political views when grading. But then you state:

"But if Eric is right, this couldn't happen. His argument therefore proves too much."

What couldn't happen? Are you referring to professors? The comparison of law professors to Justices doesn't work. The quoted language needs clarification.

I don't necessarily agree with Eric's conclusions in his post, but I learned early on with bar admission in 1954 that the judiciary involves politics. I recall early in my career a probate judge in Boston's Suffolk County stating from the bench that "all a judge is is a lawyer who knew a Governor." This extends to the federal judiciary in spades although many nominees may not actually know the president as party politics play a major role in both the nomination and approval process. Consider the 5-4 Bush v. Gore decision from a political standpoint.

Joe said...

"Professors routinely, regularly, and unproblematically put their personal and political views aside when grading papers/exams, even though their decisions are practically unreviewable."

I think both judges and professors to some extent put such views aside, but doubt they completely do so. In both cases, I think such is the reality of the situation -- in some fashion, along with a range of other things, personal views will factor in. Prof. Segall notes certain things make justices more likely to be in a position where personal philosophy matters more than some professor at any rate.

Unknown said...

A key premise in the article is flawed: "You know you have the last word. You know you cannot be fired for the decisions you make. You know these cases raise fundamental questions that define who we are as a people and what our country stands for. You know you are not bound by prior cases and you have countless briefs justifying both sides of the argument." For a Supreme Court Justice, none of these are true. For example, the Congress may alter the constitution and override Your supposed "last word". Meanwhile, Justices may be impeached and removed from office using a standard which amounts to little more than "whatever the congress says is a removable offense, however major or minor it may seem or be".

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