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?