Saturday, February 25, 2017

Finally, Someone Else asks "Is the Supreme Court a Court?"

By Eric Segall

Readers of this Blog, or those who follow me on Twitter or elsewhere, probably know that I've devoted much of my career, and a full length book, to the argument that the Supreme Court is actually not a "Court," as we generally define that term. My essential thesis is that judges, in addition to not taking bribes and not hearing cases involving themselves or their family, must at a bare minimum take prior law seriously and in good faith when deciding cases. A person who resolves a dispute "all things considered" and without any regard for prior positive law would not be a judge but some other kind of governmental official. My view is that the Supreme Court, not being bound by prior law, and usually interpreting vague text and contested history, has over time and as an institution not taken prior legal materials seriously enough or consistently enough to warrant the label "Court."

Needless to say, this thesis has not made me popular among many of my colleagues and others who write about the Supreme Court. They see some truth in my thesis but generally argue I go way too far.

So imagine my surprise (and delight) when I awoke on Thursday morning to read a blog post with the title: "Is The Supreme Court a Court," written by Keith Whittington (a renowned originalist legal scholar at Princeton University), This is how the post begins:
Is the U.S. Supreme Court a court? On the one hand, the answer seems obvious. It says so right in there in the name. Plus, the justices wear those funny robes. Strong evidence, I admit. On the other hand, see every Supreme Court decision involving constitutional law over the past century and a half.... [W]e might think that a key characteristic of a court is that it resolves disputes in accord with some pre-established set of legal rules. It is not clear that the Supreme Court actually does that. The justices have relatively little interest in resolving disputes, and they have little concern for pre-established legal rules. 
Professor Whittington goes on to argue that Supreme Court justices, for a variety of reasons including that they choose their own docket, usually decide only "hard cases." These are the kinds of disputes where the "answers are unclear," and which "push the boundaries of established legal understandings." The Court has a "steady diet" of these cases, which makes the Justices excellent fodder for political scientists who, Whittington argues,
love the Supreme Court [because] the justices display lots of behavior that looks like the exercise of policy-driven discretion. (Of course, the justices also benefit from occupying the court of last resort in the United States, which means that even apparently easy cases can be made hard by rendering the established legal rules no longer operative).
It doesn't have to be this way, Whittington says, because the justices could decide to hear more cases involving legal errors than nationally important policy disputes. But the justices "prefer to spend their time on the hard cases, where there are no clear legal answers. In those cases, the justices get to create legal answers.... These cases are chosen ... because they are useful vehicles by which the justices can make new law."

Whittington also mentions that there was a time long ago when the justices didn't write dissenting and concurring opinions like they do now, which also leads to more of a policy-making than dispute-resolution role. Whittington concludes that the justices think
it is the job of the Supreme Court to announce new law. The law does not truly exist until the justices say what it is. The Court does not engage in the judicial task of resolving disputes in accord with some pre-existing set of legal rules; it engages in a somewhat different task of issuing legal pronouncements that other courts will then use to resolve disputes. There are other bodies within our political system that perform that task as well. They are called legislatures.
I have a few quibbles with Whittington's post. I don't agree that the Court acts like a legislature because the justices cannot usually reach out and decide issues not brought before them (Citizens United, notwithstanding) and because the justices have life tenure and don't have to stand for re-election. Nor do I think the practice of writing separate opinions is as important as Whittington does. But where he and I appear to be in complete agreement, is that the justices view their role more often than judges should as setting national policy on hotly contested issues on an all-things considered basis (the justices would of course not accept that description).

I think the justices understand quite well that the cases they take and the decisions they issue do appear to many to be more legislative than judicial, which is why they go to such great lengths to pretend that text, history and/or prior case law support their decisions. But, of course, as I wrote in my book, that is the greatest myth of all.


Michael C. Dorf said...

Eric, as you know, I think that differences between the SCOTUS and inferior courts within the U.S. system are more matters of degree than kind, even while I agree with you and Whittington that the SCOTUS has more degrees of freedom. Rather than arguing over the largely semantic question of what makes a court a "court," I wonder whether you, he, or someone else might investigate the matter using comparative law. Does the SCOTUS have greater lawmaking freedom than, say, state high courts with respect to issues of state constitutional law? Than constitutional courts in other democracies with judicial review (which at this point is nearly all other democracies)? To what extent is such interpretive freedom a function of being a court of last resort? Of being a constitutional court? Of life tenure? Of the difficulty of amending the US Constitution relative to other constitutions? You and Whittington (and the legal realists and critical legal studies scholars on whose work you build) are undoubtedly onto something real, but I wonder whether all of the low-hanging fruit has already been picked and eaten.

Eric Segall said...

Those are all great questions Mike though I don't agree that the question Keith and I ask is a "semantic" one. If this institution is not a traditional "court" why do the Justices so strongly pretend that prior law generates their decisions. This is an important transparency issue. Also, comparisons are difficult because there is no other democracy whose highest "court" has judges with life tenure and no other democracy has a court with a strong 200 year tradition of strong judicial review. The question I am asking is why we should owe allegiance to this particular Institution? There may well be strong reasons to do so but I am skeptical the answers will be found comparing our Apple of a "Court" to the oranges in other countries.

Shag from Brookline said...

I haven't read Whittington's blog post but plan to do so later. I'm interested in how he handles the New Originalism, if he does. The subject of this post is of interest to me as I recently read Frederick Mark Gedicks' "Working Without a Net: Supreme Court Decision Making as Performance" (which includes a cite to Sandy Levinson and Jack Balkin's article on "Performance ... " a few years back. IAlso, 'm anxious to see if other originalists dump on Whittington.

Michael C. Dorf said...

I also want to avoid a semantic discussion of what constitutes a "semantic" question. I'll say this on the substance: Legal realism has been with us for nearly a century. It has even older antecedents in the work of Holmes and Cardozo, and in Supreme Court cases going back to the 18th century (see Justice Iredell's concurrence in the judgment in Calder v. Bull). The relative lack of constraint on the SCOTUS is thus "transparent" to anyone who cares to look. Perhaps another question worth investigating is why, nonetheless, a belief in the objectivity and determinacy of law even in the Supreme Court persists. Part of the answer is simple ignorance among the general public. I have no doubt that another part of the answer is, as you say, rituals of mystification and rhetoric. But you might also consider whether having a Court (or if you prefer, a "Court") that can speak in the language of the law is a useful hedge in favor of human rights and against authoritarianism--a consideration that, if true, seems especially salient now. If so, the bigger problem is that the Court is too weak (and thus caves when the chips are down, see Korematsu), but to the extent that there is any power in the courts to resist authoritarianism and to the extent that this power derives in part from a noble lie about objectivity and determinacy, this is a peculiar moment to try to undercut that noble lie.

Eric Segall said...

Mike, I think you cut right to the heart of the matter. As your occasional co-author Neil Siegel once said to me (albeit with drinks in hand and in a pool), "even if the idea that the Court is a "court" is a myth, it is an essential one for the proper working of our constitutional republic." Maybe. And I agree we need a check on power now more than ever. The hard question for me is couldn't we have that check more transparently with a pure council of elders (or wise people) or even a Court that told the truth about why the Justices do what they do (like Justice Kennedy's concurrence in the Term Limits case). But you may be right that the time is not right to undercut the "noble lie" that the Court is a court. I think about that almost every day.

Joe said...

Same sex is marriage even if it doesn't have what some think traditionally (a changing thing) marriage entails & it turns out to be like other marriages have been as well for quite some time. I find this "court" definition game as tedious.

I'm fine, as with marriage, to be honest what the federal and state courts truly are, and those with a realistic bent (not "realism" as in legal realism as an institution) very well should explain what that means. As with marriage, again, I think being realistic doesn't rob courts of value, including as checks on other branches.

In a philosophical bent, I guess, I can look past my tedium of some analysts (being tedious myself at times), and see value in their writings. Still, it is helpful to look past the clouds here, and that is what is bothering me some here.

egarber said...

Isn't it accurate to say the Supreme Court is basically a unique "common law" forum, designed with the mission of checking majoritarianism? As such, it represents a complex interplay: new questions, evolving norms, stare decisis, pedantic interpretation where it applies, etc.

With a constitution that is about principles as much as procedure, how else could it be? So in the end, the judiciary, as a co-equal branch, owns the development of these interpretation methods. It’s the unique trade of justices. Who cares what we call it?

But importantly, just because it's impossible to trace every question to a baseball rule about balls and strikes, that doesn't remove legal analysis and discipline as a focus.

As a possible analogy:

In technology, we have a saying when documenting requirements or determining budgets: “that’s close enough to pi.” In other words, we don’t have to discover 3.14159265359 to be correct. If we get to 3.14, that is proper for the task at hand. However, 6.89 would be unacceptable.

Perhaps SCOTUS interpretation is similar, in that there is a pretty wide range of acceptable conclusions (3.1), but at the same time, there are decisions that are clearly wrong (6.89), even on the hard questions.

[I just finished Amar’s “the Constitution Today.” He makes a similar point somewhere].

Full disclosure: though I'm in IT, I work for CNN (and all the other Turner products). So with Trump being at war with us, the comments about needing the checks now more than ever ring very true to me. :)

Joe said...

Fully disclosing things is a sign of being the enemy these days.

Shag from Brookline said...

egarber's comment might draw challenges from originalists. His "that's close enough to pi" is sort of in the vein of my "horseshoes" view of some SCOTUS decisions: "close enough wins" when there are no ringers or leaners. I tried to get to Whittington's blog post but declined the need to register to check whether he addresses originalism in his blog post, in particular the New Originalism he has been espousing for several years that includes the "semantic" approach. Now a younger generation of originalists has emerged that claims that originalism has yet to be played out in the Court. And there remain more than a few of the pioneering now focalized original intent originalists. Perhaps originalists are of the view that originalism would expose or perhaps eliminate the "noble lie" briefly discussed in the exchange between Mike and Eric. Might we hear from a Doubting Thomas?

The Constitution's Supremacy Clause does no provide for SCOTUS decisions to be superior or supreme with respect to the horizontal elected federal branches. I think for a second or two the Trump Administration considered a challenge to the District Court/10th Circuit decisions on the travel ban EO. If the White House chaos continues, I have fears that at some point the Trump Administration might make this challenge. Are the three federal branches equal on questions of constitutionality?

egarber said...

"egarber's comment might draw challenges from originalists."

I think what I'm saying is that my description IS a type of originalist argument - i.e., this working range framework is what most framers probably expected over time. They knew the Court would have to devise its own methods and logic structures (tests, etc) in order to pursue the constitution's aspirational aims.

Shag from Brookline said...

David A. Strauss, a non-originalist, is of the view we have a common law Constitution. This contrasts with originalism Richard Primus, another non-originalist, has a similar view but is more open to various theories of constitutional interpretation. It is difficult discerning what the Framers expected or intended. The Constitution did not specify a mode for its interpretation. The originalism movement basically began in the 1970s and has gone through several theories, with more coming.

I was not critical of your comment and especially liked the "pi" served up as dessert.

Joe said...

Recently read "The Living Constitution" by David Strauss, a short book part of a collection of books on constitutional topics. He cites Madison etc. in support of his argument. Shag and egarber both make good points.

A person me and Shag both see sometimes on another blog often uses founder era history to make his points, showing how originalism can be used to advance various ends. See also, Jack Balkin's long article on the commerce clause.

Are we all originalists now?

Eric Segall said...

On Monday I'll have a lengthy piece in Vox arguing that we are not all originalists now and never have been. I think Strauss has it mostly right except there was a slightly stronger reliance on precedent in the common law tradition, and of course the fact that common law decisions could be overturned by the legislature makes a big difference. Describing what the Justices actually do (which Mike has done quite well IMHO) is much harder than describing what they don't do, and what they don't do, and never have, is care much about the original meaning of the Constitution, however defined. They only care about it when it supports what they think is the best decision (most of the time it is irrelevant to the resolution of the question at hand).

David Ricardo said...

No one who has followed the Supreme Court can deny the argument that it is more of a legislative body than a judicial one for reasons set out in the post. Exhibit A is of course Justice Thomas who not only legislates from the bench but probably sees that as his role, that is to act as a Conservative stopping the onslaught of liberalism into American life. The late Justice Scalia obviously believed in the death penalty as public policy and used his position on the Court to advance it regardless of the many cruel and unusual circumsances it often entailed.

To argue, for example, that the Constitution confers the right on Americans to own assualt weapons, as the opposition to the recent decision on the Maryland ban, is legislating at its finest unless of course I am missing Madison's references to AR weapons in the Federalist Papers. Of course we have a common law Constitution; what do 'right to an attorney' or 'cruel and unusual punishment' or 'due process' or 'equal protection' mean other than what a court says they mean.

The problem with Originalists of course is that they do not embrace Originalism but do so only when it conforms or rationalizes their pre-determined political position. With apologies to my same sex married friends, I for one would trade in the right to SSM for an opinion on the 2nd Amendment that it only refers to 'arms' that were in existence in 1788. For Justice Scalia the fact that SSM is not mentioned in the Constitution is reason enough to deny it as a right under the concept of equal protection, but the fact that corporations are not listed as having 1st Amendment rights is no reason to not confer those rights upon them in one of the great legislating from the bench actions.

But misssing from the original post here and all of the comments is any solution or change in the system. If you are going to have a system of laws you must have a way to adjudicate disputes. And if you have a federal system you must have a way to make federal common law consistent throughout the nation. And as far as I know the only way to do that is with a Supreme Court with an odd number of members. In Britain there is a Supreme Court that declares things like exiting the EU unconstitutional in Britain wihtout a vote by Parliament even though Britain has no written Constitution. Huh? To paraphrase Churchill our current Court structure is the worst ever designed, except for all the rest.

Shag from Brookline said...

David, my late high school and college friend used to quote his Italian grandfather from time to time and my favorite is: "Halitosis is better than no breath at all." Of course, Trump had his Tic Tacs handy just in case. (Cite: Access Hollywood tapes.) But regarding your Churchill paraphrase, I would reserve on "except for all the rest." Mike suggested some comparative studies to Eric that might be in order. Sometimes solutions, e.g., a second constitutional convention, might make things worse.

Joe said...
This comment has been removed by the author.
Joe said...

A judicial body makes law (common law judging is an example) as part of its judicial role so I can very well deny, though if you wish, you can determine I'm wrong. And, yes, a judge can simply be wrong when they adjudicate taking everything into consideration. Seems to me that terms are being used in a somewhat simplistic way.

Also, "originalism"* has so many connotations that it's hard for me to tell who is who there. So, since I disagree some with ES on "court," the article might be a mixed bag for me. As to legislative override, definitions again. Anyway, constitutional decisions can be overridden; true enough it's harder (more so on the federal level). And, Strauss notes how off court events, including legislative, significantly influences court decisions even there.

Finally, not sure how much change is required. Of course, ES has promoted his eight justice proposal. I also find it useful to be honest about how courts actually work, including human judges have broad discretion [as MD notes, lower court judges have it too, at times in matters of life and death that higher courts rarely overturn] that doesn't merely rest on formalistic legal judgments. They still are courts.


* I will try not to overuse quotation marks; at some point, that seems overly snarky.

Bob Moss said...

We have to be careful with our terminology. The U.S. Supreme Court is so politicized that frustrated commentators write as if they have forgotten what a true court actually does. It definitely IS a court’s job to announce new law—just not new law made up out of thin air. Turning aside for a moment from the momentous national issues arising daily, let us look at a mundane New Jersey example. This may jolt commentators into realizing how our renegade U.S. Supreme “Court”, which may aptly be described as a bench populated by injustices, has skewed our discussion of courts.

The New Jersey ethics statute forbids members of local decision-making bodies from voting if they have a “personal interest” in the matter. That’s quite vague, but that’s how laws are often written. It’s up to the courts to apply the law, that is, interpret it, that is, announce new, more specific law, as cases arise. N.J. case law holds that, in the case of an application for a variance before a zoning board, any zoning board member who lives within 200’ of the subject property has a personal interest and cannot vote. To reach that construction, the court noted that the statute regulating variance applications requires notification of all property owners within 200’. Perhaps a little strained, but the construction was derived from existing law.

When the U.S. Supreme Court runs amuck, we must not complain that it’s announcing new law; we must be careful to state that it is announcing new law with utter disregard to existing law.

Shag from Brookline said...

Does a court "make new law" when it applies a new factual situation to an existing law that does not define its parameters, e.g., "personal interest"? Courts have to consider new factual situations as times/circumstances change else they are stuck in the past of then known facts. Laws are applied in the future and like a rolling stone should gather no moss, hermeneutically speaking.

Asher Steinberg said...

When you say the Supreme Court isn't a court, are you really only saying it doesn't act like a court in its constitutional cases, or do you think it doesn't act like a court in its largely unanimous decisions on statutes, the Federal Rules, and so on?

Also, could you answer Professor Dorf's question about state supreme courts, which also interpret vague constitutions and create a great deal of common law? Are they not courts? I guess I think that (a) so long as there have been Anglo-American courts, part of those courts' job has been deciding cases that are underdetermined by legal materials, and (b) the fact that a court is frequently given indeterminate legal materials to work with doesn't mean it ceases to be a court. There's a pretty obvious tension in this sentence: "My view is that the Supreme Court, not being bound by prior law, and usually interpreting vague text and contested history, has over time and as an institution not taken prior legal materials seriously enough or consistently enough to warrant the label 'Court.'" The first half acknowledges that the Court just doesn't have very constraining legal materials to work with, the second suggests that they've failed to take these materials "seriously enough," as if they would somehow become more constraining if they were taken more seriously. I suppose you could acknowledge that the Court isn't to blame for the weakness of the materials and just say that any "court" tasked with interpreting such weak materials and only bound by its own precedent on them isn't a court (at least in the cases where it's dealing with those materials), but that would make a great many courts non-courts.

Shag from Brookline said...

Let's paraphrase William Shakespeare: "What's in a name? That which the Constitution calls a court by any other name would be _________ and _________."

Fill in the blanks, if you wish, but keep in mind President Trump's "so-called judge" comment on the Federal District Court judge who ruled against Trump's travel ban EO. We can criticize courts and other government branches without using the Trumpian method. We should of course ascribe to a more perfect Union, via more perfect Executive, Legislative and Judicial Branches.

Bob Moss said...

There's a lot of discussion here about poorly-defined concepts. May I get present an example of legislating from the bench?

In Shelby County v. Holder, 570 U.S. 2, 133 S. Ct. 2612 (2013), Injustice Roberts built his argument around the premise that Federal law must treat state governments equally, except in extraordinary circumstances. Since the pre-clearance provision treats states unequally, and current discrimination does not rise to the extraordinary levels found in 1965, the states can no longer be treated unequally. Either all states, or no states, have to be subjected to pre-clearance.

Roberts’ problem is that his premise has no support in the law. Roberts relied on Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 202, 203, (2009), in which he, writing for the Court, “explained that §5 ‘imposes substantial federalism costs’ and ‘differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty.’” Shelby County, 133 S.Ct. at 2621.

But in Northwest Austin, Roberts willfully presented an inapposite citation, an act which might also be described as lying. Northwest Austin cites United States v. Louisiana, 363 U. S. 1, 16 (1960), which cites Lessee of Pollard v. Hagan, 44 U.S. 212, 223 (1845)), which merely states that “Alabama was admitted into the union, on an equal footing with the original States”. There is no “historic tradition that all the States enjoy equal sovereignty” for purposes of remedial legislation authorized by a Constitutional provision, as the Supreme Court made clear in South Carolina v. Katzenbach, 383 U.S. 301, 328–329 (1966) (which held the Voting Rights Act to be Constitutional):

The Act intentionally confines these remedies to a small number of States and political subdivisions which in most instances were familiar to Congress by name. . . . The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared. See Coyle v. Smith, 221 U. S. 559, and cases cited therein.

(Footnote omitted.) And under what standard is the constitutionality of the Voting Rights Act tested?

The language and purpose of the Fifteenth Amendment, the prior decisions construing its several provisions, and the general doctrines of constitutional interpretation, all point to one fundamental principle. As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.

Katzenbach, at 325. Roberts had to ignore existing case law, else his entire premise and argument would collapse. Shelby County was thus not the decision of a court, but of a legislative body masquerading as a court.

Shag from Brookline said...

Earlier in this thread I mentioned Frederick Mark Gedicks' "Working Without a Net: Supreme Court Decision Making as Performance." Google will get you to the URL. Gedicks focuses on stare decisis and how Court opinions misuse cases cited as foundations for the opinion, expanding, going well beyond stare decisis. Court decisions, concurring opinions, dissents have gotten longer over the years. Imagine the time and effort involved on the part of a reader to check cites to make sure they support the decision, etc. Gedicks uses Hans Georg Gadamer and his "Truth and Method to explain how a justice/judge may expand stare decisis. Then later cases may further expand the expanded staee decisis. Sometimes this results from lifting language and cites from a brief in a case. The brief, of course, is generally that of an advocate who is not obliged to be objective as is the justice/judge.