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.