Monday, April 10, 2017

The Rule of Law and Politics at the Supreme Court

By Eric Segall

Over the weekend I participated in a wonderful constitutional law conference at Pepperdine with among many others, Michael McConnell, Mark Tushnet, Akhil Amar, Erwin Chemerinsky, Judge Posner and Barry McDonald. The overriding question of the day was whether structural changes to the Court are necessary given our hyper-partisan times. Although folks disagreed over that question, there was a general consensus that the Supreme Court is in some important sense "political," although folks meant different things by using that label, which is the point I want to focus on in this essay.

Professor McConnell emphasized that, although politics inevitably seep into the Court's most difficult cases, quite often the Court acts unanimously. Even with that important caveat, however, I did not interpret McConnell's remarks to deny that discretion certainly plays a large role in the Court's cases or that the Court can be fairly labeled "political."

Dean Chemerinsky emphasized in his lunch address that values always have and always will play a primary role in the Court's decisions because constitutional law inevitably requires the Justices to balance competing constitutional values. Chemerinsky said his definition of values includes but is much broader than simple partisan politics.

Professor Tushnet said that, although partisan politics certainly do not explain every case, such politics play a much larger role than people, including folks at the conference, were suggesting. He argued that it should not be taboo for academics to emphasize these politics when discussing the Court.

My contribution to this specific discussion, of course, was to suggest that the Court, given its consistent failure to take prior law seriously, does not act like a Court. I also agreed with Chemerinksy that values writ large best describes the Court's decisions in most cases.

I was thinking about all of this when I read Adam Liptak's fine column on Monday discussing his coverage of the Court since Justice Scalia passed away. At the end of that column, Liptak describes the Court as an institution with a "disinterested devotion to the rule of law." Is it possible for a "political" Court that decides cases according to values writ large (and sometimes partisan politics) to also be an institution devoted to the "rule of law?" The answer is a resounding yes, with one important caveat.

Although I am known, in fact Liptak has described me, as a "critic" of the Court, I have never suggested that the Justices violate generally accepted rule of law norms such as not deciding cases involving their own families or their own personal interests, taking bribes, or favoring one of the parties to the case based on other impermissible criteria. In that sense, the Court adheres to the rule of law in ways that courts in non-democratic countries might not. In our country, the judicial system, for all its faults, is generally impersonal in this sense, and we are all quite fortunate that is the case (I am side-stepping here some obviously racist patterns that still sadly persist in the system).

Nevertheless, there are two ways in which the political nature of our Court is still troubling. First, as Professor Tushnet argued at the conference, the fact that many Court cases are not decided for partisan reasons along partisan lines does not mean that we should ignore the fact that many, perhaps even most of the difficult constitutional law cases the Court hears, are resolved consistently with the Justices' partisan interests.

Second, and perhaps more importantly, are the transparency issues surrounding the Court. The Justices go out of their way to write decisions in the jargon of legal doctrine, not their personal values writ large. They will lay responsibility for their decisions on text or prior cases or some other legalese like the canons of construction (which at the conference in Pepperdine Judge Posner labeled "nonsense"). But, the reality, is that most people agree with Chemerinsky and me that, at least in the universe of important constitutional law cases the Court hears, values writ large, including partisan politics, play a major role. The rule of law problem here is the lack of transparency attending the Court's written opinions. One important aspect of the rule of law is that governmental actors provide the actual reasons for the decisions they make. I can't help but wonder what rule of law grade Adam Liptak would give the Court for being honest about the relationship between the reasons the Justices actually provide for their decisions and their actually reasons.

Judge Posner has on many occasions labeled the Court a "political Court." Although he said many controversial things this weekend (alas that's another post),  there was not much disagreement that our highest Court is, in some important way, a political institution. The more honest the Justices and the public are about that essential truth, the more the rule of law will flourish.


Shag from Brookline said...

Perhaps the Court for most of its history has been political. While we focus on the Court of today, going back to the beginning and checking then current views of the Court might be appropriate. Perhaps there were short stretches when the Court was not political. Historians might be helpful in this regard going back to the beginning, as well political scientists since that profession came into vogue. I completed law school and passed the MA bar in 1954, the year that Brown v. Bd. of Educ. came down. Both my time in law school and since practicing law (I still got my ticket, but don't punch it too often), the Court has been political, not of course in every case, but in many, too many. Being born in 1930, I grew up during the New Deal. Via history courses and law school I learned much of the travails of the Court and politics during the New Deal. And understanding the construct of the Constitution by the Framers, it is not surprising that the Court soon became political. [Cite: Marbury v. Madison.]

As a side note, over at Balkinization there is a book symposium underway with Jack Balkin posting the first and a quite interesting review on the "The Framers' Coup: The Making of the United States Constitution" by Michael J. Klarman, with comments on interpretation. If one accepts that the Constitution was political, then perhaps it is easier to accept that the Court would become political with the roles of the Executive and Legislative (esp. Senate) political branches in the appointment of members of the Judciary.

Shag from Brookline said...

James Fox has posted his review at the Balkinization Symposium on Michael Klarman's "The Framers' Coup:" with significant commentary on potential impacts of Klarman's book on originalism. Fox also comments extensively on Klarman's claims of an undemocratic Constitution put together by the Framers. On the latter point I anxiously await Sandy Levinson's contribution to the symposium.