Monday, August 13, 2018

Is the Court a Court Redux?

By Eric Segall

Last week at the Southeastern Association of Law Schools (SEALS) conference, I attended a session on constitutional law works in progress. Although my paper did not directly address the subject, we ended up having a long conversation about whether the Supreme Court is really a court. My 2012 book Supreme Myths argued that the Supreme Court as an institution does not take prior positive law (text, precedent, historical sources) seriously enough to warrant the label "court." I argued both in the book and during the conference that giving judges unreviewable power for life, and then asking them to resolve many of society's most difficult social, political, economic and legal questions based on vague text and contested history, will inevitably result in all-things-considered decisions in the cases the Justices care deeply about.

The fact that the Justices reach unanimous decisions in almost half their cases is irrelevant to my thesis because they choose their own cases and quite self-consciously make sure much of their docket consists of controversies that do not raise important political issues that most Americans care about. If all their cases involved issues like abortion, affirmative action, and separation of church and state, then most of their decisions would in fact be decided along ideological lines.

The push back to these ideas from, among others, Professors Mark Graber, Chris Lund, and Evan Zoldan, and my responses, are the subject of this post. These exchanges were polite, provocative, and in the spirit of gaining better understandings of each other's positions.

Graber argued that although values and politics obviously play a major role in the Court's decisions, so does law. Moreover, politics in this sense describes something quite different than the politics that drives elected officials such as members of Congress and Governors as well as civil servants such as those working for the EPA or HUD.

I conceded that the Justices' decisions are driven by a different kind of politics than other governmental officials but then argued the observation was beside the point. My thesis is that we expect all judges to take prior positive law seriously to at least a minimum extent, and that wherever that line falls, the Justices are well below it. I mentioned that my book detailed huge swaths of constitutional law where the Justices ignored, distorted, or simply overruled prior law. I also observed that ex-Judge Richard Posner, who is on record as thinking District of Columbia v. Heller was wrongly decided, nevertheless overturned an Illinois gun law because even the most anti-formalist judge of our our generation has always conceded that he is bound to follow Supreme Court case law. The Justices, however, are not so bound, and thus never have the tug of precedent to move them off their priors.

Graber also argued that the Justices reach their decisions in the context of the rhetoric in which they are situated and that vocabulary is one of law. I didn't have the time to respond to these comments but, if I had, I would have said that I do not not deny the Justices talk the talk of the law and probably think themselves that their decisions are constrained by the law. However, we often second guess the motives of people making hard decisions, and when it comes to consequential choices by important politicians, we often are skeptical of the reasons they provide for their decisions. We should bring the same realism to Supreme Court Justices, especially because of the large amount of data showing the relationship between non-legal values and Court decisions in major cases.

Both Lund and Zoldan suggested that if they could find one important case where the Justices obviously ignored their political priors then my thesis that human nature would not allow life-tenured Justices to ignore those priors in cases they care about fails. They pointed to Evenwel v. Abbot to support their argument. In Evenwel, Texas citizens argued that the one-person-one-vote rule from Reynolds v. Sims must be interpreted to require states to redistrict based on one voter, one vote, a formula which would clearly help the GOP in Texas. They claimed that not using the one-voter formula violated the Constitution.

The Justices ruled 9-0 that all people, not just eligible voters, could be counted for redisticting for, among other reasons, non-voters have strong interests in elections. Lund and Zoldan said that the Republican Justices who ruled that way clearly voted against their own political interests.

I have several responses to this argument. First, the presence of one case, or even several cases, where the Justices didn't vote their priors in a case they cared about doesn't damage my thesis given the hundreds of cases that support my thesis. The question is whether prior law provides enough of a tug to justify the label "court." That question can't be dodged by citing a few isolated cases given the substantial data provided by political scientists that the Justices vote their priors most of the time.

My second response is that it is quite unclear how important Evenwel was to the Republican Party. No doubt a different result would have assisted the GOP in Texas, but the reality is that the GOP needs little help in Texas, and in the case Texas itself argued only that it could use one-voter-one-vote, not that it had to (an issue the Justices did not decide). Thus, it is possible Texas or any other state could choose to use one-voter-one-vote in the future. The holding therefore was quite limited.

Professor Mark Tushnet has provided the right framework for thinking about these kinds of cases in the current GOP-controlled Court:

"1. Statutes, policies, and practices that strengthen the Republican Party, and those that weaken the Democratic Party, are constitutionally permissible.
2. Statutes, policies, and practices that strengthen the Democratic Party are unconstitutional.
3. If leading Republicans are indifferent about a statute, policy, or practice, and leading Democrats favor it, and if the statute, policy, or practice does not strengthen the Democratic Party, the statute, policy, or practice might or might not be constitutionally permissible.
4. If leading Republicans are indifferent and leading Democrats oppose a statute, policy, or practice, it might be unconstitutional.
All the rest is commentary."

Evenwel is either a category three or four case, and therefore does not disprove my thesis.

Finally, Zoldan at the end of the session asked a great question. He said that a Justice's values may well include taking prior law seriously, among other factors, and if that is true, there may be many cases where that prior plays a primary role in generating decisions, and may even trump (we both agreed an unfortunate but necessary word) the Justice's non-legal priors. He asked how my thesis accounts for that possibility.

At the conference, I responded that whether or not this observation was true as an internal matter, we still have substantial data that non-legal priors generate most important Supreme Court decisions (I'll define important cases as those that matter to people without direct personal stakes in how the case is decided).  But in subsequent e-mails, Zoldan and I refined the issue. He suggested that there are easy, moderate, and hard cases. We both agreed priors don't matter much in easy cases and they dictate results in hard cases. But Zoldan argued that there are moderately hard cases where the Justices' considerations of text, history, and precedent generate outcomes.

I responded that when I clerked for both the Northern District of Georgia and then the Eleventh Circuit, we indeed had easy, moderate, and hard diversity cases which raised issues of Georgia law that my Georgia-born judges cared deeply about. The hard cases had no persuasive answers in law while the moderately difficult ones had answers slightly more persuasive than the ones my judges favored, but they adopted them anyway because they viewed their roles as trying to predict what Georgia judges would say, not as trying to reach the best answer all things considered. That is a serious tug Supreme Court Justices never feel because, unlike other judges, they are free in every case to change prior law.

That difference, along with life tenure and being able to choose their own cases, make the Justices different in kind than any other judges in the free world (ours are the only high court judges in the world with life tenure). The only limit on their power is what they think the American people and the other branches of government will tolerate. I suggested to Zoldan that he probably agreed that these attributes thus made the Justices different in kind but he might not agree on how different, and he agreed with that analysis.

If the Supreme Court formally announced tomorrow that the Justices would in the future continue to seek the aid of text, precedent and history to decide hard cases but those sources would be only non-binding guidelines, not authoritative considerations, and in every case they would reach all things considered decisions, I am pretty sure we would not call it a Supreme "Court." But in practice, that is exactly the institution that we have, which is why the Supreme Court is not a court and its Justices are not judges.


Michael C. Dorf said...

There are important questions being debated between Eric and the other scholars whose views are set forth here, but they involve measurements along distinct dimensions. It is not clear to me that they aggregate into a net bottom line that the Supreme Court is or is not a "court," which seems to depend on how one defines "court." That definitional question is not interesting. To my mind, this debate would be more fruitful if various strands were kept separate. I'll mention two.

1) To what extend do norms associated with judicial politics constrain the SCOTUS beyond how a purely political body like Congress would be constrained? I take Eric's answer to be that such norms constrain how justices write their opinions but do not much constrain their actual votes, whereas his interlocutors think that judicial norms have greater constraining force with respect to actual decisions. The data to which Eric alludes largely support his view, but do not account for selection bias. As Eric observes, the SCOTUS chooses its cases. We need some way to measure whether it is limited in the sorts of cases it selects. Here's an example that could potentially serve as a test: Conservative justices have long complained about Roe by arguing that the Constitution contains no right to abortion. That sort of argument is consistent with a decision overruling Roe but inconsistent with a decision holding that fetuses have a constitutional right to life. If the differences between justices and politicians are essentially stylistic only, as Eric believes, then soon after we see a pro-life majority on the Court, we should see a ruling that a state's failure to forbid abortion denies equal protection to the unborn. If Eric's critics are right, the conservative justices are more likely to stop at (expressly or de facto) overruling Roe.

2) Our SCOTUS combines functions that, in some other constitutional democracies, are divided between ordinary courts and constitutional courts. Thus Eric is right when he excludes from the denominator those cases in which the SCOTUS acts to resolve low-profile issues. Focusing only on a comparison with other constitutional courts, he is also right that our justices uniquely serve for life terms rather than for a term of years. But which way does this cut? As a matter of first principle, more frequent rotation of justices ought to make them more, rather than less, accountable to politics, and thus more rather than less "political" in the way that Eric uses the term. Put differently, his critique ought to apply with even greater force to a body whose appointees serve for limited terms. As I've explained before, although I think it has little chance of being adopted, I tend to support the Carrington/Cramton proposal to replace life tenure with 18-year terms, mostly because it would regularize the appointments process--but it would hardly make the work of the justices less "political." I take it Eric's point here is that if the justices are going to engage in politics we should have an appointment system that aims to make them more accountable.

Eric may be right (or wrong) about that second point, just as he may be right or wrong in the sorts of predictions made by his thesis that judicial norms do not much constrain the substance of the justices' decision making, as distinct from the rhetoric. But I think debating whether we therefore should say that the US Supreme Court (or the German Constitutional Court or the European Court of Human Rights, etc.) is or is not REALLY a "court" does little to resolve the debate.

Shag from Brookline said...

While this post and Mike's comment are most interesting and worthy of substantive further comments, I wonder if Eric's use of "Redoux" in the title rather than "Redux" has some special significance.

Joe said...

I wanted to read his first book but it was not found yet in the library where I can obtain a free copy. Since I have read books by Colb and Dorf, wanted to be fair in that department. Seriously, will try to get a hold of it eventually.

Anyway, appreciate the first comment -- this "not a court" business to me is a somewhat tedious phrasing. It is -- at various points (liberals are happy, e.g., that precedent has restrained it in various ways) -- a somewhat different type of "court." That is useful to discuss, but "not a court" to me is a tedious word-play sort of thing that is bothersome when conservatives do it to in effect advance a certain meaning of a word and it's here.

But, I appreciate that Prof. S. provides a different point of view about things, a sort of dissenting liberal voice that I can find wrong about things.

Eric Segall said...

Thanks to Mike (and Shag and Joe) for thoughtful comments. I am going to make two major points in response, one maybe a bit dodgy, the other on the merits of Mike's and Joe's claim that not much rides on the Court is not a court idea.

1) First, as Mike and maybe others know, I have for the last 10 years done a lot of radio, a bit of TV, and a lot of publishing in places like SLATE, Vox, etc. I have made peace with the idea that I wear two hats. I reserve my purely academic hat for traditional and on-line law reviews like my essay in Cornell responding to Will Baude or my article in Harvard defending Posner's anti-constitutionalism. But my books, and non-law review writings are meant primarily for smart, well-informed non-lawyers. I have found for a long time those folks understand the Court is not a court idea quickly and well, and most are quite sympathetic it. Political scientists are also quite sympathetic. The major push back comes from law profs and in my book I suggested why that is so.

2) On the merits, many law profs, even legal realists, have suggested to me that when I say the Court is not a court, what I really mean is the court is a bad court. But that is emphatically not what I mean. What I mean is that the design of this institution, life tenure, final say, hardest cases, review of hopelessly vague language and contested histories, and a long tradition now of strong as opposed to weak judicial review, leads to a perfect storm of all things considered decisions in a way that does not meet the minimum requirement that to be a judge, a judge must take into account prior law at least a little bit in reaching (not just explaining) decisions. I note that Mike did not, and no scholar that I know of has, responded to the mostly rhetorical question I asked in my last paragraph of the post. If Justice Roberts formally announced in his next annual report the the Justices will no longer be bound by prior law but will use it for whatever weight it is worth and that's all, that wouldn't be a bad court, it just wouldn't be a court of law at all. And the difference between the two ideas is substantial. A bad court made up of bad justices could be fixed by appointing good justices (Thayerians for example). But my thesis is that the institution itself is what needs fixing and no personnel appointments will matter. We need structural reform like it takes 7/9 Justices to declare a law invalid, or Congress can overturn with 2/3 vote, etc.

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

"What" it is matters, but to me it is a "court" == it is a different type of court and not using the word to me is a sort of word game, since as noted in the first comment, there are different types of "court" and this fits into the overall word in various respects.

The public to me can be misled with such usage, especially since at some point to me it ultimately is a matter of degree. There is a mythical view of what courts do and that's bad on some level. But, the path is not calling it something else but understanding the nature of the specific court involved. The same applies to other constitutional words.

I think a college and high school [or grade school, if one likes] both are "schools" though there are significant differences between them, including regarding things like academic freedom and so on. They would be significant when determining how to craft each.

Other examples can be found. And, some extreme example ("no precedent at all") can be found, but that isn't what exists. Again, there seems to be some of the same word play found on various sides (e.g., conservatives complaining about "no limits" to interstate commerce when there are limits and there really is a "commercial" aspect involved).

Michael C. Dorf said...

I continue to think a debate about whether the Supreme Court is REALLY a court obscures more than it illuminates. I'm even more convinced that a meta-debate about whether to have a debate over whether the Supreme Court is REALLY a court is unhelpful. If I have to engage in the meta-debate, I will say that I am happy to take Eric's word for it that non-lawyers get something out of the not-a-court phrasing. The question (for the meta-debate I'm not interested in having) is why. It may be because non-lawyers tend to be intuitive legal formalists, so that what they are getting is inaccurate.

As to the challenge, let me just suggest that Eric's hypo gilds the lily. He asks us to suppose that CJ "Roberts formally announced in his next annual report the the Justices will no longer be bound by prior law but will use it for whatever weight it is worth." He then says "aha," it would no longer be a court; it would not merely be a bad court. I'm not sure I would concede that, but even if I were to, the real action here is in Eric's claims (1) that what Roberts would be announcing would be an accurate description of what the Court already is doing; and (2) that proposition (1) is inevitable given certain features of the Supreme Court. I think both claims are contestable, especially given my point about selection bias. But to return to the meta-point and the meta-meta-point, I would much rather have the debate about propositions (1) and (2) than what I regard as a semantic debate about the meaning of "court."

Evan Zoldan said...

Before his post, I expressed to Professor Segall, privately, that I am not sure it matters whether we call the Justices "judges." But, in light of the further elaboration on this topic today, I have been thinking about what difference it would make if his thesis were accepted.

If Professor Segall is distinguishing a real court and real judges from political actors who make values-based decisions, then my tentative conclusion is that the public and the other branches of government already treat the Justices as political actors and the SCt as a political institution.

Even in the absence of other historical evidence, the Garland/Gorsuch episode suggests that the Senate treats Justices as political actors in the confirmation process. The nomination process is determined by the President's political leanings or political leanings of his supporters. And the public, perhaps particularly otherwise uninformed members of the public, have strong opinions about confirmations, it seems, based solely on their perception of these political leanings. In short, there may be very few people that Professor Segall still needs to convince.

Having conceded this, what would change if we "agreed" formally that the SCt is not a court? If it would not change public or institutional attitudes appreciably, then a change in terminology is probably not meaningful.

Eric Segall said...

Thanks for all the thoughtful comments. I will just say that I think a lot turns on whether the Court is a court. For now I will just make one large point:the lack of transparency that arises from the Justices' fake reliance on text, history and precedent (I know that begs the question Mike but I spent an entire book on it) does serious damage to our country. If we and the Justices treated their constitutional work as if the Court were a council of revision, not a court of law, we could have a much more honest debate about what role we want this institution to play.

Eric Segall said...

One more thought. For the last 50 years or so, in virtually all ideologically charged con law cases, Justices Powell, O'Connor and/or Kennedy carried the day. All three of those Justices cared little for traditional sources of constitutional interpretation (or deference to other decision-makers). That is half a century. It is very hard to read their decisions and imagine what they would have said differently had they been officially a council of revision not a court of law.

Okay, unless someone continues, I'm done now :).

Shag from Brookline said...

I just reread Article III and noted that it refers to "judges" of both SCOTUS and the inferior courts. No reference is made to "justices."

Article III is quite short. What does the text of Article III inform us about the issues raised by Eric? Does either textualism or originalism address such issues? Is the problem the lack of detail in Article III on how the "judges" are to determine/apply the judicial power of SCOTUS?

If there were to be a second constitutional convention, perhaps a new Article III might address at least some of the issues raised by Eric.

As to SCOTUS being political, that perhaps goes back as early as Marbury v. Madison (1803).

Shag from Brookline said...

Query: Would CJ Marshall have the power to take the position Eric suggests in his closing paragraph under Article III?

Joe said...

There is an earlier reference to a "Chief Justice":

"The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present."

If there is a "chief" justice, it is logical that there are others. Chief Justice Rehnquist was known to be upset when he was called a "judge" instead of a "justice." Justice Stevens once noted that Art. III says "judges."

Shag from Brookline said...

I appreciate Joe's comment on "judge/justice" as a welcome reminder to keep in mind the entire Constitution when focusing on a particular Article. The Constitutional Convention's Committee on Style generally did a good job even thought it may have neglected to coordinate Article III and the impeachment provision about the role of the "Chief Justice" when impeachment of the President is involved. It would seem that this role of the "Chief Justice" may be separate from the "judicial power" under Article III as the role would not seem to involve the balance of the "judges/justices" on SCOTUS. Or might it? I don't recall if this was addressed in the Senate's impeachment trial of Bill Clinton.

But my major point with questions raised in my comments as they relate to issues raised by Eric has to do with the inadequacies of Article III in addressing such issues, as well as other issues about SCOTUS.

The semantic differences between a "justice" and a "judge" I have not researched. But "justice" brings to mind "Lady Justice" as a symbol that many of us are aware of. She is blindfolded. Can the same be said of the members of SCOTUS?

Joe said...

The word "justice" can have various meanings as seen here:

(intermediate appeals court having "justices")

More here:

(idea that a "judge" is someone with training in law; think "justice of the peace," which might be someone with limited authority without much legal training at all)

The Chief Justice of the U.S. has various administrative tasks and other roles such as the Chancellor, of the Smithsonian Institution.