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.