by Neil H. Buchanan
As the news cycle plods along on its inexorable march of awfulness, those of us who toil in the fields of legal analysis cannot help but linger on the implications of the recent change in Supreme Court personnel. The replacement of only-occasionally-not-arch-conservative Anthony Kennedy with yet another full-on movement conservative continues to pose questions about how the judiciary will operate going forward.
These questions will, of course, only become more pressing as Senate Republicans put more and more Thomas/Gorsuch/Kavanaugh clones on lower courts, which will continue at least through the upcoming lame duck session and for at least two additional years if (as expected) the Republican majority holds or is expanded in next month's midterm elections.
Will this wave of conservative justices and judges change the way cases are handled by the courts -- not in the sense of procedural changes (although those might well be in the offing as well), but in the way that courts present their decisions in the form of supposedly well reasoned and dispassionately considered jurisprudential analyses? If not, what will judicial opinions look like in the future? Will there even be written decisions any more, or will it be simply, "The side that we like wins"?
Soon after Kennedy announced his retirement over the summer, I began to write this series of "How Bad Will Things Become?" columns, here on Dorf on Law and on Verdict. Two of those columns addressed some aspects of the meta-question to which I return today: "How Bad Will Things Become? Part Two: The Court's New Extremist Majority Will Be Truly Radical", and "How Bad Will Things Become? Part Three: Will the Court's New Reactionary Bloc Bother to Cover Its Tracks?"
The motivation for today's return to this topic is Professor Dorf's column from yesterday, "How Blatant Must a Prosecutor's Racism Be for the SCOTUS to Notice?" There, he offered some persuasive reasons why the Supreme Court might choose to disappoint the Republican/Trump base by ruling against the state in Flowers v. Mississippi, in which a racist prosecutor has continued to railroad a black defendant in a death penalty case.
As always, Professor Dorf's analysis is clear and persuasive; yet I strongly suspect that he wrote it with the full knowledge that he was being aspirational -- that is, in the hope (but not the confidence) that there are still apolitical arguments that will fly with the newly emboldened bloc of reactionaries who now control the Supreme Court. I hope that they are moved to action by some or all of his arguments, but I am skeptical that they will be. And even if they are so moved in this case, I will continue to wonder how long their restraint will last.
Professor Dorf offers four arguments that the Court's conservatives could use to overrule the Mississippi Supreme Court's unholy blessing of the prosecutor's misconduct:
-- First, there is good reason to believe that the defendant is actually innocent, and if conservatives insist on "derid[ing] constitutional doctrine for benefiting the
guilty, [they] have some obligation to embrace or at least apply it when it
helps the innocent."
-- Second, the Mississippi Supreme Court completely mangled the controlling U.S. Supreme Court precedent, Batson v. Kentucky, and a 2016 case, Foster v. Chatman, essentially saying that the current case has different facts and thus is not controlled by those precedents. Dorf: "Of course Foster involved somewhat different facts from Flowers. No two cases are identical."
-- Third, "SCOTUS should grant relief to Flowers ... to preserve its own institutional integrity" in order to prevent "state court defiance of Supreme Court precedent."
-- And fourth, "Flowers presents the Supreme Court with the opportunity to show that it meant what it said in Foster. ... By granting and reversing in Flowers, the Court can show that Foster was meant to bolster Batson, not to render it effectively a dead letter."
Again, those arguments are spot-on. If I were operating in a normal judicial environment, I would not want to work for the opposing side and be assigned to try to refute any of them. But the question is whether the current judicial environment remains anything like what legal types have considered to be normal, and the answer to that question unfortunately is not at all clear.
The first, second, and fourth arguments above are variations on the life blood of legal reasoning: logical consistency, often in the form of adherence to precedent. But why is that so essential to the legal system, especially for people who have reason to believe that their hand-picked judges will be the ones who make decisions in the future? (I will return to the third argument shortly.)
One of the key virtues of adherence to precedent is the sense that people with different substantive views will respect logical consistency at least enough to feel somewhat bound in their outcomes. If a future court of Sonia Sotomayors were to confront, say, antitrust cases, conservatives want to believe that the court would not simply ignore that which went before. And the Sotomayors, even if they were willing to overrule precedent, would at least feel the need to explain that they are following the precedent about how and why precedents can be overruled.
Logical consistency, in other words, is supposed to be limiting. "I don't like where this takes me, but if I'm to be true to my legal obligations, I have no choice but to reach this conclusion." That sentiment is too often honored in the breach, but it has been a core concept of legal analysis for centuries. The late Justice Scalia was in my opinion over-praised for his apparently principled stands on a few cases (such as flag burning and jury trials), but at least some degree of praise was indeed due. (But see Bush v. Gore, Shelby County v. Holder, Citizens United, and on and on ad nauseam.)
Will courts that are now completely dominated by movement conservatives continue to bother with any of this? Even without the newest addition to the Supreme Court, we have a slew of examples of conservatives being willing to muscle precedent aside when convenient. Chief Justice Roberts wrote an opinion striking down the City of Seattle's affirmative action plan for its public schools, effectively overruling the key holding of Brown v. Board of Education while pretending to rely on it.
Similarly, in this year's Muslim ban case, the five conservatives engaged in what Professor Anil Kalhan aptly called a "parlor trick" by issuing this generation's version of Korematsu even while pretending to repudiate Korematsu itself. Lower court judges have long engaged in repeated efforts to find procedural gambits to lock the courthouse doors to victims of corporate and other wrongdoing, and the Supremes have not overturned those efforts.
So how would Roberts and the other conservatives respond to Professor Dorf's three arguments relying on logical consistency? Essentially, they can do what the Mississippi Supreme Court did, finding exceptions to paper over the power play of achieving the results that they and their political patrons and base desire.
Does the Court "have some obligation to embrace or at least apply [constitutional doctrine aimed at convicting the guilty] when it
helps the innocent," as Professor Dorf put it in his first point? I doubt that they think so, and we know that they are very good at making whatever rhetorical moves might be necessary to say that "this isn't really the same thing." Batson and Foster are at best mere speed bumps, and the Court's conservatives are a willing and able road crew that can remove such pesky things.
But what about Professor Dorf's third argument, that the U.S. Supreme Court's integrity is a stake, and in particular its power to order state courts to do what it says? Again, that ought to be an important concern, especially given the Chief Justice's (probably overstated) reputation for being obsessed with protecting the Court's institutional legitimacy. Indeed, for the time being, that might actually be enough for the Court to go the right way in cases like Flowers.
Or maybe not. After all, the Court can simply engage in ad hoc, case-by-case granting of exceptions from its precedents (especially the precedents that the Court's current majority does not particularly like). They would, of course, not admit that the state courts had defied the U.S. Supreme Court at all, instead simply saying that the other courts had properly identified exceptions that were manifest in the original decisions.
Perhaps the best way to think about this is to ask whether a motivated majority of movement conservatives -- and that is precisely what we now have on the U.S. Supreme Court -- could issue a series of opinions that would have legal scholars and Court watchers scratching their heads and wondering why the Court had not followed what seemed to be "settled law."
My answer is: Why not? The people who rallied to Trump's side on the recent Supreme Court confirmation fight have never shown any concern about racist prosecutors (and have, in many cases, enthusiastically supported racism in law enforcement, see, e.g., the Arpaio pardon). They do not want the Supreme Court to say that Mississippi has to hold off on executing Flowers. The Supreme Court now has the personnel to give them what they want.
As I noted above, however, that means that the Court's conservatives run the risk of riling up legal scholars and Court watchers. Maybe that would matter to them, as I wrote in one of my earlier columns on this topic, because the current conservatives on the Court are accustomed to being viewed as deep intellectuals and not politicians. If so, they would want to avoid issuing nakedly results-oriented opinions that say little more than, "Well, the law would seem to support reversal, but we don't wanna."
But this merely means that they will probably continue to write their opinions in the style that they have honed over the course of their careers. Style does not constrain outcomes, however. Based on what we have seen already from the Court's movement conservatives, the addition of its newest member will only accelerate the tendency to find convenient exceptions, and even more convenient exceptions to exceptions, whenever necessary. Rationalizing those exceptions will be part of what makes their jobs fun.
That does not mean that efforts like Professor Dorf's will always fall on completely deaf ears. It does, however, mean that legal scholars are likely to spend quite a bit of time in the future knowing how cases will turn out and then merely predicting how the courts will ignore inconvenient considerations on the way to delivering the goods for the minority of the country that put them in power.
And because the courts will have the ability to entrench Trump/Republican power by approving of voter suppression efforts and other anti-democratic measures, they will do everything they can to prevent the rest of us from ever again having anything to say about it.