Monday, January 14, 2019

The Least Interesting Branch

by Michael C. Dorf

Recently, a longtime DoL reader emailed to ask whether the Trump administration had made my life  as a constitutional scholar more interesting. Yes, I replied, but I added that I would gladly accept some boredom in my professional life in exchange for more sanity as a citizen. Yet I may be suffering from the worst of both.

Trump serves us up a constant barrage of crisis-threatening legal questions that have gone unanswered by the courts because no one had previously tested these particular limits. Can a president pardon himself? Can a sitting president be indicted? Can the president forbid the dissemination of a special prosecutor's report on bogus national security grounds?

Some of Trump's greatest outrages lead to litigation, and some of that litigation eventually reaches the Supreme Court, as the Travel Ban eventually did. But here we are two years into this execrable presidency, while disputes over most of his rage-tweet-inspired policies either languish in the lower courts or do not give rise to litigation at all. Meanwhile, the Supreme Court busies itself with cases that may be very important to the litigants and may present questions of systemic importance in various sub-categories of American life and law, but that are . . . well . . . boring.
Consider the questions presented in the two oral arguments that will occur today. In Thacker v. TVA, the Court will consider:
Whether the U.S. Court of Appeals for the 11th Circuit erred by using a “discretionary-function exception” derived from the Federal Tort Claims Act, from which the Supreme Court generally has declined to borrow rules, instead of the test set forth in Federal Housing Authority v. Burr when testing the immunity of governmental “sue and be sued” entities (like the Tennessee Valley Authority), to immunize the Tennessee Valley Authority from the plaintiffs’ claims.
Then, in Rimini Street, Inc. v. Oracle USA, Inc., the justices will devote their considerable jurisprudential prowess to considering:
Whether the Copyright Act’s allowance of “full costs,” 17 U.S.C. § 505, to a prevailing party is limited to taxable costs under 28 U.S.C. §§ 1920 and 1821, as the U.S. Courts of Appeals for the 8th and 11th Circuits have held, or whether the act also authorizes non-taxable costs, as the U.S. Court of Appeals for the 9th Circuit held.
If you're still awake, and if you can follow those questions, I defy you to explain what these cases involve to a person of ordinary intelligence who lacks a law degree. (Here are the efforts of, respectively, Greg Sisk and Ron Mann, who preview the cases for lawyers, not laypeople). Not all of the eight cases in which the Court granted review on Friday are equally impenetrable, but they are all fairly unimportant.

My claim that much of the current Supreme Court docket is boring is descriptive, not normative, but it may have some implications. Here I'll list a few:

(1) Among constitutional courts of last resort, the SCOTUS is unusual (though not unique) in combining jurisdiction over ordinary, low-stakes, litigation with jurisdiction over high-stakes constitutional cases. I suspect that--but have not undertaken a comprehensive study of the question whether--this kind of combination inclines a court towards at least lip service to and perhaps even observance of norms against judicial overreaching. If you spend more than 80% of your time working on cases that seem to call for the application of relatively technical doctrines and methods, you will come to regard that methodology as "normal," feeling somewhat untethered when you address the occasional high-stakes ideologically-riven case. If that's true, then one would expect more "judicial restraint" (scare quotes to indicate that the term's meaning is contested) from a court with mixed jurisdiction than from a court with an exclusively constitutional docket.

(2) As a matter of institutional design, there are tradeoffs between the two basic designs. One concerns the backgrounds of the personnel with which you'll staff your court. A US-style Supreme Court will need to be staffed by justices who are lawyers, because most of what they do is lawyers' work. By contrast, a constitutional court with exclusively high-stakes constitutional-style cases could include some jurists who were chiefly politicians, or philosophers, or economists, or something else before being placed on the constitutional court.

(3) The sorts of credentials needed for a constitutional court in turn could have an impact on the selection process. Other things being equal, a court that includes politicians and other non-lawyers will be seen as more inherently "political," meaning that the selection process can be more honest. In the US, presidents and senators (more or less) screen for professional qualifications but then make key decisions based on ideology, all the while maintaining the pretense that they are not looking at ideology. Republican presidents and senators are more likely to maintain this pretense, because their key judicial ideology--textualism in statutory cases and originalism in constitutional ones--is built on the (mostly false) claim of ideological neutrality. But nominees of all ideological stripes adhere to the neutrality script, meaning that our confirmation process is a dishonest farce, even in the best of circumstances.

(4) Nonetheless, the tail shouldn't wag the dog here. Dishonest farcical hearings every few years might be an acceptable price to pay if we thought it produced a better court, all things considered. So my hypothetical constitution writer probably shouldn't pay too much attention to the impact on the selection process in deciding between a mixed-jurisdiction court and an exclusively constitutional court.

(5) Finally, and unrelated to matters of institutional design, I have some sense that the Court is deliberately lying low for this Term, with the newly reinforced conservative wing hoping that memories of the acrimonious Kavanaugh confirmation hearing fade and that they can temporarily avoid any direct confrontations with Trump or the need to validate any of his more controversial policies. But even if I'm right, I don't expect that low profile to last very long. The Court will be interesting again, and probably sometime soon. Not that I (speaking as a citizen) want interesting from this Court.


David Ricardo said...

The points made by Mr. Dorf in this post are supported if one is a subscriber to the very excellent Supreme Court Bulletin that Cornell provides as a public service.

One reason why the Court may take so many technical, non-important cases is that they have to give Clarence Thomas the opportunity to author decisions. One suspects that there is a highly secret memo in the desk of the Chief Justice addressed to future CJ's to the effect that "Never give Clarence an important case to draft a majority opinion, he doesn't know what he is talking about, and make sure the Court takes enough non-serious cases so that he can have his share of lead opinions without damaging the nation's laws".

Yes, this is sarcasm, but not entirely so.

Shag from Brookline said...

What might be the impact of "boring" on federalism if SCOTUS did not not take on non-ideological cases and took on only the "interesting' constitutional cases? Many "Uniform" laws have been enacted by many states to address problems that could arise without some uniformity in this modern post-common law age, and not just limited to business issues that cross state lines rather routinely. If SCOTUS were to challenge abortion right in an ideological constitutional decision, then the 50 states could have different abortion laws such that abortion cases might no longer reach SCOTUS. Wealthy women could vote with their feet by choosing a trip to a state with more favorable abortion rights, unless conservatives come up with a commerce clause challenge to such a foot vote, or a woman's state with tough abortion laws might exercise dormant commerce clause powers to restrict such a foot vote. In any event, we have to deal with Article III as it is written, as well as the Constitution's Supremacy Clause as SCOTUS can always act on ideology.

Based upon some of Eric's views in recent posts, I wonder if he might comment on Mike's post.

Over at the VC this morning I noted Eugene's post on his upcoming futuristic article on the "Robots Court." I only scanned it, but its focus on AI might make all SCOTUS decisions boring, although self-driving cars can still crash. With AI would the Robots Court always be unanimous? Would AI replace originalism? Or, perhaps as David has noted, SCOTUS already has AI with Justice Thomas.

Joe said...

I have but have not read Prof. Segall's recent book on originalism (with a title that reminds me of Sandy Levinson's constitutional faith book) but assume he is happy the Court is in boring mode this term. He would prefer this is typical though in his firstbook he set aside criminal law cases as more appropriate for it to decide. I note perhaps the most "exciting" of their recent grants involve such a case.

I think they are "laying low" though they did take a political gerrymandering and religious display case that might force them to do more than write eight page unanimous opinions of the sort illegitimate Kavanaugh wrote for his first opinion. Also, an administrative law case that might or might not be significant. Yes, I continue to say that since I think the two Trump nominated judges are tainted. There are major cases involving trans rights, DACA, abortion rights etc. that will have to be taken realistically at some point. To quote Prof. Colb's former boss, "the signs are evident and very ominous, and a chill wind blows."

The piece noted "A US-style Supreme Court will need to be staffed by justices who are lawyers, because most of what they do is lawyers' work." What about politicians who are also lawyers? The original Supreme Court, followed by Marshall and Taney, had multiple people of this caliber. Our mixed court warrants a mixed group of justices in that sense. One might say Kavanaugh, whose is as much a partisan as anything else, fits the bill in a sense. Justice Sandra Day O'Connor is suggested as an ideal example here.

The concern for diversity on the courts is not just about race, gender or even religion.

David Ricardo said...

Per the Post, from Cornell's LII Supreme Court Bulletin, to be argued this week to a rapt audience (good seats are still available)

Rimini Street Inc. v. Oracle USA Inc.

Does the phrase “full cost” as used in the Copyright Act and codified at 17 U.S.C. § 505 encompass non-taxable litigation expenses, including expert witness expenses and e-discovery fees beyond the statutorily enumerated taxable costs and rate setting prescribed in 28 U.S.C. §§ 1920 and 1821?

Joseph said...

Do you believe the current Supreme Court exercises considerable judicial restraint?

Granted, adopting an explicit "court" of philosopher kings would indeed be more activist and interesting.

Roberts has, for years, sought to rein in the Court. NFIB is probably the most glaring example. Other recent "interesting" cases included Masterpiece Cakeshop and the gerrymandering cases (all pre-Kavanaugh). Yet the Court ended up with fairly boring decisions. The Travel Ban case also ended unspectacularly. It seems that the current term continues on the same trajectory that Roberts has pursued of getting as far away from being philosopher kings as possible.

Important cases on sovereign immunity and double jeopardy, being considered this term, don't excite the public's passions either (not for very long anyway). Maybe it's not healthy to have the fate of abortion, marriage, or guns hanging in the balance every term. If the Court continues to be boring, in the popular sense, that should foster personal sanity without diminishing too much professional excitement. The Court will make all manner of 'terrible' decisions on issues big and small and will inevitably take up more inflammatory cases. If the Court continues to not excite public passions, might that encourage more boring but more honest hearings? And could that result in a better Court?

Joe said...

"Maybe it's not healthy to have the fate of abortion, marriage, or guns hanging in the balance every term."

It isn't but to be fair they weren't as a whole for many terms now. For instance, after deciding Heller/McDonald, the Roberts Court for years didn't really take any cases (except in one minor case) on 2A issues.

Things are different when personnel significantly changes. The Roberts Court had its moments as well. It picked its spots.

David Ricardo said...

On the other hand, Ian Millhiser over at Think Progress writes about how there might be a Republican split on the Court developing, with Alito, Thomas and Gorsuch representing the hard, hard right and Roberts/Kavanaugh representing the just hard right. He cites today's order sending White v. Kentucky back to Kentucky and the dissent by Alito, joined by Gorsuch and Thomas who would not do so.

White may be intellectually disabled and sought to have that taken into consideration in his case. Interestingly White argues his point under the Moore decision in which Roberts dissented, based on his apparent belief that if states want to execute the mentally disabled it's all right with him. His refusal to go along here is probably a reflection of his desire to not re-litigate cases rather than his concern on cruel and unusual punishment.

ALITO, J., dissenting

No. 17–9467. Decided January 14, 2019

The motion of petitioner for leave to proceed in forma
pauperis and the petition for a writ of certiorari are
granted. The judgment is vacated, and the case is remanded to the Supreme Court of Kentucky for further consideration in light of Moore v. Texas, 581 U. S. ___

JUSTICE GORSUCH join, dissenting.

The Court grants, vacates, and remands this case in
light of Moore v. Texas, 581 U. S. ___ (2017). But Moore
was handed down on March 28, 2017—almost five months
before the Supreme Court of Kentucky reached a decision
in this case. I would accordingly deny the petition for the
reasons previously stated in my dissent in Kaushal v.
Indiana, 585 U. S. ___, ___ (2018), and in Justice Scalia’s
dissenting opinion in Webster v. Cooper, 558 U. S. 1039,
1040 (2009).

The Thomas, Gorsuch and Alito alliance in this situation is just another manifestation of what we have come to expect from these decent and compassionate men who want to execute the mentally disabled. The real question is whether or not the split is real and that does provide some non-least interesting areas for the least interesting branch.

Joseph said...

Joe, I too thought the 2nd Amendment example supported my argument! :)

Agree it has to do with changed personnel in addition to Roberts' leadership.

Mary robinson said...

Enjoyed your approach to explaining how it works, hope to see more blog posts from you. Thank you! Thesis editing services