Monday, August 30, 2021

Supreme Myths II: The Roberts Court Years

 By Eric Segall

My first book, Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges, came out in 2012, about six years after the Roberts Court began. The thesis of the book was not that the Court is always partisan or that all the Justices are awful or that the country would be much better off if only the Court mirrored my progressive politics. The thesis of the book was that over the centuries the Supreme Court has not taken prior positive law seriously enough to justify calling the institution a court. 

It is relatively common ground that judges are not supposed to make all-things-considered decisions but rather they should at least minimally take prior law into account. My book discussed numerous areas of constitutional law since the Founding and reached this conclusion:

Because the Court functions much more like a political veto council than a court of law...the Supreme Court's power to overturn the important decisions of other governmental officials should be seriously re-evaluated. Perhaps, having an ultimate veto council is a good idea for a representative democracy whose people believe in limited government. But if so, we should be honest about how the council is structured and actually operates. It is well past time to pull back the curtain on, and then reassess, the Supreme Court of the United States.

I am not here to argue that in the almost ten years since the book was published the Court has been less a court than during the previous two centuries. But I am here to say that the last ten years strongly support the thesis of Supreme Myths. Moreover, because social media have dramatically altered the landscape of reporting on the Court, more and more people actually understand the inherently flawed nature of a governmental institution staffed by people with jobs for life who wield effectively unreviewable power.

The only reason Georgia can't prohibit all abortions (yet), or Chicago cannot bar all handguns (that won't change), or my public university in the heart of downtown Atlanta cannot have a quota of African American students, is because the government officials we call judges but really aren't have said so. That reason should not be good enough, at least until the Justices are honest about the role personal values writ large play in constitutional adjudication.

My book came out a little before the Court decided the landmark Affordable Care Act case, NFIB v. Sebelius. As I wrote here, the decision failed to apply pre-existing law (without explicitly overturning that law) in all of its major holdings. For example, the mandate was obviously constitutional under the commerce clause and the Medicaid expansion was obviously constitutional under the Spending Power, yet a majority of the Court reached the opposite conclusions. Few commentators suggest that prior law played a major role in Chief Justice Roberts's decision to join with the liberals to uphold the mandate as a tax while many Court watchers agree the Chief was mostly concerned with both the Court's and his own legacies--not exactly the stuff discerned from text, precedent, and history.

My book also came out before the disaster commonly known as the anti-voting rights case Shelby County v. Holder. Regardless of whether one thinks prior law supported that decision (it clearly did not), there was no plausible justification for the Court majority to accept Roberts's doctrinal shift in a prior voting rights case, upon which Shelby County relied. In that case, Roberts silently overturned a landmark constitutional holding by using ellipses to reverse the meaning of a hugely important paragraph, so he had more ammunition to strike down Section 5 of the Voting Rights Act. I wrote about that lawlessness here.

Although originalism was obviously an academic focus for many professors in 2012, few people thought that the doctrine played any serious role for the Court as an institution. While Justices Scalia and Thomas talked the talk of originalism, their votes clearly showed they were much more interested in conservative results than a good faith examination of the Constitution's original meaning, as I laid out in this law review article. Today, of course, three Justices--Thomas, Gorsuch, and Barrett--purport to be strict originalists and the discussion of the topic in legal academia has taken on huge importance. My thoughts on that matter are revealed in this book, but the point is that the lack of transparency in the Court's opinions on the question of originalism's true force as a decision-generating device has, in fact, worsened since 2012.

A major new development since 2012 has been the Roberts Court's reliance on what Professor Will Baude has called the "Shadow Docket." The Court for the first time in history has been routinely issuing important and even precedent-changing decisions late at night and on weekends without oral arguments or full briefing. Professor Steve Vladeck has written about this problem in clear-eyed detail. Needless to say, judges should not engage in issuing important national decisions prior to a full vetting of the arguments (absent emergencies). This troubling new development further supports my argument that the Court is not a court.

And so it goes. There are many more post-2012 examples of the Justices not acting like judges in such diverse areas of the law as free speech, the free exercise clause, and non-constitutional torturing of legislative text relating to class actions and arbitration agreements.

Readers of this post might be wondering about my views on same-sex marriage and the decisions in United States v. Windsor and Obergefell v. Hodges given my outspoken advocacy for gay rights. To the extent both opinions rely on substantive due process or unenumerated rights, I don't concur. Windsor, which struck down the federal Defense of Marriage Act, is also based on the equal protection clause but there is no such clause in the Constitution as applied to the federal government (though there should be). It pains me to say it, but I probably disagree with Windsor for that reason. The Justices shouldn't make up constitutional text and principles that do not exist in the text.

As to Obergefell, which overruled over 40 state laws or constitutions banning same-sex marriage, here the equal protection clause of the 14th Amendment has real force. Gays and lesbians are undoubtedly "persons" under the clause, and they were denied all kinds of legal rights by not being allowed to marry. On the other hand, there is no history supporting the Court's decision, But I am a strong believer in text, and I think the words of the equal protection clause justify the Court's decision, albeit it is a close call. In any event, nothing in either case diminishes my thesis that the Court is not a court all things considered.

I also want to say, for progressives reading this, that it is possible to be strongly in favor of gay rights and other ones such as abortion rights, and the one person-one vote rule, without necessarily thinking judges should be the public officials protecting those rights and articulating those kinds of rules.

It would not be hard for me to write Supreme Myths II: The Roberts Court. I am seriously thinking about it. But for now, the last paragraph of Supreme Myths is as accurate today as it was a decade ago:

The Supreme Court should not overturn the new health care law (or for that matter abortion laws, affirmative action laws, gun control laws, or any other law) unless the law is completely at odds with clear constitutional text [or uncontested history behind the text]. 'We the People' have only authorized the Justices to enforce the legal principles contained in the Constitution, not to enforce their personal value judgments on...important disputed questions. We should insist that the Justices act like judges interpreting prior law, not politicians who have the power to override the policy decisions of the elected branches, the states, and the American people.

If you are not sympathetic to my thesis, maybe you should listen to Thomas Jefferson, who understood better than most the dangers of unelected, life-tenured national judges who, to him, had the potential to cause great harm to our country: "The Constitution...is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." 

Just so.

16 comments:

  1. This is an old debate, so I won't engage it much here, except to restate my major points of disagreement with Prof Segall: (1) I am almost as much of a legal realist as he is, but, with an important exception, I see substantially less difference between the Supreme Court and the lower courts than he does. (2) The difference is that the Supreme Court can overrule its own precedents, but as he notes here, it is often possible for a court to reach a result contrary to the seeming weight of precedent without expressly overruling, and we often see that phenomenon in the lower courts as well, making the important exception noted in (1) less important in practice, except with respect to finality. (3) I am not persuaded that denials of equality announce themselves with greater clarity than do denials of liberty, and thus I do not think that equal protection provides the escape hatch Prof Segall seeks from the implications of his generally Thayerian view (i.e., the view that judges should defer to legislative judgments regarding constitutionality, except in cases of clear unconstitutionality). For one thing, as he notes, there is no EPC applicable to the federal government. (His view implies that Bolling v. Sharpe, which invalidated de jure racial segregation in DC, is wrong.) For another, there is a large body of persuasive scholarly literature arguing that competing conceptions of equality rely on competing substantive value judgments in just the same way as do competing conceptions of liberty. To the extent that Prof Segall is simply objecting to substantive due process on textual grounds, there is of course the 9th Amendment for the federal government and the Privileges or Immunities Clause for the states.

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  2. Mike’s point about equal protection is fair and I can’t do justice to the argument here other than to say at least it is in the text, we know its history is quite contested whereas SDP is not in the text and we can be quite confident the 10th was never supposed to be a font of judicially enforceable rights. In any event, my main point here is the Court doesn’t take prior law seriously enough to justify the label court whatever possible incoherence my own views reflect regarding judicial deference.

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  3. By the "10th" Eric no doubt meant to refer to the 9th Amendment, but I'm not sure why he is so confident that it is not a basis (whether or not a "font") for the legitimacy of inferring unenumerated rights. Here, for example, is a 2008 article by Randy Barnett exploring a range of views by himself, Dan Farber, and Kurt Lash, with only Lash coming close to Eric's position: https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1842&context=facpub . More broadly, I share the view most elegantly articulated by Dworkin that the very notion of "unenumerated" is highly misleading, insofar as it suggests that enumerated rights (like "freedom of speech" or the right against "unreasonable searches and seizures") call for a very different mode of interpretation.

    All that said, I agree with Eric that the Supreme Court gives precedent a substantially smaller role in its decisions than we expect to see in lower courts, but as I said before, some of that is merely formal. To the extent that there's a genuine difference, some of that difference may be selection bias for the docket of a court of last resort.

    But to end on a point of common ground, none of what I've said in this comment should be taken as a defense of the Roberts Court.

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  5. Mike is right, I did mean the 9th. Through my own research and that of Jud Campbell, I am convinced the founders did not equate natural law rights with judicially enforceable rights, and the 9th was designed as a natural law provision. As to precedent, the Court's right to reverse itself is only one small piece of my argument for why the Court is not a court. I won't repeat what I've said before other than to say there is a huge difference between having the final say (even if it is hypothetical in 99% of cases) and not having the final say. Think of a Dean who never has to report to any Provost, President, or Board of Regents or a CEO with no Board of Directors. A person in that position will do her job differently than if she has to answer to someone else, In the case of the Justices, that means they will make all things considered decisions with the only limit being their perception of what the people or the political branches will not accept, and that limit is not derived from law.

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  6. Just my .05 & it won't settle anything. I agree with various details but think overall I'm on the side of Prof. Dorf on various big picture things.

    As a matter of scope, surely, the power of the Supreme Court (sic) is higher, but I'm not sure how as a matter of technique they really act much different than state supreme courts.

    State courts also have a certain reach that is limited -- if some state court (as one did) held that the state constitution didn't allow the governor to act in such and such a way given the emergency of COVID, it can't be overturned by the Supreme Court.

    The ability (still not easy) to overrule that might be easier that a federal constitutional amendment, but "it's easier to overturn" doesn't to me make something a "court." Courts might act in ways they should not; I would argue on that, not some Plato-ian forms idea of what a "court" should be.

    I fear that is better as hashtag than full argument.

    My research is much less than a law professor, but I have read some (by other law professors etc.) that argued natural law were seen by various Founders (not that I care that much ... I'm not an originalist) as enforceable in various ways. This includes someone like John Marshall, a ratifier of the Constitution.

    Not that I think it is shown the 9A is merely about that.

    Anyway, by at least the mid or late 19th Century, that was the understanding -- some unenumerated liberties protected by the Constitution that today is expressed as substantive due process. And, the people as a whole accept this, including by who their representatives put on courts.

    As the the equal protection component of due process, again, various scholars covered this & anyway it is longheld precedent that goes back in some fashion over 100 years. For instance, there was always some principle of equality ("we hold these truths to be self-evident") & this was seen as a what was required for just governmental action. A form of substantive due process (if by another name early on) applied the principle, including in the courts.

    Someone like Justice John Harlin also argued that the Citizenship Clause and so forth (these arguments of principle were not focused on one particular clause over the years) protected equality. The case arising out of D.C., a companion to Brown, cited for instance an old opinion by him:

    "Underlying all of those decisions is the principle that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government, or by the States, against any citizen because of his race. All citizens are equal before the law."

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    1. other than the 11 million birthright American citizens without voting representation in Congress, or anybody involved with law at all- as they are unlikely to ever face consequences of law. Or offenders of color of law violations.

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  7. An addendum.

    The issue of race is easier, but then and now, the general principle was not just applied to race. "All citizens are equal before the law." And, even that is only somewhat modest especially since originally alienage was often seen as overlapping with race.

    For instance, various people (see, e.g., Andrew Koppelman & at least one of the law professors who took part in the "What Roe Should Have Said" project/book) noted that abortion rights are tied to 13A rights.

    Anyway, federal equal protection cases including Windsor, often can be argued on other grounds (textual or otherwise). Not that constitutional text is the only way the Constitution was every applied. I don't claim that is assumed but text is cited as of special note.

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  8. It seems like "not a court" because it does not have hearings, at least not as many as your average COngressional committee.

    But the elections stuff is where it gets egregious. The Whitford- Gill ruling of nonjusticiability- a Taney court term from Luther vs Borden, making Constitutional invalidation a regular feature of the Article III branch... is not defendable. In fact compact contiguous districts was the law of the land until around the time a lot of things seemed to go backwards, 1915 or so. A serving of Frothing Ham for anyone?

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  9. Eric, I'm confused by your assertion that the court's affirmative-action cases lack grounding in the Constitution, given (1) your suggestion that the "text" alone of the equal protection clause *alone* may support gay rights against state govts; and (2) your acknowledgement that the text of the equal protection clause does *not* apply to the federal govt. More specifically:

    On your view of the "text" of the equal protection clause, how does it not proscribe giving preferential treatment to blacks and hispanics over asians (let alone to individual blacks and hispanics who haven't been recent victims of discrimination over individual asians who have been more recent victims of discrimination)? That would seem to be, *a fortiori*, the denial of equal treatment for such "person(s)", given that it (1) involves differential treatment on the basis of race (the EPC's primary focus), not same-sex orientation (largely condemned at the time of the EPC); and (2) it involves *adverse* treatment against a *racial minority* that has suffered a long history of discrimination (of course, not as much as the historical discrimination against blacks -- though I think there's a pretty good argument to be made for at least as much discrimination as against Hispanics (cf. Chinese Exclusion Acts, Japanese internment, post-9/11 targeting of Muslims).

    Now, in the past, you've tried to suggest that, *despite* the text of the EPC, history somehow doesn't support the view that *preferences* for racial minorities were prohibited. But now that you've acknowledged that the EPC didn't apply to the federal govt *at all*, what *state* legislation at the time of the EPC provided preferential treatment *on the basis of racial minority status* (rather than on the basis of former status as slaves), let alone *against other racial minorities*?

    Simply put, your suggestion that discrimination by state govts against asians and whites for the benefit of blacks and hispanics is constitutionally fine despite the EPC, but discrimination by state govts against gays may be constitutionally problematic under the EPC strongly suggests that your own policy preferences are affecting your supposed adoption of Thayerian restraint in the absence of clear text.

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  10. I understand your basic position: because rulings can get too loose and tainted by a judge's personal perspective on things, it's best to advocate for pretty extreme judicial restraint.

    But I wonder if that merely presents an easy way out of a problem that is designed to be hard.

    If these assumptions are true:

    1) The constitution is fundamental law in substantive areas - i.e., non-majoritarian.

    2) The most important clauses are lofty and aspirational - "equal protection," "due process," "speech", on and on...

    Then how can we just leave it to majoritarian bodies to answer all these basic questions? Is it not too much to give them almost exclusive ownership of transactional AND fundamental law?

    I realize that you've made a ridiculously strong case that justices in many cases pretty clearly desire an outcome, and from there they back into rationalizations. But in some ways, that just seems to reflect that there are multiple ways to interpret these fundamental principles. Is that really a bad thing? Perhaps the only true originalism is that the framers knew the courts could approach these things differently, and they fully expected fundamental law to have an indeterministic common law dynamic.

    Even accepting that all judges are "activists", it still seems to me that there are several coherent philosophies in the trade. And since SCOTUS justices are ultimately accountable to the people via elections*, even "activist" judging will track the long horizon of society's evolving standards.

    *admittedly, this general sync with society might be way out of balance now - the population is much more progressive just as the court has lurched conservative in a big way - after Republicans abused the system with Garland. But that can be fixed via one of these smart reform ideas floating around.

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  11. If the Roberts Court was consistent, the case holding that partisan gerrymandering was non-justiciable would have gone done better. The Guarantee Clause is open-ended too & has a feel of something Congress should have broad discretion to use.

    But, then, Shelby v. Holder etc. showed the Roberts Court are willing to not be hands off here. I don't think it was sound on the merits. It failed also as a matter of consistent minimalism.

    egarber is correct that reform ideas are correct on principle.

    The concern is that the Court will be tainted and the whole thing will be tit for tat political but the first is a horse out of the stable & the second has an "it's okay [if a bit upsetting for some] for Republicans to do it but don't dare respond" flavor to it. Anyway, reform is not just code for "expanding the Court."

    https://www.whitehouse.gov/pcscotus/

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  12. Hashim, I don’t agree that racial preferences leading to a more diverse class is “discrimination.” So the rest doesn’t matter. I appreciate all the comments and critiques from everyone but I’m under water right now. Thanks everyone.

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  13. Perceptions may differ. Unlike egarber, I don't see SCOTUS accountable to anyone. Once hired, I am accountable in my workplace: I can be demoted, dismissed etc. It just seems to me that once seated, a Justice can look forward to a life tenure with no performance review nor any consequences for any action (not) taken. That doesn't seem to me like accountability at all.

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  14. Fred, fair enough. I was talking more about institutional accountability across time, since voters get the chance to reset expectations. But like I said, that only works if the system can't be gamed to create imbalances.

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  15. It is true that justices in particular (no binding ethics rules; it's hard, but lower court judges can be targeted, even blocked from presiding over court for some period) have few restraints. Maybe, a blog post on the restraints that should be in place would be a good idea. Prof. Segall, e.g., argued recently jurisdiction restraints are proper.

    Impeachment is mostly theoretical at best though a small number of federal judges were pressured to resign (less removed) by that route. Abe Fortas was rather unique as a justice who was actually pressured to resign from the Supreme Court.

    There are limits on judicial decisions -- we saw that, e.g., after Brown v. Bd. on the ground, often to bad effect. But, true in other cases too. Congress can also overturn statutory rulings by passing new statutes. They did that sometimes.

    A more high stakes move would be to do something like alter jurisdiction. At some point, that very well might be a sound approach. In the beginning, the Supreme Court had less jurisdiction. For instance, if a state court made a federal constitutional decision, the original judiciary act only allowed appeals to the Supreme Court in certain instances.

    A major restraint is personal self-restraint, which was deemed important originally (theories of honor) and on some level even today. Even someone like Justice Clarence Thomas, e.g., isn't as openly political as his wife is. This is a matter of self-restraint, since again there is no express ethical rules binding on justices.

    This last thing probably is something some might treat with some disdain, but it very well seems like it concerns them to some degree (as does some other possible action). On that front, it is appropriate to strongly criticize what they do if they do something very inappropriate. I fear some law professors and others treat the Supreme Court too gingerly. I don't ask for unreasonable criticism. There is some of that.

    But, valid criticism, with some credible threats of means of checking justices [e.g., it's appropriate and possible as compared to realistically term limits for Congress to fully investigate the Kavanaugh confirmation process, which was problematic in multiple ways]

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