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.