Category: Supreme Court

Toobin’s The Nine: Lost Illusions

toobinnine.jpgI thoroughly enjoyed my speed-read of Jeffrey Toobin’s The Nine. Few books wrap so many deliciously gossipy details about the justices’ life and work around one fundamental insight, which I’ll relate upfront:

[Chief Justice Roberts has said] “Judges are like umpires. Umpires don’t make the rules; they apply them.” [But] Supreme Court justices are nothing at all like baseball umpires. . . . When it comes to the core of the court’s work, determining the contemporary meaning of the constitution, it is ideology, not craft or skill, that controls the outcome of the cases. As Richard A. Posner. . . has written, “It is rarely possible to say with a straight face of a Supreme Court decision that it was decided correctly or incorrectly. . . . [They] can be decided only on the basis of a political judgment. . . . “. [W]hen it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices.

Toobin shows how the justices’ stands are deeply rooted in their biographies, ideologies, and personalities. For example, Thomas loathes Yale (he placed a “Yale Sucks” bumper sticker “on the mantel of his chambers for some time”) and loves Red State NASCAR culture. Breyer’s cosmopolitan views reflect bien pensant Cambridge (Mass.) and Oxford (England). It would take a minor miracle to get these two men to see affirmative action, campaign finance regulation, or abortion in the same way. And frankly, their divergent worldviews will often lead to irreconcilable conflicts on statutory interpretation as well.

Toobin’s book accelerates the classic dynamics of celebrity: it feeds public interest in the justices’ quirks and peccadilloes, then leaves us wondering: why are these people so powerful, anyway? As Britney wilted under constant media scrutiny, so too do the justices appear all-too-human under the glare of Toobin’s meticulous reporting. Toobin claims that the last five justices appointed have “turned out precisely as might have been expected by” their presidential sponsors. He gives the impression that they mechanically advance the interests of the political machines that elevated them.

So where does this leave lawyers? Perhaps a bit more comfortable with the administrative state, which can be more frankly (and accountably) political. Some agencies may also find their legal “freedom of maneuver” more constrained by science and expertise than the Supreme Court would. As Cass Sunstein has stated, “the law’s meaning is not a ‘brooding omnipresence in the sky’–and . . . the executive, with its comparative expertise and accountability, is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often depends.” Until a book like The Five (about, say, the Federal Communications Commission) shatters our faith in their capacity to escape capture and promote the public good.


Jurisdiction and Textualism

I just posted a draft of a paper on SSRN. It is called “Jurisidiction and Textualism,” and it is about the treatment by textualists of jurisdictional statutes, and what that treatment suggests both about textualism and about the broader debate over the relationship between Congress and the courts in crafting a jurisdictional regime. Here is the abstract:

Recent legislation has reinvigorated the scholarly debate over the proper relationship between Congress and the federal courts in matters of federal-court jurisdiction. The traditional view of jurisdiction-stripping is that Congress has virtually plenary power to determine the jurisdiction of the federal courts. Others have argued that there are substantial limits on Congress’s authority to deprive the federal courts of jurisdiction over certain matters. A similar debate has raged over the obligation of federal courts to exercise jurisdiction that Congress ostensibly has conferred. Since the debate over Congress’s role in crafting a jurisdictional regime last flared in full force, textualism has been ascendant as a methodology for interpreting statutes, and has had a profound impact on the way that judges—textualists and non-textualists alike—read statutes. The rise of textualism provides an important opportunity to update the long-standing debate over the proper roles of Congress and the courts in matters of federal-court jurisdiction.

Like the debate over congressional control of the federal jurisdictional regime, textualism is largely about the judicial role in a democracy. Textualists argue that only their methodology recognizes the properly limited judicial role, and they insist that judges must be faithful agents of the legislature, guided by the plain meaning of statutory text. To the extent that textualism has had a significant impact on judicial decision-making, particularly by the Supreme Court, we might expect to see a move towards strict interpretation of jurisdictional statutes, and a vindication, at least as a descriptive matter, for the strong congressional-control models. After all, if the textualist judge is supposed to act as a faithful agent of Congress, following the plain meaning of statutory text, then when Congress plainly withdraws jurisdiction, faithfully textualist judges can be expected to decline to exercise authority; and if Congress confers jurisdiction without qualification, then we might expect textualist judges to eschew arguments for implicit exceptions to the exercise of jurisdiction. In practice, however, textualism has been applied somewhat unevenly to jurisdictional statutes. Although the Court’s textualists have strictly read statutes that purport to divest the federal courts of jurisdiction, they have not been as consistent in applying textualism to statutes that appear, based on their plain language, to confer expansive grants of jurisdiction.

Textualism’s goal to limit the judicial role in a democratic society is advanced by strict interpretations of statutes purporting to divest the courts of jurisdiction. But when Congress appears to confer broad grants of authority—such as in the general federal-question statute—being a truly faithful agent based on statutory language will result in a more robust judicial role than some textualists might otherwise prefer. The treatment by the Court’s textualists of jurisdictional statutes suggests that the textualists’ urge to constrain judicial power has sometimes trumped the textualists’ demand that courts act as faithful agents of Congress by considering only the plain meaning of statutory language in deciphering Congress’s instructions.

This has implications both for textualism and for the larger question of the proper relationship between Congress and the courts in crafting a jurisdictional regime. It should force textualists to defend their approach more explicitly as a device for constraining judicial authority, and perhaps less as the optimal means for implementing a theory of faithful agency in statutory interpretation. And it suggests that, at least as a positive matter, the strong congressional-control models of federal jurisdiction have not yet fully prevailed, at least with respect to the question of the courts’ authority to decline to exercise jurisdiction that Congress ostensibly has granted.

You can download the paper here. I welcome any comments.


End Life Tenure for Supreme Court Justices?

court2.jpgIt’s an old debate, but an important issue: Should U.S. Supreme Court justices have life tenure? Linda Greenhouse has an interesting article in the New York Times:

One reason for the growing consensus is that the practical meaning of life tenure has changed dramatically in recent years. Between 1789 and 1970, according to statistics in an article by Profs. Steven G. Calabresi and James Lindgren of Northwestern University Law School, Supreme Court justices served an average of just under 15 years, with vacancies on the court occurring about once every 2 years.

Since 1970, justices have served nearly twice as long, more than 26 years, with the average interval between vacancies stretching to more than 3 years. (Life tenure today, of course, has a dimension that would surprise the Constitution’s framers; since 1900, the average life expectancy, now 77 years, has increased by 30 years.)

The various proposals differ in big and small ways, although staggered 18-year terms of active service is clearly the most popular choice among those advocating change. Once fully phased in, 18-year terms would permit presidents to make a Supreme Court appointment every two years. The proposal, made by the two Northwestern professors in an article published last year in the Harvard Journal of Law and Public Policy, would require a constitutional amendment, they believe.

Two other advocates for change, Profs. Roger C. Cramton of Cornell Law School and Paul D. Carrington of Duke Law School, say the same result could be accomplished by legislation; their proposal, which they call the Supreme Court Renewal Act, has not found a sponsor. After 18 years, justices would move to senior status, retaining the perquisites of federal judges but no longer hearing cases except to fill in for vacancies.

Meanwhile, each president would get to make two Supreme Court appointments during a four-year term. As the court grew, the nine most junior members would serve as the active justices. . . .

Few other legal systems have taken American-style life tenure as a model. Most countries place term or age limits on their high-court judges, as do 49 states (all but Rhode Island). That fact “demonstrates that there is not the slightest need to grant life tenure in order to guarantee an independent judiciary,” Professor Levinson of Texas wrote last year in his book “Our Undemocratic Constitution.”

I’m in favor of limiting the terms of Supreme Court justices. This will ensure a more even rate of turnover for the Court, and encourage presidents to appoint older more experienced individuals to the Court rather than youngsters who will stick around for eternity. It will prevent one justice from dominating the Court, and it will lower the stakes in any particular Supreme Court appointment, hopefully lessening somewhat the immense politicization of the appointments process.


The Supreme Court and Law Review Articles

Last term, when the Supreme Court decided Philip Morris USA v. Williams, a case involving constitutional limits on the award of punitvie damages, I was surprised to find that the Court did not once cite an article by my colleague Tom Colby. In the case, a majority of the Court essentially adopted wholesale the argument that Professor Colby had advanced in a 2003 Minnesota Law Review article. (There is little doubt that Justice Breyer, who wrote the majority opinion, was aware of the article, because the parties’ briefs cited it repeatedly.) I then learned that Linda Greenhouse had previously reported that Chief Justice Roberts seems inclined against citing law review articles in opinions. (Greenhouse had described it as Roberts’s “seeming allergy to citing law review articles.”) I began to wonder whether this is a trend, and whether we can expect the Court to cite fewer and fewer law review articles in its opinions.

After an admittedly quick search, here is what I learned. From the October 2000 Term through the October 2004 term, the Court averaged 24.8 cases per term in which at least one opinion cited at least one law review article. In the October 2005 Term — Chief Justice Roberts’s first term — the Court decided 28 cases in which at least one opinion cited at least one law review article. (As Greenhouse reported, during that term, Roberts himself cited only one article, by Judge Friendly, for whom he had clerked.) But in the most recent term — the October 2006 term, during which the Court decided the Williams case — the Court decided only 16 cases in which at least one opinion cited at least one law review article. Here are the year-by-year numbers:

October Term 2000: 26

October Term 2001: 20

October Term 2002: 21

October Term 2003: 28

October Term 2004: 29

October Term 2005: 28

October Term 2006: 16

It is too soon to tell whether the decline in the most recent term signals the start of a trend or is just an aberration, although the reports about Roberts’s view of the relevance of law review articles suggests at least that this is a trend worth following. But let’s assume for a moment that it is part of a trend. Is there anything wrong with the Court’s ostensibly relying on arguments developed by academics without citing the sources of those arguments? (I am assuming for present purposes that the Justices (or at least the clerks) will be aware of the body of legal scholarship relevant to the questions before the Court.)

On the one hand, the Justices regularly adopt without citation arguments advanced by the parties in their briefs, and although there might be occasional grumbling from advocates who thought they deserved some acknowledgment, I have never heard anyone suggest that there is something problematic or dishonest about this approach. On the other hand, my sense is that, at least as a matter of tradition, the Court has generally cited authorities external to the litigation itself when its arguments are drawn directly from them. In addition, most law schools today stress to students the importance of attribution, in both legal advocacy and scholarship. Of course, failure to cite law review articles is not the same as academic dishonesty. But given the general preference for attribution, perhaps the Court’s failure to treat articles as persuasive authority — if in fact that is what it is doing — deserves some explanation. I am curious to hear what others think.

Captured Product Safety Commission

nord.jpgAbout a year ago I heard a radio story about a new technology called SawStop, which is designed to prevent table saw injuries. Every year table saws cause “over 60,000 injuries, over 3,000 amputations, and $2 billion in injury-related costs.” SawStop petitioned the Consumer Products Safety Commission to issue new rules to encourage manufacturers to increase the safety of their saws. After years of lobbying, SawStop appeared to get the CPSC to agree…but then its chairman resigned:

[T]he CPSC staff recommended the petition be granted. On July 11, the commission voted, 2 to 1, to start the process of making a new rule, a job that can take years. [Sawstop’s founder and attorney] said they felt vindicated, although the rejoicing ended four days later when Stratton resigned from the agency. One of the remaining commissioners, Nancy A. Nord[pictured at right], wanted to defer action on the petition and instead look at voluntary efforts being made by the industry. . . . Julie Vallese , CPSC spokeswoman, said the saw-safety standard idea isn’t dead but that the agency’s “decision-making procedures” don’t allow the rulemaking to advance with what amounts to a deadlocked commission.

I was surprised by that story, but apparently gridlock and apathy are par for the course at the agency. For example, it has protected ATV manufacturers from regulation, despite the fact that in 2004 “44,000 children riding all terrain vehicles were injured . . . nearly 150 of them fatally.” Here’s one insider’s account of that decision:

[At a hearing on the matter,] John Gibson Mullan, the agency’s director of compliance and a former lawyer for the A.T.V. industry . . . [said that the] current system of warning labels and other voluntary safety standards was working, he said. “We would need to be very careful about making any changes.” Robin L. Ingle, then the agency’s hazard statistician and A.T.V. injury expert, was dumbfounded. Her months of research did not support Mr. Mullan’s analysis. Yet she would not get to offer a rebuttal. “He had hijacked the presentation,” [she said].

A bit more commentary below the fold. . . .

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Some Thoughts on the Supreme Court’s Reversal Rate

supremecourt6.jpgEvery term, commentators attempt to predict the outcomes of the cases in the Supreme Court docket. The statistics, however, suggest that the betting person’s answer should be reversal. According to a recent article in Slate, and based on SCOTUSBlog data (2004 term, 2005 term, 2006 term):

Overall, this past term the Supreme Court reversed 75.3 percent of the cases they considered on their merits. The pattern holds true for the 2004 and 2005 terms as well, when the Supremes had overall reversal rates of 76.8 percent and 75.6 percent, respectively.

It is interesting how remarkably constant the reversal percentage is — 75%. It suggests that the Supreme Court primarily takes cases it wants to reverse, with only a few exceptions. Assuming the Court takes about 70 cases a term, it will only affirm in about 17 of them. So perhaps the new game for commentators should be listing those 17 lucky cases that will get affirmed.

Much ado has been made of the 9th Circuit’s dubious honor of having the most cases reversed or vacated — 19 out of 22 this term. But the 9th Circuit decides an incredibly large number of cases, and it typically has the most cases of any circuit before the Court. So it is likely to be victorious every year in terms of numbers of cases reversed. One must look at its reversal percentage to get a better picture, and it typically exceeds the average of about 75% by being between 80 and 90%. However, as the Slate article points out, in 2004 and 2005, “the 9th was reversed 84 percent and 88.9 percent of the time, or about a case or two more each year than it would have been if it had conformed to the reversal rate of the other circuits.” In other words, the 9th Circuit’s bad reversal reputation is largely earned because it’s big.

I wonder whether the Supreme Court’s reversal rate of 75% is a recent phenomenon or existed throughout its history. Does anybody know of where to find stats on reversal rates beyond recent times?

Another interesting statistic, but surely not one easily compiled, would be to examine the percentage of cases contrary to Supreme Court precedent that lead to a grant of cert. Judging from the 9th Circuit statistics, it decides about 6000 cases per year, and the Court takes about 20. That’s 0.3%. If that rate holds true generally — that the Court is taking just a fraction of one percent of cases, it can mean one of two things: (1) the Court is ignoring many cases in which lower courts depart rather overtly from Supreme Court precedent; or (2) lower courts are doing a remarkable job of staying in line with the Court.

It is doubtful that a statistic exists for cases that depart overtly from Supreme Court precedent and their likelihood to result in a grant of cert, and such a tally would necessarily involve some subjectivity, but it would be interesting to find out. Assuming that the Court takes about 70 cases per year, and reverses in 75% of them, that’s only about 53 cases. Many of those cases are reversed not because lower courts clearly contravened Supreme Court precedent, but for other reasons such as circuit splits or issues of first impression. Only a handful, then, are reversed for involving significant departures from Supreme Court precedent. Can it be that there are only a handful of such cases? Or is the Court just ignoring the others?


The Second Amendment Term?

billofrights.jpgDistrict of Columbia Mayor Adrian Fenty announced today that the District will petition the U.S. Supreme Court for certiorari in the landmark Second Amendment case of Parker v. D.C. The District has asked for a 30-day extension of the August 6 deadline for filing its petition.

There has been extensive and lively discussion of Parker, yet I think the legal commentariat has not quite grasped how momentous a cert grant would be. It’s not often that the Supreme Court takes up the core meaning of an entire Amendment of the Bill of Rights, in a context where it writes on a mostly clean slate from the standpoint of prior holdings. If the Court takes the case, then October Term 2007 becomes The Second Amendment Term. Parker would swiftly overshadow, for example, the Court’s important recent cert grant in the Guantanamo cases.

How many Americans would view District of Columbia v. Parker as the most important court case of the last thirty years? The answer must run into seven figures. The decision would have far-reaching effects, particularly in the event of a reversal.

Here is one way to think about the message the Supreme Court would be sending if it reversed the D.C. Circuit on the merits in Parker:

Among the guarantees of the Constitution’s Bill of Rights are the First Amendment’s Establishment Clause and the Second Amendment. The cultural left has traditionally favored a vigorous application of the Establishment Clause. The cultural right has favored a vigorous application of the Second Amendment.

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When the Roberts Court Turns Into the Kennedy Court: End-of-Term Thoughts

janus_small.jpgBy my watch it’s fifty-five hours since the final decisions of the Supreme Court’s October 2006 Term, and it already feels late to be weighing in. Some clichés are important enough to repeat: the pace of analysis, spin, and critical consensus is radically different from what was possible even ten years ago. As one of my former philosophy profs (a Heidegger fan) observed, the Internet is an ontological change.

What kind of Court do we have? Start with Andrew Siegel’s excellent “Meet the Roberts Court” at PrawfsBlawg (written before the school cases came down). Then modify it with Lyle Denniston’s “The Impact of Fervent Dissent,” (written after the school cases). The result, I think, is the best current working model of the Supreme Court.

In the general run of cases, it is the Roberts Court. As Prof. Siegel suggests, the addition of Justice Alito to form a five-Justice working majority has put the “Reagan Justice Department … firmly in control,” limiting and distinguishing Warren and Burger-era precedents. Justice Kennedy is still the swing vote in these cases, but he seems to treat them as “normal science” (to use a Kuhnian distinction that I find oddly helpful re: Kennedy). He will ordinarily agree with the Chief Justice and Justice Alito, or stake out a position in conventional legal terms that comes close to theirs. This is very significant, because the cases in this category are not merely “small” cases — they encompass some of the most important things the Supreme Court does. Enforcing habeas deadlines, refusing to extend the Establishment Clause standing exception, adopting relatively pro-business interpretations of statutes such as Title VII. It adds up. But these cases fall below the threshold of drawing widespread attention from the non-lawyer media and the public. They are not lead stories on CNN.

In the really big cases — the CNN cases — it’s the Kennedy Court.

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Game Over for Campaign Finance Reform?

moneyshirt.jpgCommenting on today’s decision on campaign financing (WRTL v. FEC), Richard Pildes highlights how a seemingly technical insistence on the protection of “issue ads” may undo the whole edifice of regulation:

[T]he analogy to the regulation of pornography is hard to miss here; there, the Court held that as long as sexual material had any other “redeeming social value,” the First Amendment protected it. In consequence, we saw the birth of x-rated films that offered just a bit more than unadulterated scenes of sex. Now, we are likely to see a return of the kinds of ads we saw before McCain-Feingold: ads that contain a fig-leaf of reference to issues that is just enough to give them constitutional protection, even if the ads are close to hard core efforts to influence election outcomes.

Expect more Swift Boatings and character assassinations, bedizened by fleeting mentions of “the issues.”

Commentators in the “thick of it,” far more knowledgeable on the topic than me, have declared WRTL a “sea change,” effectively repudiating the landmark McConnell decision that was only reached four years ago. But I have a sense the seeds for WRTL were sown about 30 years ago in Buckley, the leading case on campaign finance. Consider this ringing declaration from the 1976 Buckley opinion:

[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.

As soon as that point is capitulated, campaign finance reform becomes (to borrow a Borkian turn of phrase) a policy at war with itself. We already have anti-bribery laws to prevent quid pro quo exchanges of dollars for favors. Campaign finance regulation’s raison d’etre is to prevent the conversion of economic into political power. Buckley declared that rationale unconstitutional, and no advocacy is brilliant enough to evade those confines. Trying to argue for effective campaign finance regulation within the confines of Buckley is like trying to compose an epic in a villanelle: the form itself defeats the meaning one would give it.

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Rosen’s Crabbed View of Judicial Temperament

RosenBook.jpgI recently finished Jeffrey Rosen’s The Supreme Court (can you say “read” if you listened to it on your iPod?), and I found myself rather underwhelmed with Rosen’s analysis of what he took to be his central theme: judicial temperament. In many ways Rosen’s book is very good. It makes the springes of constitutional law approachable for a general audience, and provides a chatty and gossipy look at the Supreme Court that manages to provide a real sense of some of the personalities of the justices, as when he describes William O. Douglas as “a judicial lounge act.”

Rosen presents us with a white hats vs. black hats vision of the Supreme Court. The good guys are genial institutionalists like John Marshall, Hugo Black, William Rehnquist, and — most of all — John Roberts. The bad guys are brilliant loners like Oliver Wendell Holmes Jr., William O. Douglas, and Antonin Scalia. In Rosen’s book judicial temperament refers to the ability to husband and increase the legitimacy of the Supreme Court by behaving in a statesman like way and refusing to allow abstract philosophies dictate imprudent results.

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