Boycotting Supreme Court Arguments

There is a lot of loose talk these days about whether the Supreme Court is in the midst of a legitimacy crisis. (The Garland nomination, the Kavanaugh confirmation.) Back in the day, there were real objections to the Court’s legitimacy that were expressed by boycotting Supreme Court arguments. Madison famously did not defend the Administration in Marbury v. Madison. Georgia did not show up for Worcester v. Georgia. And so on. I’m not sure what the last case was where one of the parties refused to file a brief or argue their position in the Court (it’s an interesting research question).

I highly doubt, though, that any litigant would respond to a certiorari grant by saying: “We cannot get a fair hearing in the Supreme Court and thus will not appear.” Thus, this suggests that legitimacy concerns are hyperbole.

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5 Responses

  1. Joe says:

    Garland for et. al is a legitimacy crisis but yes like only one Republican against Kavana augh, for now, it’s low simmer. Let’s see if it 5-4 blocks something big on partisan type grounds.

  2. Brian Frye says:

    In United States v. Miller (1939), (pro bono) counsel for the respondent did not file a brief or show up for the argument. You can read about it here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=981831

  3. Joe says:

    U.S. v. Miller is an interesting case though does not seem to be a “boycott” situation or anything.

  4. Brett Bellmore says:

    Finally fixed?

    It’s not a real legitimacy crisis, that would require people across the political spectrum doubting the Court’s legitimacy. All that’s going on here is that the left no longer admits that any institution it doesn’t control can be “legitimate”.

    Outside the fever swamps of the left, there’s no crisis.

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