SCOTUS Thoughts
Puzzle: Aristocracy of the Robe
As the current term of the U.S. Supreme Court has come to an end, we have seen the usual flurry of major decisions. It is perfectly normal that important decisions come in June because such important cases are the ones that take longer for the justices to process, decide, and write their opinions.
News coverage of the Supreme Court draws on the journalists and lawyers whose job it is to pay close attention to the Court’s rulings. You may have already read about the positions taken by the Court in the cases that interest you. You might have heard snippets from either the oral arguments, in which the justices discuss cases with attorneys for the parties, or from the Court’s opinions—majority opinions written to explain the Court’s rulings, as well as dissenting opinions written by justices who disagree with those explanations and rulings.
Though I have spent many years teaching undergradauates about constitutional law, my aim in this post is not to provide a detailed review of the legal reasoning found in recent decisions. To probe their respective claims and arguments, I would recommend that you read the Court’s opinions or follow the analyses available on such sites as SCOTUSblog. If you wish, I am certainly happy to discuss the details of decisions and commentaries at another time. Post a note or comment in Substack and I’ll join you in conversation.
What I want to do here is to provide some context within which to frame the debates about the Court and its decisions. It is important to do so in order for us to think clearly about the Suupreme Court and its role in American politics. For clarity’s sake, then, several points need to be made.
First, it is important to recognize that because of the way justices are selected, the Court’s views tend to represent not the current policy consensus but rather reflect the positions of a previous policy regime. Today’s justices don’t necessarily reflect the stances of today’s Congress or the current President, let alone the public’s views as expressed in public opinion polls. The Court generally will be out of step with where society is. Sometimes, this enables the institution to serve as a brake upon unconstitutional actions taken by other parts of the government. At other times, it demonstrates that thee Court can be an obstacle to progress and change.
The current incarnation of the Roberts Court, with its “conservative” super-majority, generally sees itself as a bulwark against the perceived excesses of the “liberal” political coalitions that governed the U.S. through the 1960s. The Court’s critics however see its as out of touch with the contemporary realities of a country struggling to atone for its past mistakes by building a multiracial, egalitarian democracy. It is noteworthy that that this Court is not only reflects a “blast from the past”—that is, embodies the concerns and views put forward during decades of Republican governments—but it also has a reactionary cast. It not merely seeks to issue correct rulings in the context of long-established precedents, it aims instead to right what it sees as the fundamental jurisprudential and societal “wrongs” created by those precedents themselves.
Second, the Supreme Court is typically seen as a high-minded legal institution. Occasionally, people regard the justices as a gathering of the best judicial minds in the country. Imagine the Court as addressing and solving the thorniest legal controversies of the day, with an eye toward advancing the permanent values and interests of the nation—or simply, as Chief Justice John Roberts once said, calling “balls and strikes.” Most folks thus tend to think of the Supreme Court as something of a mash-up of the founders at the Constitutional Convention and Plato’s philosophical guardians. Yet, based upon the way justices are appointed to the way they tend to vote on cases, we need to recognize that the Court is also a political institution. Appointees to the Court are chosen along partisan lines and endorsed for partisan reasons—with some nominees kept off the Court because of strong partisan opposition. Moreover, studies have repeatedly shown that justices embrace legal stances that are quite consistent with their own judicial and practical philosophies—philosophies that nevertheless track with the policy preferences of the major political parties. Finally, because the Supreme Court has “neither FORCE nor WILL, but merely judgment” (per Alexander Hamilton in Federalist No. 78), it has to rely on political support from other branches of government, as well upon the good will of the public, for its decisions to have the desired impact.
That the Court can be understood as a political institution (if not an avowedly partisan one), as an institution that can be used to achieve policy goals, is something that political activists and political scientists have grasped for some time now. Bringing about the end of Jim Crow segregation and inequality was not just a matter organizing protests and lobbying legislators, it was also the product of decades of lawsuits nurtured by lawyers affiliated with the NAACP and other organizations. The pro-life or anti-abortion movement followed a similar strategy during its lengthy effort to limit and eventually overturn the Court’s decision in Roe v. Wade (1973). This movement became successful with last year’s decision in Dobbs v. Jackson Women’s Health Organization and was aided tremendously by the efforts of the Federalist Society, an organization which sought to reconstitute the judiciary and change its outcomes. By assiduously cultivating a cadre of conservative law students and legal scholars, along with wealthy donors and Republican politicians, Leonard Leo and his Federalist Society cohorts have indeed constructed a federal judiciary that was designed to yield the very results we have been seeing on any number of fronts.
Third, whether viewed from a legal or political standpoint, the fundamental purpose of the Court is to resolve conflicts—what the Constitution calls “cases and controversies.” Petitioners who ask the Court to hear their cases are supposed to have suffered a real injury (not a hypothetical one) that can be remedied by judicial action. The Court is supposed to wait until the case has made it through the judicial system so that the relevant facts and issues have been fully developed. Because the Supreme Court is seen as the final authority on constitutional and statutory interpretation, it is supposed to be patient rather than interventionist and careful rather than rash in rendering judgments.
Over the last half century or so, conservatives have railed against what they see as the excesses of judicial activism. They were particularly angry with judicial opinions (like Roe) that they saw as creating new rights and new law out of whole cloth, untethered by the principles and traditions of American law. Of course, as the decisions of the Roberts Court reveal, even justices supposedly committed to judicial restraint can go out of their way to reach a constitutional judgment when it suits them. Even justices who proclaim a belief in originalism or textualism are ready to cast history and words aside if they would make it harder to reach a particular result. As I see it, the arguments over constitutional innovations such as the “major questions doctrine” reveal that the Supreme Court has always been willing to cast aside precedent and able to draw fine distinctions that simplify complex realities. It has always been activist—the only question concerns how it is active on whose behalf, in whose favor, and for whose benefit.
Ultimately, the fundamental truth of judicial politics—indeed, of all politics—is that the rules of the game shape the outcomes we get. If we want to change those outcomes, get different processes and different results, we need to be serious about reforming the Supreme Court. Many observers have discussed three reforms that I think are vital in our current context: establishing an enforceable code of ethics, limiting the terms of the justices, and expanding the number of justices on the Court. I believe they are vital not simply because of disagreements with many recent decisions, but because they will help fashion a Supreme Court for the 21st century.
Crafting a code of ethics applicable to the justices as well as lower court judges is essential for preserving judicial independence—not just from other branches of government, but also from a range of corrupting influences. Limiting the terms of justices will lower the stakes of any given nomination and thereby lessen the partisan acrimony that accompanies Senate confirmation hearings. Similarly, expanding the number of justices (and randomly assigning cases to them) will help us focus nomination and confirmation processes not on “qualifications” (law school pedigree) or “character” (personal biography), all seen through a partisan lens. We need instead to focus the public’s attention on what really matters—a justice’s sense of our constitutional commitments and societal values, as well as their judicial philosophies and principles.
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