We would first like to thank Eugene for inviting us to summarize and discuss the arguments in our draft article, Judicial Duty and the Supreme Court’s Cult of Celebrity. We’re looking forward to comments and constructive criticism from VC’s thoughtful and active community.
The 1987 confirmation fight over Robert Bork gave political salience to the dispute between originalism and living constitutionalism as interpretive methods. Within the academy, that dispute continues, with endless nuances, qualifications, and elaborate theoretical frameworks on both sides. Judging from subsequent confirmation proceedings, however, the debate is no longer relevant to judicial appointments. Nominees of both parties now present themselves as modest and humble servants of the law, respectful of existing precedent and without a desire to move the law in any particular direction. Most Senators on both sides of the aisle accept this as the proper model for judging, and the only real question now seems to be whether a given nominee is sincerely pledging allegiance to the accepted ideal.
Nowhere was the new consensus more vividly on display than in the most recent Supreme Court confirmation hearings. Sonia Sotomayor came before the Senate with a long and fairly bland record as a circuit judge, but also with a history of extra-judicial statements suggesting both that she thinks impartiality is unachievable and that she is untroubled by that reality. When pressed at her hearings, Sotomayor repeatedly and resolutely maintained that she would never do anything except impartially apply the law to the facts, that she had no agenda of any sort, and that she would certainly not allow her policy preferences or her own values to have the slightest effect on her decisions. All of her controversial extrajudicial statements, she claimed, had been misunderstood, or were meant to convey the opposite of what she had said.
Predictably, Republican Senators on the Judiciary Committee suspected a feigned confirmation conversion, and Democrats defended the nominee. But none of them opposed her on the ground that she was pledging allegiance to the wrong ideal. The recent bipartisan paeans to precedent and judicial modesty could reflect an inchoate political consensus that our Justices should behave more like traditional judges. But hectoring nominees at confirmation hearings, or lauding them for their presumed intent to follow the traditional ideal, is certain to have negligible consequences. Can anything more efficacious be done?
Recently, we have seen a flurry of proposals to eliminate life tenure for Supreme Court Justices, a reform that was advocated long ago by a young John Roberts. These proposals are motivated by the view that the Court is no longer functioning, according to its original design, as a genuinely judicial institution. Without disputing the diagnosis, we are skeptical about the proposed cure. For one thing, it would require a constitutional amendment. More significantly, however, it does not address the root of the problem, and if adopted might well merely serve as an incentive for Justices to cram a maximum amount of political activism into a shorter period of time.
Statutes are much easier to enact than constitutional amendments, and Congress could take steps to make our Court less adventurous and more respectful of both law and precedent. In the posts to come, we propose four statutes designed to achieve these ends.
Our effort to think about changing the incentives that operate on the Justices required some analysis of how existing incentives shape their behavior. We reflected on historical developments that have promoted the rise of what we call the celebrity Justice. One engine in this development, we suggest, was Chief Justice Marshall’s innovative practice of elaborately reasoned opinions for the Court signed by individual Justices. This practice has allowed and encouraged Justices to pursue personal glory through opinions that sometimes read less like the work of judges than like political manifestos or pop philosophy. In the twentieth century, moreover, Supreme Court Justices have managed to shed various onerous judicial responsibilities, making possible an ever greater focus on the politically architectonic issues of greatest interest to themselves and to the political, journalistic, and academic elites from which they seek approval.
In crafting our proposals, we drew upon work by Frank Easterbrook, who applied Arrow’s Theorem to structural features of the Supreme Court, and by Richard Posner, who modeled the judicial utility function in economic terms. Despite its substantial merits, Posner’s model does not adequately account for the vast differences between Supreme Court Justices and other Article III judges. The present danger, we think, is that the conditions under which Supreme Court Justices operate make it almost impossible for them to experience their jobs as calling for the kind of modesty and restraint that Posner finds in most judges, and that all Supreme Court nominees promise they will exhibit even as members of the highest Court of the land.
For that reason, we believe that it would be salutary for the lives of the Justices to become more like the day-to-day lives of judges on the lower courts. This need not require an actual reduction of the Supreme Court’s power, as in the case of such reforms as jurisdiction-stripping statutes. Nor need it expose the Court to other forms of external political influence, which we observe in jurisdictions where judges are elected to office or subject to recall. Nor does it require the extraordinary and practically impossible step of amending the Constitution, as in the case of various proposals for term limits.
Rather, we simply propose that the Justices be given somewhat more ordinary judicial work to do, and that a little of the temptation to judicial individualism be curtailed. Our correctives are aimed at creating incentives for the Supreme Court to behave more like a court, rather than as an aggregation of celebrities, and for Supreme Court Justices to behave more like judges, rather than like peers of the realm With these changes, perhaps we might actually obtain some of what recent nominees have thought it wise to promise during their confirmation hearings.
In subsequent posts, we’ll summarize our proposals. Stay tuned.
spo says:
Regarding Sotomayor, it’s one thing to have a serious talent be a “rock star”, e.g., Scalia. Quite another to have a middling talent like her “bestrid[ing] the narrow world”. Her answer to Kohl’s question on term limits was barely passable for a 1L doing moot court. Her declaration that the dissenting opinion in Ricci would have affirmed the Second Circuit is flat out wrong, and it’s remarkable for someone who spent 17 years on the federal bench to botch testimony she’d obviously prepared for. (N.B., she’s dead wrong about the “would have affirmed” the Second Circuit–Ginsburg’s opinion never dealt with the constitutional challenges of the Ricci plaintiffs, and since the Second Circuit affirmed a summary judgment motion by the defendants, resolving the plaintiffs’ constitutional claims was a sine qua non to a SCOTUS opinion that would have affirmed the Second Circuit.)
January 19, 2010, 8:21 amlgm says:
You write: “The 1987 confirmation fight over Robert Bork gave political salience to the dispute between originalism and living constitutionalism as interpretive methods.”
This is high brow academic spin on what really happened. People correctly saw Bork as a nut who would have used his seat on the court to make contraception illegal. His “originalism” was supplemented with his view that he personally knew exactly what the drafters of the constitution meant. Most Americans who have read his books are grateful he was Borked.
The modern tradition of lying in confirmation hearings may be traced to Scalia and particularly Thomas. Recall that Thomas denied having any opinion about Roe vs. Wade. He said he never had thought about it. (Either that was true, in which case he was unqualified for the court, or it was a lie and he was unqualified.) Didn’t Roberts deny knowing what the Federalist Society is?
January 19, 2010, 8:45 amPersonFromPorlock says:
I’m not too sure that Bork’s ‘originalism’ was the issue so much as it was the positions he took from it: had he managed to derive a more Hamiltonian ‘original’ view of government, he might have been lionised by his erstwhile critics and criticised by his lionisers. The real lesson from his confirmation hearings was ‘say nothing substantial’, and as you’ve noted, it’s been well learned.
As for giving Justices “somewhat more ordinary judicial work to do,” that seems like a waste of resources; we have ordinary judges for exactly that job. May I suggest a constitutional amendment (I know, I know) requiring that all USSC decisions be approved by Congress? That would be a useful ‘check’ against judge-made law and force the Justices to write opinions that could be defended, not just imposed. And making their decisions subject to the approval of any body as squalid as Congress would certainly reduce the temptation for Justices to see themselves as philosopher-kings.
January 19, 2010, 8:59 amBZ says:
Welcome.
I read your four recommendations, and noticed that there seems to be a disconnect between your analysis of the problem, and the proposed solutions. How much of the “celebrity” problem derives from the opinions and how much from the political theater? I would suggest that the celebrity aspect is driven more by the political branches and the events taking place there, and less by the opinions themselves. Similarly, you seem to have identified Congressional actions as at least one element of the problem, but none of your solutions really go to that aspect.
I look forward to your explanations of your positions.
January 19, 2010, 9:14 amMartinned says:
That seems overly optimistic vis-a-vis the ability of Congress to ever pass anything. (filibuster, etc.) They’re having trouble enough passing something as simple as universal health care. If you’re going to go down this road, which would mean a significant change in the balance of power between the branches, the better way would be to allow Congress to veto SCOTUS rulings, by a supermajority if necessary. Either way, it seems excessive, since statutory SCOTUS rulings can already be overruled in this way.
January 19, 2010, 9:35 amMartinned says:
How often do you discuss a Supreme Court ruling without mentioning which justice wrote it? Especially in academic and journalistic writing, that seems highly unlikely.
January 19, 2010, 9:39 amepluribus says:
PersonFromPorlock says:
You may, but then again you may not. Would your amendment leave the Senate filibuster rule in place? Sen. Ben Nelson (or some other fence-straddler with a strong appetite for pork) would then have the final word on constitutional jurisprudence in the United States. I would prefer may not.
January 19, 2010, 9:58 amDavid Nieporent says:
I didn’t know the Supreme Court had the power to make things illegal. Is that in the Commerce Clause?
Presumably what you mean, if you actually understood our constitutional system, is that he would have used his seat on the Court to disavow Griswold‘s claim that the Constitution protects contraception. But of course that wouldn’t “make” contraception illegal; it would simply allow state legislatures to make contraception illegal. Since state legislatures are popularly elected, however, it’s rather odd to talk about people viewing that as “nuts.” If people did view it that way, why would a legislature endorse such a law?
Really? Can you point to somewhere where he said that? In fact, liberals complained that his view of the 9th amendment was that he didn’t know what it meant, and therefore couldn’t hold that it created judicially-enforceable rights.
No. Is anything you said in this paragraph true?
January 19, 2010, 10:01 amMark Field says:
So your theory is that only non-nuts get elected to state legislatures? Or that state legislatures only pass non-nut laws?
January 19, 2010, 10:08 amMartinned says:
He denied having been a member. (Or, if you’re going to be really precise, he denied remembering being a member.)
January 19, 2010, 10:11 amDavid Nieporent says:
No; state legislatures pass plenty of nutty laws, IMO. My position is that state legislatures don’t pass laws that are widely viewed as nutty. (Or, that if such laws do slip through because people aren’t paying attention, they are quickly revised when it becomes clear that people think that they’re nutty.)
January 19, 2010, 10:14 amMartinned says:
Wouldn’t an overrule of Griswold put the old statutes back into effect without any new action by the state legislature? In that case, it makes sense to say that an overrule would make contraception illegal, at least in Connecticut, and it also makes sense to say that, in the 1980s, such a thing would be widely viewed as “nutty”.
January 19, 2010, 10:25 amPJens says:
“For that reason, we believe that it would be salutary for the lives of the Justices to become more like the day-to-day lives of judges on the lower courts.”
Aren’t the salaries of the Supreme Justices pretty close to those of the Lower Justices already?
It’s a groaner, I know.
January 19, 2010, 10:26 amTerrivus says:
Yes, it would, for about one day. And the next day, the state legislature, bowing to overwhelming public demand, would legalize it. Explain to me again, why this is a bad thing?
January 19, 2010, 10:39 amlgm says:
David Nieporent, that depends on the definition of “make”. If action A has as the inevitable result action B, then A “makes” B happen. Bork overturning Griswold leads to contraception being illegal –> Bork makes contraception illegal.
The reaction to: “Didn’t Roberts deny knowing what the Federalist Society is?” shows that hyperbole is out of place in discussions like this. I apologize.
January 19, 2010, 10:53 amMartinned says:
[Ignoring, for now, the fact that that once again seems to overestimate the ability of lawmakers in the US to ever get anything done.]
Of course that would be a good thing, but destroying the constitutional right to privacy would not be. The connection between privacy and (buying) contraceptives is a bit artificial, but I am a big fan of a right to privacy in general.
January 19, 2010, 10:58 amTerrivus says:
Yes, privacy is a good thing. Other things that are good include justice, equality, liberty, puppies, and backrubs. But notions of “good” and “bad” are not really sound bases for constitutional interpretation, determining what a founding document mandates or prohibits, and resolving the question of what is a “right.”
Not everything that is good is required by the Constitution, and not everything that is bad is forbidden by the Constitution.
January 19, 2010, 11:22 amMartinned says:
I would like to note for the record that this is a conversation I’m certainly prepared to have, and that I think there is a sound basis for a right to privacy in the US Constitution. That said, there is no way that a substantive response to this comment wouldn’t drag us enormously off topic, which would be unfortunate since I find the original topic rather interesting. Therefore, I am forced to decline to respond at this time… ;-)
January 19, 2010, 11:28 amMark Field says:
Then it would seem that the same principle which causes you to see state laws as nutty would also permit people to see Bork as a nut.
January 19, 2010, 11:35 amyankee says:
Speaking as a reader, I would like to see a more thorough analysis of what problem your proposals are intended to solve. You say that “the Court is no longer functioning, according to its original design, as a genuinely judicial institution,” but based solely on this post I am not sure what you mean by this, what you think the evidence is, or why it’s a problem.
If we readers are to evaluate a proposed cure, we need to know what the disease is. I hope you will provide a more detailed explanation before jumping to your proposals.
January 19, 2010, 12:14 pmChris Travers says:
FWIW, I agree with Sotomayor on the basic epistemology of impartiality. At the core of any cognitive function is a thinking subject. All thought is fundamentally subjective. I am comfortable having justices who are at peace with that problem, just as I look up to physicists who express comfort with that problem. (In that book Heisenberg, when he argues that data does not imply theory, and that theory has an inherently subjective component, was not referring to his uncertainty principle, but rather to the general process by which scientific theories are formed.)
However, I think this actually reaches the core of the problem. Every single person reading the Constitution and binding precedents will draw slightly different conclusions from them. The character and philosophy of a judge is a fundamental component of all decision making. For this reason, who is appointed to the bench determines the policy for a long time. Hence Presidents and Senators want to show their constituents that they are helping make positive legal policy for the future. Unfortunately I don’t know how you get around that problem. The best efforts in the current system are simply to have life-long terms so that the court is not dominated by individuals who are presently in favor.
I eagerly await your proposals.
January 19, 2010, 12:33 pmChris Travers says:
Not that I heard. He did deny knowing what a “general right to privacy” meant and therefore couldn’t say whether the Constitution protected it. Which is probably a fair answer, all things considered.
lgm, one point:
Aside from Lawrence, what Scalia decisions do you disagree with? Do you disagree with his positions on flag burning, due process rights for Americans captured overseas in the war on terror, use of FLIR systems to look for drugs grown in houses, when and whether school officials can search students, etc?
Or do you just dislike him because it is popular for liberals to point fingers at him?
January 19, 2010, 12:40 pmMartinned says:
How about some kind of co-optations system, whereby the current justices unanimously decide who their new colleague should be? (With or without a vote for the retiring justice.)
January 19, 2010, 12:42 pmChris Travers says:
There may be something to this with a twist. How about requiring that the Senate approve Supreme Court justices unanimously?
January 19, 2010, 12:50 pmDon de Drain says:
I am all in favor of having the individual Justices sit as trial judges and as panelists on the Courts of Appeal. That should make them better Justices. (It will also improve the quality of the Court to have more Justices who have actually tried cases for a variety of clients.)
Alex Kozinski sat as a BK judge when his wife was US Trustee in CD Cal.
Not sure how this prevents individual Justices from acting like “celebrities.” And how is it that “celebrities” act? Based on my experience there are “celebrities” that behave well and “celebrities” that do not behave well.
January 19, 2010, 12:57 pmSuperSkeptic says:
Agree and agree. But I wonder, since you mention the right to privacy and “buying” (albeit parenthetically) contraceptives, which as I understand it, the right to privacy protects: Surely buying contraceptives substantially affects the market for contraceptives. If congress wants to proscribe them, then surely they could under a developed “regulatory scheme.” And then if you don’t buy contraceptives, even then, congress could force you to buy them – after all (using jack balkin’s logic) “Such people actually
self-insureuse self-contraception through various means.” Like the rhythm method, pulling-out, or just dropping the kid off at grandma’s house while you go on with your life. All of these activities, in the aggregate, substantially affect interstate commerce…But we really should stay on topic, my apologies to all.
January 19, 2010, 12:58 pmMartinned says:
Having the Supreme court vote on such a thing by simple majority would cause them to drift ever further in the ideological direction of whichever group had the majority the first time they voted. By making them vote unanimously, they are forced to go for justices who are neutral, ideologically. That makes the court more boring, but then that seems to be the point of Lerner & Lund’s proposals.
Making the Senate vote unanimously, on the other hand, is a bit more difficult. To stay with the season, I don’t think you’d even be able to get the Senate to vote unanimously in favour of a non-binding resolution applauding the work of Martin Luther King jr, much less a member of the Supreme Court.
That said, if you don’t mind a little more mess, increasing the number of votes needed to confirm from 60 to 67, say, decreases the power of the President, and increases the likelihood that you’ll end up with a neutral, inoffensive moderate. It won’t stop the lying, though.
January 19, 2010, 1:06 pmSuperSkeptic says:
I’m not the authors, but I think that the quoted text is the basic recognition of political influences in the justices. The reason why originalism immediately pops up is because everybody swears they are doing what originalism promises to do – take (current) politics out of the judicial decision. If to one originalism is the ideal of impartiality and judging – then the proposals should be designed to get “apolitical” originalists. The rub is the L/R breakdown on who is an originalist – it’s odd, that.
Agree.
.
What exactly is this “proper model”?
January 19, 2010, 1:10 pmMartinned says:
The other problem with originalism is that it doesn’t work as advertised. If only someone with a graduate education in constitutional history can tell whether the originalist opinion for the majority or the originalist dissent has the better of the argument in Heller, how much does originalism really constrain?
Still, I agree that it is impossible to evaluate these proposals without some kind of discussion about what an ideal judge would look like. Most of their ideas go towards making judges more moderate, more boring, more technocratic (“la bouche qui prononce les paroles de la loi, sans changer, ni la force, ni la rigeur”). The question is whether that is really what one would want. If so, why have them write separate opinions at all? Writing dissents only makes sense if there is significant dissent on the court, i.e. wide-ranging and vigorous disagreement between the members. Lerner & Lund hardly seem to have that kind of a court in mind.
[Now I'm up to 3 out of 3 on the setting-VC-commenters-off trifecta: After right to privacy, now I seem to have stumbled upon the second amendment and originalism.]
January 19, 2010, 1:30 pmdrunkdriver says:
Which brings to mind an interesting fact: law professors are not a large part of that equation, except to the extent they form part of the public intelligentsia. That’s no knock on the legal academy, by the way.
Perhaps it’s inescapable, given that so much of the work of the Supreme Court these days is “political.” If they decide 100 cases a year, probably no more than a handful can be decided on the basis of rote application of legal syllogism to the facts. The modern style of confirmation hearings, best summarized by Roberts’s fiction that he’s just “calling balls and strikes,” does little to illuminate what’s really going on in the courts. Everybody seems to know this, but nobody wants to nominate a judge who will admit it. Sotomayor’s statement that a court of appeal is “where policy is made” was an embarrassment only because of its candor, not because it really differentiated her from any other appellate judge.
January 19, 2010, 1:53 pmGramarye says:
I actually like the idea of having the Court work in the other direction, and having judges from the circuits sometimes sit by designation on the Supreme Court in the same way that district court judges often sit by designation on the circuits. The primary reason I like the idea is that it would throw a monkey wrench into the plans of all the advocacy groups out there whose goal is to impose certain laws on the country through the judiciary and whose primary strategy involves counting to five. However, I think it would also serve in some measure to reduce the cult of celebrity of the permanent nine members–the mere existence of such a system would remind them that there are other people in this country who could do their jobs. Not many, perhaps, but the circuit judges aren’t just your average guy off the street.
January 19, 2010, 1:55 pmfrankcross says:
I would be curious about what era people think that the Court was not equally political and was more judicial. Certainly not the early, originalist years.
January 19, 2010, 2:02 pmMartinned says:
That could work, but how do you decide which CoA judges to put there? You can hardly make it random, since you don’t have the numbers to make it average out in the end.
January 19, 2010, 2:03 pmSoronel Haetir says:
Of course legislators want justices who are generally moderate in outlook. They examine the sorts of things the Warren court came up with, while the results may be liked now for the most part, the way the court got there most assuredly is not. That same free wheeling attitude, lacking any anchoring principals, could fly off in nearly any direction. We were fortunate that it worked out as well as it did and Senators are not eager to repeat the experiment. And thus both senators and nominees pay lip service to originalism and even more so textualism.
January 19, 2010, 2:07 pmChris Travers says:
Originalism, while a fine idea in moderation, also has a fundamental problem when it comes to rigid application. In essence one is deferring judgement to an imaginary construct (i.e. one’s image of what the founders concerns were, as a unitary group, given that there were so many of them). This doesn’t get you any closer to an objective solution. While original intent may have a solid role in inquiry, I don’t think it is a solid foundation for a legal philosophy.
January 19, 2010, 2:19 pmMartinned says:
@Soronel Haetir: But did the senate (and the president) actually show a preference for moderate justices? Note that this is a different question than the question whether the court as a whole moved to the right. If every justice gets replaced with an ideologically similar replacement, the court as a whole is going nowhere, but it is also no evidence of a preference for moderation. If the political branches prefer moderate justices, you’d expect them to appoint justices who are closer to the middle, on average, than the justices they’re replacing. I’m not sure that that is the case, though I guess we’ll have to wait for the retirement of Ginsburg or Scalia to be sure.
I think the better hypothesis is that the Reagan-era conservative drive to take over (back?) the courts has been taken over by everyone in politics. This implies that both Democrats and Republicans will appoint whoever they can get away with. Bush+Rep Senate = Roberts, and Obama+Dem Senate = Sotomayor.
January 19, 2010, 2:23 pmGramarye says:
I think the best way would be some kind of rotation system analogous (but not identical) to what the bankruptcy courts do for filling seats on the Bankruptcy Appellate Panels. Failing that, I think it would be feasible to design some kind of “pool” system in which every circuit makes a small number of judges available for Supreme Court designation at any given time, and then 2-3 of the permanent Supreme Court justices are swapped out for designees on any given case.
I think that the Supreme Court opinions would get a little bit more cogent if at least a few of the people writing them were the same people who, most days out of the year, would be bound to follow them.
January 19, 2010, 2:28 pmMartinned says:
I agree with that last bit, but that still leaves the question of how you decide which CoA judge from the pool replaces which SCOTUS justice on which case. Would you link them up by ideology somehow? If so, how? If not, a) wouldn’t you consider the effect of chance on SCOTUS jurisprudence to be a threat to the rule of law? and b) how will anyone in the political branches go for this?
Lerner & Lund write in their paper about how justices care more about the coherence and consistency of their own personal jurisprudence than the jurisprudence of the court as a whole. Regardless of whether that is a good thing in general, it certainly improves the rule of law exactly because it makes it easier to “count to five”. The principle of rule of law means that judicial rulings should be as predictable as possible, and is difficult to see how that is consistent with having SCOTUS membership depend on chance, at least not in the US.
January 19, 2010, 2:36 pmmethodact says:
That Robert Bork characterized the 9th Amendment as so much an inkblot has been interpreted variously as meaning that he meant it was a moot point, devoid of any discernable meaning at all, to perhaps that of “inkblot”, in the sense of a Rorschach test inkblot image, (and to some perhaps even a Jackson Pollock painting).
Exquisite post. Thank you.
January 19, 2010, 3:04 pmVSJB says:
I hope the proposals include reducing the budget for law clerk hiring and restoring more areas of mandatory jurisdiction.
January 19, 2010, 3:07 pmGramarye says:
I don’t see this as any greater a “threat to the rule of law” as either the current designation system or the current panel system at the circuit level: there is a substantial amount of unpredictability in the composition of appellate panels, even without taking potential district judges sitting by designation into account. It hasn’t compromised the rule of law, nor has it resulted in circuit opinions being more carelessly written, as far as I can tell.
The real principle of the rule of law is that judicial rulings should be as predictable as possible without needing to know the identity of the judge. It should not matter whether Wilkinson or Reinhardt is sitting on the Court. Obviously, reality sometimes fails to live up to our ideals. Nevertheless, that doesn’t mean that the counting-to-five culture is a net positive for the country or that it somehow is conducive to more enlightened advancement of the rule of law. It has too much of the air of the nakedly partisan vote-counting that is the province of party whips in the legislature.
January 19, 2010, 3:08 pmMartinned says:
@Gramarye: You’re right as to rule of law, but I think predictability conditioned on knowing the identity of the judge is better than no predictability at all, certainly in the Supreme Court where there is no chance involved in which judges you get, and therefore no chance involved in the outcome.
As for the current practice of appellate panels, of course that is a threat to the rule of law, as shown by a great number of recent decisions coming out of the 9th circuit, where even the en banc court is a panel. At the Court of Appeals level, however, the practice is defensible because of the much greater number of cases in need of judgement, and the much smaller effect of any one ruling.
January 19, 2010, 3:17 pmADF Alliance Alert » The Supreme Court’s Cult of Celebrity says:
[...] Volokh Conspiracy: “The 1987 confirmation fight over Robert Bork gave political salience to the dispute between originalism and living constitutionalism as interpretive methods. Within the academy, that dispute continues, with endless nuances, qualifications, and elaborate theoretical frameworks on both sides. Judging from subsequent confirmation proceedings, however, the debate is no longer relevant to judicial appointments. Nominees of both parties now present themselves as modest and humble servants of the law, respectful of existing precedent and without a desire to move the law in any particular direction. Most Senators on both sides of the aisle accept this as the proper model for judging, and the only real question now seems to be whether a given nominee is sincerely pledging allegiance to the accepted ideal . . . “ [...]
January 19, 2010, 3:20 pmSoronel Haetir says:
But note I said lip service. I wasn’t old enough to pay attention to Ginburg’s or Breyer’s nomination hearings but Sotomayor certainly paid homage to the jurisprudential tools most often espoused by conservatives. And reading opinions that homage seems to carry through. You just don’t see much seeping from the emanations of penumbras these days. Even the ugly fights over things like Ledbetter were textualist in nature. I can easily see the members of the Warren court simply skipping by that analysis without even thinking about it. And so long as that remains true we are going to have a much more constrained court.
January 19, 2010, 3:22 pmDon de Drain says:
It has been a long time since I studied Marbury v Madison in law school, but my recollection is that the case was very political. I don’t think that the Supreme Court was any less political back then than it is now. The nature of the politics has changed, as has the media that cover the Court. But the Supreme Court has always been a political animal. Just a different brand of politics than the legislature or executive branches.
I would focus more on creating an “optimal” Supreme Court as a whole than on defining an “optimal” Supreme Court Justice. I prefer an ideologically diverse Court. I really don’t want all members of the Supremes to be like Stevens or all like Scalia. I don’t want them all graduating from the same law schools or having the same career tracks prior to joining the Court. And I certainly don’t want a bunch of justices that are politically tone deaf. While it would be nice if every Supreme Court decision came down the way it would come down if I wrote the opinion, I think the country is better off if that did not happen. I wish more people held that view.
January 19, 2010, 3:27 pmMartinned says:
I’m not sure that that is true. As long as “lip service” is all it is, how is the court constrained?
@Don de Drain: That is indeed a point of view shared by many, and one seemingly skipped over by Lerner & Lund.
January 19, 2010, 3:32 pmSuperSkeptic says:
That’s like saying “I prefer an ideologically diverse Legislature.” Do you? Also kind of like saying “I prefer a an R legislature and a D president” (or vice versa). Do you? It seems to me that that is an argument for stagnation – an argument for no thing, no principle.
I don’t want a diverse legislature, e.g., between the two extremes of those who support liberty and those who endorse totalitarianinsm (however defined). I want supporters of the liberty principle in my Legislature.
What is the principle(s) we want in our Justices? What is our “proper model”? You cannot scoot around this by claiming “diversity is good”.
January 19, 2010, 3:50 pmMark Field says:
I think this is an excellent idea.
January 19, 2010, 3:54 pmMartinned says:
I would think that recognising the value of careful and public deliberation is a principle of itself. Especially on issues where you don’t have a very strong preference, it makes sense to emphasise deliberation.
Alternatively, one may favour roadblocks for the judiciary similar to the filibuster as a roadblock for the senate. Such obstacles to action make sense for someone who likes the status quo.
January 19, 2010, 4:47 pmSuperSkeptic says:
Martinned,
“Careful and public deliberation,” as a principle, is great. It is not commensurate with “ideological diversity,” nor does it necessarily flow from it.
I do favor roadblocks – to government action generally. Not a big fan of the status quo. Systematic roadblocks (“checks”) are not the same kinds of things as ideological “checks,” it seems to me. The former are what our republic is founded upon, the latter – well, only Madison thought that that would work.
January 19, 2010, 5:28 pmMark Field says:
Madison’s argument in Federalist 10 was that diversity was precisely what would keep us from legislative tyranny:
“The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the [geographical area] within which they are placed, the more easily will they [act in] concert and execute their plans of oppression. Extend the sphere [i.e., make the geographical area larger and include more people] and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.”
In the VA ratifying convention he analogized it to religion: “Happily for the states, they enjoy the utmost freedom of religion. This freedom arises from that multiplicity of [denominations] which pervades America, and which is the best and only security for religious liberty in any society; for where there is such a variety of [denominations], there cannot be a majority of any one [denomination] to oppress and persecute the rest.”
Or consider James Wilson: “To the legitimate energy and weight of true representation, two things are essentially necessary. 1. That the representatives should express the same sentiments which the represented, if possessed of equal information, would express. 2. That the sentiments of the representatives … should have the same weight and influence as the sentiments of the constituents would have, if expressed personally.”
Similarly, John Adams said that the legislature should be a “mirror” of society.
If the purpose of the legislature is to “represent” the people at large, then it needs to represent everyone. And that requires some diversity.
January 19, 2010, 5:28 pmPersonFromPorlock says:
If the Congress can’t agree with the Court’s decision than it shouldn’t be law. In addition to their responsibility to choose good policies, members of Congress, by their oath of office, have full responsibility for defending the Constitution, which presumably gives them some power of interpreting it. Any ‘irreconcilable’ difference of interpretation between Congress and the Court is perfectly proper and will (presumably) eventually be worked out.
I take it that your use of “as simple as” above is drôle.
January 19, 2010, 6:34 pmMartinned says:
If what you’re imagining is something like “7 days after the judgement is announced, both houses vote up or down without any further procedure”, then I suppose the only remaining problems would be that a) Congresscritters are more likely than SCOTUS justices to be nuts, incompetent or just plain dumb and b) there’s no way this wouldn’t end up a political question.
However, I’m rather cynical about Congress’s ability to apply a procedure that is that simple. I’m sure they would decide that senators representing states particularly affected by the case, for example because they’re the home state of one of the parties, can put the vote on hold. Or maybe the whole thing would have to go through umpteen committees first. Or maybe they’d want some kind of amendment procedure, whereby they get to negotiate with the Court about the final text. Sane people have no idea of the idiocy the average legislature can come up with.
January 19, 2010, 7:05 pmMartinned says:
Oh yes, I missed that one on my tempting-people-off-topic trifecta: Health care.
Fundamentally, passing universal health care isn’t that difficult. The Dutch law making the necessary arrangements is only a fraction of the length of the American proposals. (Though part of the difference has to do with the way statutes are written.) The health care bills and their passage through Congress are so complex because Congress is an unwieldy machine that could do something the simple way if their lives depended on it.
January 19, 2010, 7:08 pmGuy says:
You mean openly partisan? Aren’t you begging the question here?
Whether intentionally or not, the courts have always been policy making bodies, that’s a necessary consequence of a common law system, no matter how carefully a judge might try to be “unbiased”.
Of course judges should not allow themselves to be influenced by favoritism to one of the parties in front of them, but the idea that judges will have no personal opinion on what the Constitution or laws mean makes absolutely no sense whatsoever. How can a judge decide a case without inquiring into what the law is?
January 19, 2010, 7:12 pmGuy says:
Um, separation of powers? Congress writes the law, the President enforces it, and the judiciary interprets it. Setting aside the fact that allowing Congress to override the Courts creates serious Ex Post Facto Clause problems, the idea that Congress is somehow better equipped to decide cases fairly than judges who have studied the case and carefully reviewed the record and evidence is laughable. The idea that the Constitution grants Congress the power to interpret its own terms to override the judiciary, in spite of the fact that the framers went out of their way to make sure that judges could not be influenced by political pressures (the whims of faction), is similarly ridiculous. Under your system, Congress could pass any law they wished to, and simply uphold that unconstitutional law by overriding the Supreme Court’s decision, where’s the check on Congress in this system?
January 19, 2010, 7:21 pmGuy says:
Not to mention the potential for abuse by having Congress decide the law means different things in different cases, stare decisis be damned, they could just vote for the party they like better, with complete disregard for the law. Or do you propose that Congress be required to write opinions explaining the way in which they vote?
January 19, 2010, 7:23 pmliamascorcaigh says:
Bork on his own could not have made contraception or anything else illegal. He would have been but one vote in nine, therefore needing four other “nuts” to vote along with him. In that case his “nuttiness” could hardly have been an insurmountable obstacle to his appointment to SCOTUS considering that four other “fruitcakes” – to vary the metaphor – would already have preceded him there.
Of course neither Thomas nor Roberts lied, they simply refused to bare their breasts to the assassins’ knives and are hated ever since for having outwitted their would be executioners. The British were often heard to mutter darkly about Michael Collins for not dissimilar reasons.
January 19, 2010, 8:14 pmSuperSkeptic says:
Mark Field,
“Diversity” of interests is inevitable anyway – that’s the “disease” of faction. Madison’s argument in The Federalist no 10 was not “that diversity was precisely what would keep us from legislative tyranny[.]” In fact, it inevitably leads there. In The Federalist no. 10, what Madison argued was that what would “cure” the disease of faction was “extend[ing] the sphere [of the republic]” as a second-best precisely because we could not stamp out diversity of interest without stamping out liberty (a core principle).
The analogy to the VA ratifying convention proves my point. Yes, there are was/is diversity in religious denominations, but this is only possible because we have a broad-based core principle to favor freedom of religion in the first place. The principle one wants all in the legislature to support is “freedom of religion” not one specific religion.
As for James Wilson: His point 1 (rather Rawlsian) supports my point. Assuming a representative is representing anti-catholic bigots, he assumes, under point 1, that if that bigot was “possessed of equal information” he would express the principle of religious freedom out of his own interests to practice the religion he (the bigot) prefers. Point 2 speaks of proportional representation and is largely irrelevant to our discussion.
John Adams, IIRC, also said some things about the country not surviving long if it lost its religious, moral core.
As to your final statement: “If the purpose of the legislature is to “represent” the people at large, then it needs to represent everyone. And that requires some diversity.”
This is true as far as it goes – of course there will be diversity of interest. But, “everyone” need not be represented (constitutionally). And, there are some things that I do not want advocated in my Legislature. Slavery, for example. Yes, some may hold the view that they favor it. I am not in favor of allowing those in favor into the Legislature. I don’t think anyone should be. The Constitution fixes the core principles and puts them out of bounds politically. See my other example above.
Again, this does not mean that “legislative tyranny” will result; we should try to change people minds peacefully through reason – but of course, wars can be fought when ish hits the fan and reason no longer works. (We did that with slavery, of course.)
The whole reason this “diversity” talk began was because someone said they wanted to rest their laurels on an “ideologically diverse” court in lieu of nailing down how we want our ideal justice to approach the law (a pre-requisite to analyzing the posters’ proposed solutions). My point was that it is the same in both judges and legislators. We should have our ideal justice – who approaches the law in neutral dispassionate ways (or whatever we decide as a society) and we should have our ideal legislator. Either one requires an attempt to discern core principles. One must plant one’s flag, as there is no “justice” in averaging out votes. 3 wolves and a sheep voting on what to have for dinner, etc…
January 19, 2010, 9:00 pmDon de Drain says:
I prefer an ideologically diverse court, but I don’t want them to be ideologues. I want them to THINK, be logical and intellectually honest as you can be given that you are human, and reach a result based on sound, rational principles. There are going to be times when there will be serious disagreements, I don’t want that to stop. I do want Justices who find themselves on opposite sides of heated debate who are willing to critically examine their own “principles” after really listening to the other point of view and then to make a well reasoned decision, as opposed to shouting/talking past each other. Reasoned disagreement and debate is good. That debate will be more robust, and healthier for the country as a whole, if the Justices engaging in the debate are intelligent, have integrity and intellectual honesty, and are from diverse backgrounds.
I don’t want Justices that blindly cling to “principles” in disregard of the facts. An example of this is the majority opinion in the case involving whether to broadcast the trial in front of Judge Walker. After reading the majority and dissenting opinions, I am left with the impression that the majority ruled as they did just because they don’t like what the trial judge did. I understand and respect the arguments against broadcasting any trials at all, even though I don’t agree with that position.
But the Supremes did not address that question in their opinion. They addressed only the question of whether the broadcast of the trial to other courtrooms around the country would likely result in irreparable harm to the witnesses/parties. That conclusion is not supported by the record. The names of parties and witnesses are already public record. People are “live blogging” the trial, and trial transcripts can be obtained by anyone who is able to pay the cost of the transcripts. Print media and internet reporters are closely covering the trial. There are few or no secrets to hide in this trial, even without broadcasting the trial.
Broadcasting the trial to few thousand people in other courtrooms around the country, where people have already been through screening devices upon entering the courtrooms, will have little effect on witnesses, parties, etc.
Broadcasting the trial nationally on You Tube is qualitatively different than broadcasting it to other courtrooms, but again that issue was not before the Court. (And people can reasonably disagree whether this qualitative difference has legal significance in the absence of real evidence that showing the trial on national TV could result in harm that would not occur in the absence of such a broadcast.)
So what the majority did was to ignore the facts to reach a result that they wanted to reach. They did a power grab to slap down Judge Walker, who did his own power grab to set the table for the trial to be broadcast. Judge Walker’s conduct can be rightfully criticized, because of the speed at which he moved with respect to the local rule. But a reversal of what Judge Walker did needs to be based on legal principles supported by real facts, not made up speculation. There was no factual basis to stay the broadcast of the trial to other courtrooms, even if Judge Walker legally erred in doing what he did.
In ruling as they did, the majority set a poor example for other judges and did real damage to our system of government.
January 19, 2010, 9:42 pmt says:
前列腺炎
January 19, 2010, 9:47 pmMark Field says:
I agree with Don de Drain on this. Superskeptic, I think you’ve misunderstood Madison.
No. A faction is a combination which acts contrary to the permanent and aggregate interests of the nation. “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
It is the diversity of interests which can be found in an “expanded sphere” which is Madison’s cure for faction, not the cause of it: “In the extended republic of the United States, and among the great variety of interests, parties, and [denominations] which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good….”
This confuses cause and effect. There was no freedom of religion in most colonies. MA and CN had established churches, as did most Southern states. The important factor was that they all had different established churches. Out of that diversity the only principle everyone could agree on was freedom of religion. Madison was confident that diversity in the political sphere would lead to the same result (as Adam Smith had argued would also work in the economic sphere).
Proportional representation is the whole point. “Proportional” means that each representative must represent a particular group; that is what gets us a diverse legislature.
Agreed. But that doesn’t eliminate the need for diversity at some level.
I’m certainly not in favor of slavery, but back when slavery was legal it would have been absurd to argue that the people who supported it weren’t entitled to representation. Awful as slavery was, you and I don’t get to decide for other people what interests and views they want to represent them. That would defeat the whole purpose of representation, indeed of republican government itself.
This is far too Platonic for me. There are no underlying Truths, there are only the different truths that everyone individual voter gets to decide for himself.
January 19, 2010, 10:57 pmSuperSkeptic says:
Okay, just to be clear – I’m not “against” diversity. But, you seem to see it as a pre-requisite to broader acceptable principles.
If you assert this, then do you not also refute Alexander Hamilton’s penultimate question on governance from The Federalist no 1? – “[W]hether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.” This is my whole criticism. Your democratic diversity argument (the same as Don de Drain’s “average out the Court’s ideology” argument) — note — in order to find core principles, e.g., religious freedom, is nothing less than a lowest-common denominator accident and force ruckus democracy that Madison argued against (even in The Federalist no. 10). His whole point in The Federalist no. 10 (and I agree with Hamilton, not Madison on the extended sphere theory – I view it as a temporizing measure at best) was a republican solution to republican government – wise, principled, and rational representation. Extending the sphere was not designed to elicit the best core principles, it was to prevent faction (resulting from diversity under liberty and property inequality etc.) from undermining the republican principle – that the majority can and should rule. The Constitution necessarily fixes our core societal principles in writing.
I thought that rational principled republican government was an enlightenment ideal, yet you say I’m too platonic. How, if you don’t mind me asking, would you characterize your contrasting view?
January 20, 2010, 12:23 amGuy says:
Now now, I’m sure Jefferson and Hamilton were in complete agreement about the meaning of the Constitution.
January 20, 2010, 12:59 amPersonFromPorlock says:
Congress legislates with the concurrence of the President; the executive branch acts under the eye of various congressional committees; the Court answers to no one. In the system of checks and balances, it’s the Court that’s odd man out and giving Congress a veto over Court decisions actually makes the system stronger.
As for where the check on Congress is, it’s in its having to answer to We the People.
January 20, 2010, 8:09 amMark Field says:
Madison argued for both. In his view, representatives would make better decision-makers than ordinary citizens. But he also argued and believed that the clashing of interests would make it less likely that faction would dominate. This was essentially the same argument Adam Smith had made about competition and monopoly, and Madison himself made it repeatedly when it came to religious freedom.
I agree that republican government was an enlightenment ideal, but it’s important to separate classical republican theory (Aristotle, Cicero, Machiavelli, Harrington, Sidney) from modern. You’re making what amounts to a classical argument. My view (which I think is Madison’s) is more heavily influenced by Liberalism (Locke, Smith).
January 20, 2010, 10:31 amSuperSkeptic says:
Mark Field,
Fair enough. Thanks for the pointers.
This is the crux, against which I’m trying to articulate something I intuit. I do not disagree with this to the extent it is true (remember, temporizing measure of expanding the sphere). However, I sense a disconnect here between the laudable goal of diluting faction to prevent tyranny (in some sense) and promoting diversity as a good in and of itself. Particularly, in light of “capture theory” etc. The constant averaging of diverse views doesn’t necessarily preclude tyranny as much as it takes us on an unguided and untethered democratic ride “blowing with the wind” – although, admittedly, it will tack to the “center” generally – which is the key attribute I sense others appreciate.
FWIW, when I talk about “core principles” I do not intend to mean “absolute truths” (in the platonic sense?) but rather, I guess – I mean to arrive at the “center” through rational thought instead of chance and the weight of extremely diverse views averaging out. Otherwise, we retain only half of the republican principle (representation, but not rationality).
My only random thought now, is whether you’ve conflated classical liberal thought and modern liberal thought in the way that I’ve conflated classical republican thought with enlightenment republican thought…
January 20, 2010, 12:31 pmChris Travers says:
As much as I detest FDR for this, you do have to admit he showed that there are checks and balances that bind the court.
January 20, 2010, 2:46 pmChris Travers says:
At the Supreme Court level, you aren’t going to look at the consistent averaging of diverse views. Most likely you will look at discussion and debate amongst diverse views. There are sound reasons here why diversity is important:
1) Diversity places a check against one ideology (deemed to be historically, legally, or politically correct) from dominating the discussion of what the Constitution means. Since each individual brings a different approach to interpreting the Constitution, the laws, and the precedents, this provides checks against one view running roughshod over everything else.
2) Diversity provides greater food for thought for those justices that are currently sitting. The discussion and debate will become richer and hence the decisions better than they would be if everyone agreed with eachother most of the time.
In short I see it as a “friction creates heat which creates fire which creates light” argument.
January 20, 2010, 2:55 pmMark Field says:
I pretty much agree with Chris Travers’ comment when it comes to the Court. Let me add that for both the Court and for Congress, diversity of views has the beneficial effect of slowing things down while the differences get talked out. That’s a good thing in my view; it makes the process of deliberation … well, deliberate.
That said, I freely concede the potential for an “untethered democratic ride” (as, I think, did Madison). Speaking for myself now, I think we hedge against that pretty well with the numerous other protections in the system: separation of powers; bicameral legislature; judicial review; presidential veto; etc.
Fair enough and I agree. The process of reasoning, whether at the Court or in Congress, should be deliberative in the best sense of that word. As per above, I see diversity as contributing to that goal, as did Madison.
January 20, 2010, 4:00 pm