The recent mistake by the Supreme Court in the Kennedy case (missing a federal law authorizing the death penalty for child rape) has prompted this interesting idea from law professor Tom Smith over at The Right Coast. He suggests that the Supreme Court should post its decisions on the Web before they become final, to take advantage of bloggers who might discover errors:
Is there a way that the Court could take advantage of current social technologies to dramatically improve its understanding of the relevant law in any given case? Of course there is, but I'm not holding my breath. You could, for example, post all of the briefs in wiki format, or something similar, and then sift through the results. But any procedure you could come up with could be gamed, and it seems unlikely the federal judiciary could ever bring itself to modify its procedures to really take advantage of Web 2.0 sorts of tech, at least not until we are on Web 6.0 or so, or indeed before the Singularity gets here anyway. Perhaps some law clerk will be drafting the opinion and his computer will say back — "No, no, you're getting that wrong. There is a federal law on this — here, I'll send you the cite."
The "wisdom of crowds" is a well-documented phenomenon. It would be nice if the Supreme Court (among other important institutions) could figure out how to harness it.
When I was a judge, I tried to take advantage of the wisdom of others in a very modest way. I circulated "tentative" written rulings to the parties before holding oral argument, and then at the argument asked the parties whether they saw anything wrong with my proposed decision. Perhaps the Supreme Court could read the merits briefs in a case, release tentative opinions to the general public, and then hold oral argument — followed by revisions of the opinions if the arguments (and perhaps supplemental briefing) disclosed any errors.
Update: Law prof Jason Mazzone has made a similar suggestion to this a few years back, available at this link.
Related Posts (on one page):
- Should the Supreme Court Take Advantage of the Web?
- Post Calls for Kennedy Rehearing:
- Blogger Finds Factual Error in Kennedy's Kennedy Opinion:
The problem here is very simple. Whether or not there is a "national consensus" on something, such as the desirability of capital punishment for child rape, is a question of fact. If it is relevant to the constitutional issue, it should have been litigated as such in the lower courts, or there should have been a remand to consider it.
The trouble is, as I have noted many times here before, is that the Supreme Court routinely makes findings of fact based on its own "investigations" that have never been tested by the normal practices of our adversary system and are therefore not found in the record.
This is a cure 100 times as bad as the disease.
It's called amicus curiae and it predates Web 2.0 by more than a handful of years.
I can't help but wonder: Isn't the losing party always going to have a problem with the tentative decision? That is, "Judge, of course it's wrong. I lost." I wonder if oral argument then just becomes a desperate attempt to swim against the currents.
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Said another way, there is social and public value to letting a Court be hoist on its own petard. They are mere humans too.
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On important issues, interested members of the public easily obtain access to the briefs. See ABA Merit Briefs, for example. And Findlaw SCOTUS Briefs for another. The SCOTUS document WHERE TO FIND BRIEFS OF THE SUPREME COURT OF THE U.S. lists the second of those two.
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I frequent Lyle Denniston's SCOTUSblog, which is a rich source of insight and source documents, as well.
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Of course, I have no objection to SCOTUS being more helpful in presenting briefs, and I'd extend that observation to the Circuit Courts of Appeal and the District Courts.
In this case, say a SCJ's law clerk posted a bleg asking for any statutes which applied the death penalty to child rape. Whoever cared enough to investigate could answer him, and maybe this specific problem would have been averted. The problem comes with total reliance on this method--what if no one answers? What if the people who answer have an agenda? What if they don't have a specific agenda, but the group who's actually interested in the minutae of SC rulings is a non-representative pool, who unconsciously self-select into a certain mindset which may affect how they answer... or whether they answer at all? (Do you expect them to respond with facts potentially damaging to their preferred side on that case?)
Of course this is aside from the usual questions of legality--are the justices obligated to acknowledge facts raised in this manner, who decides which findings fall into the "objective fact" category that can be outsourced in this manner, etc. Do the two sides in the case get to respond to the results of these investigations?
I can see the theoretical case for this working out OK, but I agree with the commenters above, it's just too complicated to actually work without damaging the Court.
The losing party can always be inventive in coming up with a problem with the "tentative" decision.
You know, the thing we are bargaining for with a Supreme Court is that the people on the court do their best to get it right. Sometimes they may make mistakes and the ways of looking for mistakes do not successfully operate to catch the mistakes. That risk is something we take and it is OK with me.
Best,
Ben
This is a question of shredding what shreds of legitimacy they have left.
When I practiced in another state, a prominent local state court judge used to issue tentative oral decisions prior to argument, and I liked the practice. It focused the oral argument considerably.
At the very least, the classic Miller case on the Second Amendment is often said to have a glaring error in the finding of fact.
The error is claimed that the Supremes didn't know that short-barreled shotguns had military use before the 1934 NFA was written. The Miller opinion held that the short-barreled shotgun wasn't useful for military/militia service.
Partly due to Miller being dead (and his lawyer being unable to go to DC for the hearing), this particular error was not challenged and not corrected.
In Heller, both Scalia and Stevens say that Miller was convicted, when he wasn't. (Scalia also says that Miller found a sawed-off not to be a militia weapon, which isn't how I read Miller, but that's more interpretation than just fact.)
In Crawford v Marion County, Scalia (and maybe Stevens) says that people can get ID free, when in fact they first have to buy a birth certificate, so it's not free in the usual understanding of that term.
These are minor errors that didn't affect the outcome.
In Hiibel v Nevada, the Court treated the case as though Hiibel had been asked to say who he was and refused. What did happen is that Hibbel was ordered to produce government ID (such as a driver's license), and refused. Hiibel in effect holds that Nevadans have to obtain pedestrian licenses, internal passports, but that wasn't what the Court said it was deciding. The opinion was a hypothetical one instead of addressing the actual case and controversy before it. Probably would have come out the same way, but still important.
The Court does circulate opinions before formally printing them, which I think lets them catch typos in case citations, etc. I don't know how often, if ever, they go back and fix material errors when they got it wrong.
Judge Cassell's practice of circulating draft opinions to the parties is a wise one. I don't know whether it would be practical at the high court.
I'm not sure that you'd get the same advantage if this was done on a high profile supreme court stage, though, in large part because of scale. While it may be manageable/helpful to allow litigants to comment on a tentative opinion in a district court case, I'm not sure how you'd go about sifting through the mountains of straight-up advocacy that you'd get on an important SCOTUS draft. In theory, it seems like it ought to help, but in practice, I'm not sure how it could.
So is the madness of crowds. See Federalist 55: "Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob."
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It doesn't have an erroneous finding. It has an absence of finding, and it sent the case back, with instructions to obtain a finding.
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Miller has been misconstrued as containing a finding regarding the applicability of short barrel shotguns to "militia" -or- military use.
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So, there are probably scores of Court cases that have the error of misconstruing Miller - but if you went back to correct erroneous construction and application of case law, and assorted other intellectually dishonest tricks used to obtain the desired end result, you'd be upsetting the entire house of cards.
The Court already has a perfect tool for this job -- rehearing. Whatever forces make the judges reluctant to grant rehearing now would surely inhibit them from changing position once an initial draft is circulated through the media.
Substantively, the first commenter has it right. The problem is trying to infer a national 'consensus' about whether a penalty is ever just from the absence of legislative action. It only takes one good counterexample to pop that bubble.
Clerk: Open the Kennedy draft opinion, HAL.
Computer: I'm sorry Dave. I can't do that.
The rules of the Supreme Court allow petitions for rehearing but nearly no petitions for rehearing have ever been granted in the history of the court.
Have you really never seen a tentative? I mean really, I don't think you are much of an advocate if you haven't.
Judge Cassell -- I think tentatives work great at the trial court level, but would get really problematic at the appellate level, especially at the US Supreme Court. We have 9 different Justices, and there likely would be 9 different tentatives in certain cases -- or the Court would have to haggle over getting 5 people to agree to one tentative. Then, for example, let's say Scalia isn't in the tentative majority, oral argument is going to be a nightmare. We already have it where it's really the Justices talking to each other; imagine what it would be like if there was already a written opinion one of the Justices like Scalia could use all of oral argument to punch holes in and ridicule.
Amicus briefs are not a substitute for public comment periods. Amicus briefs are long formal affairs and in the Supreme Court require the acceptance of either all parties or the court (Rule 37 of the court).
Also, even amicus briefs sometimes give a tremendous amount of material to the court to review -- for example, the Supreme Court had 62 amicus briefs in the Regents of U. Cal. v. Bakke reverse discrimination case. And the amicus briefs in the case were not ignored -- Harvard University's amicus brief had a decisive influence on the decision.
That said, however, I wonder if SCOTUS and the Circuit Courts of Appeals would balk at giving what some might interpret as advisory opinions or gratuitous judicial utterances.
I've never seen a tentative either, and it has nothing to do with my skills as an advocate. It's because that's not the practice in my jurisdiction. It's a rare practice, as far as I know, which is why Judge Cassell is advocating for more to start doing it.
I think there's already a perfectly adequate vehicle in place for this problem -- rehearings/reconsiderations. If you think the judge missed an issue, then you can file for a rehearing on it. I've filed several in my career. Some have been granted, some haven't.
And if it's a pure typographical issue rather than a substantive one, that can be corrected before the slip op is printed as the final opinion.
How is that any different from the situation we have now? There are often three or more opinions in a single case. There were nine separate opinions in the Dred Scott case.
Dissenting opinions often comment on the contents of the majority opinion, so yes, judges do punch holes in and ridicule a written opinion in a case. And a comment period would not have to include oral argument.
JB said (7.9.2008 7:27pm) --
The idea behind tentative opinions and public comment periods is that judges would get help whether they ask for it or not.
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Because of delays, cases often take many years to work their way through the courts, but when it comes to taking a few extra weeks or months to get the public's opinion, the courts are in a big hurry to release the decision.
The courts have taken advantage of modern technology in other ways -- for example, many courts now allow or even require electronic filing of court documents. So why not use the Internet for accepting public comments on tentative court decisions?
The huge volume of comments that would be submitted in a controversial court case would be problem, but the same problem exists for controversial administrative agency decisions, e.g., the decision on whether to sell the "morning after" contraceptive to underage customers without prescriptions. Also, several hundred comments were submitted on the current FRAP Rule 32.1 that requires all federal courts to allow citation of unpublished opinions.
Another problem, of course, is that flaws in opinions are often spotted long afterwards, when it would be too late to correct them. The only solution then is to argue that the opinion is erroneous if it is cited as a precedent.
Also, requiring tentative opinions would help put an end to the disgraceful practice of issuing judgments without opinions. Judge TJ "Mad" Hatter of the Central California federal district court had a bad reputation for doing that.
Start with page 4 of the opinion: www.courtinfo.ca.gov/opinions/archive/S106906.PDF
IMO a bad feature of this tentative opinion program is that supplemental briefs are not allowed without court permission (footnote 2 on page 5 of the Cal. Supreme Court opinion). However, this tentative opinion program is certainly a big improvement over the procedures of most other courts. This appeals court's website makes the need for tentative opinions obvious:
So it might not even be necessary to prepare special tentative opinions -- the tentative opinions may already exist as "bench memoranda." Then the only issue is whether to submit these memoranda to the parties and/or the general public for review. Also, there are really two questions here: (1) whether to submit tentative opinions to the parties and (2) whether to submit tentative opinions to the general public. And the best answers to those questions may be different for different courts and different cases.
Also, courts need to find more ways of saving time by cutting the malarkey and getting to the point. The courts make time for big cases by giving short shrift or no shrift to little (or seemingly little) cases.
That's true -- many comments may be just emotional, ill-informed, frivolous, or not addressing legal or constitutional issues. But public commentary on controversial administrative rulings published in the Federal Register often has the same problem, and there may be thousands of comments on a single ruling.
That is a frivolous objection.
Instead of just making off-the-cuff replies to the judges' oral statements, the attorneys can do a much better job of preparing their arguments if they know in advance what the judges are thinking and what the judges are focusing on. Also, maybe the attorneys would have questions to ask the judges about the bench memorandum (a tentative opinion often prepared by appeals court judges) but would not be able to ask those questions because they didn't see the memorandum.
And the attorneys may be caught flat-footed if they haven't had time to research and think about a particular issue.
Blogs are no substitute for a formal public comment procedure. There are too many blogs to review, people might not know which blogs to leave their comments at, some of the best blogs on a subject might be ignored, and there is rampant arbitrary censorship of comments on blogs.
Also, as I said, there are really two questions here: (1) whether to submit tentative opinions to the parties (and maybe also amici) and (2) whether to submit tentative opinions to the general public. IMO the correct answer to the first question is always yes.
Another idea -- conducting oral hearings by teleconferencing.
Instead of trying to fix things afterwards by means of a rehearing, why not try to get things right the first time?
Paul Cassell says in the original post --
I think that posting the briefs in a wiki (i.e., open-editing) format is a very bad idea -- edit wars would be inevitable. Some editors would delete what other editors add.