Last Wednesday, Justices Scalia and Breyer made a rare appearance in front of the Senate Judiciary Committee to take questions on the role of judges under the United States Constitution. The hearing must be watched by anyone who cares about the Court and its decision-making. It also makes for interesting -- if frustrating -- viewing.
I was preparing for class and trying to watch at the same time -- multi-tasking, I believe it is called -- when the following exchange caught my attention:
The questioning is by Senator Grassley, who asks the justices to comment on Justice Brandeis' comment that "the most important thing that we do is doing nothing." Justice Breyer initially punted the question and pass it to Justice Scalia, who did not do much better. They both agreed that the best thing to do is, in Justice Scalia's words, to "leave things alone unless there is reason to change it."
But Justice Breyer had more to say on this issue. This is how he put it:
"What your question brought to my mind was, there is something in deTocqueville which is really. . . . one of the things he says, which really stuck, is he says, whenever I come to the United States, the first thing that strikes me is the clamor. What's he thinking of? Everybody's screaming at each other, is what he meant. And what he really meant is they're debating. They're talking about things. They're disagreeing. And he thinks that's good. And I do too. because that's . . . suppose you really have a tough problem sometime, lets imagine you are trying to figure out some bill and it has to do with privacy and it has to do with free expression. And there're all kinds of tensions right there with the internet and, uh, new methods of communication and Twitter and Facebook and whatever they are and people privacy and you're more familiar with all those than us.
"How do we decide those in this country? I think the general word I use is to talk to about that is "bubbling up." The first thing that happens is that people start to talk. They talk in newspapers, they talk in classrooms, they talk in articles, they talk in small groups, they talk with policemen, they talk with the firemen, and they talk with civil liberties groups, they talk to everybody under the sun, and they begin to debate, and they get into arguments, eventually it gets to [the Congress,] and you have hearings, and eventually you have to decide, maybe an agency should do it, maybe we should have a statute, maybe we change our minds five times, and eventually things will settle down. And what I say about my Court? It's really wonderful if we don't get involved until it settles down. Because our only job is going to be to decide if what you decide is within the boundaries. And it's going to be a subject where we will know less about it than those Americans who have gone into it in depth, so be careful of intervening before this big debate, this clamor that Tocqueville is talking about, has a chance to take over, take effect, scream, change, try it on, try it off. I think that's really the wisdom that underlies this view of, don't decide too much, too fast."
This is very interesting on many levels, but one level stands out above all others: what does this notion of "bubbling up" tells us about the upcoming challenge to the individual mandate? Could it be honestly said that this debate has "settle[d] down"?
Minutes later, Senator Kohl took up the obvious rejoinder, and what some scholars call the Court's "disappearing" workload. Here's a graphic illustration (courtesy of David Stras):
Scholars spend a great deal of time debating explanations for this sharp drop in the Court's plenary docket. Is it the the jurisdictional change in 1988, which eliminated much of the Court's remaining mandatory jurisdiction; or is it the change in membership since 1986? Could it be that the federal courts are now much more homogeneous, which leads to much less conflicts for the court to resolve? Or is it a question of judicial philosophy? Could the much-derided cert pool, and the clerks "just say no" mentality, be at the root of this issue?
Little did all these scholars know, all they had to do was ask: it is all about conflicts below and the decline in "breathtakingly important new legislation." In fact, Justice Scalia goes as far as to call the need for a conflict below "a general rule." (This makes me wonder: is the sign of a conflict below objective proof that the issue has "settle[d] down"?).
According to Justice Scalia, in fact, if his standards in accepting cases have changed at all, "it is only because I am trying to take more [cases], rather than trying to take less." And according to Justice Breyer, the Court really would like to take more cases: "the attitude in the conference is, there's a split, lets take it. We have room, we have room to hear more."
This is a remarkable exchange on many levels, though by no means the only exchange worthy of attention. It also makes me wonder about the utility of these hearings. Not for one second do I think that the justices are lying, or misleading, or being disingenuous. To be sure, they are being careful; this is Congress, after all, and there are also cameras in the room. But more importantly, they are reinforcing a consistent story about the Court and its inner-workings. This is a story of the Court as objective and apolitical whose only role is to uphold the rule of law. These hearings, rare as they may be, serve an important purpose in furthering that story.
Were the public ever to stop believing this story, the Court as we know it today could not possibly survive.