Justices Scalia and Breyer on the Court's Workload

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.  

The Politization of the Federal Judiciary

I often wonder what constitutional law professors tell their students about the big cases.  These are the canonical cases every law student discusses at one time or another during her law school years, cases such as Youngstown Steel and Brown v. Board of Education, Marbury v. Madison and Dred Scott, South Carolina v. Katzenbach and McCulloch v. Maryland. I suspect that most professors keep it simple.  They talk about the Constitution and surely they talk about "law" as an abstract proposition.  They also bring up prior cases and spend much time "distinguising" them or "reconciling" them, or else arguing why the present case follows seamlessly from prior, settled law.

I understand why they do this.  They are law school professors, and this is a place where law must matter.  if not law, then what?

But here is the problem.  Constitutional law is not about "law" in the formal sense.  That is, constitutional law is not about the formal meaning of the privileges and immunities clause or the necessary and proper clause.  To be sure, this is what law professors would have you believe.  I am here to tell you that they are either lying to you (and themselves) or else they are so imbued in the law school orthodoxy that they can't tell any better.  And that's too bad.

Further Thoughts on Sotomayor and her Chicago Visit

If you have paid any attention to reports of Justice Sotomayor's visit to Chicago, you might come away with the impression that the big take-away point from her time there was her advice to students to relax more.   For the record, she did say that.  But she said more.  A lot more.

The End of Judicial Activism?

I have been thinking a lot lately about Judge Walker’s ruling in California striking down Proposition 8, and Judge Bolton’s ruling on Arizona’s immigration law.  The most obvious response is that these rulings, and the reactions of those who oppose them, lay bare the silliness of the modern debate over judicial activism.  According to their critics, these rulings are exercises in judicial activism by liberal judges hell-bent on destroying everything we hold dear; yet recent rulings on gun rights, campaign finance, and race, to name a few glaring examples, are exercises in judicial restraint and the faithful exercise of judicial responsibilities in enforcing our beloved Constitution. 

This is bunk, obviously; Justice Scalia is no less an activist judge than Justice Marshall.  They just happened to care about different things.  This is true under any definition of activism you can think of, from the invalidation of statutes to the creative and dynamic interpretation of federal laws to the active use of the avoidance canon.  If you need support for this, take a look at the Supreme Court’s most recent pronouncement about the Voting Rights Act, Namudno v. Holder.  Rather than rule on the constitutionality of the Act, as most observers expected, the Court, in an opinion authored by Chief Justice Roberts, “avoided” the constitutional question.  It did so by essentially rewriting the statute to say something the text clearly did not say.  In the coming years, the Court is similarly poised to strike down the special provisions of the Act.  As I have written elsewhere, this is “activism on steroids.”

To focus on the concept of activism is thus to focus on the wrong target.  This is to focus on politics, not law, and to render criticisms of judicial rulings as questions of whose ox is being gored.  No shame in that, of course, but hopelessly unhelpful.

Instead, we should focus on the fact that judges are strategic actors, particularly those who sit at the top of the judicial hierarchy.  This is to say, the justices of the U.S. Supreme Court have policy preferences, which are reflected as best as possible in their rulings and votes from the bench.  This is true of all the justices, not only the liberal ones.  The moment we come to accept this truism, the better off we will be. 

Right off the bat, I can think of one big improvement on our politics: we won’t have to listen to Senator Sesssions pontificate about the dangers of judicial activism. 

Enough already.