Goldstein on the Current Court and the Supreme Court's Docket:
Over at SCOTUSblog, Tommy Goldstein makes some very thoughtful points about the the previous and upcoming Supreme Court Terms. In particular, he makes some quite perceptive comments about the presently fashionable claim that we now have a consistently conservative Court:
Today the picture is quite different. Today the Justices are focused heavily on lower court splits; they appear to see their primary role as resolving lower court uncertainty on legal questions that have spent a lot of time percolating below. This means that the Supreme Court's docket is actually set mostly by lower court judges rather than coalitions of the Justices. Lower courts decide whether to create a split, and that split is what prompts Supreme Court attention. (If you're thinking that might create room for some tactical split-creation below, well, yes it does.) As a result, the direction of the Court is defined by where the Justices are on the specific issues where the lower courts divide. This tends to lead to a much smaller docket as well as much less predictable trends in the direction of caselaw from year to year.
[T]he characterization of this Court is part caricature and is deeply dependent on the near-accident of the particular cases that are decided in any given Term. Although the era in which true liberalism was an ideological force on the Court (e.g., Brennan, Marshall, and Douglas) is now over, this is manifestly not a period of conservative hegemony. Like Justice O'Connor, Justice Kennedy's commitment to any ideological world view is too fragile for either wing of the Court to have genuine confidence in the outcome of an entire Term's worth of cases. And moreover, many important cases are not decided on ideological grounds or by five to four majorities.I think Tommy is exactly right. The key driving the current Court is its cert practices: How the Court goes depends on which cases the Court takes. In the Warren Court era, the Justices looked for cases that would help them move the law where they wanted. The Warren Court took lots of cases, and they used those cases to change a lot of law. They didn't need splits, or in some cases even a relevant decision below.
. . . I think that the existing and anticipated docket strongly suggests that, during OT2007, the outcomes of the highest-profile cases will be perceived as quite liberal. As a consequence, I think it is exceptionally unlikely that next Term will end as this one did, with front-page stories and reports leading the evening news describing the Court as profoundly conservative, with laudatory commentary by the right and howls of protest from the left. Instead, we will see (mistaken) talk of the "surprising" tack by the Court back to the left and (among the legal glitterati) the "good Kennedy, bad Kennedy" phenomenon in which his ideological views seemingly oscillate dramatically from Term to Term. In fact, this commentary will be wrong: the Justices and their views will be exactly the same come June 2008; it is the cases that will be different.
Today the picture is quite different. Today the Justices are focused heavily on lower court splits; they appear to see their primary role as resolving lower court uncertainty on legal questions that have spent a lot of time percolating below. This means that the Supreme Court's docket is actually set mostly by lower court judges rather than coalitions of the Justices. Lower courts decide whether to create a split, and that split is what prompts Supreme Court attention. (If you're thinking that might create room for some tactical split-creation below, well, yes it does.) As a result, the direction of the Court is defined by where the Justices are on the specific issues where the lower courts divide. This tends to lead to a much smaller docket as well as much less predictable trends in the direction of caselaw from year to year.
Blatant judicial activism. But I thought that no such thing existed?
"Judicial activism" usually applies to results-based judging. "[T]hey used those cases to change a lot of law" says nothing about the method the Warren Court used, and could apply just as easily to an "activist" to court as to one that sticks strictly to an interpretive method in reaching its outcomes.
As for why cert was granted in Carhart, the Court will almost always take a case where an appeals court has struck down a federal statute -- as was the case in both of the lower courts in Carhart. (In other words, this is another way certiorari is likely to be granted, in addition to the more likely lower circuit split.) This is especially the case when it's a major piece of legislation, as was also the case in Carhart. As another example, the Court took a case for the coming Term reviewing a circuit court's decision to strike down part of the PROTECT Act, which respects child pornography. (I think -- I don't have time to double-check right now.)
Does it? The decision whether to create a circuit split rests ultimately with the 2-judge majority in the circuit court panel that decides an issue after another circuit has taken a position on it. If those two judges agree with the position taken by the other circuit, they have no reason to force a split by taking a position with which they actually disagree simply for the purpose of increasing the chances that the Supreme Court would grant cert (and in the hopes, presumably, that the Court would reverse their own decision). If the second panel does not agree with the position taken by the other circuit, then they have every reason to create a split not for "strategic" purposes but simply out of a genuine disagreement with the other court's analysis. In either case, it doesn't seem as if tactical considerations regarding SCOTUS cert practices are likely to play a significant role in the outcome. Unless I'm missing something?
While I think this is a reasonable conclusion, I'm not sure we can be too certain that it's correct. For instance, the Court still occasionally takes cases without a split below, as we say this past term with the school integration cases: three circuits had considered the issue and all three agreed that such policies were permissible (even with opinions by some conservative/libertarian judges like Kozinski and Boudin), yet the Court took it and reversed it without waiting for a split. Meanwhile, the circuit courts have all become more consistently conservative in recent years. It may be that the Court is still quite willing to take some cases without splits when it wants to move the law in a different direction, but currently the circuit courts are already going the direction it wants them to (except the Ninth, and we've seen how the Court treats them!), so they just haven't had much reason to do so recently.
Right. Because that was the only case the Warren court ever decided.
Are you yet tired of the smears, or are you going to accuse anyone who disagrees with you of trying to bring back whites-only water fountains, too?
Furthermore, Warren Court justices didn't have carte blanche in picking what cases to decide if only because they didn't determine which cases reached them. They could only act on the cases presented to them by way of petitions for certiorari and appeals. What cases the Court decided was, as always, determined in the first instance by the lawyers who chose to file petitions for certiorari and appeals. The Court took them as they came.
That the Rehnquist and Roberts Courts are taking fewer cases is probably because 1) the centrist justices (there are no liberal justices) are reluctant to vote to grant review for fear their views will not prevail and 2) the conservative justices are on the whole quite content with the way the vast majority of state court and lower federal court decisions since conservative judges prevail there as well.
Please tell us the cases which the Warren Court decided where there was no relevant decision below. I bet that's misleading, too.
I am quite puzzled by your comment, which seems to have misunderstood the post. No one argued or even suggested that it was "illegitimate" for the Warren Court to exercise its certiorari jurisdiction as it did. I don't even know if Rule 10 existed in the Warren Court years, or if it did, what it said.
As for your guesses as to why the Court is not taking lots of cases, I suppose I would want to know the basis for your conclusion. It is inconsistent with my experience, but then perhaps you have more experience than I with such matters.
In terms of cases where the Court decided an issue where there was no relevant decision below, I am thinking of two of the most important Fourth Amendment cases: Mapp v. Ohio (1961) and Berger v. New York (1967).
Mapp was argued in state court as a First Amendment case. THere's the West head note of the Ohio Supreme Court's decision in State v. Mapp, 170 Ohio St. 427 (1960):The U.S. Supreme Court granted cert on the First Amendment issue of whether there was a right to have obscenity in the home, the issue argued below. The Justices then turned course and instructed the lawyers to brief whether the Court should overrule Wolf v. Colorado and incorporate the Fourth Amendment's suppression remedy through the 14th Amendment. The Court then took its own suggestion, handing down the most important Fourth Amendment decision ever decided on an issue not raised by the parties or argued below in state court.
In Berger, the Supreme Court granted cert and handed down an opinion on the facial requirements of a wiretapping statute (at a time that by sheer coincidence Congress was considering just such a statute) from the following opinion of the N.Y. Court of Appeals, reprinted here in its entirety:People v. Berger, 18 N.Y.2d 638 (1966).
Of course, that's only two cases in the area that I teach and write; it's quite true that I have not done a more comprehensive study of the court's docket as a whole.
Do you really believe this Supreme Court has no liberal justices, only centrist justices? PUH-LEEZ!!!
I am quite puzzled by your comment, which seems to have misunderstood the post. No one argued or even suggested that it was "illegitimate" for the Warren Court to exercise its certiorari jurisdiction as it did.
No misunderstanding at all. You wrote:
That's not neutral language, Orin. It directly criticizes the Warren Court's cert practice. It casts the Warren Court justices as unbridled judicial activisits looking for cases to move the law where they wanted as opposed to the current Court, which, according to you, only seeks to clarify uncertainty in the law where there are splits between the courts. I have to laugh at that in view of last term's decisions.
So "didn't need ... in some cases even a relevant decision below" turns out to be two cases--about which you refreshed my memory--in which the Court, after examining the record and the briefs, decided fairly pure questions of law, the facial validity of a statute authorizing warrantless wiretapping and the question of whether the fourteenth amendment incorporated the fourth amendment. As far as I know, there's nothing improper or even questionable about that, although you seem to think it's significant in contrasting the current Court's certiorari practice with the Warren Court's.
By the way, I believe, although I cannot give you citations, that there are quite a few other cases in which the Court went off on grounds not raised in the petition for certiorari. Some came before and some came after the Warren Court.
As for your guesses as to why the Court is not taking lots of cases, I suppose I would want to know the basis for your conclusion. It is inconsistent with my experience, but then perhaps you have more experience than I with such matters.
I don't know what experience could possibly qualify one Court observer over another in determining what has prompted the current Court to grant fewer certiorari petitions. If you will tell me what particular experience it is that leads you to say my "guesses," as you call them, are inconsistent with your experience, perhaps I will yield to you on this. I know you clerked at the Court. Did the Justices tell you the reason for their certiorari votes? In the meantime, I stand by what I wrote in this regard, which, by the way, certainly did not originate with me.
Do you really believe this Supreme Court has no liberal justices, only centrist justices? PUH-LEEZ!!!
I do remember when the Court did have liberal justices.
I think Congress has very few liberal members these days.
Please, pretty please, with icing on top, let me have my own frame of reference as to what a liberal is. It's practically all I have left in terms of liberalism--the concept.
When I get past your considerable bluster, it seems that your objection is solely to my tone. That is, you are not saying that my description of the Warren Court's practices is inaccurate. Rather, in your view the language I use to make an accurate description implies a sense of disapproval that renders that paragraph not sufficiently "neutral" for your personal taste. If that's your sole objection, I note your objection and have no response.
As for the role of law clerks generally in the certiorari process, a helpful starting point might be here.
The grant of cert for cases that may not have dealt with an particular issue in depth at the lower court level is not a practice that the Roberts Court abstains from either.
Just this past term, the Court decided Cunningham, which was in the lower courts a fairly run-of-the-mill sentencing case , while the actual issue the Court was reviewing was from People versus Black of the California Supreme Court (in conflict with other circuit and state supreme courts). So one looking merely at the grant of cert in the Cunningham case could state that they "looked for cases that would help them move the law where they wanted." But whether this is actually the case is another matter.
It's also possible that the Court with Berger and Mapp was doing the same thing.
What in particular was the issue in Cunningham as presented in the petition and brief?
In any event, I don't think what you suggest is what the Court was doing in Berger and Map. The Court's precedents were pretty clear and there certainly was no "split" on any of these topics. Instead, a majority of the Court was prepared to change the law, thanks primarily to new members that had joined the Court.
http://www.fdap.org/downloads/blakely/CunninghamCertPet.pdf
Unfortunately, I don't have the time to chase down what the petition said, what the briefs said, what the Black court said, and how it is that the Court ended up reaching a different issue, if, as you say, it did. Since you raise the example, can you fill us in on what you believe happened?
I'll leave it to readers to determine who is guilty of considerable bluster.
You still haven't told us what particular experience you have that enables you to say that my "guesses" on why there are fewer certiorari grants are inconsistent with your experience. Absent detail, that is bluster.
Yes, let's leave it to the readers.
Incidentally, if you're in DC on the morning of Saturday, Sept 29th, I'm going to be speaking on a panel with Carter Phillips, Chris Vasil, and some others on the cert process and strategies for writing successful cert petitions. We could continue this debate then; perhaps we could meet for coffee afterwards to discuss this more? Just let me know and I'll send you the details; you know my e-mail address.
Best,
Orin