The Supreme Court's haughty disregard of states as lawmaking governments was on full display this past fall when the Court green-lighted the judicial redefinition of marriage in several states without so much as the courtesy of letting the states argue their case to the Justices in person. Although surprising (and weak), the Justices' refusal to let themselves be bothered is consistent with the course steered by shifting majorities in the marriage redefinition litigation over the past few years.
One would be foolish to ignore the likelihood that various Justices, for their own reasons and mostly independently rather than pursuant to a conspiracy or some sort of grand plan, have been rationally pursuing an agenda for constitutional change in which these denials of certiorari were instrumentally useful. If that assessment is accurate, these denials of certiorari illustrate one aspect of judicial supremacy as examined by Jeremy Waldron in his Francisco Lucas Pires Distinguished Lecture at the Catholic University of Portugal (noted on MOJ by Rick on All Hallows' Eve and posted to SSRN as complete as of the same day (9/29) that the Supreme Court decided at Conference to deny certiorari).
Waldron argues in this Lecture that "judicial review tilts towards judicial supremacy when the courts begin to think of themselves and present themselves as pursuing a coherent program or policy, rather than just responding to particular abuses identified as such by a Bill of Rights as they crop up." That seems to be exactly what the Supreme Court (admittedly a "they" rather than an "it") has been doing with respect to the definition of marriage.
What can be done about this? It's worth asking. For while the problem of judicial supremacy is evident now in connection with marriage redefinition, the problem is much more widespread and it does not necessarily have a particular ideological valence.
The more I've thought about the problem of judicial supremacy recently, the more I've come to think that one typical way of responding to it is sometimes exactly the wrong response (even though probably constitutional). That way is jurisdiction-stripping legislation.
When the Supreme Court or some other federal court issues or threatens to issue a decision that legislators believe further separates or would further separate constitutional law (created by the courts) from the Constitution (under which the federal courts are created), legislators sometimes propose legislation that would remove certain categories of cases from federal court jurisdiction (and sometimes state court jurisdiction as well). This legislation virtually never succeeds (in part for reasons explained by Tara Grove), but practical futility doesn't prevent these proposals from being proposed (which may be just as well for proponents when the proposals represent mere posturing). And even when such legislation succeeds, it does not eliminate bad precedent and does not entirely prevent the creation of new bad precedent.
A potentially more promising response to judicial supremacy may be "jurisdiction stuffing." (I thought I made this phrase up, but it turns out that the phrase has already been coined and (probably planted deep in the part of my brain that lights up on federal jurisdiction matters) by Jim Pfander.) Instead of running from the Supreme Court, as in jurisdiction stripping, the idea of jurisdiction stuffing is to rush it. (The Super Bowl was just the other day; think of this defensive strategy as a blitz.) The mechanism would be mandatory appellate jurisdiction over a set of cases. This would deprive the Supreme Court of discretion to decline to decide that set of cases. It would thereby would curtail the Justices' exercise of one their most potent powers for pursuing a particular program of constitutional change, namely their agenda-setting authority.
Such legislation seems as constitutionally unproblematic as it is counter-intuitive. But the effects on substantive constitutional law could be significant. In particular, jurisdiction stuffing would likely moderate the Court's willingness to introduce major changes into constitutional doctrine in areas where they have mandatory appellate jurisdiction. This just makes more work for them. And knowing that will force them to confront directly the unsettling effects of their interventions. More broadly, jurisdiction stuffing could have a beneficial effect of making the Supreme Court more like a court. Most courts don't enjoy the freedom to set their own agenda the way that the Supreme Court does. In a world of judicial supremacy in which supremacy is not going away, the best strategy may be to try to make it more judicial in nature.
All of the Justices, to varying degrees and in varying ways, are too much "big-picture-only" people in too many ways to be good judges in their big-picture-only world. One way of counteracting this is to force more immediate confrontation with the nitty gritty of how their big-picture pronouncements are supposed to be implemented doctrinally. Want to hold mandatory state sentencing guidelines unconstitutional? Well, the federal guidelines cases will be coming fast and furious. Want to insist on federal judicial supervision of detention at Guantanamo? Every single appeal of the denial of habeas relief is coming your way soon. Want to revive the Second Amendment and recognize a right to gun possession in the home? The gun possession in public cases are right around the bend. Want to redefine marriage? The cases that ripple out from that intervention will be on your desk later this year. And so on.
There is no guarantee that jurisdiction stuffing would have the effect of putting the brakes on doctrinal change in constitutional law. Depending on how it is drawn up, mandatory jurisdiction over certain cases could end up replicating in practice the virtually unfettered discretion that exists under current certiorari practice. Before the elimination of mandatory appellate jurisdiction in a certain set of cases in 1988, for instance, the Court summarily disposed of many many cases without engaging in plenary review. And even if the Court were to grant plenary review in all the stuffed cases (perhaps because Congress figures out a constitutional mechanism to make that happen), there is also the risk that the Justices will use these opportunities to make even worse constitutional law. At some point, though, one needs to count on the fact that reason-giving practices and public scrutiny and the loss of legitimacy that would come from more blatantly smudging the law-politics boundary would bring the Justices back to operating in more of a judicial mode.
Even if jurisdiction stuffing were to have the desired effect of putting the brakes on change in constitutional law, that effect is not always desirable. When and where constitutional doctrine is in truly bad shape, the Supreme Court should be willing to overrule it and should not be unduly deterred by transition costs. But this consideration can be addressed, among other possible ways, through the criteria for identifying cases where jurisdiction should be stuffed. Consider, for instance, the difference between mandatory appellate jurisdiction in the Supreme Court for all cases in which a government, government agency, or government official appeals to the Court from any adverse constitutional ruling or, instead, just from any adverse constitutional ruling about, say, the Establishment Clause.
Insofar as history provides a guide, the lesson seems pretty clear that agenda-setting authority at the Supreme Court has contributed to the expansion of the domain of federal constitutional law. As Edward Hartnett has powerfully argued, the Supreme Court may not have constitutionalized state criminal procedure (among other areas) if the result of doing so would have been a massive increase in the Court's workload. While the transformation of the Supreme Court and its role in American government that took place last century had many causes, one undeniably important change was the expansion of the Court's discretion to decide or decline to decide that took place with the Judiciary Act of 1925. (Reading Hartnett's article on that legislation crystallized for me the worth of considering the potential effects of jurisdiction stuffing.)
There is no going all the way back, of course, nor should one want to. The Supreme Court unquestionably needs some measure of discretion in case selection. But they probably have too much discretion right now. And one way to stop the Justices from going where they ought not to go as a matter of substantive constitutional law is to force them to move faster if they are to move at all. In at least some doctrinal areas, the Court can run at the same pace their decisions set for other courts. And they should have to; they are supreme, but they are also still a court.
Tuesday, February 3, 2015
I've posted on SSRN a paper of mine that is not new, but is (finally) coming out in print (in Nomos, the series published by the American Society for Political and Legal Philosophy). It covers a lot of (to MOJ readers) familiar ground . . . but I really like the title!
A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.
That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy[] … all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.
Monday, February 2, 2015
Prof. Nicole Stelle Garnett, co-author of "Lost Schools, Lost Community," gives an excellent interview here ("Why We Need to Save the Catholic Schools") about, well, the title of the interview. Here's a bit:
To our elected officials and the education-policy establishment, we offer the following challenge: Our education policy has, at least until quite recently, come to settle on the assumption that “charters are enough choice.” It is time to reconsider that assumption, to embrace true educational pluralism, and to support policies focused on increasing high-quality educational options across all educational sectors — public, private, and charter.
To our fellow Catholics (especially bishops and school superintendents) and all those who wish to ensure a vibrant future for Catholic schools, we offer three challenges: First, focus on leadership. Our research suggests that the support of school pastors is a major factor predicting whether a school will close, and we believe that strong principals are just as critical. We must find and form the next generation of Catholic-school leaders. Second, recruit Latinos. In the United States, nearly 70 percent of practicing Catholics under the age of 35 are Latino, but only 3 percent of Latino families send their kids to Catholic schools. Third, to echo Saint John Paul II: “Be not afraid.” The game is not up. The future of Catholic schools won’t look like the past, but it can be a hopeful future. Our kids, our communities, and our Church need Catholic schools. So let’s steel our resolve, roll up our sleeves, and get to work.
