Finally … a growing public awareness and concern about the ‘attitudinal model’ of Supreme Court votes. [Expanded repost]
Correction appended below.
Scott Lemieux weighs in at The Week, writing that, although “Supreme Court voting is too complex to be explained by any single factor,” the “attitudinal model” – which posits that “Supreme Court votes are explained by what judges consider desirable policy” – “still contains a good deal of truth.”
— Amy Howe, SCOTUSblog, Friday Roundup, May 16 this morning
Lemieux’s article is a must-read–for his own excellent commentary and because it mentions recent articles and empirical studies that not only make the substantive point but also illustrate that we’ve reached, or are about to reach, the point at which, having broken through to the larger, general news media, it becomes a subject of discussion among, y’know, ordinary folk. The sort of people whose cert. petition, should they file one, the Court wouldn’t be caught dead actually considering granting.
Lemieux’s statement that “Supreme Court votes are explained by what judges consider desirable policy” is profoundly accurate. During the 1980s and ‘90s the justices were quite open about this, at least regarding access-to-federal-court issues. By which I mean that they engaged in wholesale fabrications of jurisdictional, quasi-jurisdictional, and “immunity” doctrines, and the rewriting of procedural statutes (the Federal Rules of Civil Procedure are statutes)–in an unremitting juggernaut to deny federal-court access to pretty much everyone who isn’t a corporation, a state (states are now people, just like corporations, except when someone wants to sue them), a public official or employee acting in the course of his or her employment, or a rightwing culture warrior.
The Roberts Court has continued this, in spades, except when a mega-corporation or a multi-millionaire represented by a $1,000/hr. Washington-based Supreme Court Specialist asks that they narrow the doctrine. There was a very, very recent (May 5), stunning exception to this hard-and-fast qualifications-to-have-your-cert.-petition-considered prerequisite list, in an opinion that I would consider the second-most-significant opinion of this term (McCutcheon v. FEC is the most important, in my opinion), except that I already know that the lower courts will ignore the opinion–simply pretend that it doesn’t exist–and get away with it. The Court, as currently constituted, won’t grant another cert. petition to enforce the two (equally important) rulings in that case, Tolan v. Cotton, unless a mega-corporation needs it–a highly unlikely event.
If you doubt that, please read the dissent from the decision to hear that case.* It will be educational, I trust.
The Roberts Court’s contribution to the Court’s wholesale self-conferred policymaking role is to purport to justify their policymaking as mandated by the Constitution–by its structure, its history, its … whatever. Whatever, usually being some comment by one of its framers (almost always James Madison, the unwitting mascot of today’s far right), or a pre-Civil War Supreme Court opinion.
That the actual structure of the Constitution, as well as its explicit provisions, include, for example, a clear separation-of-powers bar to judicial-branch fabrication of jurisdictional and other procedural bars to access to federal court has, since the early 1980s mattered not one whit. So the Court no longer adds to the a veritable avalanche of fiats that the justices themselves justified in some instances as simply their idea of good policy. The fiats these days come clothed as alleged personal dictates of Madison or of Congress, notwithstanding the chasm between Madison’s (and other framers’) actual expressed beliefs–or Congress’s actual clear intent, as per the statute’s or procedural Rule’s words as those words are commonly understood (or were, at the time of enactment)–and the Court’s suspiciously rightwing interpretation of them. And now, finally, the general news media and the larger public are catching on.
Another terrific article about this is an op-ed by journalist Michael McGough in Thursday’s Los Angeles Times, in which he says he’s “struck by how the controversy over whether the Supreme Court justices have become more partisan in recent years parallels a phenomenon I discovered when writing about the Church of England: the ‘party bishop.’”
Relatedly, another terrific article in The Week, this one by Matt Bruenig, argues for term-limiting Supreme Court justices, and is subtitled “Lifetime appointments were meant to preserve judicial independence. But the high court has devolved into a political body with too much power.” That article is similar to one by law professor Eric Segall published at CNN.com earlier this week, except that Bruenig’s article details some specific amendment proposals.
These are matters whose time finally may have come as issues worthy of serious attention, with real possibility for change.
NOTE: This is an edited and expanded version of a post I posted yesterday and have now deleted.
CORRECTION: I received the following email this morning from a law clerk to a federal magistrate judge:
I read your article, “Finally . . . a growing public awareness and concern about the ‘attitudinal model’ of Supreme Court votes” this morning after linking to it from SCOTUSblog. In it, you referenced Tolan v. Cotton from the current Supreme Court term saying, “The Court, as currently constituted, won’t grant another cert. petition to enforce the two (equally important) rulings in that case, Tolan v. Cotton, unless a mega-corporation needs it — a highly unlikely event. If you doubt that, please read the dissent in that case. It will be educational, I trust.”
Upon linking to Tolan v. Cotton, however, I found no dissent, only a concurrence by Justice Alito, joined by Justice Scalia. Did I misread your comment?
I am sorry; you are right that the Alito opinion, joined by Scalia, is a concurrence in the judgment. It was a dissent from the decision to grant cert., but a concurrence in the two substantive rulings–one concerning summary-judgment jurisprudence, the other concerning “qualified immunity” federal common law. Once the Court decided, 7-2, to grant the cert. petition, Alito and Scalia did agree that the Court of Appeals had ignored the mandate of Rule 56 and the Court’s own summary-judgment and qualified-immunity jurisprudence. But since petitioner Tolan was neither a state trying to have the Court overturn a federal habeas grant nor a mega-corporation asking the Court to rein in the rampant and breathtaking misuse by the lower federal courts of the Court-fabricated jurisdictional/quasi-jurisdictional “federalism” doctrines, Alito and Scalia objected to the majority’s decision to grant the petition.
The part of my post in which I (briefly) discussed Tolan addressed the issue of who has access to Supreme Court “error review”, and when, and why. So I used the word “dissent,” but should have explained that the opinion was only a dissent to the part of the opinion granting cert. and stating why, and not to the substantive outcome.
I’ll add a correction to my post.
Some of this is technical language, and sometime later today or tomorrow I’ll post separately about this, explaining it. But I wanted to post this correction here as soon as possible. The emailer said she serves as the death-penalty law clerk to the magistrate judge she works for. 5/21 at 1:21 p.m.
* Sentence corrected, 5/21 at 1:47 p.m.
Somehow this doesn’t strike me as new. Back in the day, a chief justice said “the constitution means what the court says it means” or words to that effect; in Roosevelt’s day there was much grousing about the nine old men; during the Warren court’s reign, there were “impeach Earl Warren” signs all over the south, west and rural midwest. It may be that there is a recurrence of the public’s paying attention to this. If so, that’s probably a good thing if only for the fact that widespread discussion and complaining in the media may cause the court to restrain itself somewhat for awhile. I said, “may”.
I think there’s an important question, though, Jack, about WHY the Constitution means what the Court says if means in respective circumstances and eras–and especially, WHY the Court even addresses a particular issue in the first place.
The Nine Old Men in the early New Deal days were, in essence, simply refusing to overturn Lochner-era precedents. And the change of heart by some of that nine, and the Roosevelt appointees, were responding to what clearly was a long-term national economic emergency, and upheld the policy enactments by the two elected branches that addressed that emergency. The Court adopted a view of the Commerce power that was very defensible, in order to uphold those statutes.
As for the Warren Court, the separate-but-equal ruling that the Court overturned was itself a serious manipulation of the equal protection clause, in light of the very purpose of the Fourteenth Amendment and that clause in it. And when the Warren Court agreed to hear the case, it was not at the behest of some ideological-movement crowd with which the justices themselves were affiliated. It was at the behest of the NAACP and black public school student who were among the many millions of black public school students in the South who, by force of state law, attended separate schools for black students. The Court simply effectuated the Fourteenth Amendment.
And as for the Warren Court’s criminal-defendant/criminal-suspect jurisprudence, here again the justices had no pre-existing symbiotic relationship with the petitioners–in those cases, the criminal defendants–or their lawyers, and no pre-existing determination to gain a stranglehold on this country’s legal system and transform it to suit their ideology. But that is exactly the circumstance that exists today. And THAT’s what is finally beginning to gain attention.
We’ve had this discussion before, of course, but just briefly: the pro Lochner court got intimidated by the Roosevelt threat to stack the court; the various appointments that filled out the Warren court changed that court’s political direction and one could certainly say the same about the Roberts court. Different winds move different courts but as you know the directions and conclusions reached by such courts do not flow from logic but from ideology. I don’t agree that the Roberts court is corrupt; it certainly is ideological. It also has members who are hypocrites about their conflicts of interest. That proclivity in the court is unlikely to change be the current direction right wing, left wing, or vanilla. The important thing is for the electorate to understand that the court is a political institution and to factor that into political choices for the presidency and the legislature.