Does the Roberts Court’s view of executive and legislative power present an alternative case for court reform?

A guest post by Lawrence Friedman

In his recent essay, The cravenness of Democratic “Court reform” proposals, Jordan Singer responds to the left-leaning critics of the Supreme Court term just ended who have lamented the results in cases on choice, immigration and employment discrimination—not because the Court, led by Chief Justice John Roberts, failed to reach the results these critics support, but because it did. Democratic pollster Mark Mellman, for example, concludes that Roberts, “by refusing to inflame passions further,” may have stemmed “the tide and accomplish[ed] the coveted goal of his GOP critics—preserving the Court’s current conservative majority.” And law professors Kent Greenfield and Adam Winkler prophecy “the moderation shown by Roberts has all but guaranteed a conservative Supreme Court for a generation.”

As Singer explains, these critiques reveal a Democratic goal since the failed Merrick Garland nomination in 2016: “to punish Mitch McConnell and Donald Trump by radically restructuring the Court itself.” The restructuring plans have taken many forms, from imposing term limits on Supreme Court justices to expanding the number of justices who sit on the high court. These reform efforts turn on the belief that, since McConnell and the Republicans refused even to consider Garland, the Court’s legitimacy has suffered—with decisionmaking in controversial cases compounding the problem. The argument for Court reform falters, however, in the face of outcomes that tend to match the views of a majority of Americans – as they did this term in cases concerning choice, immigration and employment discrimination, in all of which Chief Justice Roberts either wrote or sided with the majority.

Professing concerns about the legitimacy of the Court’s decisonmaking is a broad brush with which to paint, and such concerns tend to be overblown: an institution that has survived decisions in cases like Brown v. Board of Education, Bush v. Gore, and District of Columbia v. Heller is not likely to be cast aside by the American people any time soon. Still, there is a tendency among the Court’s current membership that should be cause for genuine concern: the near-abandonment in cases involving the structural constitution and the separation of powers of any sense of judicial restraint. Continue reading “Does the Roberts Court’s view of executive and legislative power present an alternative case for court reform?”

When should judges speak out?

Justice Sonia Sotomayor drew attention last week when she filed a dissent in a case staying the issuance of a preliminary injunction against the federal government. The injunction had been issued by a federal district judge in Chicago, and barred the Trump Administration from implementing a “public charge” policy that would require immigrants seeking green cards to demonstrate that they would not need government assistance. Beyond disagreeing with the majority’s decision to overturn the injunction, Justice Sotomayor expressed dismay with her colleagues’ readiness to entertain “extraordinary” appeals from the Trump Administration, rather than letting those appeals first work their way through the intermediate appellate courts. She wrote:

[T]his Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. But make no mistake: Such a shift in the Court’s own behavior comes at a cost. Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the government.”) They demand extensive time and resources when the Court’s intervention may well be unnecessary—particularly when, as here, a court of appeals is poised to decide the issue for itself.

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances—where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.

Perhaps unsurprisingly, the dissent drew vindictive attention from President Trump, who took time away from his visit to India to chastise Sotomayor and suggest that both she and Ruth Bader Ginsburg (who publicly criticized Trump in July 2016) recuse themselves from all future cases involving Trump or the Trump Administration. “I just don’t know how they cannot recuse themselves with anything having to do with Trump or Trump-related,” the President said.

The U.S. Supreme Court was not alone in facing scrutiny for the perceived political statements of judges. In Alaska, Chief Justice Joel Bolger has been drawn into a controversy surrounding an effort to recall the state’s governor, Mike Dunleavy. Proponents of the recall allege (among other things) that the governor showed lack of fitness for the office by refusing to appoint a trial judge within the 45-day period prescribed by statute, and by “improperly using the line-item veto to … attack the judiciary and the rule of law.” The legality of the recall was challenged in court, and the state supreme court will hear the case on March 25. But some are calling for Bolger to recuse himself from the recall decision, given that Bolger commented on the governor’s behavior at the time of the trial judge appointment controversy. (Bolger also criticized the line-term veto in a separate speech.) Bolger has declined to remove himself from the case of his own volition, but the supreme court did take the unusual step of issuing a letter inviting motions to disqualify if others felt it was warranted.

It is certainly true that judges must take care in their public pronouncements, especially as they relate to politics, public policy, or other government officials. Diving recklessly into partisan political debate is a time-honored recipe for eroding the legitimacy of the judicial branch. But it is also true that the judiciary is an independent branch of government, and should have a voice on issues that affect it as an institution. Where do we draw a sensible line?

Continue reading “When should judges speak out?”

Chief Justice makes new appointments to the Executive Committee of the Judicial Conference

Judge Claire Eagan (N.D. Okla.) is the new Chair, replacing Judge Merrick Garland. Judge Lavenski Smith (8th Circuit) also joins the Committee as a new member.

More on the Executive Committee here.

McConnell gives “golden gavel” to John Roberts after impeachment trial

After the close of the impeachment trial of President Trump this week, Senate Majority Leader Mitch McConnell presented Chief Justice John Roberts with a “golden gavel.” The token is ordinarily presented to Senators who have sat in the presiding chair for 100 hours. Roberts certainly filled that minimal qualification during his many hours presiding over the trial.

I recently took Elizabeth Warren to task for her trial question that crassly challenged the legitimacy of Roberts and the Supreme Court. McConnell’s presentation can be seen as only a slightly more subtle effort to politicize the Chief Justice for partisan gain. True, Roberts did yeoman’s work in presiding over the trial, all the while maintaining his busy day job (which only involves hearing oral arguments, writing opinions, navigating the personalities and needs of his fellow Justices, and managing an entire branch of the federal government). And in a different era, the presentation of the golden gavel might be properly viewed as a sincere token of appreciation. In this deeply partisan environment, however, it primarily exploits the Chief Justice’s participation to court favor with Republicans — a misappropriation of judicial goodwill for partisan gain.

 

 

Warren’s attempt to question third branch legitimacy fails spectacularly

The American political scene is moving at lightning speed these days, with impeachment proceedings, the Iowa caucuses, the State of the Union, and the government’s response to the coronavirus threat all competing for our attention. But I would be remiss if I failed to note the outrageous question that Senator Elizabeth Warren posed during the impeachment trial last week.

All questions, of course, were required to be written on notecards and passed to Chief Justice Roberts, who read them aloud for response by either the House Managers or the President’s lawyers. Here is what Warren asked:

“At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court, and the Constitution?”

Oh, good grief. Roberts has to preside over the trial — it’s right in the Constitution. Calling into question the legitimacy of the entire Supreme Court and the Constitution during a partisan political skirmish was both cheap politics and degrading to the very foundation of American democracy. And she was roundly scolded for the stunt, from observers on all sides of the political spectrum.

This blog has chastised the President and many others for their similar tendencies to attack the courts’ legitimacy when they cannot achieve their political objectives. Let’s add Elizabeth Warren to that list as well. If she truly wants to improve Americans’ faith in government, perhaps she could start by showing appropriate respect for its institutions and design.

Seeking a more muscular judiciary

I have a new op-ed up at The Hill, urging the judiciary to be more outspoken about the rule of law and the role of courts in our society. A snippet:

The courts today could use a healthy dose of [John Jay’s] swashbuckling spirit. They are uniquely situated to reaffirm our core legal values in the public sphere, and to reassert their position as an equal branch of government. This is not to say that the courts should willingly inject themselves into partisan debates. Not every political exercise is a partisan one, however, and the courts are well within their institutional role to remind the other branches, the media, and the public of our shared and cherished legal tradition, and to take appropriate measures to ensure it remains intact.

Please read the whole thing!

Chief Justice Roberts releases 2019 Year-End Report

While you were dancing away the last hours of 2019, or perhaps just watching Ryan Seacrest, Chief Justice John Roberts was undertaking the time-honored tradition of releasing his Year-End Report on the Federal Judiciary under cover of darkness. This year’s theme was the judiciary’s importance in maintaining civic education, especially in an era in which fewer Americans are exposed to the brilliance of our Constitution.

I shall have more to say about this theme in a future post, but for the moment I will highlight a few of the more interesting statistics about the work of the federal courts over the past year:

  • Cases argued before the Supreme Court continued to decline, with only 73 arguments taking place during October Term 2018. Compare that to 175 arguments back in OT 1984.
  • In the federal district courts, civil case filings rose about 5%, and criminal filings rose about 6%.
  • Bankruptcy petitions are back on the rise after a one-year drop in 2018.

The risk of upending settled doctrinal expectations

A guest post by Lawrence Friedman

Courts strive to avoid sudden, tectonic shifts in doctrine. The legitimacy of their decisionmaking depends upon two of the values that mark the rule of law: consistency and predictability. Absent adequate justification for a doctrinal shift and judicial decisionmaking starts to look like it is based more on caprice than reason.

The U.S. Supreme Court is not immune from the risks associated with such shifts—indeed, in two separate opinions in the past few weeks, Justice Clarence Thomas has argued that the Supreme Court consider radical changes in approach to long settled constitutional doctrines.

Concurring in the denial of certiorari in McKee v. Cosby, Thomas explained that, in an appropriate case, the court should reconsider the precedents underlying the First Amendment rule that public figures cannot pursue damages for defamation absent a showing of “‘actual malice’—that is, with knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan and its progeny, Thomas argued, “were policy-driven decisions masquerading as constitutional law” that the Court “should not continue to reflexively apply.”

More recently, in Garza v. Idaho, Thomas (joined this time by Justice Neil Gorsuch) dissented from the majority’s ruling that, notwithstanding that a criminal defendant has waived the right to certain bases for appeal, prejudice should be presumed when his attorney does not pursue an appeal after being requested to do so. Thomas disagreed not only with the ruling but the basic premise of Sixth Amendment doctrine—that criminal defendants have a right to effective counsel. No modern precedent, he argued, including Gideon v. Wainwright, sought to square this rule “with the original meaning of the ‘right … to have the Assistance of Counsel.’” He suggested that the Sixth Amendment guarantees the accused only “the services of an attorney,” and assumptions to the contrary conflict “with the government’s legitimate interest in the finality of criminal judgments.”

Justice Thomas’s originalist approaches to defamation under the First Amendment and the right to counsel under the Sixth may be criticized on substantive grounds. As to the former, consider Eugene Volokh’s conclusion that “constitutional constraints on speech-based civil liability have deep roots, stretching back to the Framing era” and Sullivan is “entirely consistent with original meaning.” As to the latter, consider the textualist argument that the very existence of a right to counsel privileges the individual’s interest over a governmental interest in finality, and that ineffective counsel undermines the integrity of this premise.

Even setting aside these substantive concerns, Thomas’s opinions preview what Chief Justice Roberts may look forward to should more justices be appointed who share not just Thomas’s interpretive approach, but his willingness to cast aside settled rules in favor of a return to the presumed original understanding of the constitution. It is not just a dispute, in other words, about meaning, but about the way in which the Supreme Court goes about the business of constitutional rulemaking.

A radical alteration in settled doctrine runs the risk that the Court’s decisionmaking is unmoored from the past, and that the justices cannot be counted on to create reasonable expectations for the future. It is not just about a loss of respect, but the dilution of a hard-earned legitimacy. One of the reasons the American people abide by the decisions of unelected judges about the meaning of our most sacred secular text is because, agree or disagree, there is in most areas of constitutional law a continuity that has allowed public and private institutions and individuals alike to rely upon expectations the Court itself has set about the boundaries of its reach—expectations that allow us to make our own plans and plot own courses.

To return to one of Roberts’s favorite analogies: no umpire who decided, one day, to honor the strike zone as it existed in baseball’s infancy would last long on the job. The players, the pitching, the equipment, the field—all are different today. Umpiring has accounted for these differences, as managers and players well know. They have expectations about the range of possible calls an umpire might make when the ball hurtles toward the catcher’s glove, and they trust that those expectations will hold true from game to game, and across the seasons. Chief Justice Roberts has intuited that Americans rightly expect the same of their Supreme Court—and that they likely would find ways to marginalize the Court if it were otherwise.

The argument for caution: Justice Kavanaugh’s dissent in June Medical Services, L.L.C. v. Gee

A guest post by Lawrence Friedman

Some commentators expressed surprise last week when Chief Justice John Roberts cast the fifth vote to stay the enforcement of a Louisiana law restricting access to abortion in June Medical Services, L.L.C. v. Gee. That law creates an admitting-privileges requirement for doctors who seek to perform abortions. The law thus implicates the 2016 decision in Whole Woman’s Health v. Hellerstedt, in which the Court struck down a Texas law requiring abortion providers to hold admitting privileges at nearby hospitals and to comply with other regulatory mandates.  There, the Court reasoned that the Texas law served no rational purpose other than to unduly burden women seeking to exercise their right to choose. The stay in June Medical Services simply delays the Louisiana law’s implementation until the Court can take up its constitutionality in view of Hellerstedt, likely next Term.

Roberts’s vote favoring a stay should not have come as a surprise. Though the Chief has previously expressed doubts about the existence and scope of unwritten constitutional rights, he has been unwavering about the importance of adhering to precedent when it comes to maintaining the legitimacy of the Supreme Court itself. Staying the Louisiana law in light of Hellerstedt promotes that legitimacy by demonstrating the Court’s respect for its own recent jurisprudence.

More interesting than the Chief voting to impose the stay was Justice Brett Kavanaugh’s dissent—the only separate opinion. While Justices Thomas, Alito, and Gorsuch did not disclose why they voted to deny the plaintiffs’ application for a stay, it would not be unreasonable to conclude that either (a) they do not view the Louisiana law as imposing an undue burden under the controlling precedent, Hellerstedt; or (b) they do not view Hellerstedt or the antecedent decisions from which it springs, Planned Parenthood v. Casey and Roe v. Wade, as correctly decided. If you do not believe that the plaintiff’s theory of the case is grounded in a sound constitutional principle, it makes sense that you would not be inclined to permit the most recent articulation of that unsound principle to control.

In his dissent, Justice Kavanaugh made clear that he did not oppose the grant of the stay because he questions Hellerstedt’s constitutional footing. Rather, he viewed the stay as unnecessary given that the plaintiffs had raised a pre-enforcement facial challenge to the Louisiana law. In the absence of actual facts about the law’s effect, Kavanaugh noted, the parties offered, “in essence, competing predictions about whether [the doctors could] obtain admitting privileges” pursuant to the law. He favored denying the stay to see which circumstance would develop—whether the doctors in question would gain the admitting privileges the law required, which would obviate the plaintiffs’ challenge under Hellerstedt; or whether the doctors would be denied admitting privileges, which arguably would impose an undue burden under Hellerstedt.

This line of reasoning distinguishes Kavanaugh’s position in relation to the presumed views of the other dissenters. First, his dissent reflects the importance of factual development to judicial review: with facts in hand, the court can appreciate how regulations work in practice, and whether their enforcement is designed to undermine constitutional values. Second, Kavanaugh’s dissent shows some interest in having the court move incrementally, particularly in a case that implicates a recent precedent. There is value in slowness: as Chief Justice Roberts acknowledged in his confirmation hearings, adherence to precedent “plays an important role in promoting stability,” by showing appropriate respect for the decision-making limits of nine unelected judges.

Indeed, if Kavanaugh’s dissent is any indication, the Chief Justice has another colleague who appreciates that the Court’s ability to perform its constitutionally assigned role is inextricably connected to the esteem in which it is held. Consider the decision last Term in Carpenter v. United States, in which the Court concluded that, even when we share certain information with others, we have not necessarily sacrificed all privacy protections under the Fourth Amendment. Writing for the majority, Roberts made clear that context matters, and Carpenter explicitly saves for another day numerous questions regarding the reach of its holding. At the decision’s end, Roberts quoted with approval Justice Felix Frankfurter’s counsel that the Court, in the face of potentially far-reaching changes, should “tread carefully.” Kavanaugh’s short dissent in June Medical Services suggests that he may well be on board with that program.

The Importance of Being Chief Justice

I am delighted to present our first guest post, from my colleague Lawrence Friedman.

Successful lawyers excel at framing arguments. And for no lawyer in the United States is this skill more important than Chief Justice John Roberts. All of the justices of the Supreme Court seek to frame issues in ways that makes the results they reach seem inevitable. But only the chief justice speaks with the authority of his office outside the confines of the Court’s written opinions, opportunities that he seeks to maximize to ensure all of us that, regardless of how they rule in particular cases, the federal courts are just going about their business.

Consider two recent examples. The first is the chief justice’s response to President Trump’s belief that judges rule against his administration on the basis of politics. The chief justice would have none of it. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

In each of these three sentences, Roberts essentially made the same point: federal judges are independent of politics and treat all who come before them equally. Note that Roberts did not dispute that federal judicial appointment process is political. Rather, he framed the issue in terms of what judges do after that process has ended.

The second example comes from the Chief Justice’s 2018 Year-End Report on the Federal Judiciary. This annual update on the workload of the federal courts typically addresses a recent issue of note to the federal court system. All government reports should be so readable.

This year, the Chief Justice begins by recounting Justice Louis Brandeis’s effort, in 1928, to draft a dissent in Olmstead v. United States—an opinion that foreshadowed a doctrinal change nearly four decades later to the judicial understanding of the Fourth Amendment’s privacy protections.

The Brandeis story captures the way in which the courts work – by reasoning their way to particular conclusions – and the nature of doctrinal change over time. And the story highlights the importance of judicial law clerks. Clerks are recently-graduated law students who assist the federal judiciary at all levels in resolving cases by providing research and drafting assistance.

But the story is not just about the importance of this resource to the judiciary. It also frames the Chief Justice’s report on the efforts of the Federal Judiciary Workplace Conduct Working Group to determine the changes needed to judicial conduct codes to ensure that they adequately reflect concerns for confidentiality, mechanisms for reporting misconduct, and processes for investigating complaints.

As written, the report achieves its purpose. Members of Congress and the general public who take the time to read it are likely to be satisfied with the judiciary’s management of conduct issues and conclude there is no need for monitoring from outside. The judiciary, in other words, can take care of itself.

The point here is that, unlike his colleagues, Chief Justice Roberts must always keep an eye on the federal judiciary’s institutional reputation. The independence of the third branch is more fragile than that of the other departments of the federal government. The courts are possessed, as Alexander Hamilton famously put it, of neither the purse nor the sword. Congress, for example, controls not just the judiciary’s budget, but both the number of judges at every level and their jurisdiction.

We live in a time when the President of the United States regularly belittles the institutions of democracy, a time when serious proposals are being floated in the new House of Representatives to expand the number of Supreme Court justices to counter the perceived effect of recent appointments. Given his recent statements, the Chief Justice appears to be acutely aware that the federal judiciary’s independence, and popular respect for its rulings, turns on the extent to which the people believe that judges, once appointed, have no side to take in particular cases, and can keep their own house clean. If the pitched battles over Brett Kavanaugh’s appointment and partisan gerrymandering are any guide to the future, the chief has his work cut out for him.

Lawrence Friedman teaches constitutional law at New England Law | Boston and is the author, most recently, of Modern Constitutional Law.