Eight Justices And A Balancing Test

In the afterglow of the Supreme Court’s decision in Foster v. Chatman, one thing was painfully clear. The chasm between how the decision was viewed by those who actually pick juries and those who see law through a more distant lens was huge.  Why, in the face of academics and advocates cheering the wondrous outcome of ruling against the racist use of peremptory challenges by prosecutors to cleanse a jury of blacks, were criminal defense lawyers so, well, underwhelmed.

In his ground level explainer of the decision, Andrew Fleischman captured the problem:

It’s time to stop patting ourselves on the back for our “freedom.” For the occasional crumb of liberty that drops from eight unelected lawyers. We’ve replaced constitutional guarantees with an unwieldy pile of balancing tests.

I added the emphasis. Sue me. This is brilliantly insightful (which is my way of saying I wish I wrote those words, but I didn’t and he did). This is what the back-patters don’t get. In the trenches, where law actually happens and people’s lives are destroyed, we work with rules. Hard rules. Bright line rules. Black letter law. 

Unlike those who can enjoy solo pontifications at their leisure (which includes what appears at SJ, I hasten to add), the lawyers and judges at the trial level make decisions in split seconds. This makes us kinda like how cops claim to be, except we’re unarmed except for our wits. We get between ten and thirty seconds to make our pitch and drive it home, and then the wheels grind again.

On rare occasion, a few minutes are spent in deliberations, but most of the time, it’s a shrug and “denied.”  Sure, we can spend hours, days, writing about complex legal issues that will have a life and death impact on our clients, producing brilliant tomes, pages upon pages of deeply thoughtful words and phrases.  Most of the time, the judge rifles through the first few pages and, after twelve deeply thoughtful seconds and a thorough reading of our first paragraph, issues his decision.  Rule and roll.

This is why we need rules. We need constitutional rights. But in their place, we get balancing tests, the darling of the intellectuals who see the merits on both sides.  It’s not that we don’t see the same thing, but that’s what we need the Supreme Court to do, ponder a while, consider both sides, then decide something. Give us a rule. Even if the rule is against us, at least we know what we have to work with.

Why have balancing tests become so beloved? We have come to adore compromise as a virtue. They teach it to kids in school, to be collaborative and play well with others. That means letting go of right and wrong in order to reach agreement.  One person says 2 + 2 = 6, while another says it equals four. So, the solution becomes five. No one is happy, but no one is sad. And they pat themselves on the back because there were no losers according to the dogma of compromise.

Pepperdine lawprof Barry McDonald argues that we’re better off with an eight justice Supreme Court for just this reason, because it’s better to achieve compromise upon threat of paralysis, than rules.

But by proposing a practical solution that might be amenable to all parties involved, the court avoided addressing that issue.

Purportedly, the justices took this action to avoid having to split 4-to-4 in the case. With the Senate refusing to consider President Obama’s nominee to replace Justice Antonin Scalia, the current eight-justice court finds itself increasingly vulnerable to such deadlocks, unable to make definitive 5-to-4 rulings. According to many observers, this arrangement is damaging the court and the country.

But it is not causing any real harm. Indeed, there is reason to think the opposite is true.

Can’t we all just get along?  McDonald contends that the framers envisioned a Supreme Court that didn’t do anything more than decide disputes for the sake of the parties before it, an afterthought to the constitutional framework, where they would issue no rules and decide nothing of significance. This is a peculiar vision, but Marbury v. Madison put it to rest in 1803.

Over time, however, and especially from the mid-20th century on, the court’s vision of its role in our democratic system changed, from dispute resolver to supreme arbiter of all matters of constitutional law, so that elected branches of government at federal and state levels were bound to accept its interpretations. The American people largely went along with this accretion of power. But they surely never anticipated that eventually, many politically charged and contestable questions — for example, whether the Constitution guarantees the right to possess guns, to have an abortion, to allow gay couples to marry, or to allow corporations to spend money to help elect our political representatives — would be decided by one unelected justice who straddled political voting blocs on the court.

Obviously, the “one unelected justice” refers to the 5-4 decisions, where the swing vote carries the day. Of course, it isn’t just one, since the swing vote wouldn’t be the swing vote without four additional votes behind him. What he means to say is that one vote distinguishes the law. When he tosses in “unelected,” he plays the populist card, because people love the idea that they get a say in who makes important decisions, as if the people did a bang up job with the people they chose for the other two branches.

This is democratic folly. It is this situation, and not 4-to-4 deadlocks, that poses a real threat to the American people, at least if they care about governing themselves.

This reminds me of putting a philosophy scholar on the witness stand and trying to get an answer to the critical question, “what is your name”? The “care about governing themselves” thing is a red herring, an appeal to populism to suck in those people who think their opinion is brilliant and believe that “common sense” is an intellectually sound rationale for whatever crap pops into their heads.

And maybe the crowdsourced answer is right (pfft). And maybe not. But in the trenches, we need to have rules so we can make good use of our ten second window of persuasion. For that we need a Supreme Court that makes decisions. If anything, our justices have failed miserably to do their job, issued puny decisions that leaves half the rule unanswered, or punted to cowardly balancing tests that allow them to avoid the hard work of crafting a rule that can be applied in real life.

But what about the People? What about democracy? That’s what the twelve good men and true in the box are about. And to tell you the truth, they haven’t worked out nearly as well as the framers hoped either.

26 thoughts on “Eight Justices And A Balancing Test

  1. Jay

    We’ve had balancing tests going back to the founding. Hell, the Fourth has “reasonable” written right into it.

    If you can’t handle it, just consider all balancing tests to have been ruled against you. Should make your practice easier.

    Toughen up, princess.

    1. SHG Post author

      The Fourth has “unreasonable” written right into it. #KnowYourBillofRightsSoYouDon’tLookLikeAMoron It also had what us old-timers refer to as the Warrant Clause, where every warrantless search was presumptively unconstitutional. That was before your time, apparently.

  2. wild bill

    You just made me realize something i had not thought of. This so-called balancing act permits the state its bite at the apple, it’s pound of flesh, irregardless of the merits of the case, any case. With that in mind, it’s heads, they win. Tails, you lose. Hi Mom, shoulda listened.

    The state is in the Catbird Seat.

      1. wild bill

        Am onboard with that, Captain. Where do i sign? Our thoughts are profound, and not ridiculous, rest assured!

  3. Jim Tyre

    That’s what the twelve good men and true in the box are about.

    Ah, idioms. But:
    twelve – not always required.
    good – definitely not required.
    men- you’re so sexist.
    and – well, that’s OK, I guess.
    true – huh? what are false juries.

    Still, gotta love

    You have been tried by twelve good men and true, not of your peers but as high above you as heaven is of hell, and they have said you are guilty. – Roy Bean

    1. SHG Post author

      It’s nice when someone recognizes a reference, but is it really necessary to dissect them? They lose all their mystique.

  4. John Barleycorn

    Freedom thumbs the scale?
    Children balancing butthurt.
    Black velvet and silk…

  5. mb

    Philosophically speaking, the answer to the question, “what is your name?” is simply, “the words, written or spoken, by which people signify me”. But before I would answer, I would need to balance the likelihood that you need to know which words those are against my enjoyment of being an asshole.

    1. Patrick Maupin

      Tangentially, I answer to “asshole”. I could take a small pleasure in not doing so, but some questioners will take an admission of my true nature as remorse or uncharacteristic agreeableness, leaving the door open for an unexpected slam later. Patience is a virtue.

  6. bacchys

    Some time spent on social media should cure any reasonable academic of a populist vision for the courts…

  7. OEH

    I’m not sure if I buy the connection between balancing tests and compromise. Balancing tests don’t provide a compromise; after the balancing, one side still loses outright.

    I’d offer a theory that the court gives more balancing tests these days because they are scared to let the public think they are making stuff up. A rule that said, eg, if the final jury has less than half the percentage of black jurors as the juror pool, it is not representative of the community and violates the sixth amendment, period, would be a great rule, but it would be basically drawn from the justices’ recta. A judge with intellectual fortitude can demand the government accept such a rule; a scared judge will write many pages of balancing test in the hopes that no one will call their bluff.

      1. OEH

        I suppose so. But not to the parties.

        There have been some actual compromises from the Supreme Court lately, eg General Dynamics v United States, which was a poor choice of compromise IMO.

        1. SHG Post author

          How does one guide one’s actions to be lawful when the only measure is a balancing test? Be reasonable? Most people are quite certain they are, even when they’re on opposite sides of a dispute. The point of law is to give us guidance so that we can conduct ourselves accordingly. Balancing tests not only fail the advocate by not providing rules to work with and use for advice, but fail the parties because they can’t know with certainty whether their actions are right or wrong. Whether the compromise is good or bad, it’s invariably unhelpful.

            1. Billy Bob

              You’re in like Flynn, OEH= Original Equipment High-performance. You got him going. Now there is going to be hell to pay. Trust me. ?Watch your backside!

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  9. OEH

    Welp, you called it. Here’s what Justice Alito just said (in dissent) about the Foster opinion:

    “Foster did not change or clarify the Batson rule in any way. Accordingly, there is no ground for a GVR in light of Foster.”

    In any way. It was literally worthless beyond the single case.

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