Supreme Court’s Short, Sleepy and Conflicted Term

In the LA Times, Mike Sacks writes about the new term of the Supreme Court with one justice down. He assumes, with good reason, that the Court has avoided taking on “blockbuster” cases because of the Senate’s intransigence in doing its job.

“Would scores of people camp out on the Supreme Court sidewalk to see that argument?”

That’s the question that separates sleepy SCOTUS terms from the seismic ones. And this new term’s docket, so far, is a snoozer. Yet I come to celebrate, not condemn, this development.

While it may be because every term of Court isn’t earth-shattering, Sacks writes that it’s also to avoid 4-4 deadlocks in ideologically-bounded cases.

While the court last term managed to salvage narrow unanimity in a contraceptive mandate case that equally divided the justices by party line at oral argument, the eight members were not so successful in four other cases, including the 4-4 deadlock that left in place a lower court’s decision to block President Obama’s executive actions on immigration.

A deadlock isn’t a decision. It’s a nullity, a non-decision, and does two very bad things. First, it’s a failure of a branch of government to fulfill its function. Second, it demonstrates what lawyers and judges prefer to deny: that the Supreme Court’s rules are not guided solely by law or reason, but by values.  They may wrap up their opinions in lofty rhetoric, but if they are no better than the cartoon characters so many believe they are, locked into ideological positions and conduits for political views of the presidents who appoint them, then who needs them?

The purpose of this third branch of government is to serve as a check and balance on the other two. The Supreme Court is not supposed to be a part of the administration’s team, each justice doing the bidding of the person who appointed him or her.

So this term, there will be no Obergefell v. Hodges, no Citizens United v. FEC, no Gideon v. Wainwright, because they’ve chosen a “sleepy” docket?

Rather than waste their time with futilely acrimonious arguments in open court and in private conference that will lead, at best, to unsatisfying compromises, the justices have shaped a docket heavy on the kinds of technical issues with little political valence that each year result in the court’s many unanimous or near-unanimous decisions.

That’s a good thing for the rest of us.

If that’s true, and it may be according to how one prefers to squint, then why do we bother with a Supreme Court at all?

Much as Merrick Garland wouldn’t be my choice of justice based upon his decisions as a circuit judge showing far too much acquiescence to the needs of law enforcement, the arguments for lack of action on his nomination are absurd. Vote him up or down, but vote. Yet, without a ninth justice, the Court has an excuse to fail to fulfill its purpose of deciding cases that need deciding. And there is no explanation other than the other eight are so ideologically bound that it’s impossible to expect them to put aside their personal feelings and follow the demands of law and reason?

In a New York Times op-ed, Gabe Roth writes about how the Supreme Court justices are conflicted, voting their pocketbook if not their feelz. It’s a very cynical view, but that doesn’t make it wrong.

At the same time, Justice Ruth Bader Ginsburg, who had become a social justice icon while doing far too much talking for someone who gets a paycheck for being neutral, took a swan dive off her pedestal by saying that Colin Kaepernick’s protest was “dumb and disrespectful.” Suddenly, she went from being the Notorious RBG to white feminist racist.

Sooner or later, there will be nine. Our presidential candidates are running on it. And Donald Trump or Hillary Clinton not only may get to choose someone to fill Scalia’s seat, but also that of Justices Ginsburg, 83, Anthony M. Kennedy, 80, or Stephen Breyer, 78. We may then see an ideological supermajority that decides — once and for all — the blockbuster issues that for a generation have had us camping out on the Supreme Court sidewalk.

If that’s what the Supreme Court is all about, creating an ideological supermajority to decide “blockbuster issues” of the sort that makes people camp out on the sidewalk, then it has failed as an institution. The Supreme Court has become a weapon of social change rather than a neutral arbiter of the Constitution. Its personnel, or lack thereof, has become a critical election issue based upon ideology rather than competence, fairness and integrity. What’s the point of seeking cert if you know, based upon the ideological views of its justices, that you’re going to lose before you open your mouth to argue?

If Mike Sacks is right, that it is a “good thing for the rest of us” that the Supremes take on no controversial cases while down a justice to avoid an ugly 4-4 deadlock, then it’s a lost cause. Unlike Mike, real lawyers try cases and need the Supreme Court to make decisions, do its job, tell us whether rulings are retroactive or whether vague laws are unconstitutional. They’re needed in boring cases, which aren’t that boring to the people who live with the consequences, and in the sorts of cases that cause seismic change.

That there are eight justices, all smart men and women, is a problem that shouldn’t exist but for the hyper-politicization of the Senate in combination with the ignorance of the public in accepting the bad-faith arguments for its failure to fulfill its function. Even so, these eight justices, if of good will and integrity, ought to be capable of doing their job despite the possibility of a deadlock.

The public appears to have accepted the premise that the Supreme Court is a sham, voting in ideological blocks to achieve the political values of the public. This was never its purpose. It’s not a smaller version of Congress, or an adjunct of the Executive. Yet, it would appear that the public and media have given up all hope on the Supreme Court being the one neutral branch of government that will rule without regard to politics.

The Supreme Court has a job to do. Its “sleepy” docket is a dereliction of duty, as there are cases, issues, the require its attention and decision. The justices can rise above politics, even if a cynical public can’t imagine a Court acting with integrity. That’s why they get life tenure. So Mike Sacks may have given up on integrity because that’s the popular view, but no, that is not a good thing for the rest of us.

A functioning Supreme Court is what is needed and what the people deserve. All it takes is for eight, and eventually nine, justices to do their job and put integrity ahead of ideology. If this isn’t possible, then the Supreme Court should close up shop.

17 thoughts on “Supreme Court’s Short, Sleepy and Conflicted Term

  1. Marc Whipple

    “The Supreme Court has become a weapon of social change rather than a neutral arbiter of the Constitution.”

    I see what you mean, but if the SC decides cases based on a neutral reading of the Constitution, it will in most cases decide that the government isn’t allowed to do whatever it is it wants to do or that it has to do something it doesn’t want to do. (Since the government has been crowding the edge of what it’s allowed/required to do for lo these many decades.)

    I would say to people who complain that that SC is just as much a “weapon of social change” and that there’s no such thing as ‘neutrality’ that there is a procedure for amending the Constitution and it is not the SC’s fault, or their problem, that we as a nation don’t agree on anything to the point where that procedure can be used. As you say, using the SC to get around it defeats the whole purpose of having a SC. My preference is for people of intelligence, wisdom and learning to read the plain language of the Constitution and the law and make the most logical ruling they can based on that language. After that, fiat justia ruat caelum. It says what it says and it doesn’t say what it doesn’t, and you can do what it says you can do and you can’t do what it says you can’t.

    My question is, how do *you* answer those people? Do you think they deserve an answer beyond, “If you don’t like it, go throw a Constitutional Convention and in the meantime keep your yap buttoned?” (To be clear, I’m not sure *I* think they do.) If so, what is it?

    1. SHG Post author

      Or social value decisions could be made by the branch of government that was formed for that purpose. There will still be plenty to dispute if constitutional interpretation was limited to serious legal issues.

  2. Richard G. Kopf


    Many, perhaps most, of the cases the Court takes and decides are what I call law cases. That is, they are of interest only to practitioners–real lawyers. We need the Court for those cases. Prosecutors and defense attorneys, for example, need to know whether the residual clause of the Armed Career Criminal Act is too elastic to be meaningful.

    However, the “blockbuster” cases are most often not legal cases but political ones dressed up in the garb of a lawyer. The more the Court takes such cases the more the Court sheds, like a snake’s skin, any claim to legitimacy. While there may be some cases of the blockbuster nature that need deciding because the ship of state will truly end up one the rocks without a decision from the Court, those cases are few and far between. Most of those cases will get resolved, eventually, by the political branches if they are left to clean up their own messes.

    In short, a Justices who looks for, and hunger to decide, blockbuster cases are not really judges but politicians who wear long black dresses. In contrast, the Justices should internalize the view that the Court should almost always be considered the least dangerous (political) branch.

    Here is a rule of thumb:

    If the general public is keenly interested in case (like what bathrooms LBGTQ student may use) the Court should decline the review.

    Let the school principals, the board of education, the parents, and the students work it out. If the civil rights division of DOJ acts too much like social engineers, in the long run, the People will not stand for it and there will be a political resolution.

    In short, the Court should internalize the age-old dictum of physicians: First, do no harm. While impertinent and lacking in decorum, one–but not me–could also express this sentiment as STFU.

    All the best.


    1. SHG Post author

      Will the people not stand for it? Or will the people demand that the court become the de facto substitute for Congress to make its political value judgments? The media is doing everything possible to promote the latter.

      1. TinMan

        Hoping to not go down the rabbit hole (but I may be aiming that direction so scuttle the comment appropriately, please):
        Could it be this 3rd branch is where the citizenry feels their last bastion of change resides?

        Considering the lackadaisical rate at which the Legislative branch has functioned and with presidential elections being only every four years, these regular hearings (even with a 4-4 nullity as you say) would be their only hope for shifting directions.

        I know, I know, it only means to STFU (to quote Hizzonner Kopf) and vote for someone else every 2 & 6 years to influence the change in that physically lazy branch but then you’re victim blaming. 😉

        1. SHG Post author

          Well yeah, but that’s the problem. The Supreme Court is not Congress lite. We need a working legislative branch, and instead we have paralysis, so people are desperately seeking an alternative. This is why DoE OCR has taken it upon itself to create law, knowing that Congress can’t get its shit together enough to stop them from doing anything they please.

          But the point isn’t to circumvent the way govt works, but to make govt work. The Supreme Court isn’t a representative body, and when it legislates social values, it has no legitimacy.

  3. Derek Ramsey

    I’ve seen many liberals who are fine with ideology and legislation from the bench (unless it’s about Al Gore being president). There are many conservatives who think their judges are constitutionalists, not ideologues. It seems much more likely that the judges are picking and choosing which amendments they prefer and ignoring the rest, just like the population at large.

    Or have the supremes always been following their ideology? The Martin-Quinn scores clearly make this assertion.

    However, in the last 60 years you have two trends: the number of unanimous decisions has grown to historical highs. So also the number of 5-4 split decisions. All the stuff in between is in decline. As RGK points out, they are taking mostly ‘easy’ law cases and splitting ideologically on blockbuster cases. I think Sacks is quite right when he worries about a supermajority.

  4. Jonathan

    Well, this may sum up part of the problem:

    (1) “Yet none of these cases are likely to …reverse precedents.”

    (2) “We may then see an ideological supermajority that decides — once and for all”

    That said, neither you nor Mr. Sacks have identified the cases SCOTUS is dodging. If you are in the mood to indulge my curiosity, I’d like to know which cases you think need deciding so much that denying cert. is a dereliction of duty.

  5. Jonathan

    Does Aschcroft v. Turkmen count as a blockbuster? How about Hernandez v. Mesa? The afternoon orders were practically timed to answer Sacks. At least his specific charge. Whether a sleepy term would be desirable is another question.

  6. Jim the Squid

    You posted “The public appears to have accepted the premise that the Supreme Court is a sham, voting in ideological blocks to achieve the political values of the public. This was never its purpose. It’s not a smaller version of Congress, or an adjunct of the Executive. Yet, it would appear that the public and media have given up all hope on the Supreme Court being the one neutral branch of government that will rule without regard to politics.”

    If it is indeed the case, could a party from one of the deadlocked split decisions take the votes of the justices over time and correlate them to the ideological stance of the presidents who appointed each justice as evidence in a complaint under Article III that SCOTUS is in dereliction of duty? I’m a layperson and may have finally earned your anti-stupidity hammer for this question, but I am curious, is such a thing even possible? Who would you bring the complaint to? Who would hear the case? Or if the court has become terminally mired in political ideology, are we doomed to suffer it until/unless we can gert Congress to act?

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