Should SCOTUS Be Openly Activist?

In a very provocative post at Dorf on Law, lawprof Eric Segal argues that Supreme Court justice nominees should shed the veneer of judicial neutrality and come clean for the sake of a nation.

The main reason the confirmation process is broken is that the way the public and the Senate view (or at least talk about) the Supreme Court is at odds with reality. Before we can fix the confirmation process, we need to have a more honest conversation about the Court itself.

Segal asserts that the Court is political, and has been since 1803.

By “political”, I mean that the Justices resolve cases, both important front-page controversies and less publicized back-page ones, through a combination of personal preferences, life experiences, partisan politics, and values writ large, where traditional legal norms play only a marginal role in generating (as opposed to explaining) their decisions.

The fiction that prevents us from having a meaningful confirmation process is the repeated falsity that law plays a primary role in the Court’s decisions.

The difference is that the Supreme Court, unbound by precedent (since they get to make, and change, precedent), isn’t constrained by the rules applied to lower court judges.

The Justices are free to and actually do change those rules and overturn prior decisions when they feel it is important enough to do so. That freedom, as well as the fact that the Justices handpick their cases, which are among the hardest our country has to offer, explain why the exercise of personal discretion rather than the application of formal legal materials best explains the Justices’ responsibilities.

This is certainly true, but misleading. While the Court has the authority to reverse precedent, it’s authority rarely exercised, and for good reason. It would be untenable to maintain a society where constitutional rights, the meaning of law, changed regularly, particularly if a new judge came aboard. We know how to behave, how to conduct our affairs, because we can rely on the law, which informs us that doing one thing is good, another not so much. We can sleep at night knowing that secure decisions today won’t cost us our fortunes, our lives, tomorrow.

The public, the profession, and particularly the legal academy, is obsessed with the Supreme Court. They hang on every word, every roll of the eyes, as if it plays out in the real lives of real people. Some do. Most do not. Even significant rulings often fail to filter down to the trial court level because the Supremes fail to provide the necessary guidance to put their highly nuanced (meaning vague and largely incomprehensible) rule into action. So judges read opinions, shrug and go about their business. If they did it wrong, someone will eventually let them know.

What Segal suggests is that we turn legal doctrine into a Supreme feelfest. It’s not that it doesn’t happen, as he says, although it’s remarkably rare. It tends to happen more in the most controversial cases, so it gives the public the sense of its being commonplace. And since a controversial SCOTUS decision will launch a thousand law review articles, plus a couple dozen books, academics’ careers are made on their backs, making their relative importance huge, at least to the prawf going for tenure.

William Baude doesn’t quite buy into the end of this confirmation charade.

I am not skeptical, actually, of the premise that life experiences, values and no doubt even political ideology play some predictive role in Supreme Court decisions, on the margin. I probably think that role is narrower than some folks do, but let us assume the premise.

Rather, I am skeptical of the conclusion that we ought to encourage the justices to discuss these preferences and confess their relevance to judicial decisions. And I am skeptical of proposals to institutionally reform the court to make these influences more salient.

In the moderated language of the academy, Baude explains.

[I]t is dangerous to reform judicial norms or judicial institutions along these lines. The judiciary survives on the basis of a shared obligation to apply the law to disputes that come before it and to reject non-legal political considerations.

There is a laundry list of reasons why the judiciary survives as the “least dangerous branch.” At the top is integrity. We may not trust each individual justice, but we still trust the Supreme Court to rule with doctrinal integrity. Nobody stands up for oral argument and says, “well, sure, we have Roe v. Wade, but enough of you hate abortion so let’s just reverse it.”

And more importantly, the institution of the Court matters, for by maintaining the trust that you can go there, argue a cause, and get a fair hearing, maybe even a win if your legal argument, your logic, is sufficiently compelling. And indeed, it sometimes happens, despite all reasons to assume you don’t stand a chance. Think Crawford and Heller.

But there is also the alternative. Society couldn’t function if every generation, every time a few faces on the Court changed, we had a paradigm shift in law. Societal institutions are built on Supreme Court rulings, on the reliance that the Court won’t blow in the wind with each new robed body. And the justices know it. They may not like a particular precedent, but they know they can’t go changing everything just because they wouldn’t have ruled that way in the first place.

So yes, these concerns that Eric Segal raises are real to some extent, but it’s not what the Court should do, what we want the Court to do. To acquiesce in its worst impulses is to enable them, to legitimize the Court’s forsaking law for personal feelings and values. The aspiration is for a justice who can put aside his personal values for the sake of reason, doctrine and precedent. It’s not that precedent can’t ever be changed, but that paradigm shifts are huge and should only happen when law and reason demand it. Not because there’s a new person sitting in the chair on the end.

10 thoughts on “Should SCOTUS Be Openly Activist?

  1. B. McLeod

    The great thing about academic questions is they’re academic. No nominee who wants to be confirmed is going to do this.

    1. SHG Post author

      The question isn’t realistic in itself, but is more valuable in reaction to creation of false expectations with the public. Politicians have used Gorsuch’s confirmation hearing to manipulate public outrage, and that is worthy of address.

  2. Charles

    “Before we can fix the confirmation process, we need to have a more honest conversation about the Court itself.”

    The confirmation process is broken, not because there is a problem with the Court, but because there is too much “confirmation process” in the first place.

      1. Frank

        And forget the fact that what you really have is a screw.

        (You can take that in a variety of ways, as I intend.)

  3. John Neff

    My recollection is that confirmation hearings were unremarkable before television. I wonder what it would be like if we could read their minds and broadcast that.

    1. Billy Bob

      We trust neither the individual justices nor the Supreme Court. Contrary to popular opinion, this is “the most dangerous branch of government”. What idiot said that? For Real. Why? Because they’re infallible? No! They’re not infallible because they’re final. They’re final because they’re infallible! Or did we get it backwards.
      This whole discourse is a bunch of codswaddle and gibberish.

      “Read their minds,…” You don’t want much do you? FBI Interrogation-breath, state-of-the-art, taught in the Academy of the Eastern District.

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