In his Sidebar column, Adam Liptak offers a survey of predictions by Supreme Court justices, both majority and dissent, about the dire consequences of the other side’s improvident decisions. His point is that the Supremes are notoriously bad at predicting future consequences.
On Wednesday, for instance, it shut down plans to broadcast the same-sex marriage trial in San Francisco partly for fear that witnesses in the case would be harassed if their public testimony were made more public. That conclusion is known in the trade as speculation.
Consider first of all that we are talking about a trial held in open court and subject to intense press coverage. The witnesses are mostly paid experts whose views on the subject are already well known. “They’re not, after all, in the witness protection program testifying against Mafia bosses,” Eva Rodriguez wrote in The Washington Post.
Then add to the analysis that the additional coverage the court forbade was only closed-circuit transmissions to a few other federal courthouses around the country. (There had been talk of posting video on YouTube, but the idea was never approved and so was not before the Supreme Court.)
The people viewing the transmissions in the remote courthouses would have been barred from making recordings of the proceedings. Allowing the transmissions, Eugene Volokh wrote on The Volokh Conspiracy legal blog, was equivalent to “holding the trial in an extra large courtroom.”
“And most of the extra audience would be far from California,” Mr. Volokh added, “and therefore not especially likely to be able to effectively harass the witnesses in ways that turn on seeing the witness’s testimony.”
Not the best example, of course, given that the rationale was merely an excuse for keeping cameras out of the courtroom via the backdoor in a peculiar case, but Liptak goes on to offer some better examples and makes his point. It’s worth noting, however, that Liptak quotes Eugene Volokh’s well-taken points in support, thus avoiding the responsibility of thoughtful analysis that lawyers-turned-journalists are wont to do. Can you imagine the risk Liptak would take if he had to actually rely on practicing lawyers for thoughts on practicing law?
While his prescience versus precedent argument bears out, Liptak offers no insight as to why the Supremes are so god-awful at predicting how courts and lawyers will apply their muddled analyses. Allow me to fill the gap. There are nine people at One First Street who live such an insulated existence from the very world over which they preside that they have no clue of the wrestling in the gutter that comes of their decisions.
In the past, I’ve argued that the justices have rendered themselves irrelevant to the legal system. Not only do we, practicing lawyers, have no clue what their decisions are supposed to mean, but they, being particularly smart people, know as they write them that they are giving no guidance through their muddled language, deliberate ignorance of obvious and unanswered questions and apparent lack of concern for the multitude of people who will suffer for their failure to earn their living by providing clear, complete, comprehensible answers to burning questions.
Although the words appear nowhere in the column, what Liptak is talking about is the slippery slope. It’s a very appealing argument, though a logical fallacy, as it simultaneously enrages some while denigrating the opposing point of view. Since predicting the future is a fool’s game, and can be neither proven nor disproven at the time the prediction is made, it’s immune from facial challenge. It could happen, so therefore it’s a valid concern.
But Liptak’s comparison, precedent or prescience, fails to capture the full spectrum of options available to the Supremes. Missing from this choice is the real world comprehension of how its decision are applied, or not applied as was the case with Booker for far too long,
Ironically, Eugene Volokh (as it happens) posted about some new proposals to provide an increased level of reality in judicial duty, as opposed to the current cult of celebrity that surrounds our Supreme Court justices. One of the suggestions really strikes home:
While his prescience versus precedent argument bears out, Liptak offers no insight as to why the Supremes are so god-awful at predicting how courts and lawyers will apply their muddled analyses. Allow me to fill the gap. There are nine people at One First Street who live such an insulated existence from the very world over which they preside that they have no clue of the wrestling in the gutter that comes of their decisions.
In the past, I’ve argued that the justices have rendered themselves irrelevant to the legal system. Not only do we, practicing lawyers, have no clue what their decisions are supposed to mean, but they, being particularly smart people, know as they write them that they are giving no guidance through their muddled language, deliberate ignorance of obvious and unanswered questions and apparent lack of concern for the multitude of people who will suffer for their failure to earn their living by providing clear, complete, comprehensible answers to burning questions.
Although the words appear nowhere in the column, what Liptak is talking about is the slippery slope. It’s a very appealing argument, though a logical fallacy, as it simultaneously enrages some while denigrating the opposing point of view. Since predicting the future is a fool’s game, and can be neither proven nor disproven at the time the prediction is made, it’s immune from facial challenge. It could happen, so therefore it’s a valid concern.
But Liptak’s comparison, precedent or prescience, fails to capture the full spectrum of options available to the Supremes. Missing from this choice is the real world comprehension of how its decision are applied, or not applied as was the case with Booker for far too long,
Ironically, Eugene Volokh (as it happens) posted about some new proposals to provide an increased level of reality in judicial duty, as opposed to the current cult of celebrity that surrounds our Supreme Court justices. One of the suggestions really strikes home:
Congress should require Justices to serve part of their time on lower federal courts, as they did for the first century of the republic’s existence. Restoring “circuit riding” would give the Justices some on-going experience with playing the role of a modest judge whose decisions are subject to appellate review and who is often required to interpret and apply muddled Supreme Court opinions.Maybe if they got out more, our Supreme Court justices would have both a better feel for predicting the future, as well as a sense of how much trouble they cause with their incomprehensible decisions. And I might add, it would be best if they rode the circuit on horseback, just to keep it real.
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Brilliant analysis. I was puzzled though by the point that the justices’ brilliance means they’re culpable for more than negligence in being clueless in how their opinions fail to provide real world guidance. I just wonder if in fact despite their intellectual brilliance, they are so insulated from real world law practice (particularly the defense side of same) that they are truly clueless, rather than callous.
This is an issue that has baffled me. I’m a big fan of Eugene (and a new fan of yours) and I do find it funny that he thinks appellate experience would somehow turn this around, rather than say a sentence of a mere three years as defense counsel in a trial court.
Glad you like it. My thought is that while they may not have sufficient real world contact to firmly appreciate the implications of their muddled tests and half-decisions, they surely know enough to appreciate that a changed word in their expression of a long-standing test (i.e., from “probable cause” to “reasonable cause”) will throw the legal world into a tizzy, yet they toss such bombs into decisions without further explanation. Do they mean to change the test? Did they just get bored with the language? Did the clerk make a mistake? They are just too darned smart to do something like this without realizing that they’ve just created a monster, even if they have no idea what the monster looks like or will do.
My favorite example (of late) is Scalia’s Heller opinion. He had to know that it was earth shattering, and similarly had to know that his inexplicable insertion of the one paragraph approving of prior limitations would make it impossible to apply. So what was his point, to change every thing or change nothing, or just render the earth shattering decision utterly indecipherable? He had to know that the paragraph would wreak havoc, leave a thousand unanswered questions, blunt any impact of the decision and reduce a decision of monumental importance to a virtual nullity, but he did it anyway. It’s impossible, in my mind, to believe that he didn’t realize what he was doing.