Musings on Our Ersatz Legislature

The United States Supreme Court decides only about 80 cases per term. (Why 80? There are 39 days for oral argument and they really can’t be bothered to sit still for more than two cases a day, or to add argument days.) That’s what any decent county judge handles in a week.

Now, granted: normal judges just handle stupid stuff, like who goes to jail for how long or who owes money to someone else. In contrast, the Supreme Court’s business is really heavy, brother—so heavy that the Court has again left a ton of hugely important decisions for the end of its term. As in past years, we are about to be treated to extended disquisitions on the mystery of life and the true meaning of “discrimination,” etc. And then the Chief bangs the gavel and the justices are off to Salzburg or Barbados and with the exception of incoming clerks who get to write “denied” on a thousand habeas petitions, we’ll all be tolerably safe and happy until October. There may be a crazier way of running a judicial system; I just haven’t been able to think of it.

In truth, it’s not a judicial system at all; it’s more like an ersatz legislature. Its denizens don’t have to run for re-election but in all other respects they are a mini-Congress: a collective body that sets its own agenda, deliberates over fabricated factoids, and then lays down the rules (and sets its reasons down in writing). And as in all legislatures the important stuff gets bunched up, and done, at the end.

That’s a common thought. Pursue it, though: the way things get done in legislatures is by trading votes. I’ll vote for your kleptocrats if you vote for my trial lawyers. You feed my orphans, I feed your widows. I’ll give you gay marriage for your vote on dinging Obamacare.

Oops. That last trade isn’t actually the province of the Congress. It‘s the Court’s, and conventional wisdom is that it just can’t happen. Trading votes within cases is okay, and it happens all the time; trading votes across cases is a total no-no, and to my knowledge there’s no evidence that it ever occurred.

The social scientist in me demands to know: why not? You can say, they’re lawyers, and their professional norms forbid it. But you then have to explain why that particular norm has held up among folks who think of themselves, with some justice, not as ordinary lawyers but as statespersons. Why would they not behave strategically and trade, say, a lousy First Amendment case for a really good one on the Fifth?

Suppose such trades could be shown to maximize constitutional government overall: would you still be against it?