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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?

Reader Discussion

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on June 24, 2015 at 21:11:46 pm

Would I advocate that Supreme Court Justices support things they don't believe are constitutional? No, to me that is a violation of their oath of office. Just as it would be for a legislator to do it on a constitutional question. A question of policy is different, those can be vote traded or whatever all they want without a violation of their oath of office.

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Devin Watkins
on June 25, 2015 at 07:31:56 am

Is it not possible that a "judicial system" or Judiciary, as part of a legal system within a social order would be responsive to the uses, needs and demands of the members of that order have for the particular legal system, and therefore, the actions of the Judiciary within the system will reflect (in some large part) the actions of those members in their use of the system.

The drivers of a limousine being used by its owners to haul manure can no doubt be expected to have a different attitude in handling the vehicle.

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R Richard Schweitzer
on June 25, 2015 at 12:24:22 pm

I hadn't thought about it before -- but I wouldn't be surprised to learn that Justices engaged in horse-trading in identifying cases to be heard in the following session. ("You want to hear the labor case; I want to hear the environmental case. I'll vote for yours if you vote for mine!") But in that case, I'd expect to find more cases being receiving cert.

So maybe they swap votes on cases to be blocked from receiving cert.? ("You don't want to see the labor ruling overturned; I don't want to see the enviro ruling overturned. I'll vote against yours if you vote against mine!")

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nobody.really
on June 25, 2015 at 17:35:00 pm

Today, June 25, 2015, the drivers confirmed their view of the cargo.

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R Richard Schweitzer
on June 25, 2015 at 18:57:57 pm

I share "nobody's" intuition that many cert votes are strategic. I don't think it'll be explicit ("Sam, do I have a deal for you!") but if you have a reasonably good sense of your colleagues' merits views and of what's in the pipeline it doesn't have to be. It's a bit complicated because it takes five votes to win but only four to grant (and it's a soft four: if there are three votes to grant there's usually a fourth courtesy vote.) That's one of the reasons why the cert votes almost have to be strategic.

There's some evidence that's consistent with--although it surely doesn't prove--that this is happening, more than it used to. For the past Terms the Court has (almost?) never granted a case without relisting it first; and CVSG's (requests for the views of the Solicitor General) are way up from the Rehnquist Court. Maybe that's because the Court operates against a sort of budget baseline: 80 cases max, so let's make sure they're the right ones. But it's also possible that they're trying to make sure the cases come out right. If so, what you should see over time is a proportional increase in stupid CivPro cases that come out unanimous (or close) because nobody really cares--it's just that there was a circuit split that requires housekeeping. Plus, some cases they can't really avoid. King v. Burwell may fit that bill.

Of course, nothing guarantees that the implicit bargains stick; and the cert grant voters may miscalculate. Obviously they did in today's "other" case; Justice Alito's dissent almost says so.

Evan Caminker had a good piece on this some years ago. If there's empirical stuff out there I haven't seen I'd be grateful for links etc.

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Mike Greve
on June 26, 2015 at 04:23:32 am

The law is nothing but fossilized politics. It is dispute resolution according to the political balance that existed at the time of the judges' appointments, instead of according to the political balance in the present. That's it. That's the only difference. So of course the Court is a legislature.

Under the Articles of Confederation, the federal government did not have much power, but all the power it had, legislative, executive, and judicial, were held by Congress. I think we should go back to that: abolish the Supreme Court and make Congress itself the court of final appeal. Will its decisions be political? Of course, but that's no different from how things are now.

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Oddstar
on July 10, 2015 at 10:23:13 am

[W]hat you should see over time is a proportional increase in stupid CivPro cases that come out unanimous (or close) because nobody really cares....

And it's so nice for the Justices to accommodate my interest in civil procedure. I really must add them to my Christmas card list.

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nobody.really

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