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Our Two Supreme Courts

Speaking at Northwestern University Law School this semester, Justice Elena Kagan may have revealed more than she intended.  Amidst her entertaining and witty remarks, she described two very different kinds of discussions that take place at the conferences where the justices decide cases.  In shorter conferences, the justices, in order of seniority, with the Chief going first, state their votes with brief statements of reasons.  Justice Kagan observed that shorter conferences tend to be the high profile cases that appear on the front page of the newspaper.  She surmised that further debate in these cases would likely make her colleagues irritated with those of opposing views.

She then described longer conferences, where the justices after stating their positions—sometimes tentative ones– entertain more general deliberations, trying to figure out exactly what the right answer should be.  They then focus on and often resolve thorny legal questions.  Justice Kagan said that during her time on the Court one of the longest conferences revolved around an obscure jurisdictional issue of the kind that would draw no public attention.

Justice Kagan’s remarks are consistent with my view that we have not one but two Supreme Courts. One is a political court, in which the justices play the aristocratic element in a mixed political regime. Today our aristocratic element consists not of landed nobles but the cognitive elite well represented in judiciary by those who graduated from the nation’s best law schools. But like the aristocratic element that Aristotle described long ago, one of its functions is to restrain the democratic element, here represented by the state and federal legislatures. The other is a legal court where the justices act as real lawyers.

In the legal court, justices largely agree on their methods of judicial resolution. Substantial deliberation may thus be mutually profitable. Bankruptcy and the Employment Retirement Security Act are paradigm cases for this court.  Generally these cases are decided with a high degree of consensus, if not unanimity.  In the political court, many, if not most of the justices, simply have preferences rather than serious methods, and their preferences sharply diverge, now along partisan lines.   Given their lack of a common legal language, let alone shared preferences, there is no more reason for deliberation at the Court in these cases than there would be among politicians on a congressional committee.  Less reason, in fact, because more often than legislation, cases have binary outcomes and do not allow for compromises that take time to forge.

The only way to go back to one Supreme Court is for the justices to approach constitutional issues– even those that stir passions like same-sex marriage–with the same formal rigor that they do bankruptcy and ERISA.   Until that time, we will have two Courts, where the political nature of one is less apparent to the public because of the legal nature of the other.

Reader Discussion

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on May 06, 2015 at 14:13:01 pm

Thank you for this, Professor, but I would raise one question: is the divide "philosophical" rather than "political?" I don't believe this is mere semantics. To my mind, "political" carries a suggestions of opportunism and/or expediency rather than what may well be heart felt conviction and thoughtful, considered beliefs. The end is probably the same given the intransigence of position; and political may equal philosophical since there are few "textual originalists" in the Democrat party; and, the idea of a "living constitution" is anathema to conservatives; but, motivation matters. Through hard work and advocacy, process and meaning have returned to challenge result as the judicial motivator. I'd hold out hope more for changing philosophy than base politics.

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Image of Greg Bedell
Greg Bedell
on May 06, 2015 at 19:13:29 pm

Is it a bad thing that the "political court" fulfills the role of Aristocracy in a mixed regime? One of the odd things about the history of American political thought is that in the 20th century, and especially after the 1930s, conservatives ceased to worry much, or express much thought about, the problems inherent in democracy, or the limitations and instabilities that democracies must endure. But at the start of the 20th century guys like Elihu Root expressed similar kinds of reservations about democracy as had Chancelor Kent and Fisher Ames a hundred years earlier, or that numerous of the framers had understood in Philadelphia in 1787. Where is that awareness to be found now? Today both our major parties are populist.

Under these circumstances, maybe a small reservoir of aristocracy is a good thing, in a society that in recent decades has forgotten that democracy carries with it liabilities as well as strengths and virtues?

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Image of Kevin R. Hardwick
Kevin R. Hardwick
on May 07, 2015 at 12:57:50 pm

[…] John McGinnis: […]

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Image of “Our Two Supreme Courts” | Election Law Blog
“Our Two Supreme Courts” | Election Law Blog
on May 08, 2015 at 16:40:44 pm

My take:
http://prq.sagepub.com/content/64/2/247.short

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Image of Michael Kochin
Michael Kochin
on May 12, 2015 at 09:15:13 am

[…] Our Two Supreme Courts […]

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Image of Our Postmodern Bill of Rights - Freedom's Floodgates
Our Postmodern Bill of Rights - Freedom's Floodgates
on May 13, 2015 at 16:06:53 pm

One possible way of interpreting these perceptions about "The Court" is to consider those exercises of judgments which involve Rules of Policy contrasted to those which involve LAW.

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Image of R Richard Schweitzer
R Richard Schweitzer
on June 01, 2015 at 00:44:59 am

[…] McGinnis on the difference between “big”/philosophical cases and normal cases at the Supreme Court [Liberty and Law] […]

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Image of Supreme Court and constitutional law roundup - Freedom's Floodgates
Supreme Court and constitutional law roundup - Freedom's Floodgates
on June 01, 2015 at 17:00:47 pm

The philosophical cases have redress to create rights they desire within the bounds of the Constitution, simply amend it. But if their ideas are repulsed by everyone, a "living" Constitution is the simple way to push their agenda.

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Image of Stosh
Stosh
on September 25, 2018 at 05:47:10 am

[…] than other political actors (and I think they are), judicial review can still be justified. And I have suggested before, the way to improve judicial review is to make constitutional law look more like bankruptcy law, […]

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Image of If the Supreme Court is Simply Partisan, Eliminate Judical Review
If the Supreme Court is Simply Partisan, Eliminate Judical Review

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.