Obama is making diversity a top priority for his Supreme Court pick. But now comes news that he and Joe Biden interviewed 9th Circuit Judge Sidney Thomas for the opening. Why hasn’t someone pointed out the obvious: there’s already a “Thomas, J.” on the court!
I’m just sayin’.
-Michael
Susan and I will be attending arguments at the Supreme Court for Samantar v. Yousuf [decision below; PDF] tomorrow, a Foreign Sovereign Immunities Act case. Hopefully we’ll both have wise thoughts and intelligent things to say afterwards. In the meantime, just go to SCOTUSblog.
-Michael
The Supreme Court is almost certainly controlled by Devil-worshipping wildebeests! Everyone knows that ”persons” are created by God. But very few people are willing to admit that because corporations are not created by God, they must not be people. But I will not be silenced! God’s law leads to only one simple conclusion . . .
Citizens United was wrongly decided.
. . . Ok, so I haven’t actually gone off the deep end. I just decided to try my hand at writing a “typical incendiary blog post.” Apparently, if I follow a simple formula, I can get a lot of people to visit the blog:
This sentence contains a provocative statement that attracts the readers’ attention, but really only has very little to do with the topic of the blog post. This sentence claims to follow logically from the first sentence, though the connection is actually rather tenuous. This sentence claims that very few people are willing to admit the obvious inference of the last two sentences, with an implication that the reader is not one of those very few people. This sentence expresses the unwillingness of the writer to be silenced despite going against the popular wisdom. This sentence is a sort of drum roll, preparing the reader for the shocking truth to be contained in the next sentence.
This sentence contains the thesis of the blog post, a trite and obvious statement cast as a dazzling and controversial insight.
The post is pretty dead-on accurate, as are the hilarious accompanying comments.
-Michael
[via Kottke]
A while back, I noted a recent series on the Volokh Conspiracy that proposed some radical reforms to the Supreme Court. One of the proposed reforms involved reinstating “circuit-riding,” the practice of having Justices sit on a certain number of federal trials in District Courts throughout the country. Today, I’d like to propose an even more radical approach: abolishing Supreme Court justices and implementing a “reverse circuit-riding” system.
As we’ve heard more and more lately (particularly after Citizens United), the Supreme Court has increasingly been seen as a political institution controlled by the whims of nine individuals. The incredible power held by those lucky enough to land in a seat has created a number of unfortunate problems: absurdly confrontational confirmation hearings for Supreme Court justices, the perception that the government is (at least partially) controlled by an elitist enclave, etc. So how do we avoid the problems that come with placing such strength in the hands of so few?
I propose eliminating all nine positions of “Supreme Court Justice.” Justices Ginsburg, Alito, Roberts, and the rest of the gang would all head off into a happy retirement (or could take demotions to the Courts of Appeals). But, because we do need to have a “highest court in the land,” we wouldn’t abolish the institution entirely. Instead, we would decide Supreme Court cases by assembling panels of nine randomly selected Courts of Appeals judges.
Under the existing system, there are now 179 federal appellate judges. Under my proposed system, those 179 folks would be responsible for hearing the cases that make up the Supreme Court docket, which amounts to about 70 cases on the merits each year. Running the numbers, that amounts to each appellate judge hearing about 3.5 cases each year. (That doesn’t include senior appellate judges.) Three and a half cases would certainly seem manageable, and that individual caseload assumes that Congress would not put in a few more judge slots to account for the new responsibilities of appellate judges.
This system would be kind of like an entire court “sitting by designation.” Cases would be assigned at random, though judges could not hear appeals from their own cases (or maybe even their own circuits). Upon designation as a Justice in a particular case, the judges would have all the powers of the former Justices: they would hear oral arguments, confer on a result, and draft an opinion reflecting the new law of the land.
But how would this system be any better? First, it would disaggregate the power of the highest court. Supreme Court confirmation hearings would cease to exist. Second, opinions would reflect a broader consensus, if for no other reason than the number of people who would be involved in the decision-making process. Third, the temporary Justices drafting Supreme Court opinions would have a better understanding of how their decisions would play in the courts below, because they would have to return home and carry them out. In sitting by designation, Circuit court judges would also understand what their cases look like from above.
Consistency would of course be an issue, as one could imagine cases where a strange number of liberals or conservatives decides to swing the law in a crazy new direction. I suppose one solution would be allowing for ”super-en banc,” that is, review by all the judges of the Courts of Appeals, but that seem unreasonable. Frankly, the consistency problem is one of the biggest problems facing the Circuit-judge-only model.
Another problem would be handling petitions for certiorari. Would petitions go to all the Circuit judges, everywhere? Or would a pre-assembled panel be randomly assigned to each cert. petition? That would suddenly create a fair amount of extra work — and that burden could be insurmountable.
So, while an “all-Circuit-judge” system would be fun to see, perhaps a more modest (and reasonable) use of Circuit judges is more appropriate. The more modest approach would allow Supreme Court justices to keep their jobs, but implement a system of “Justice, sitting by designation.” Circuit-level voices would thus be heard in many cases, but the administration problems of the destruction of the Supreme Court could be avoided. The statute could read as follows:
By a form of random selection determined by the Chief Justice, the Court shall select at least one member and no more than three members of the Courts of Appeals to sit upon the Court in each case wherein certiorari is granted. These designees shall take the place of a Justice (or Justices) to be determined by random selection. Such selections shall be in conformity with the rules or orders of the Court.
There are probably too many problems to count in these proposed reforms, but it’s still an interesting thought experiment.
-Michael
Over at the Volokh Conspiracy, guest commentators Nelson Lund and Craig Lerner have been presenting their proposals for reforming a Supreme Court that they perceive to be increasingly obsessed with its own star power. I question to some degree their underlying premise — that Supreme Court justices have become such egotistical maniacs that it’s actually beginning to affect their job performance. Nevertheless, if one does grant that premise, there should be one more target of reform: oral argument.
I understand that oral argument has long been a target of criticism, even for at least one Justice. But the argument to me is an oldie but a goodie. Sadly, oral argument seems like it’s increasingly become a platform for witty quips and sniping between the star-hungry Justices. A couple weeks ago, for instance (in Briscoe v. Virginia), Justice Scalia used oral arguments to unabashedly criticize his fellow judges for even taking the case. (“Why is this case here except as an opportunity to upset Melendez-Diaz [a prior similar case]? . . . I’m not criticizing [the appellant]; I’m criticizing us for taking this case.”). That’s not what oral argument is for.
At the Supreme Court level, oral argument no longer serves its two fundamental purposes.
First, there is some suggestion that arguments add a “democratic” element to an otherwise oligarchical institution. Yes, it’s kind of fun to see the Justice toy with the issues before our very eyes. But isn’t that what opinions are for? And yes, it’s a nice idea that every litigant — or at least those granted cert and argument — literally gets to have their voice heard in open court. But isn’t that what the briefs are for? Generally, however, I don’t think this is a valid interest in designing an effective court system. Courts are supposed to be somewhat un-democractic, inaccessible institutions, as these characteristics shield the judiciary from the influence of majoritarian politics. Moreover, open air arguments make the Supreme Court look more like the floor of the House, and I think we should make every effort to give our legislative and judicial branches distinguishing characteristics.
Even if the interest in keeping things “democratic” were a valid interest the Supremes, I think that interest is overwhelmed by the loss in efficiency caused by oral arguments. Without arguments, the judges could meet, confer, and start drafting decisions after receiving all the briefs. Decisions would be rendered faster. As a result, the Court might be able to hear more cases each year. I think we’d get a higher degree of clarity from a more substantial caseload than we do from the few minutes of argument on each case that we have now.
Second, oral argument is supposed to help the judge better understand the nature of the case. But as one judge said to me, “Good lawyers say everything in their briefs (so arguments aren’t necessary), and bad lawyers don’t have anything helpful to offer at arguments anyway.” Even if the Justices did still have questions after briefing, they could get answers by requesting supplemental briefing. Parties would then have an opportunity to actually research and carefully respond to the questions, rather turning good questions into “gotcha” moments at oral arguments. As Justice Jackson (a former Solicitor General) explained:
I used to say that . . . I made three arguments of every case. First came the one that I planned — as I thought, logical, coherent, complete. Second was the one actually presented — interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.
I love the drama of oral arguments, and I was a moot court nerd to the extreme. But when it comes down to it, the judge is going to return to those briefs to figure out what goes in the opinion. Maybe oral argument has just become face time for our diva Justices. Maybe it’s time for it to go.
-Michael
Via Language Log, here’s a neat article on how the U.S. went from a plural to a singular: Supreme Court Usage and the Making of an ‘Is’.
Immediately after the founding of the United States of America, it was standard practice to refer to the entity in the plural, as a grouping of states rather than a singular body. Then, by about the mid-1800′s, use of “is” or “are” became pretty much interchangeable, though the frequencies at which was more favored varied. You could even use both in the same breath if you wanted to, as displayed in an 1882 case: “[T]he doctrine [of sovereign immunity], if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of the established rights of plaintiffs when the United States is not a defendant or a necessary party to the suit.”
Today, anyone over the age of four stating that “the United States are located in North America” would be looked at funny, or possibly suspected of taking that whole states rights thing a little too far. Contrary to folklore wisdom, it wasn’t the Civil War that effected the change, but it was rather the result of a gradual semantic shift.
Only in the 1900s did the plural usage fade entirely from Supreme Court opinions. This comports with a contemporaneous account from a commentator in the Yale Law Journal, who observed in 1900 that “the plural use of ‘United States’ is gradually passing, under stress of the ever-increasing sense of unity in the national life.”
“The United States are” has only been seen in a Supreme Court opinion on two occasions since 1901, the last occurrence being in 1935. Unsurprisingly, the sole judicial hold out for the plural form, Justice McReynolds, was one of the Four Horsemen that fought valiantly against the New Deal and the federal tyranny of the commerce clause.
-Susan
