The hung court

The Supreme Court began its new term this week, which by law and custom means that it’s time for the Amicus podcast’s term preview with Tom Goldstein. A bit of context: Following Justice Scalia’s untimely death in February and the Senate’s refusal to confirm a successor until after this fall’s Presidential election, the Court seemed to bed down for a long eight-justice interregnum. As Goldstein explains in more detail, the justices would seem to have striven to grant cases that would not leave them evenly-divided. Thus did the term open Tuesday with argument in a pair of cases presenting the pizazzy questions of  whether a “scheme to defraud a financial institution” under 18 U.S.C. §1344 requires proof of a specific intent to cheat (rather than to deceive alone) a bank (Shaw v. United States) and whether a vacated, unconstitutional conviction can strip an acquittal of its preclusive effect under the collateral estoppel prong of the double-jeopardy clause (Bravo-Fernandez v. United States; if it sounds sufficiently complex to be fun—alas, nope.)

Lithwick puts to Goldstein this proposition: We have a term full of boring cases, the court is avoiding blockbuster cases, the justices are trying to behave themselves, and why isn’t that awesome? The court, some might say, has overreached, getting its claws into absolutely every aspect of American life for too long, including many that it has no business deciding, and if it’s now pulling back, why isn’t that for the best? My ears pricked up; that is, to some extent, my own view. It’s not a term full of boring cases, it’s a term full of lawyerly cases; the court is avoiding cases that courts had no business deciding in the first place, and the justices’ comporting themselves as serious, intelligent people is refreshing in an era in which every other American institution has gone insane. The court is, in other words, doing more-or-less what I want it to do.

How does Goldstein respond? First, he characterizes this as a kind of “institutional nihilism,” observing that there are also people who are happy with a do-nothing Congress—but “we need the government to function.” This bears on two conflicting lines of thought that I have advanced over the years. On the one hand, I have suggested that for those of us who want to shut down 90% of the federal government, suspending 99% of it might be thought a win. It’s not great, because that 9% is very important, but between a federal government doing many things that it shouldn’t and a federal government not doing a few things that it should, there is much to say for the latter. On the other hand, I have also made the same point as Goldstein (recently, for example, on the podcast): The government has to function, the mail has to be hauled.

One line of attack on Congress that I have soft-peddled in recent years (because it sounds too much like a different and meretricious argument that became common in the early Obama years) is that Congress is dysfunctional because it seems unable to deal with routine business when the voltage goes up on unrelated partisan fights. Uncontroversial nominees get used as bargaining-chips for controversial nominees. Uncontroversial but important bills languish while pompous buffoons bloviate about controversial bills. It would be optimal for Congress to function better. It is a serious mistake, however, to think that the function of Congress is to pass bills, which is the predicate of the argument that we need it to function and a do-nothing congress is ipso facto not “function[ing].” In the same way, it is a serious mistake to think that the court is only functioning when it takes a particular case or kind of cases. And it is similarly a mistake to think that to the extent that we need government to work in the sense that the mail must be hauled, that if any particular function (especially a non-core function) is not being carried out, the government isn’t working.

Goldstein adds that we want the courts to function, we want them to act as a check, we want them to protect the powerless. This brings us back to “institutional nihilism”; I originally took that as a barb (and a rather silly one), but this argument only works if that line is more than rhetorical. Does he really think that anyone wants Congress and the Supreme Court to do nothing? Of course the court must be in business; no serious person doubts that. The question is what business it should be in. Can Tom Goldstein, of all people, really believe that the Supreme Court is as good as shuttered if it keeps its mucky paws out of the high-voltage social cases and focusses on, say, IP cases? Or that those who would make the argument that a law-focussed Supreme Court is a good thing want a court that decides no cases at all? That I doubt.

His second point is much stronger. He observes that it’s not as though the courts are retrenching—those big, sexy cases are still being filed, and they’re still being decided, but they’re being decided in the lower courts, which raises the troubling prospect that, for example, the Second Amendment could mean one thing on the west coast under Ninth Circuit precedent and something entirely different in the south under Fifth Circuit precedent. The uniformity of Constitutional law disintegrates, and the institutional function of the Supreme Court since the Cert Act has been precisely to resolve such splits, to ensure the uniformity of federal law.

As a matter of principle, I am inclined to agree. But we should be careful about being too abstract: Which is better, a 4-3-1 court that doesn’t take high-voltage cases, or a 5-3-1 court that takes them and gets them wrong? That’s what Goldstein seems to miss. And the justices themselves know this; they—well, seven of them, at any rate—aren’t stupid. One reason why the court has generally avoided abortion cases (to give only one example) is that neither the progressive bloc nor the conservative bloc has been quite sure of Justice Kennedy’s vote. Each side looks at the petition in a “sexy” case and does a machiavellian calculation: “We may like/dislike the decision below, but better that it stand and the law be wrong in that circuit than we take the case, lose Kennedy, and the law be wrong coast-to-coast.” Whether it is a persuasive argument or not, that is the argument: If we can’t get a majority to decide high-voltage cases right, better to have a court that decides only low-voltage cases.

Who knows what the future holds? The optimal result of this election would have been the appointment of at least one justice by President Fiorina, but that isn’t going to happen. Like Goldstein, I presume that the next President will be Hillary Clinton, a prospect that does not overjoy me. But if the Senate does not ultimately confirm a successor to Justice Scalia, a de-facto eight-member court that confines itself to actual law would not seem the worst outcome.