Oral Majority

by John Holbo on March 5, 2016

This Dahlia Lithwick piece on the Supreme Court abortion case, Whole Woman’s Health v Hellerstedt, is interesting in itself, and suggestive for the near future. We have an even 4-4 conservative-liberal split on the court but Thomas doesn’t talk, and Roberts, the Chief, regards it as his duty to be Chief. Roberts seems to care about being remembered as an effective Chief Justice more than he cares about being remembered as a reliable ideological partisan (like Scalia); this significantly constrains his self-presentation in oral argument. Anthony Kennedy is – Anthony Kennedy. Libertarian, hence mostly conservative, in that idiosyncratically reliable way of his. That leaves Alito, the rock-ribbed Republican voice on the court, if you will. On the other hand, we have Breyer-Kagan-Sotomayor-Ginsburg. Their collective partisan profile is moderate-left Democrat. They are much more judicially restrained than, say, Scalia. But the very fact that they do not espouse philosophically extremist positions – they are not judicial philosophical activists, to coin a phrase – means there are fewer cross-currents and counter-currents within their overall, moderate-left flow. They aren’t going to make bold, contrarian leaps; they’ll keep right on saying moderately liberal things, more or less in unison.

So we may see more cases in which the oral optics (pardon a synaesthetically mixed metaphor!) are: Republican Party (Alito) double, triple or even quadruple-teamed by the Democratic Party. Oral argument isn’t voting. It’s still 4-4 for voting, most days. I doubt Clarence Thomas is going to start voting with the liberals, even if he sees liberals dominating oral argument. I also don’t suppose Roberts will stand for seeing his partisan side being out-talked in some dramatic way. But his position constrains him. Possibly we will be hearing more from Thomas. That would be interesting, to say the least.

Scalia always had enough oral argument in him for any three Justices. Now it occurs to me that might have been literally the case.

I don’t really have a good sense about how the dynamics of oral argument feed into the obviously much more extensive, behind closed doors activities that result in decisions. But I’m sure it means something, if the character of oral argument shifts dramatically. What do you think?

{ 20 comments }

1

John Holbo 03.05.16 at 2:50 am

Probably someone is going to argue that I’m selling the Notorious RBG short, calling her a moderate. But I’ll defend that. She’s clearly highly principled – highly egalitarian – but, unlike Scalia, she doesn’t really lay all that down as a marker. Which means that, case by case, things stay nominally pragmatic and negotiable. That’s what makes the Notorious RBG meme so funny.

2

js. 03.05.16 at 3:00 am

We have an even 4-4 conservative-liberal split on the court

No no, it’s an 8-0 neoliberal/not-neoliberal split! At least that’s what the sages below the line tell me.

More seriously, the Lithwick piece is unsurprisingly great. Cheers!

3

LFC 03.05.16 at 3:10 am

Holbo:
This Dahlia Lithwick piece on the Supreme Court abortion case, Planned Parenthood v. Casey, is interesting in itself, and suggestive for the near future.

Planned Parenthood v. Casey is the 1993 case. The Lithwick column is mostly about the oral arguments in this term’s case, Whole Women’s Health Center v. Hellerstedt (I’m sure I spelled that wrong, but it’s close).

4

LFC 03.05.16 at 3:15 am

But I’m sure it means something, if the character of oral argument shifts dramatically. What do you think?

I don’t think it matters that much, frankly. Most oral arguments go by without any notice from the public at all. And in the high-profile cases, or in most cases really, they don’t have much impact on the outcome. (I’m sure there are exceptions to this generalization.)

5

John Holbo 03.05.16 at 3:23 am

“Planned Parenthood v. Casey is the 1993 case. The Lithwick column is mostly about the oral arguments in this term’s case, Whole Women’s Health Center v. Hellerstedt (I’m sure I spelled that wrong, but it’s close).”

Thanks for catching that. I completely spaced out there, obviously.

6

LFC 03.05.16 at 3:44 am

welcome. [you’ll get my copy editor’s bill in the mail, special super-quick airmail rate to Singapore. ;)]

7

Sebastian H 03.05.16 at 4:05 am

“On the other hand, we have Breyer-Kagan-Sotomayor-Ginsburg. Their collective partisan profile is moderate-left Democrat. They are much more judicially restrained than, say, Scalia. But the very fact that they do not espouse philosophically extremist positions – they are not judicial philosophical activists, to coin a phrase – means there are fewer cross-currents and counter-currents within their overall, moderate-left flow. “

You aren’t looking closely enough if you are rating all of them the same in terms of judicial restraint. Kagan has the appearance of the left-wing Alito–as far as I can tell she has never met a personal policy preference that her version of the Constitution didn’t agree with. Ginsburg, while more politically left than Kagan, is also more judicially restrained. Breyer is like O’Connor used to be, a highly activist judge in the sense of always finding what they want to find, but less obvious because their personal politics are more centrist than Ginsburg or Scalia.

You motioned at the concept in an earlier thread and I responded much later here so I’m not sure if you saw it.

An activist supreme court judge can always find what they want in the Constitution–they aren’t being judicial. This can get obscured if they are sufficiently centrist in policy preferences. O’Connor was at least as activist as Scalia and more than Ginsburg. Her 10 million part balancing tests always came out the way she wanted and meant that she never had to be constrained later. But she was essentially centrist in personal policy preferences so she rarely got the activist label.

8

John Holbo 03.05.16 at 4:18 am

“You aren’t looking closely enough if you are rating all of them the same in terms of judicial restraint.”

No, I do recognize that there are different restraining mechanisms in each case. Although I am sure I haven’t studied any of them nearly closely enough.

“An activist supreme court judge can always find what they want in the Constitution–they aren’t being judicial.”

Has there even been a ‘judicial’ Justice, by your standard? If so: who? If not: isn’t it reasonable to expect ‘judicial’ to be an adjective that correctly applies to at least some judges?

9

Sebastian H 03.05.16 at 4:35 am

‘Judicial’ is aspirational. Judges are human, I expect that they will let their personal preferences get in the way of their judicial judgment from time to time. Both Roberts on the right and Ginsburg on the left strike me as pretty darn judicial. They realize that place of the Supreme Court is not to just find good answers to everything, but rather to be bound by the Constitution. They disagree about what that means, but they think their duty is to strive for it. Alito on the right and Kagan on the left are on the opposite end of the spectrum, they will darn well twist the Constitution into whatever strikes their fancy, only limited by whether or not they can get four other votes.

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John Holbo 03.05.16 at 4:55 am

“‘Judicial’ is aspirational.”

But is it utopian? If so, then that is important to get out there. If you are complaining that we don’t have judicial utopia, that should affect how people hear your criticism. (No one expects utopia, after all.)

Perhaps we can agree the the following is an interesting case, for purposes of clarifying what ‘activist’ means. You say Breyer is equally activist, just more politically moderate, hence less noticably so. I would say: maybe Breyer thinks judicial restraint means, in part, trying to find solutions that will be (or have the appearance of) being politically moderate (whatever he himself might prefer.)

Is deliberate political inactivism a form of political activism (because it aims at a preferred political solution)? Whereas a less activist judge would be expected to produce more political bombshells, just by the law of averages? Being non-activist means letting the chips fall where they may, politically. Being activist means either letting all the chips fall left, or right, or else – Breyer’s case? – deliberately aiming at keeping the pile more or less in the middle (just a teensy bit on the left?)

If a judge has a strong political status quo bias, I am somewhat inclined to class that as a species of judicial restraint, not as a form of crypto-activism.

11

Plume 03.05.16 at 4:57 am

Sebastian H,

That’s typical false equivalency nonsense. Kagan is a moderate to Alito’s reactionary theocrat. Not nearly the same thing. And the four slightly left of center justices have a strong history of judicial restraint and relying on precedence. All too much, in fact. Because they’re usually relying on precedent set by the five reactionary theocrats (now four) who endlessly read their own right-wing agenda onto the Constitution.

America’s conservatives have always been far and away the most activist when they sit on courts or on school boards. It’s America’s right-wingers who have always been crusaders for their own ideological positions, come hell or high water.

It’s amazing that they can keep from laughing when they try to claim it’s the folks left of center who do this. And that their glass houses didn’t shatter long ago from the boomerang effect.

If only the American center-left had the nerve to be even a fraction as “activist” as the right claims. If only.

12

John Holbo 03.05.16 at 4:57 am

OK, fair enough you say Roberts and Ginsburg are judicial. So it’s not utopian. But I’m still puzzled. I honestly see them both as highly partisan. But I do approve of the ways in which they restrain themselves, all the same.

13

Cranky Observer 03.05.16 at 3:05 pm

= = = Both Roberts on the right and Ginsburg on the left strike me as pretty darn judicial. They realize that place of the Supreme Court is not to just find good answers to everything, but rather to be bound by the Constitution. = = =

Indeed. John Roberts’ 98-2 record in rulings favoring incorporated business entities over individual citizens during the course of his judicial career is exactly as described in the Constitution of 1787, in which the preamble opens with “We the Owners and Fiduciary Managers of the Joint Stock Corporations, in order to form a more perfect union…”

14

Sebastian H 03.05.16 at 5:50 pm

It is aspirational in the sense that institutionally we need a critical mass of the people involved to strive for it or the institution loses legitimacy. A similar idea might be ‘scholarly’ for professors. It isn’t critical that every single professor be scholarly at all times in the performance of their duties (and some of their duties don’t require ‘scholarly’ at all. Universities are human institutions, we expect failure. It isn’t even critical that the best professors are scholarly at all times in the performance of their duties. However we do need a critical mass of professors to be scholarly some serious amount of the time for universities to function properly. It would be a bad thing if someone found that most professors were almost never scholarly and it would be a horrible thing for the institution if professors were encouraged not to be scholarly.

I’m not sure exactly what the popular contours of ‘judicial’ are, but they are in the zone of ‘putting aside personal biases and preferences to apply the law as governed by the existing governing documents’.

Professors like Scott Lemieux and David Watkins suggest that the Supreme Court (despite its protestations in favor of being a bulwark protecting the Constitution against encroachment) has never really functioned that way, and ought not function that way. (See for example the thread of about 10 comments starting here where both suggest that the Supreme Court both is and ought to be a nakedly political body). They represent the majority view, which in the literature usually goes by ‘legal realism’. They essentially suggest that the popular view of ‘judicial’ is a complete sham and not even worthy of aspiring to.

I tend to view legal realism as a helpful critique in pointing out when judges are being non-judicial and how judges often select between different branches of thought, but if taken to an extreme completely undermines the point of having institutions like the Supreme Court.

You seem to take legal realism as something like “hey Judges sometimes let their biases win out over their judgment about the law”. I’m not arguing against that as an observation. I’m arguing against it as a description of how judges ought to act, and whether or not they should even try to act otherwise. Arguing for legal realism as an institutional norm is like arguing that professors should actively be non-scholarly. You might end up with something that is a powerful institution, but it won’t be anything like a university.

15

NickS 03.05.16 at 6:51 pm

the Supreme Court both is and ought to be a nakedly political body

I remember reading Governing With Judges by Alec Stone Sweet a while ago and found it interesting and convincing in the argument that a high court is political, and will necessarily overlap legislative functions (and it’s a more complicated and subtle book than that summary).

One of the points that he made that I thought was important was that the idea of reasoning purely from principle (or precedent, if you prefer) only makes sense if you’re talking about yes or no questions — “is this allowed?” But as soon as you talk about balancing principles, “how much of an infringement on X will we allow for the sake of Y” when both X and Y are key constitutional values, the court is functioning somewhat like a legislator — trying to identify a practical compromise based on real world concerns.

If you grant that, I think that situation is more common than not. Take Casey, for example, a standard of “undue burden” is clearly going to be a political decision based in part on one’s beliefs about the world, as well as beliefs about the law.

16

Ebenezer Scrooge 03.06.16 at 10:48 pm

The usual lawyers’ wisdom on oral arguments is that it is possible to lose a case in oral argument, but not possible to win one through oral argument. I don’t think it makes much difference if Team R is outgunned 4-1 in oral argument. It’s still 4-4 where it counts, with Kennedy as a possible swing vote on some issues, and Breyer a possible swing vote on some criminal justice issues. (Breyer is a utilitarian, and therefore will sometimes side with the cops.)

17

BBA 03.07.16 at 4:35 am

I’m imagining the mental contortions required for Kennedy to rule that a de facto ban on abortion does not impose an undue burden on the right to an abortion. It requires a truly massive degree of bullshit to justify, but if anyone can pull it off, Kennedy can.

18

TM 03.07.16 at 10:13 am

Since SH 7 has jumped on this, I’m taking the opportunity to repost from an earlier thread which was closed before he had the chance to reply:

I wonder whether it has ever occurred to SH that the wording of the 4th amendment protects against “unreasonable searches” [4th amendment interpretation was one of SH’s examples for SC justices ruling by policy preference]. No amount of textual originalism can spare the courts the work of making a judgment call as to when a search would be unreasonable. And of course there’s the right to a “speedy” trial, “just” compensation, not to be subjected to “cruel and unusual” punishment etc. etc. SH effectively claims that the text is so obvious that nobody could disagree with his interpretation in good faith. The fact is that the language of the constitution has its fair share of ambivalence and the authors surely must have known and intended that future generations would develop their own interpretations. Saclia’s own fake originalism, which doesn’t even go by the language as it is written but by how a hypothetical contemporary would have understood it (*), ranks high on the list of the most absurd judicial doctrines. And he throws even that overboard whenever it suits him, most obviously in the Heller decision, which the dissent masterfully deconstructed. Btw everything SH says about those others who “never feel constrained by what the Constitution says to vote against their policy preferences” applies to his own 2nd amendment stance.

(*) It is worth noting that most 18th century contemporaries would have understood a statement such as “all men are created equal” very differently from how we understand it today, even though the words seem to be clear enough.

19

Sebastian H 03.07.16 at 6:49 pm

TM, I’m not arguing that there is no room for valid interpretations–otherwise I couldn’t cite both Ginsburg AND Roberts as judicial. But the zone of interpretation is (or should be) much more sharply limited by the words than the ‘legal realists’ seem to admit. “Just compensation” may not be exactly “market value”, but it certainly isn’t the “zero” that 3-4 of the current justices want for regulatory takings. “Speedy” trial may not be a set number of days, but it definitely means you can’t shove someone in jail for years on end without continuing the proceedings against them. “Interstate commerce” doesn’t mean “all commerce including decisions not to engage in commerce” like 4 Justices say it does.

I may have been unclear because I’m talking on two different fronts. I’m not arguing against the function of judges. I think they should exist because when they are judicial they are fulfilling an actual need. I’m arguing that the legal realists don’t have a good explanation for why their vision of a wholly political branch should have the ability to overrule Congress. I understand how textualists, and originalists, and even mushy living constitutionalists justify it. But none of them are the dominant scholarly take on Constitutional law. The dominant take on Constitutional law is the legal realists, who deny that “judicial” is a thing. I don’t understand how they justify overruling Congress with their purely political courts when the popular understanding is that the Courts offer a bulwark against Congress stepping beyond the Constitution. Interestingly the only one to have really tackled that is arch-conservative Strauss. A Straussian can deceive the public about the purpose of institutions like the Supreme Court. But the realists don’t come out and say that is what they want. (Which makes sense….)

The other front is something along the lines of “how does it work if it isn’t purely political”? Well there are all sorts of ways that you look at contracts and statutes to figure out what the authors meant. You should use all of those. Another question is “how do the meanings change”? I found hilzoy’s discussions on the issue very instructive. If a law punishes poisoning someone, you aren’t bound by all the things that the authors thought were and were not poisonous. If you discover that something like lead is poisonous later, the law still applies. But on the other hand you shouldn’t expand that law to all possible methods of harming someone. Drowning someone isn’t poisoning them. One question is: did the authors know about drowning already? Yes. So they didn’t mean drowning. Another might be: are all levels of increased danger “poisonous”? No, so refined sugar isn’t likely to count. Etc. Some phrases have explicit moral judgments. If they change should Judges lead the country or follow it? I would say follow it, because we already have elected branches to express such changes. (This isn’t the view of many liberal court lions on capital punishment and “cruel and unusual”, they believe that they can make their own personal moral judgment and impose it. Under my understanding of judicial activity, even though I think that no government should be trusted with capital punishment, the Constitution clearly allows for it, and my policy preference isn’t baked in).

The Supreme Court was designed as a small ‘c’ conservative branch. And it makes sense to treat it as such because error correction is MUCH harder than Congressional or Presidential mistakes.

20

Cranky Observer 03.08.16 at 2:57 am

= = = “Speedy” trial may not be a set number of days, but it definitely means you can’t shove someone in jail for years on end without continuing the proceedings against them. = = =

A person is accused of murder in 1853 San Francisco. Unfortunately it turns out the key witness (let’s call him Bill) left for St. Louis the night before on the fastest ship in port. It will take anywhere from 18 months to 3 years to get the witness back for trial. Is holding the suspect until the witnesses are available acceptable? For a day? A week? 3 years? What is the line between speedy and undue?

And… is the decision different if the year is 2015 and the witness can be contacted at the St. Louis airport and flown back the next day? Now the suspect will be held for only 2 days. Speedy?

Seems as if there has to be some… judicial interpretation that depends on the cultural and technological circumstances.

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