198. Progressive Judicial Institutionalism
There's important daylight between those who are critical of the present degree of judicial power in the United States in general and those who are critical of the current Supreme Court, specifically.
Welcome back to “One First,” a (more-than) weekly newsletter that aims to make the U.S. Supreme Court and related legal topics more accessible to lawyers and non-lawyers alike. I’m grateful to all of you for your continued support—and I hope that you’ll consider sharing some of what we’re doing with your networks:
Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, please consider becoming one. And with the arrival of the holiday season, you might also consider whether a gift subscription would be a welcome present (or, at least, an amusing gag) for a friend or family member:
I wanted to use today’s “Long Read” to flag (and respond to) a provocative essay published last Friday in The Guardian by Harvard law professor Ryan Doerfler and Yale law professor Sam Moyn, under the headline “It’s time to accept that the US supreme court is illegitimate and must be replaced.” Although Doerfler and Moyn have been beating this particular drum for some time, what’s new about Friday’s essay is the sharp criticism they direct toward “liberal lawyers,” specifically Penn law professor (and Strict Scrutiny co-host) Kate Shaw and me, who, in their words, “have focused their criticism on the manner in which the supreme court has advanced its noxious agenda,” rather than the noxiousness of the agenda itself, at least in part because, according to Doerfler and Moyn, we’re worried about undermining the Court’s legitimacy.
As they write (referring to one of my earlier posts), we worry “that concluding the supreme court is beyond redemption is too close to ‘nihilism’ about the constitution, or even about law itself.” They, on the other hand, are unabashed: “In Trump’s second term, the Republican-appointed majority on the supreme court has brought their institution to the brink of illegitimacy. Far from pulling it back from the edge, our goal has to be to push it off.”
Below the fold, I offer two distinct responses to Doerfler and Moyn. The first is to correct their depiction of what I actually believe (I wouldn’t presume to speak for Professor Shaw, although my suspicion is that our views here largely align). I have not exactly been shy about criticizing the Court—even on terms of illegitimacy (accusing it of “undermining the Republic” in the subtitle of my book seems like a rather large tell). Nor, as I explained at some length just last Monday, am I focused on procedural objections to the exclusion of all of the problematic moves the Court is making on the merits. Maybe there are “liberal lawyers” walking around with rose-colored glasses, or who are so worried about undermining the Court’s legitimacy that they’re pulling their punches, but I’d like to think that anyone who reads this newsletter would know at the very least that I’m not one of them.
The second is to attempt at least a brief form of the affirmative case for what might be called progressive judicial institutionalism—separating criticism of the current Court from a critical view of the power that courts should have in our constitutional system. Doerfler and Moyn are quite clear that their goal is to empower the people at the expense of the judiciary, period. But as attractive as that viewpoint might be in the abstract, it seems to me that the last 11 months have driven home, in technicolor, the importance of a judiciary with a modicum of independence—which, among other things, can stand up to tyrannies of the majority. Indeed, it seems beyond question at this point that the federal courts have been far more effective in holding the line for our constitutional order than any other institution within or without government—even accounting for the Supreme Court’s (procedurally and substantivelly odious) behavior in Trump-related cases. To borrow Doerfler and Moyn’s last metaphor, my own view is that pulling the Supreme Court back from the cliff is something progressives should view as far preferable to the alternative—where it may not just be the Court that gets pushed over the edge and into oblivion, but our entire constitutional (and democratic) order.
But first, the news.
On the Docket
The Merits Docket
The Court made virtually no news on the merits docket last week. Monday’s regular Order List included a single new grant of review—in a complex post-conviction habeas case brought by a Mississippi state prisoner challenging the prosecution’s use of peremptory challenges that, for some reason, the justices had relisted seven times before finally agreeing to take up. Otherwise, there were no summary rulings; no separate writings respecting denials of certiorari; and not even a single recorded public dissent. Given how many high-profile cases are (and remain) pending, including a bevy of Second Amendment cases, one possibility is that the Court is kicking these cans into January so that, if and when it agrees to take these cases up, it’ll be for next term (the one beginning in October 2026). Regardless, that should be the last we hear of the merits docket until at least Friday, January 9 (when the Court has a scheduled “non-argument day,” which could, but won’t necessarily, include the handing down of the term’s first opinions in argued cases).
The Emergency Docket
The full Court issued three orders respecting emergency applications last week: On Thursday, over no public dissents, it denied two separate requests from Florida prisoner Frank Walls for stays of his impending execution. And on Friday, it handed the Trump administration its first “loss” on an emergency application since April—when it turned away the request for a stay in the Fourth Circuit immigration judges case (where the real dispute is at least largely about whether a First Amendment challenge by government employees can be brought in district court or must instead proceed through the Merit Systems Protection Board). The loss wasn’t bigger news because it was decidedly modest—the Court’s cryptic order noted that “At this stage, the Government has not demonstrated that it will suffer irreparable harm without a stay. This denial is without prejudice to a reapplication if the District Court commences discovery proceedings before the disposition of the Government’s forthcoming petition for a writ of certiorari.”
I’ve been quite critical of how the Court has ignored the traditional “balancing of the equities” in many of its rulings on Trump-related emergency applications. Whether Friday’s ruling is the first sign that the Court is shifting course, or is merely an outlier (and a temporary one at that), remains to be seen. For now, at least, color me skeptical; the Fourth Circuit hadn’t actually blocked the government from doing … anything; it had merely revived a lawsuit that the district court had dismissed solely so that the district court can reconsider whether it should’ve been dismissed. The real story would’ve been if even that was sufficient to provide a basis for emergency relief.
The Week Ahead
We don’t expect … anything … out of the Court this week. The only major pending emergency application is the (now-10-week-old) request from the Trump administration for a stay in the Illinois National Guard case (even accounting for the supplemental briefs that the Court ordered in late October, it’s now been five full weeks since the last of those briefs came in). That ruling certainly could come down today or tomorrow, but the fact that it hasn’t come down yet makes it increasingly difficult to have any confidence about when to expect it. (I continue to think that the length of time is almost certainly a bad sign for the Trump administration, and that the delay may reflect a behind-the-scenes effort to coalesce around not just a ruling, but a majority opinion. But your guess is as good as mine.)
A Programming Note
Finally, although I endeavor to put out a bonus issue every Thursday, I hope you’ll forgive me for skipping one this week—both because I suspect most readers will have better things to do and because I’m going to be out of pocket between now and then, and wouldn’t want to write something that could well be stale. This also means that it’s highly unlikely, even if circumstances warrant it, that I’ll be in a position to put out an unscheduled issue between now and then. But if you really need a “One First” fix, well, the archives are at your disposal (and especially newer subscribers may find some of the old posts especially worthwhile).
The One First “Long Read”:
The Attack from the Left
One of the things I often find amusing when I’m criticized by folks to my right is the assumption that I’m somehow radical in my views about the Supreme Court. Everything’s a matter of perspective, of course, but there’s a vocal cohort of academics who have long been far more aggressive not only in their criticisms of the Court, but in their prescriptions for reform. Doerfler and Moyn are two of the most visible folks in that cohort, but they are hardly alone.
The biggest differences between those folks and me, at least from where I’m sitting, stem less from our criticisms of the Court than from what we view as the sources of the Court’s missteps and, relatedly, our prescriptions for how to “fix” it. As Doerfler and Moyn’s essay in The Guardian makes clear, their preference is to neuter the Court—to give far more power to the democratically elected actors in our government, especially legislatures. Indeed, going back a bit, Doerfler and Moyn have been critical not just of the Court, but of the Constitution (and “constitutionalism”) itself—as typified in a 2022 New York Times op-ed. The people should reclaim authority not just over the Court, but over the entire legal fabric of our nation.
My own view is, and always has been, a heck of a lot more modest (in the old days, I might even have been described as “center-left,” but I digress). It’s not that I think the Constitution is wonderful (it isn’t), or that the Supreme Court has generally been a force for good in our country (it mostly hasn’t been); it’s that (1) this is the system we’ve got; and (2) I have far less confidence than Doerfler and Moyn that tossing it overboard and starting from scratch will produce a “better” one, let alone one that will lead to the substantive policy goals that they (and, candidly, I) would prefer. They may view my attitude as rearranging deck chairs on the Titanic; I prefer to think of it as trying to avoid hitting the iceberg in the first place.
That’s why so much of my work is focused on the Court as an institution—and how it relates to the other institutions of government. As close readers of this newsletter will know, my basic view about what’s wrong with the current Court is far less about its composition than about the extent to which it has become (and believes it ought to be) effectively immune from meaningful interbranch accountability. As compared to a time when Congress controlled things like when the Court sits; where it sits; which cases it hears; the Court’s budget; and what the justices must do when not hearing cases (i.e., ride their circuits), today’s Court can do just about whatever it wants, whenever it wants, and all without realistically having to look over its shoulder. (Indeed, telling this historical story and explaining when and where things went wrong is a central goal of my forthcoming second book.)
A more accountable Court may not produce decisions I like, but it would, in my view, be better able to balance the hard power the Court has in individual cases with the soft power the Court gains in the aggregate through widespread (if diffuse) public support. And it’s hard to imagine that a more accountable Court could do everything that the current justices are doing, both on and off the bench. The point is not to trade tyrannies of the majority for a tyranny of unelected judges; it’s that the best medicine for misbehaving branches is to strengthen the checks and balances in both directions—not to just cut one branch out of the equation.
The upshot of all of this is two fundamental points of disagreement between the Doerfler/Moyn view, on one hand, and (at least, once properly described) mine, on the other: First, my goal is not a Court that produces outcomes I want, but rather one that exercises power in a way that is, in both the medium and long term, constitutionally and institutionally responsible. To borrow a line from the late Harvard law professor Paul Freund, I aspire to a world in which the justices “are not, [or] at any rate should not be, influenced by the weather of the day, but they are necessarily influenced by the climate of the age.” The Court’s power to hand down unpopular rulings, in other words, depends upon the broad, diffuse public support that current Court simply has not earned—and continues to erode. The justices have to build capital before they can spend it. And part of how the Court builds capital is not by handing down rulings I like, but by acting in a way that is perceived, more broadly, as institutionally responsible. Suffice it to say, all of the Court’s shady behavior on emergency applications and the prevalence of 6-3 ideological splits in high-profile merits cases is … not moving the ball in that direction.
Second, and perhaps even more fundamentally, notwithstanding my many criticisms of the current Supreme Court, I do believe that unelected judges—so long as they are meaningfully accountable—are critical to the preservation of our Republic. And here, it seems to me that the last 11 months provide all of the evidence we should ever need of why. Imagine a world in which this administration was wholly unchecked by federal courts, and could therefore do whatever it wanted. I know there are a lot of folks who think that this accurately describes what’s actually been true on the ground, but I’ve written before about how that’s just not true.
To take just two of dozens of examples, President Trump’s odious attempt to limit birthright citizenship by executive order has never actually gone into effect—entirely because of interventions by federal courts. And with the exception of the first group of detainees who were removed on March 15 (the day the policy went into effect), consider also the administration’s utterly unsuccessful effort to use the Alien Enemies Act as a basis for mass, summary removals of non-citizens from the United States. Without courts, it’s hard to imagine what would’ve stopped either of these initiatives from being deployed on a widespread, nationwide basis.
I’m the last person who’d argue that there is adequate judicial accountability for the actions of this (or any other) executive branch. But the Founders were onto something when they viewed an independent judiciary as a bulwark against abuses by even democratically accountable government institutions. In a system in which that check didn’t exist, maybe other mechanisms would have evolved to play that role. But taking it away today would, in my view, only accelerate our slide toward authoritarianism—no matter how much you may believe that the Supreme Court already bears some responsibility for setting (or accelerating) us down that path.
Ultimately, it seems to me that there is—and ought to be—a place for progressives (and, frankly, truly principled “conservatives”) who believe both that the current Supreme Court continues to behave in ways that are undermining its credibility (and that of the judiciary writ large) and that the way to “fix” that is not to just scrap what Professor Alex Bickel called the “countermajoritarian difficulty,” i.e., the power of unelected judges in a democracy. I don’t imagine that I’ll ever persuade Doerfler and Moyn that this position makes more sense than theirs, but, at least once it’s properly described, I hope that it persuades—or, at least, makes sense to—some of you.
SCOTUS Trivia: The Awkward History of the Supreme Court’s Christmas Party
I’ve been meaning for some time to write about George Mason law professor Ross Davies’s Spring 2014 Green Bag essay about the Supreme Court’s 1959 Christmas Party (and the rather … sordid … backstory of why the Court had gone more than a decade without an annual holiday celebration). Lo and behold, Jay Willis beat me to the punch over at Balls and Strikes, where he wrote about the troubling history last Friday.
Rather than stealing Jay’s (or Ross’s) thunder, I’ll encourage you to read their takes. Suffice it to say, sometimes, the awkwardness of the holiday party comes long before anyone has partaken in the libations.
I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to e-mail me. And if you liked it, please help spread the word!
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As noted above, there will not be a bonus issue this Thursday. But we’ll be back with our regular content no later than next Monday. Have a great week, all, and Merry Christmas to those who will be celebrating it.
We have a clear case of bad actors, jurists without even the pretense of good faith rulings whose goal is the use the Court’s power to remake the United States according to a far-right vision of what a country should properly be, with a complacent working population, and a safely ensconced ruling class whose wealth is both secure and dominant in all meaningful public arenas. It was out of sympathy for the peasantry that Henry II began his reform of the English judicial system, using “circuit judges” as the peasantry could never get a fair shake from their local barons (who, like our current Court, simply assumed that imperious power was correct in its assumptions.) How ironic that the twelfth century Britons had recourse that we do not!
Ultimately, the Court reflects the balance of societal power. Its members are almost exclusively chosen from elements of the ruling classes, and reflect these class biases in their rulings. The far right has well understood the importance of capturing the Court in order to eliminate a possibly serious challenge to their political program. Such capture began, of course, with Nixon, forcing Fortas off the Court in exchange for the execrable Rehnquist (whose final gift to the United States of American was the drunken wastrel, George W. Bush.) The current fascist alliance of plutocrats and theocrats, perfectly represented on the Supreme Court, are utterly without any principles worthy of the name. Their goal is to consolidate power in such a manner as to allow the sliver of radical elites to stay in power, democracy be damned. This has long been the goal—quite openly stated—of our ruling class: a formal democracy, where one may vote has one pleases but no vital issues are ever decided in favor of the masses because the ruling class retains an effective veto power over all popular decisions. (Including who gets to even be a candidate in the first place!)
If I may draw an analogy from my own professional background, I would compare the checks and balances between the three branches of the US Government with the three-body problem in physics. Unlike the two-body problem this three-body problem has no general closed form solution. There is no explicit formula for the positions of these bodies or their trajectories resulting from their interactions with each other. In the US case of the three bodies of the Congress (currently supine), the President (currently acting as if all- powerful, with any checks and balances on the actions of this office claimed to be illegitimate), and the Supreme Court (seemingly accepting and confirming the President’s position) the implication is that by removing one of the branches (the Supreme Court) the trajectories of the remaining two might lead to an outcome or position that would be very hard to change as the climate of the society changes, which it has enormously over the last 250 years as a result of extraordinary changes in technology and our knowledge, as well as perceptions of the desirable or aspirational relationships between human beings from very different traditions and backgrounds. If this analogy has any credibility, which I leave it to others to evaluate, then a goal of effectively weakening the Supreme Court to the point where it is not a co-equal branch of Government - however detestable the current majority of (In)Justices - is undesirable at best, and perilous and irresponsible at worst, much as some of us might like to see several of them held accountable, impeached, and disgraced, pour encourager (ou décourager) les autres.