Reforming Certiorari Jurisdiction

George W. Liebmann
2009-12-24

This indignant screed is prepared in support of a proposal circulated by Professors Paul Carrington and Roger Cramton and endorsed by several dozen judges, academic lawyers and practitioners. The proposal would somewhat enlarge the Supreme Court’s docket and transfer control of most of it to a certiorari division of the Supreme Court consisting of five Court of Appeals judges appointed in rotation by the Judicial Conference, which would be empowered to grant between 100 and 120 certiorari petitions per year.¹

The premise is that the Supreme Court is the capstone of a judicial system, not a free-floating island in the clouds, responsible only to itself. In the words of the late Philip Kurland, "the law makes demands upon judges as well as upon litigants."²

Dissatisfaction with the Supreme Court’s role rests on the widespread view that it misunderstands the function of courts. The role of the magistrate, in Aristotle’s view,³ was corrective justice, the vindication of pre-existing expectations. The criminal law punishes deviation from settled standards. The civil law compensates or assesses persons for deviation from settled rules. Changes in the law, so-called distributive justice, are to come from elsewhere: from the ruler in authoritarian societies, from the legislature in democratic ones. In this vision, courts provide what Professor Hayek called "rules fixed and announced beforehand"⁴; what Kipling in an unfashionable context called "Leave to live by no man’s leave/ Underneath the law."

Is this what we have? I think not. The startling though obscure case of Rogers v. Tennessee,⁵ a 5 to 4 opinion by Justice O’Connor declaring that courts, unlike legislatures, may retroactively invent new criminal offenses, showed this. (The dissenters in that case were Justices Stevens, Scalia, Thomas and Breyer). Nulla poena sine lege is viewed as an old Latin tag, without contemporary relevance.⁶ The Supreme Court behaves as a revolutionary committee or, increasingly, as a counter-revolutionary one. Its mission is popularly seen as the production of thunderbolts, founded on the due process and equal protection clauses and perhaps on the even vaguer and more mysterious privileges and immunities clause.

The public remembers that abortion and sodomy, once condemned as criminal acts, were suddenly transformed into constitutional rights, and wonders whether the same thing is to take place with respect to firearms display in cities and the subdivision and development of environmentally protected lands. In the heyday of the Warren Court, Sidney Hook warned that the inevitable reaction would bring to power persons who were not only conservative, but illiberal. ⁷ If you wish to contemplate the intolerance of some for popular legislation, I commend to you the agenda for future litigation set out in Clint Bolick’s David’s Hammer.⁸

Conflicts among circuits multiply and settled law becomes ever more unclear, as documented in the literature supporting the abortive proposal for a National Court of Appeals⁹. It is inaccurate to suggest that the Supreme Court now favors narrow judgments, consistent with Edward Levi’s realistic vision of the law as a ‘moving classification system.’¹⁰ Rather it favors purely discretionary judgments, affording the lower courts no guidance at all.

Discretionary law is more onerous than strict or intermediate scrutiny; it involves complete substitution of judgment. ‘Strict scrutiny’ was justified in Carolene Products¹¹ on the basis of disenfranchisement; as Professor Owen Fiss pointed out 35 years ago, the disenfranchisement has vanished but the habit of intense review remains.¹² Righteousness has been succeeded by self-righteousness.

Let us recall five examples, all involving matters central to free government:

In Bush v. Gore,¹³ we were told that the standard by which the court would review non-uniform election counting practices "is limited to present circumstances. . . some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied."

In United States v. Booker,¹⁴ Justice Breyer’s opinion, supported by the decisive vote of Justice Ginsburg, enunciated a standard for review of thousands of criminal sentences described as follows: "unreasonableness, having regard for the factors to be considered in imposing a sentence and the reasons for the imposition of the particular sentence as stated by the District Court."

In Parents United v. Seattle,¹⁵ we were told by Justice Kennedy’s decisive concurrence that racial categorization in pupil assignments was "presumptively invalid" but might be all right when "other demographic factors plus special talents and needs are also considered."

In Hunt v. Cromartie, ¹⁶ a 5-4 decision, Justice O’Connor, who had previously condemned racial gerrymandering, provided the decisive vote for Justice Breyer’s opinion saying that it was all right when "politics predominantly accounts for the result."

In the worst default of all, the much-praised Hamdi case,¹⁷ involving personal liberty properly so called, freedom from arbitrary confinement by the executive, the plurality opinion of Justices O’Connor, Rehnquist, Kennedy and Breyer–do not forget Breyer- effectively blessed the executive detention of a U.S. citizen for four years without so much as an administrative hearing What this did for liberty, let alone Active Liberty, is woefully unclear; The District Courts were invited to look into the detention, receiving this illuminating bit of guidance: "some system for a citizen detainee to refute his classification. . . a fact-finding process that is both prudent and incremental."

Such decisions reflect not law, but the absence of law. Our proposal would allow the judges of the Courts of Appeal, through certiorari grants, to interrogate the Supreme Court as to their meaning.

It is true that if the majority of its docket were controlled elsewhere, the Supreme Court’s discretion would decrease. How has this discretion been utilized?

Recently, a thoughtful Baltimore student of urban development, Charles Duff, inspired by the recent Irish EEC referendum, invited Americans to celebrate the European constitutional development of the last 60 years, which he likened to the American Founding.¹⁸ That development, you will recall, began with the Schuman Plan and the Euratom project, focusing on iron, steel and nuclear power, thought to be the commanding heights of the economy.

I invite you to contemplate which industries in recent years have received the greatest degree of guidance and attention from our Supreme Court. Search of one’s memory reveals that it has focused like a laser beam on a commanding height of our economy, represented by the nude dancing industry, which has received legal guidance in no fewer than six plenary opinions.¹⁹ The internet pornography industry is not far behind ²⁰. The rare phenomenon of third-term abortions has received much attention, as has the even rarer phenomenon of capital punishment of juveniles.

It is perhaps unfair to blame the clerks and the certiorari pool for this peculiar emphasis on the birds and the bees and children’s rights. I sometimes gain the impression that there is a secret room in the basement of the Supreme Court building where the editorial board of the National Enquirer convenes each fall to make up a portion of the Supreme Court docket. Certainly the Court has outdone itself this year. Not only do we have the Mojave Desert cross case,²¹ but also the animal cruelty pornography case,²² the happiest cert pool discovery since that all-time favorite, "Bong Hits for Jesus."²³ As Judge Tjoflat will tell you, his colleagues and the District judges have been panting with eagerness in anticipation of the valuable guidance this case will supply, to say nothing of the great waves of cases involving crosses, creches, ten commandment postings, pledges of allegiance, school prayers, and the religious use of drugs. All of these cases are highly divisive; none are of practical importance in the lower courts, at least to those who share the benighted view of Edmund Burke²⁴ that in such matters free societies are governed by manners rather than by laws.

Since the heroic age of the civil rights cases, legitimated by purposeful constitutional amendments that were the product of civil war, we have had forty years of judicial dilettantism, legitimated by nothing, but productive of culture wars with no analogues in other advanced democracies, that have convulsed and altered the results of national elections.

The proposal is open to the objection that it will reduce the number of such cases, rendering the docket dull. There will instead be cases about that terra incognita, the rights and responsibilities of government contractors; about administrative law, criminal sentencing procedures, measurement of damages, social security disability, the fourth and fifth amendments, immunity statutes, and the meaning and scope of drug laws. There will be greater emphasis on procedural safeguards, about which Justice Jackson rightly told us: "Procedural due process must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the government, as they should on matters of policy."²⁵ There will be fewer appearances in the court by representatives of militant religious sects and equally devout atheists. On decision Mondays, Ms. Linda Greenhouse and her journalist colleagues will be dozing off in their accustomed seats.

As a hopelessly corrupted practitioner, I will conclude not with the sort of micro-economics found in law schools that defines away transaction and information costs, nor with the moral philosophy equally beloved by many legal academics, which, as the late Max Rheinstein once said, presupposes "an operator more benign than God,"²⁶ but rather with the usual and dreaded anecdotal ‘war story.’

Some years ago, I was engaged by an older lawyer, a bantam rooster type, to assist in litigation against the City of Baltimore. A motion hearing ensued. Such hearings were scheduled in chambers, six to an hour. Our judge was the late Anselm Sodaro of the Baltimore City Circuit Court, in whose honor the Bar Association of Baltimore City still gives an annual Judicial Civility award.

Our adversary was an elderly Assistant City Solicitor named Murphy, who I shall not otherwise identify. I am not putting the finger on anyone, since there have frequently been a profusion of Murphys in the Baltimore City Solicitor’s office.

Mr. Murphy launched into a lengthy argument. After he had exhausted twelve minutes of his five minutes, my companion, to my horror, extracted from his vest pocket a large gold pocket watch, of the type bestowed to commemorate the 50th anniversary of something or other, which he began to ostentatiously examine. Mr. Murphy and Judge Sodaro paid no attention. After about 17 minutes, Mr. Murphy began to wind down, saying to the judge "I have only three other points I wish to make." Then, apparently conscience-stricken, he declared: "I hope I’m not boring you, your Honor."

Judge Sodaro looked at him for a long moment, shook his head, and replied: "Mr. Murphy, I’m paid to be bored."

So are the Justices of the Supreme Court, and your panel hopes not to provide them with ‘intellectual feasts’ but to insure that they earn their pay.

　

　

* Liebmann and Shively, P.A., Baltimore; Senior Academic Visitor, Wolfson College, Cambridge.