Reforming Certiorari Jurisdiction

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

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