By Beverly Mann. Cross posted from Angry Bear
Scott Lemieux weighs in at The Week, writing that, although “Supreme Court voting is too complex to be explained by any single factor,” the “attitudinal model” – which posits that “Supreme Court votes are explained by what judges consider desirable policy” – “still contains a good deal of truth.”
– Amy Howe, SCOTUSblog, Friday Roundup, May 16 this morning
Lemieux’s article is a must-read–for his own excellent commentary and because it mentions recent articles and empirical studies that not only make the substantive point but also illustrate that we’ve reached, or are about to reach, the point at which, having broken through to the larger, general news media, it becomes a subject of discussion among, y’know, ordinary folk. The sort of people whose cert. petition, should they file one, the Court wouldn’t be caught dead actually considering granting.
Lemieux’s statement that “Supreme Court votes are explained by what judges consider desirable policy” is profoundly accurate. During the 1980s and ‘90s the justices were quite open about this, at least regarding access-to-federal-court issues. By which I mean that they engaged in wholesale fabrications of jurisdictional, quasi-jurisdictional, and “immunity” doctrines, and the rewriting of procedural statutes (the Federal Rules of Civil Procedure are statutes)–in an unremitting juggernaut to deny federal-court access to pretty much everyone who isn’t a corporation, a state (states are now people, just like corporations, except when someone wants to sue them), a public official or employee acting in the course of his or her employment, or a rightwing culture warrior.
The Roberts Court has continued this, in spades, except when a mega-corporation or a multi-millionaire represented by a $1,000/hr. Washington-based Supreme Court Specialist asks that they narrow the doctrine. There was a very, very recent (May 5), stunning exception to this hard-and-fast qualifications-to-have-your-cert.-petition-considered prerequisite list, in an opinion that I would consider the second-most-significant opinion of this term (McCutcheon v. FEC is the most important, in my opinion), except that I already know that the lower courts will ignore the opinion–simply pretend that it doesn’t exist–and get away with it. The Court, as currently constituted, won’t grant another cert. petition to enforce the two (equally important) rulings in that case, Tolan v. Cotton, unless a mega-corporation needs it–a highly unlikely event.
If you doubt that, please read the dissent in that case. It will be educational, I trust.
The Roberts Court’s contribution to the Court’s wholesale self-conferred policymaking role is to purport to justify their policymaking as mandated by the Constitution–by its structure, its history, its … whatever. Whatever, usually being some comment by one of its framers (almost always James Madison, the unwitting mascot of today’s far right), or a pre-Civil War Supreme Court opinion.
That the actual structure of the Constitution, as well as its explicit provisions, include, for example, a clear separation-of-powers bar to judicial-branch fabrication of jurisdictional and other procedural bars to access to federal court has, since the early 1980s mattered not one whit. So the Court no longer adds to the a veritable avalanche of fiats that the justices themselves justified in some instances as simply their idea of good policy. The fiats these days come clothed as alleged personal dictates of Madison or of Congress, notwithstanding the chasm between Madison’s (and other framers’) actual expressed beliefs–or Congress’s actual clear intent, as per the statute’s or procedural Rule’s words as those words are commonly understood (or were, at the time of enactment)–and the Court’s suspiciously rightwing interpretation of them. And now, finally, the general news media and the larger public are catching on.
Another terrific article about this is an op-ed by journalist Michael McGough in Thursday’s Los Angeles Times, in which he says he’s “struck by how the controversy over whether the Supreme Court justices have become more partisan in recent years parallels a phenomenon I discovered when writing about the Church of England: the ‘party bishop.’”
Relatedly, another terrific article in The Week, this one by Matt Bruenig, argues for term-limiting Supreme Court justices, and is subtitled “Lifetime appointments were meant to preserve judicial independence. But the high court has devolved into a political body with too much power.” That article is similar to one by law professor Eric Segall published at CNN.com earlier this week, except that Bruenig’s article details some specific amendment proposals.
These are matters whose time finally may have come as issues worthy of serious attention, with real possibility for change.