Can the Biden administration issue guidelines setting priorities in the enforcement of immigration law? Do states have standing to challenge these guidelines? And if the guidelines are unlawful, does the Administrative Procedure Act give lower courts the power to vacate them — a universal remedy that goes beyond the parties to the case? These are the three questions before the Supreme Court in United States v. Texas, set to be argued on Nov. 29. Legal scholars have addressed all three issues, and their work is prominently cited in the briefing on both sides.

In her book Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press, 2015), Professor Shoba Sivaprasad Wadhia of Penn State Law observes that discretion in immigration enforcement is unavoidable in a system that lacks the resources to remove more than a few percent of the nation’s 11 million undocumented immigrants. The debate over how that discretion should be exercised has created a sharp policy divide between the Obama and Biden administrations, on the one hand, and that of former President Donald Trump on the other.

In 2011, John Morton, then the director of Immigration and Customs Enforcement, issued a series of memos setting enforcement priorities. Morton explained that his agency “only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien population in the United States.” Accordingly, he declared that ICE would prioritize apprehension and removal of certain categories of undocumented immigrants, such as those who had committed crimes or were recent arrivals. In contrast, undocumented immigrants without criminal records, who had lived in the United States for many years, and who had U.S. citizen family members were low priorities for removal. 

The “Morton Memos” were often ignored by ICE officers, and in any case did not give legal protection from removal to those undocumented immigrants categorized as lower priorities. But if nothing else, they set the tone. 

That tone changed abruptly when Trump took office in 2017. Within the first week of his administration, Trump replaced the Morton Memos with an executive order directing immigration officials “to ensure the faithful execution of the immigration laws of the United States against all removable aliens.” The goal, Trump explained, was to end “exempt[ions] [for] classes or categories of removable aliens from potential enforcement.” To be sure, the Trump administration also lacked the resources to deport the vast majority of undocumented immigrants. But the new executive order sent the message that no one in the United States without status was safe from removal.

The Trump administration followed an “attrition through enforcement” approach proposed in 2008 by Kris Kobach, who was at that time a professor at the University of Missouri-Kansas City School of Law and later became Kansas’ secretary of state. (Earlier this month, he was elected as Kansas’ incoming attorney general.) Acknowledging the limited resources to remove undocumented immigrants, Kobach advocated for policies that encouraged self-deportation.  Accordingly, he opposed any categorical use of prosecutorial discretion, advocating instead for enforcement policies that would leave all undocumented immigrants in fear that they were imminently removable.

Now, in United States v. Texas, Texas and Louisiana have asked the court to weigh in on this debate. At issue is whether the Immigration and Nationality Act permits the Biden administration to adopt guidelines prioritizing removal of certain categories of undocumented immigrants over others, just as Obama did before him. These states also argue that the guidelines violate the Administrative Procedure Act.

The case is perhaps even more important for its challenge to states’ standing to sue the federal government. A glance at the court’s docket in recent years reveals the rapid rise in state challenges to executive branch changes in policy, with red states taking the lead under Presidents Obama and Biden and blue states doing so during the Trump administration. In April of 2022, Texas issued a press release celebrating its 27th lawsuit against the Biden administration (the number is certainly higher by now). Likewise, California filed 122 lawsuits against the Trump administration during Trump’s four years as president, averaging one new lawsuit every 12 days. 

Many of these cases challenged executive branch changes to immigration policy. In United States v. Texas, Texas and Louisiana argue that the new enforcement priorities will increase the number of undocumented immigrants in their states, and so increase their incarceration, education, and health care costs. They claim these higher costs are a cognizable injury that gives them standing to sue. 

In its brief, the United States cites University of Virginia Law Professors Ann Woolhandler and Michael Collins’ recent article, Reining in State Standing, which argues in favor of a “return to [states’] traditional disfavored status as plaintiffs.” Under the tripartite requirements for standing, a plaintiff must show an “injury in fact” that is traceable to the challenged action and redressable by a court. But that standard gives states enormous leeway to claim injury on behalf of themselves as sovereigns or to their parens patriae interests (that is, the interests of their citizens), because almost any change to federal policy will have a fiscal impact on a state and its residents. Woolhandler and Collins propose that state standing to sue should be limited to cases in which states are “the direct regulatory objects of federal statutes and regulations,” which would fit more comfortably with states’ traditionally limited role as litigants before federal courts.

Finally, the Supreme Court is asked to decide the scope of the permissible remedy if the guidelines violate federal law. Over the past few years, courts and commentators have debated the power of lower federal courts to enter universal injunctions — that is, injunctions that bar defendants from enforcing a challenged law against anyone, not just the plaintiffs. United States v. Texas raises an offshoot of this question: whether a court’s power “to hold unlawful and set aside agency action” under Section 706(2) of the APA permits courts to vacate agency action such that it cannot be applied to anyone. 

The United States cites a recent article by Professor John Harrison of University of Virginia Law arguing that Section 706(2) does not give courts authority to issue universal remedies, but rather only allows courts to decline to enforce unlawful agency action in cases before them. Texas and Louisiana rely on University of San Diego Law Professor Mila Sohoni’s article, “The Power to Vacate a Rule,” asserting that Section 706(2) authorizes (but does not require) vacatur, and citing longstanding precedent in the U.S. Court of Appeals for the District of Columbia Circuit and other lower federal courts supporting that position. 

As Sohoni puts it, perhaps the most “astonishing” aspect of the case is that the scope of Section 706(2)’s remedy remains uncertain nearly 80 years after that statute’s enactment. That uncertainty will likely be resolved by the court’s decision this term.

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Does the solicitor general’s office have too much influence over the Supreme Court? In “The Loudest Voice at the Supreme Court: The Solicitor General’s Dominance of Amicus Oral Argument,” a recent article in the Vanderbilt Law Review, Darcy Covert and Annie Wang examine an overlooked corner of that question — the solicitor general’s routine participation in oral argument in cases in which the U.S. government is not a party. Although anyone who files an amicus brief is eligible to participate in oral argument, the court “grants this privilege almost exclusively to the SG.” As an empirical matter, Covert and Wang easily make the case for the SG’s dominance of amicus oral argument. The harder question is whether that dominance is justified.

Covert and Wang begin with the data. Between the 2010-11 and 2019-20 terms, the Supreme Court granted 306 out of 307 requests by the SG to participate in oral argument as an amicus. (More about the circumstances behind that denial below). In contrast, most other groups that file amicus briefs know not to bother asking. During that same period, only 43 non-SG amici out of thousands that submitted briefs requested oral argument time. Only 15 of those requests were granted. 

It has not always been so. In the 1980s, the court denied the SG’s oral argument requests in 17% of cases. Starting in the 1990s, the court started to hear significantly fewer cases each term, leading to fewer opportunities for the SG to participate as a party. Perhaps in response, the SG’s office ramped up its requests to participate as an amicus, and the court encouraged that practice by almost never saying no. According to Covert and Wang, over the last 20 years the SG has participated in between 69% and 88% of the court’s oral arguments, over half the time as an amicus rather than as a party.

Is this a problem? Covert and Wang think so. They argue that the routine participation by the SG as amicus undermines due process and distorts the adversarial system by giving a non-party with a distinct institutional and political bias a “louder voice” than everyone else. They further speculate that doing so undermines the court’s legitimacy by giving a special role to a litigant with distinct ideological and partisan pre-commitments. 

Lincoln Caplan, whose 1987 book, The Tenth Justice, provided the seminal account of the Office of the Solicitor General, agrees. In a response to Covert and Wang’s article, Caplan cites a raft of scholars who crunch the data to show that the SG “wield[s] significant influence over the Court and enjoy[s] a built-in advantage.” He concludes that the SG has “elevat[ed] the voice and the influence of the executive branch … to an unprecedented and unjustified level” before the Supreme Court, putting the “executive branch’s interests ahead of all other organizations and individuals with cases before the Court.” (I am one of the scholars who joined this chorus. In a 2012 article, “Congress in Court,” I critiqued the outsized influence of the SG’s office and argued that Congress as an institution should participate more actively in cases before the Supreme Court to even the balance.) 

Covert, Wang and Caplan all agree that the court should limit the SG’s amicus oral argument participation to cases with a clear, defined federal interest. And it appears the court may be listening. In April 2020, a month after New York Times reporter Adam Liptak wrote about Covert and Wang’s data, the Supreme Court denied a request by the SG’s office to participate in oral argument as amicus in support of Ford Motor Co. in Ford v. Montana Eighth Judicial District Court, a case about personal jurisdiction. That was the first time the court denied a request by the SG for argument time in nearly a decade. And then, in April 2021 (in an order too recent to be reflected in Covert and Wang’s data), the court denied another such request. This time, the SG had sought argument time to support San Antonio and other municipalities in City of San Antonio v. Hotels.com, a case about the ability of lower courts to award appellate costs to the victorious party in an appeal.

The SG’s office likely regrets not having a chance to argue in those cases — in each of them, the party supported by the federal government ultimately lost.

The post “Tenth justice” or “third advocate”?: Examining the solicitor general’s frequent participation at oral argument appeared first on SCOTUSblog.

Once considered taboo, court packing is now a topic at presidential debates, the subject of numerous op-eds and a trending hashtag on Twitter. Proponents of expanding the Supreme Court point out that the Constitution leaves the number of justices to Congress’ discretion, and that Congress has altered the court’s size many times in the past. Critics argue that court packing violates longstanding norms of judicial independence, and that expanding the court’s size now would exacerbate politicization of the judiciary.

Several recent law review articles make thoughtful contributions to the court-packing debate. In “Packing and Unpacking State Courts,” Marin Levy draws lessons from the recent history of changing the size of state supreme courts to inform the debate over court packing at the federal level. Tara Leigh Grove’s “The Origins (and Fragility) of Judicial Independence” and Joshua Braver’s “Court Packing: An American Tradition?” each examine court packing from a historical perspective, but reach conflicting conclusions. All three professors seek to shed light while removing heat from what is likely to be a contentious political question for months and years to come.

As Levy explains, both sides of the court-packing debate have failed to notice that the rhetoric has become a reality in state courts. Over the last decade, 20% of state legislatures have introduced bills to alter the size of their state supreme courts, primarily for political or ideological purposes. In recent years, Florida, South Carolina, Louisiana, Montana, Oklahoma, Washington, Alabama and Pennsylvania all considered but rejected proposals to “pack” or “unpack” the state’s highest court. In two states, Republican legislatures succeeded in doing so: Arizona’s highest court was expanded from five to seven justices in 2016; that same year, Georgia’s state supreme court grew from seven to nine justices.

State judicial systems differ in important ways from each other and from federal courts, as Levy concedes, and so comparisons can be hard to draw. Most state judges do not have life tenure and salary protections equivalent to those of Article III judges, and a significant number are elected rather than appointed. Nonetheless, Levy observes that in many of the states considering court packing, the governor plays a significant role in selecting justices and the legislation was intended to give the sitting governor the power to change the ideological composition of the state’s highest court. Levy argues that all of this activity at the state level suggests that the “norm against court packing might be more vulnerable than some have thought.”

That said, Levy recognizes that the lessons from state courts are mixed. Attempts to change the size of a state’s highest court have failed far more often than they have succeeded, and so may be a “cautionary tale” suggesting that political capital is best spent in other areas. Alternatively, some proposals to expand the size of state high courts may have served as a shot across the bow, pressuring these courts to fall into line behind the political party with the power to change their composition. Likewise, the current debate over expanding the size of the U.S. Supreme Court may have an effect on the justices even if it does not become a reality.

Grove’s 2018 article argues that practices now considered out-of-bounds, including court packing, were once understood “not only as constitutionally permissible but also desirable (and politically viable) methods of ‘checking’ the judiciary.” Grove explains that Congress altered the Supreme Court’s size numerous times in the past, and argues that the practice was viewed as within the norms of mainstream political discourse until the 1950s. In a prescient conclusion, she declares that court packing and other challenges to judicial independence are dormant, but not dead, and cites this history as a “cautionary tale about the fragility of judicial independence.”

Taking issue with Grove, Braver examines the same history to conclude that court packing was never an accepted practice. He acknowledges that the court’s size changed seven times between 1801 and 1869. But he argues that court packing — which he defines as “manipulation of the Supreme Court’s size primarily to change the ideological composition of the Court” — succeeded only once.

According to Braver, the first few alterations of the court’s size were not primarily to change the ideological composition of the court, but rather were necessitated by circuit riding — the now defunct practice of requiring the justices to travel regions of the country to serve double duty as judges on newly created lower circuit courts. As new states were added to the union, new justices were added to the court to staff the expanded circuit courts.

Court packing, as Braver defines it, succeeded for the first time during Reconstruction, when Republicans reduced the size of the court to seven justices to deprive President Andrew Johnson of the chance to fill vacant seats, but then in 1869 restored it to nine after President Ulysses S. Grant took office. Infamously, President Franklin Delano Roosevelt tried and failed to expand the court from nine to 15 justices in 1937. Although resoundingly defeated, his efforts arguably influenced Justice Owen Roberts to vote to uphold Roosevelt’s New Deal legislation in what become known as “the switch in time that saved nine.” This effort marked the last attempt to change the size of the court through legislation. Braver concludes that altering the court’s size for political purposes is almost unprecedented, and so the practice should not be “normalize[ed]” today by reference to this misunderstood past.

Oddly, however, Braver does not include in his analysis the Senate’s refusal in 2016 to confirm any nominee to the Supreme Court during President Barack Obama’s final year in office. Like the Reconstruction-era example, that decision effectively reduced the court’s size for more than a year before re-expanding it with the confirmation of Justice Neil Gorsuch in April 2017, and would seem to satisfy Braver’s own definition of court packing as a change in the court’s size primarily for ideological purposes. If ideological court packing is as rare as Braver suggests, this recent example takes on even greater significance in the debate over its future.

Levy, Grove and Braver all agree that court packing is no longer “unthinkable,” as it was just a few years ago, and they are all concerned that court packing could undermine judicial independence. But the real significance of their scholarship is to show that at both the state and federal level, court packing is already back.

The post Academic highlight: The past, present and future of court packing appeared first on SCOTUSblog.

Thirty years ago, President George H.W. Bush made the surprising choice to nominate the enigmatic David H. Souter to the Supreme Court. As Professor Chad Oldfather explains in a new article, “The Inconspicuous DHS: The Supreme Court, Celebrity Culture, and David H. Souter,” we are unlikely to see anyone like Souter ascend to the highest court in the land again. In large part, this is because Souter is perceived as having let down conservatives. “No more Souters!” has become a rallying cry of conservatives, who despaired when Souter joined Justices Anthony Kennedy and Sandra Day O’Connor in a plurality opinion in the 1992 decision Planned Parenthood v. Casey, refusing to overturn Roe v. Wade. But Oldfather, a professor at Marquette University Law School, argues that jurists like Souter will be passed over for another reason as well. As Oldfather puts it, a culture that reveres the “Notorious RBG” will find it hard to value a man whose tongue-in-cheek moniker is the “Inconspicuous DHS.”

From the start, Souter gave the impression of a country mouse overwhelmed by the big city. The week of his nomination, he wore the same suit for four days straight because he failed to anticipate that he would need to stay in Washington for more than 24 hours. He reluctantly left his home in New Hampshire — the same house he grew up in — and chose to live in Southwest D.C., a corner of the city where he would rarely be recognized. A technophobe, he refused to use a computer, instead writing out his opinions in longhand. He rarely socialized, traveled or accepted speaking engagements. He never thought of Washington as his home, telling a close friend that he did not bother to hang his pictures on his walls because “I figured in a few years I’d be coming back to New Hampshire and I’d have to pack them back up, so I might as well leave them in the boxes.” In another unusual move, he chose to retire at the young (for a justice) age of 70, happy to return to a “normal” life in New Hampshire, where he spends much of his time reading.

Oldfather contends that these anecdotes can obscure Souter’s other important qualities — his brilliance and integrity. A brief review of his resume shows that Souter was far more experienced and sophisticated than the caricatures of him suggest. A Rhodes Scholar, Souter attended Harvard College and then Harvard Law School. He spent 10 years in the New Hampshire attorney general’s office, two at its head. He was a trial judge for five years — a position that guaranteed him exposure to the best and worst of human nature — before serving for seven years on the New Hampshire Supreme Court and then, briefly, on the U.S. Court of Appeals for the 1st Circuit. One Department of Justice lawyer derisively referred to Souter as having practiced “cow law,” but those jobs exposed Souter to the messy details of law as it plays out in the lives of living and breathing humans — experience that most of his fellow justices lack.

So why is Souter the last of his kind? Oldfather explores two theories. First, he addresses the conventional wisdom that Souter veered to the left upon taking up his position on the bench. Oldfather rejects the idea that Souter was either unprincipled or that he shifted from the positions he took at his confirmation hearing and in his previous judicial roles. For those who bothered to listen carefully, Oldfather argues, Souter made it clear enough that he was an “old school” conservative — one who valued respect for precedent and incrementalism over a results-oriented jurisprudence.

Yet Oldfather agrees that Souter will be the last of his kind, in large part because his social isolation insulated him from the sort of outside influences that undoubtedly shifted the views of his fellow justices. As Larry Baum and Neal Devins argue in their recent book, “The Company They Keep: How Partisan Divisions Came to the Supreme Court,” the more socially connected justices regularly interact with the same elite networks that supported their nominations and continue to influence them once they reach the bench.

To be clear, Baum and Devins do not consider the influence of elite networks on the justices’ voting patterns to be some sort of quid pro quo, but rather simple human nature. They argue that liberal and conservative justices alike crave validation and approval from their social networks — an echo chamber that pushes them to reach decisions that network approves of, drawing sweeping conclusions and using harsher language than they would have without these influences. Justice Antonin Scalia likely enjoyed being toasted at Federalist Society events just as much as Justice Ruth Bader Ginsburg presumably likes having her face emblazoned on the t-shirts of members of the American Constitution Society.

But Souter operated entirely outside of those networks — in fact, he appeared to detest them — and so he was beyond their control. For that reason, Oldfather suspects those elite networks, which today wield more power over nominations than ever before, will not allow another like him to reach the high court.

The last section of Oldfather’s paper discusses the court’s celebrity culture — a phenomenon recently addressed by Suzanna Sherry and Richard Hasen, among others. Oldfather posits that “inconspicuous” justices like Souter are the best cure for the problem that Sherry colorfully describes as the “Kardashian Court.” But he reluctantly admits that Souter is likely to be the last of his kind for a long while. So he agrees that procedural reforms — such as term limits, anonymous opinions and less control over the docket — might be the only way to put a stop to the justices’ celebrity culture and partisan associations. But for Oldfather, these are all second-best solutions. He concludes his essay with the observation that “No more Souters!” should be viewed not as a rallying cry, but as a lament.

The post Academic highlight: Oldfather on the “Inconspicuous DHS” and celebrity culture on the modern court appeared first on SCOTUSblog.

Adam Bonica is an associate professor in the Department of Political Science at Stanford University. Adam Chilton is a professor at the University of Chicago Law School. Maya Sen is a professor at the John F. Kennedy School of Government at Harvard University.

Each year, the Supreme Court justices and their clerks pore over thousands of certiorari petitions, but they only grant about 70 of those petitions for oral argument. Not only do the petitions that are granted go on to shape national discourse, but they also address some of the country’s most pressing legal and partisan controversies. This makes understanding what drives the decisions about which cert petitions to grant a subject of frequent debate among advocates and academics.

So what does explain which petitions are granted? Some scholars argue that the court operates as a kind of “principal” overseeing its many “agents” (the lower courts). When lower courts go too far afield, these scholars argue, the Supreme Court steps in to gently (or not so gently) “correct” the lower courts. Other scholars argue that the court uses the cert process as a way to identify and explore cases that are of high legal importance—that is, the justices want to devote their energy to cases that they think will influence jurisprudential development.

An important subtext to these arguments is the significance of ideology. For the court observers who believe that the court is primarily interested in “correcting errors,” ideology is an important proxy for what constitutes an error. Quantitative research has shown, for example, that the court is more likely to grant cert in cases decided by a federal appeals court that is ideologically distant from the Supreme Court itself—suggesting that the justices more closely monitor lower courts that are either much more liberal or much more conservative than the Supreme Court. And, for the court observers who believe that jurisprudential development is driving cert decisions, ideology also matters: Some of the most important cases heard by the court are cases in which the political parties are in conflict.

There is evidence for both of these arguments. But our recent research takes them one step further to develop a new way of thinking about the cert process. We call it the “Odd Party Out” theory of certiorari. The theory predicts that cert is more likely to be granted when two things are true. First, there is a large ideological distance between the two litigating parties. This is because the large ideological distance is evidence of political conflict and evidence of a case’s political salience. Second, there is a large ideological distance between the panel of appeals court judges that decided the case and the party petitioning the court for cert. This is because the large ideological distance raises the possibility of ideological bias against one of the parties. Combing these two intuitions gives us the Odd Party Out theory: Cert is most likely to be granted when the petitioner is ideologically distant from both the lower court panel hearing the case and the respondent.

It helps to think about the Odd Party Out through an example. Suppose a case is being litigated between two conservative parties, and that the case is being decided by a fairly liberal appeals court panel—perhaps a particular panel in the U.S. Court of Appeals for the 9th Circuit. In this case, the panel is the Odd Party Out. Without more information, it would be reasonable to think that it is unlikely that cert will be granted. Because even though a liberal panel may be biased against conservative litigants, it is not obvious that this matters when both parties share the same ideology.

Next, instead suppose that the case was between a conservative party and a liberal party. And further suppose the liberal panel rules in favor of the conservative party and against the liberal party. The liberal party then petitions for cert. In this case, the respondent is the Odd Party Out. (i.e., the petitioner and the panel are both liberal, but the respondent is conservative). Knowing nothing else about the case, it seems unlikely that this case would be granted. After all, the conservative party won even though the deck was stacked against it.

Finally, suppose the liberal panel rules in favor of the liberal party and against the conservative party, and it is the conservative party that is petitioning for cert. In this case, the petitioner is the Odd Party Out. (i.e., the petitioner is conservative, but the panel and respondent are both liberal). Here, it seems much more likely cert will be granted. Although the ruling may be totally legitimate and well-grounded in the law, an external observer might also see a risk of ideological bias: After all, liberal panels are naturally inclined toward liberal causes.

The three scenarios illustrate the core intuition of the Odd Party Out theory. In the working paper we just released, we test this theory using one of the largest data sets on Supreme Court cert petitions yet assembled by academic researchers. These data include all cert petitions from federal courts of appeals filed from 2003 to 2015. To determine ideology, we matched the lawyers and lower court judges to measures of ideology from the largest database of political contributions, the Database on Ideology, Money in Politics, and Elections. (In the paper, we show that lawyers’ ideologies are a good proxy for the ideologies of the parties that they represent at the Supreme Court.)

Probability of cert based on whether parties are an “Odd Party Out”

Click to enlarge.

Our analyses show very strong support for the Odd Party Out theory. In the universe of cases for which we have complete ideology data, as the above figure shows, the Supreme Court granted roughly 6.6 percent of cert petitions from appeals courts for either oral argument or as a GVR (Grant, Vacate or Remand order). As expected, the probability of cert is lower when the panel or respondent is the Odd Party Out. But, importantly, this baseline grant rate was roughly 3.7 percentage points higher when the petitioner was an Odd Party Out, which we can see in the column to the right. Given the low probability of cert petitions’ being granted, this translates into roughly a 56 percent increase in the probability that a cert petition was successful.

In addition to the raw data supporting our theory, when we estimate regressions that control for a range of relevant factors, we still find an increase of 2.2 to 3.1 percentage points in the probability that cert was granted when the petitioner was an Odd Party Out. For comparison, our analyses show that the probability of cert was 3.9 percentage points higher when the petition arose from a case that had a dissent at the circuit court level and 4.2 percentage points higher when the petition arose from a case that had been heard en banc, or by the entire court of appeals. This makes the presence of the Odd Party Out roughly as predictive of cert as these factors.

So, is whether the petitioner is an Odd Party Out the only thing that matters for predicting cert? Of course not. The standard set of considerations that Supreme Court-watchers expect will matter are obviously important. These include the presence of circuit splits, the decision by the lower-court panel to hear the case en banc, whether a circuit court judge wrote a dissent and whether the solicitor general filed the petition. However, the presence of an Odd Party Out is another case characteristic that provides information to the justices, and is thus another factor for court-watchers to keep an eye out for. And, as our country becomes more polarized, we suspect that the Odd Party Out theory will become even more predictive of cert decisions.

The post Academic highlight: The “Odd Party Out” theory of certiorari appeared first on SCOTUSblog.

In their article “How to Save the Supreme Court,” Daniel Epps and Ganesh Sitaraman argue that the Supreme Court faces a legitimacy crisis requiring it to either “radically change—or die.” They outline two proposals to drastically alter the court’s composition, which they hope will depoliticize the appointments process and diminish the influence of the Supreme Court on presidential elections. After first publishing their proposals in 2018 in an opinion piece at Vox, they expanded their ideas into a longer essay in the Yale Law Journal. Along the way, their proposals garnered significant public attention, racking up over 10,000 views on SSRN and a shout-out by Democratic presidential hopeful Pete Buttigieg. (I reviewed the article for SCOTUSblog here.)

Professor Stephen Sachs has now published a response in the Yale Law Journal Forum criticizing Epps and Sitaraman’s proposals as unwise, unconstitutional and entirely unnecessary.

Sachs begins with a point-by-point critique of Epps and Sitaraman’s two proposed reforms to the court’s composition. Under the first proposal, which they dub the “Lottery Court,” nine of the 179 federal appellate judges would be selected randomly to serve for two-week terms on the Supreme Court before being replaced by the next group of nine randomly selected judges. Epps and Sitaraman suggest that this change in the judicial selection process would depoliticize the court, which would become a constantly shifting group of jurists picked at random from among the appointees of perhaps half a dozen presidents. They also hope that these temporary “justices” would exercise moderation in deference to their limited terms.

The flaw in this system, Sachs observes, is the statistical certainty that some iterations of the “Lottery Court” would be skewed heavily in favor of one party’s appointees or the other’s—the kind of imbalance that could undermine the legitimacy of the court’s decisions. Acknowledging this problem, Epps and Sitaraman suggest safeguards, such as requiring that no more than five of the randomly selected justices be appointed by a president of the same party, and by imposing a 6-3 supermajority requirement before the court could overturn an act of Congress. Sachs pokes significant holes in the constitutionality of both these limitations, and argues that these problematic “patches” are actually the “tail that wags the dog.”

Sachs also questions Epps and Sitaraman’s premise that two-week terms would produce moderate decision-making, arguing that the micro-terms could just as easily result in a “judicial goat rodeo, with wild and unpredictable swings in doctrine every two weeks.” Far from depoliticizing the court, Sachs contends, the “Lottery Court” risks transforming the temporary justices into hyper-partisan vigilantes intent on changing as much law as possible during their two-week tenure.

Sachs is equally critical of Epps and Sitaraman’s second proposal, dubbed the “Balanced Bench,” which would require the Supreme Court to consist of 15 justices: five affiliated with the Democratic Party and five affiliated with the Republican Party, each of whom would have permanent seats on the court, and who together would pick five more justices to sit for a temporary period by designation. Sachs is concerned that the permanent labeling of 10 of the justices as “Democrat” or “Republican” would only exacerbate the politicization of the court, and wonders what would happen to a potential justice affiliated with some other political party—say the Green or the Libertarian Party. He also doubts the constitutionality of various aspects of this proposal, and then asks who would resolve these constitutional questions: the “new” court or the old one?

Sachs’ most significant objection, however, is to the very premise of Epps and Sitaraman’s proposals. The court is not in crisis, Sachs argues. To the contrary, Sachs suggests that it is only liberals unhappy with the court’s conservative composition who perceive the institution as in need of saving.

Sachs may be right that the alleged legitimacy crisis is only in the eye of the beholder. But he is too quick to dismiss one of the main goals of Epps and Sitaraman’s proposed reforms that has nothing to do with political ideology: to remove the Supreme Court as a major influence on presidential elections. The Republicans’ refusal to hold a hearing for President Barack Obama’s nominee, Merrick Garland, helped to turn the 2016 presidential election into a battle over filling that vacancy. As Sachs acknowledges, 25 percent of those who voted for Donald Trump in 2016 listed the Supreme Court as their “most important” issue.  Although the nation faced a host of major problems that had little to do with the Supreme Court—ranging from climate change to health care to foreign policy—the 2016 presidential election turned in large part on the question of who would choose the next Supreme Court justice. As Epps and Sitaraman see it, the Supreme Court’s composition needs to change not only to save the court, but also to save the country.

The post Academic highlight: Sachs responds to “How to Save the Supreme Court” appeared first on SCOTUSblog.

In his concurrence in the 2018 Supreme Court decision upholding President Donald Trump’s travel ban, Trump v. Hawaii, Justice Clarence Thomas criticized the courts below for issuing injunctions that barred the administration from enforcing the ban against anyone, rather than only against the parties to the lawsuit. Thomas suggested that such absent-party injunctions—typically referred to as “nationwide injunctions” or “universal injunctions”—are constitutionally suspect. Citing legal scholarship, he argued that such injunctions were “a recent development … emerging for the first time in the 1960s, and dramatically increasing in popularity only recently.” Thomas’ concurrence echoed legal scholars, as well as declarations by former Attorney General Jeff Sessions and members of Congress, all of whom also described nationwide injunctions as a recent innovation that was beyond the federal courts’ historic powers under Article III of the Constitution.

Now a forthcoming article in the Harvard Law Review challenges the assumption that universal injunctions are a recent judicial invention. In “The Lost History of the ‘Universal’ Injunction,” Professor Mila Sohoni marshals evidence showing that such injunctions have a century-plus pedigree, and argues that federal courts have well-established constitutional authority to issue injunctions affecting nonparties. (Full disclosure: I have written an article defending nationwide injunctions, as well as a SCOTUSblog post summarizing the scholarship on both sides of the issue.)

Sohoni traces the historical roots of nationwide injunctions to the beginning of the 20th century. Although at least one scholar claimed that the first universal injunction was issued in 1963 in Wirz v. Baldor Electric Company, Sohoni argues that courts have been issuing such injunctions since at least 1913, when the Supreme Court granted a universal injunction in Journal of Commerce v. Burleson, later consolidated with Lewis Publishing v. Morgan.

Sohoni further explains that three-judge district courts frequently issued such injunctions in the first half of the 20th century, including in some of the best-known constitutional cases of that era. For example, the Supreme Court affirmed a universal injunction in Pierce v. Society of Sisters, holding that an Oregon law that made public school attendance compulsory was unconstitutional. And in West Virginia Board of Education v. Barnette, the court affirmed a three-judge district court’s injunction that shielded not only the plaintiff class of Jehovah’s Witnesses, but also “any other children having religious scruples” from a West Virginia law mandating that public school students salute the flag.

In light of this “lost history,” Sohoni claims that critics of nationwide injunctions have it backward. They argue that nationwide injunctions are constitutionally suspect, citing the lack of historical precedent for such injunctions to support that claim. But Sohoni contends that in fact the converse is true: The federal courts’ 107-year history of granting injunctions affecting nonparties suggests that “it would be a sharp departure from precedent and practice” to bar them from doing so in the future.

Sohoni’s article has inspired an impassioned response from Professor Samuel Bray, a leading critic of nationwide injunctions. Bray questions the case law cited by Sohoni, arguing that she omitted important context in her description of the injunctions in those cases. In an equally blunt reply, Sohoni defends her research and outlines flaws in Bray’s reading of the case law. As these dueling blog posts suggest, the debate over the provenance of nationwide injunctions is far from over.

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Against all odds, a surprising number of Supreme Court justices have morphed into celebrities over the last decade. Justice Ruth Bader Ginsburg has led the way: She is currently the subject of a documentary, a biopic, a music album, a Tumblr blog and a best-selling biography, and has earned the rapper-esque moniker “the Notorious R.B.G.” But she is not alone. Justice Antonin Scalia gave hundreds of public talks, speeches and interviews in his lifetime, often making controversial statements that generated headlines. There is even a comic opera about these two justices, entitled “Scalia/Ginsburg.” Justice Sonia Sotomayor wrote a best-selling memoir, made a guest appearance on Sesame Street and tours the country giving talks and interviews. All these extrajudicial activities are a break from past practice. A 2016 study by Richard Hasen found an eight-fold increase in the justices’ public appearances between 2005 and 2014 as compared to the 1970s.

So, are “celebrity justices” a problem? Yes, says Vanderbilt Law Professor Suzanna Sherry in her recent article, “Our Kardashian Court (and How to Fix It).” And, as her title suggests, she has a solution.

Like many observers, Sherry believes the Supreme Court is in a legitimacy crisis. She points to research showing that 75 percent of Americans think judges, including Supreme Court justices, decide cases based on their personal ideology, not the law. For the first time in the court’s history, every justice appointed by a Republican votes in line with conservative preferences more often than every justice appointed by a Democrat, which – regardless of the reason for the pattern – only confirms that perception. Citing Hasen and Richard Fallon, Sherry states that “public confidence in the Supreme Court has dropped”—though in fact more recent polls suggest that it is Democrats who have lost more faith in the court than Republicans. To Sherry, this polarization of support signals a crisis of legitimacy for the court, which she links to the justices’ newfound celebrity.

According to Sherry, the justices’ celebrity undermines the court’s legitimacy in at least two ways. First, the justices’ “ideologically polarized fan bases” contribute to the public’s sense that the justices are nothing more than “politicians in robes.” Second, Sherry argues that when the justices become the focus of such politically polarized public attention, they inevitably start to “play to their base” both on and off the court. As evidence of the latter, she points to the proliferation of concurring and dissenting opinions by individual justices, in which the justices appear to be defending or explaining themselves to their supporters rather than contributing to the body of legal knowledge.

In recent months, several scholars have proposed changes to the Supreme Court’s structure and appointment process to insulate the court from partisan politics and protect its legitimacy. Sherry thinks these fixes will fail, however, unless something is done to address the phenomenon of celebrity justices. And so she recommends that Congress enact a law requiring the court to issue only one per curiam opinion explaining its decision in each case. No justice would sign his or her name to the opinion, no vote tally would be recorded and no concurrence or dissent would be allowed. In a case in which a majority could not support a single written rationale for the outcome, the court would instead issue a one-line decision declaring that it had either affirmed or reversed the decision below, without further explanation.

Sherry hopes these changes would bolster the court’s legitimacy while eliminating the justices’ temptation to “fly their liberal or conservative colors” for the benefit of their fan base. “By speaking with one voice,” Sherry argues, “the Court increases its authority as an institution” — a view she notes was shared by John Marshall, Earl Warren, Learned Hand and Thomas Jefferson. An added benefit of her proposal is that it gives the justices a greater incentive to craft opinions that at least four other justices could support, which she hopes would lead them to “view themselves more as part of an institution and less as individual actors.”

Sherry devotes the second half of her article to addressing the potential constitutional and policy objections to her proposal. She argues that her proposed law would not violate the separation of powers because “[r]egulating the manner by which the Court can communicate its decision does not intrude on its ability to make the decision however and by whatever methodology or reasoning it chooses.” She readily admits that her proposal diminishes the ability of individual justices to explain themselves, but maintains that it does not intrude on the institutional power of the Supreme Court. To the contrary, she believes her proposal will preserve the court’s institutional legitimacy at a moment when public support for the justices is growing increasingly polarized.

Sherry acknowledges that eliminating dissents, concurrences and signed majority opinions comes with potential costs to transparency, guidance to future litigants and development of the law. She notes the historical value of dissents and concurrences in cases such as Plessy v. Ferguson, The Steel Seizure Cases and the early 20th century free-speech cases. And she recognizes that the anonymity of unsigned opinions undermines accountability and comes at the risk of turning the Supreme Court into a “faceless bureaucracy.”

Sherry concludes that there are costs and benefits to allowing each justice to issue a signed, individual opinion in each case. But she argues that, at a moment when many justices appear to be under the sway of our nation’s Kardashian culture, the costs of permitting individualized opinions are too high.

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Terry Skolnik is Assistant Professor at the University of Ottowa, Faculty of Law.

Beginning in the mid 1990s, the dynamics of Supreme Court hearings started to change significantly. Many of these changes persist today. Tonja Jacobi and Matthew Sag’s research demonstrates that the justices now speak more during oral argument than they did in the past, while the parties speak less. Some of the justices’ questions advocate positions as opposed to seeking information. The advocates are more frequently interrupted by the justices. Jacobi and Dylan Schweers have also shown that judicial interruptions in the Supreme Court have a gendered dimension. Their research demonstrates that during the Roberts Court era, female justices were far more likely than male justices to be interrupted by their male colleagues or by male advocates. As Jacobi and Sag observe, many of these changes marked the dawn of the “new oral argument” that is now upon us – a shift in the nature of oral argument characterized by the rise of the hot bench.

The term “hot bench” implies that the justices are active during oral hearings and engage in a form of dialogue with the advocates. The justices press the advocates with hypothetical scenarios and questions to test the potential implications of an advocate’s position. The justices inquire about the bounds of some constitutional right or principle. They question whether a prior judicial decision really stood for that principle or whether the court really made that distinction. When the bench is “hot,” appellate hearings can resemble a form of active and exciting dialogue between the justices and the parties. When advocates face a “cold” bench, they plead their case with little interruption, questioning or judicial activity. The rise of the new oral argument raises a fundamental question: Is a hot bench a good thing?

In a forthcoming Boston College Law Review article entitled “Hot Bench: A Theory of Appellate Adjudication,”  I explore the implications of a hot bench. I argue that the new oral argument has serious implications for appellate adjudication and for democracy. In short, I contend that a hot bench can serve some functional purposes and advance certain values that written arguments and cold benches generally do not. Yet I also caution that a hot bench risks needlessly sacrificing certain functional and democratic values in the pursuit of others – sacrifices that put into question appellate judges’ sacrosanct role and appearance as impartial adjudicators in a constitutional democracy. I conclude with certain concrete proposals as to how judges, including Supreme Court justices, can maximize the democratic and functional virtues of active oral arguments, while avoiding the worst vices of a hot bench.

To unpack this argument, let me begin by discussing some virtues of active oral hearings. From a democratic standpoint, a hot bench can: (1) afford greater transparency into judicial decision-making; (2) increase judicial accountability; (3) promote constitutional dialogue; and (4) orient judges towards the need for judicial minimalism.

Consider first how a hot bench can foster transparency in judicial decision-making. Many parts of the adjudicative process are shrouded in secrecy. Judicial deliberations and post-hearing conferences are confidential. Law clerks, with whom the justices work closely, are sworn to secrecy. The final draft of a judicial decision has been refined and improved over time. Oral argument, however, constitutes one of the most spontaneous and unfiltered parts of the appellate adjudicative process. When the bench is active, we can assess the justices’ understanding of the case before them, their knowledge of applicable legal principles, and their views about the law and the Constitution. Because oral hearings are open to the public, audio recorded, and transcribed, everyone can assess whether active justices appear to be as fair and impartial as they claim to be. A hot bench can thus foster transparency in a manner that permits the public to judge its judges.

Second, active oral arguments allow for a new form of judicial accountability. Given the rise of quantitative research into oral argument – especially Jacobi’s pioneering empirical work – we know that during the Roberts Court era, male justices were far more likely to interrupt female colleagues and female advocates compared to male colleagues and male advocates. A hot bench helped expose the problems of gendered interruptions and other negative judicial tendencies. Furthermore, the wealth of information produced during oral argument is used to hold the justices publicly accountable. Since Jacobi’s research on gendered interruptions, Chief Justice John Roberts has been asked publicly about how to resolve that problem. A hot bench allows us to measure whether interruptions – gendered or not – decrease or increase over time. When justices are active, we can assess to what degree they ask supportive versus antagonistic questions to a party whose position is consistent with their ideological tendencies.

Third, a hot bench enables a form of constitutional dialogue between the judiciary, the parties, and representatives of the other branches of government. Active oral hearings provide a live opportunity for the justices to engage in an open and public exchange with these different stakeholders in order to collectively steer the development of the law and the Constitution.

Fourth, active oral arguments can orient judges towards the virtues of judicial minimalism, a theory of adjudication advanced by Cass Sunstein. Judicial minimalism entails that judges decide no more than is required in a given case. The theory strives to respect the separation of powers, to reduce future uncertainty and error costs, and to ensure that other branches of government solve matters in which they possess greater expertise or institutional capacity. When the justices ask hypothetical questions during oral argument, they are given a sense of how committing to a given principle or outcome suggested by a party may misfire in the future. Answers to hypothetical questions – or the lack thereof – can alert justices to the difficulties in adopting an adjudicative path that may prove counterproductive. A hot bench can remind justices of what they do not know and cannot predict. In doing so, it can steer the court towards the advantages of deciding cases in a more minimalist fashion.

From a functional (or instrumental) standpoint, a hot bench can also (1) optimize justices’ limited information-gathering capacities and (2) assist them in the coalition-building process. Active oral hearings help justices acquire information that is most responsive to their concerns. They can use oral argument to test out certain principles or outcomes without having to commit to them. A hot bench can also assist the justices in reaching majorities and avoiding the confusion inherent to plurality opinions. The justices’ questions serve as a valuable screening and signaling mechanism that is essential to the coalition-building process. Even if judges do not initially agree about which solution is best, they can far more easily agree about which solutions are very bad. Using hypothetical questions, they begin to form majorities by first screening out the most error-prone or unpredictable ways to resolve a case. The justices’ questions can then signal alternate ways of resolving the case that are more faithful to the tenets of judicial minimalism or promote agreement amongst judges with opposing ideological preferences.

Here is the problem, though. Even if a hot bench is capable of advancing these types of democratic and functionalist values, that does not mean that it will. True, active justices may promote transparency and accountability in judicial decision-making. But those gains may come at the price of the parties’ capacity to make their case publicly, or at the expense of the justices’ perceived impartiality in decision-making.

Part of the problem with the new oral argument is that there are many vices to a hot bench. In some contexts, the justices will needlessly sacrifice certain democratic or functionalist values in pursuit of others. In an effort to avoid errors or prevent the floodgates from opening, the justices may monopolize the parties’ own pleading time in a manner that corrodes the democratic value of public participation in decision-making. The justices may sacrifice the value of political equality through gendered interruptions that seek greater clarity on some point. They might put into question their own perceived impartiality by asking questions that advocate positions and have no information-seeking value.

Because the hot bench shows no signs of disappearing, what can be done to capitalize on the benefits of active oral arguments while avoiding its burdens? Barry Sullivan and Megan Canty have argued that the justices can allocate a specific amount of uninterrupted pleading time to the advocates at the beginning and end of hearings, which gives them greater latitude to shape the course of the proceedings. Sullivan and Canty also suggest that it may also be possible to extend – even marginally – the amount of time allocated for oral argument. Another option is for the associate justices to communicate their most pressing concerns about the case to the chief justice in writing before the hearing takes place. The chief justice can then inform the parties of those concerns prior to oral argument. This would allow the parties to focus their pleading on the most important aspects of the case, while also respecting the convention that the justices do not discuss the cases prior to the hearing.

On a more general level, the justices should strive to address negative tendencies revealed by empirical research into oral argument. If research demonstrates that the justices’ questions too frequently interrupt one another or the parties, advocate positions from the bench, or prop up the arguments of parties with whom they are ideologically aligned, the justices should use that research as an opportunity for self-correction. Since Jacobi and Sag’s study on gendered interruptions, of which some of the justices were aware, recent research posted on the SCOTUS OA Blog shows improvements in the frequency of gendered and nongendered interruptions in the 2018 term compared to the previous year.

A hot bench carries certain advantages and drawbacks that written arguments and cold benches do not. If the justices truly hope to promote the democratic and functionalist potential of active oral hearings while avoiding their most negative aspects, they should keep their interventions as judicious and judicial as possible. The judiciary’s role in a constitutional democracy – and the very values that underpin both democracy and justice – demand no less.

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Michael J. Nelson is Jeffrey L. Hyde and Sharon D. Hyde and Political Science Board of Visitors Early Career Professor in Political Science at Penn State University. Lee Epstein is Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis.

In response to a question about the importance of experienced attorneys in the Supreme Court, Justice Clarence Thomas said:

If it’s my money on the line, I’d be as risk averse as anybody else. I mean you go with the .400 hitter. That doesn’t mean you’re gonna win but … go with someone who will increase your odds.

Supporting Thomas’ response is long-standing theory on human capital. The idea is that through work experience, individuals acquire on-the-job-training, sometimes highly specialized training, which leads them to be more productive and more successful, and, in turn, earn higher salaries. For this reason, litigants who retain experienced Supreme Court lawyers should be at an advantage relative to those who hire first-timers. As Justice Robert Jackson, a seasoned Supreme Court litigator, put it, “Experience before the Supreme Court is valuable, as is experience in any art. One who is at ease in its presence, familiar with its practice … holds some advantage over the stranger to such matters.”

Speculating about the importance of experience — however informed the speculator — is one thing; providing evidence is quite another. It’s really difficult to compare the two sides in any case because of imbalances in quality and resources. Another complication is that first-timers and “repeat players” differ in important ways. Data show that lawyers with experience more often represented the petitioner, worked in Washington, attended a top law school, litigated civil cases. And on and on.

To solve these problems, we conducted a study focused on Supreme Court cases (argued between the 1980 and 2017 terms) in which the Office of the Solicitor General represented the petitioner or respondent. Because of the high quality of the government’s lawyers, a focus on OSG cases allows for comparisons between novice and experienced attorneys without requiring a lot of assumptions about which side has the “net advantage.” What this means is that the question in our study is not how novice and more experienced attorneys fare when they face each other; it is rather how both types of attorneys fare against a comparable opponent: the OSG.

Next, to avoid comparing apples and oranges, we matched novice and experienced attorneys who were alike on all the relevant factors we could observe (e.g., whether they represented the petitioner, worked in Washington, etc.)—except, of course, whether they had argued in the Supreme Court before or not.

A statistical analysis using the matched dataset shows that Thomas and Jackson got it exactly right. An experienced attorney, relative to a first-timer, increases the likelihood of winning a case by 14 percentage points and of capturing a justice’s vote by 11 percentage points. Considering the apples-to-apples comparison, these are substantial differences. (The study is here; Adam Liptak’s comprehensible description is here.)

Others may want to develop the results’ implications. For us the next step is to understand exactly why on-the-job training seems to matter so much. If you have ideas, please email Michael.

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