April 08, 2004

Idle Musings on the Supreme Court

by Nick Morgan

The Supreme Court refers to itself on a regular basis. And that, so goes my favorite scholarly adage, is "the merest of truisms." Except that it's not clear what "itself" means. Over time, occupants of seats on the Court change, somewhat continuously, as does the Court's legal turn of mind, its voting patterns, its overarching historical "mission" and its concrete constitutional legacy. Even Justice Scalia, who fits somewhat snugly within the generalized federalism of the "Rehnquist Court," used the phrase "this Court" to refer to Miranda v. Arizona, the hallmark triumph of the Constitution-As-Sword "Warren Court," a case that couldn't be further from Scalia's jurisprudence, and that fueled his vigorous (and beautiful) dissent in Dickerson:

    I see little harm in admitting that we made a mistake in taking away from the people the ability to decide for themselves what protections (beyond those required by the Constitution) are reasonably affordable in the criminal investigatory process. [530 U.S. at 464]

Why should Scalia apologize for Justice Warren's opinion in Miranda? Who is this "we" that took anything from the people? No one expects Bush to apologize for President Kennedy's shortcomings. There is no such "Presidency" in the sense that there is a "Supreme Court." The "Presidency" is merely an abstract descriptor, but "the Court" is a singular, perennial institution, whose make-up only changes incidentally, but not essentially.

Now that's not a view I'm committed to, but it's a view that's built into the nature of judicial legitimacy. Legitimate decisions are depersonalized, and a favorite technique used to criticize judicial opinions involves personalizing them, accusing the majority of asserting its "personal policy preferences," as if the right preference is somehow removed from personality, a preference emerging from the judicial institution itself.

Pronouncements of "this Court" echo notions of "found law" and harmonize with the viewpoint that some readings of the Constitution are just wrong. Judges, as we conceive them, are not there to dispense opinions having no better origin than their own whimsy. Just as we expect more than mere conclusions from our adversaries in argument, we expect justices to deliver opinions that have some objective source, like reason and fact, and we expect rationales to follow tracks that we ourselves can trace (perhaps tracks of reasoning that are "public") undiverted by the flaws of individual personality.

As much as one might fault the Court for writing, somewhat transparently, in language that pretends to the formalities of found law and objective justice, I think we'd prefer it to the other extreme, where justices merely assert that they like certain ideas and results best, and think the views of cooky Earl Warren and his ilk were plain stupid. (Consider, for instance, the naked vulnerability of a judicial opinion that cites no authority.) And I think we might need the Court to be a singular, perennial institution, not because it lets us pretend that stare decisis means anything, but because it helps us believe that the Constitution is beyond the faults and limits of individual fancy. One Court channeling one Constitution. Sounds like the basis of a safe, secure nation. Alternatively, a haphazard series of differently reasoning, short-sighted, personally prejudiced old lawyers who've been arguing semantics for 200 years--not so comforting, not so responsive to the political majesty we invest in our great document of justice.

April 8, 2004 05:44 PM | TrackBack

It's the royal "we." :)

Of course, you are right: speaking as an institution just adds one more patina of legitimacy to what is otherwise a series of value judgments that garnered five or more votes.

Didn't the Court write seriatim opinions prior to the days of John Marshall? If there is a father figure of this view of the Supreme Court, surely it is he.

Posted by: Brian at April 8, 2004 06:16 PM

I would not have joined the Dickerson majority if I were seated on the Court. But Scalia's dissent in that case was a disgrace, and anything but "beautiful."

UCL, concurring in the judgment but not the opinion.

Posted by: Chuck at April 8, 2004 06:28 PM

Chuck, I don't agree with everything Scalia said in Dickerson, but I definitely think his writing was rhetorically amazing. Do you disagree with that, too?

Posted by: Nick Morgan at April 8, 2004 06:41 PM

I remember Dickerson as a train-wreck of a case, where Rehnquist put the ego of "this Court" above either the Constitution, stare decisis, or Miranda. I don't know if I agree with everything Scalia wrote in dissent, but it is beyond question that he rightfully called Rehnquist out, saying basically: "You did everything but say Miranda was a Constitutionally-based decision, and you can't, because you wrote the prior opinions that said it wasn't. Suck it." You can give him that one, can't you Chuck?

Posted by: Matto Ichiban at April 8, 2004 10:10 PM

Back in the late 1950s I was present at Suffolk Probate Court in Boston in Judge Monahan's session which was considering uncontested divorce cases (well before no-fault divorce was established). He was chastizing young attorneys who failed to present the essential elements of these easy cases. He even stated that judges can fail, stating the well known Massachusetts maxim that a judge is just a lawyer who knew a Governor. A federal judge, including those on the Supreme Court, is also just a lawyer, who knew a President. Supreme Court Justices are far from perfect.

You've probably heard the saying about how unappetizing it is watching sausage being made. Read Woodward and Armstrong's "The Brethren" on the early years of the Burger Court as an example of how decisions are made in the Court. (No, wise guy, not how burgers are made: sausage!)

Posted by: Shag from Brookline at April 9, 2004 07:17 AM
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