comment September 2005

Without Precedent

Actually, the Supreme Court's problem is not merely disconnection from the real world—it's also arrogance, dishonesty, grandiosity, and a lack of respect for principle, history, or logic
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Conservatives complain that the Supreme Court is too liberal. Liberals complain that it's too conservative. Both charges are inaccurate: in reality the Court is a careful political actor that arguably represents the center of gravity of American politics better than most politicians do. The real problem is not the Supreme Court's politics but the depressing quality of its work.

This is hardly a radical opinion. In fact, it's the viewpoint of many of the people who ought to know best how to evaluate the Supreme Court's decision-making: judges on the lower appeals courts. When one talks to them about America's top court, frustration with the justices' performance is a common theme. Naturally, some of this frustration is political, and some of it is the sort of griping you hear from middle management about top management in any organization. But what's most striking is a basic unhappiness with the Court's quality and integrity—a sense from the left, right, and center alike that the Court blithely ignores its own principles and precedents when they're inconvenient; rules on matters not properly before it to reach the result the majority seeks; misstates facts; and issues shoddy opinions that give insufficient guidance to the lower courts. In short, the justices routinely behave in a manner they would never tolerate from the judges whose opinions they review.

Much of this carping is private, but not all. Laurence Silberman—now a senior judge on the D.C. Circuit Court of Appeals—has for years been railing publicly against the Court for its infidelity to its own precedents. In some opinions he has openly taunted the justices. In one he called the Supreme Court a "noncourt court" that "rarely considers itself bound by the reasoning of its prior opinions." In another he accused the justices of dishonesty for being unanimously unwilling to "restrict their own ability to reach out to issues not presented in cases brought to the Court" or to "justify that practice by openly acknowledging the Supreme Court as not subject to normal judicial constraints."

Silberman is a controversial figure, a conservative luminary who inspires deep suspicion among some liberals. But he is an unusually principled man, with a particularly admirable history of putting politics aside when it counts. His critique of the Court, moreover, is not essentially political but methodological. The cases that drive him wild involve not hot-button social issues (though he certainly has opinions on those) but obscure and apolitical rulings that don't rile normal passions—for example, the one in a 1993 case involving insurance and banking regulations issued by the comptroller of the currency. What's more, Silberman is as unsparing of the conservative justices—some of whom are his close friends—as he is of the Court's liberal wing.

Silberman recently told me he was in "despair" about the Court. "Every one" of the justices, he said, is guilty, to one degree or another, of violating the two most basic rules of restrained judicial behavior: ruling only on questions presented by the case at hand, and interpreting precedents honestly. "I stopped reading Supreme Court opinions years ago, because I got too depressed—unless I have to read them for a particular case or I'm teaching them," he said.

Silberman's specific concerns may seem minor to a lay observer—and his anxiety consequently histrionic—but they are less technical than they appear. Courts are supposed to resolve cases, not make broader policy, which is exactly what happens when they decide more than the question a case presents. And courts are supposed to be principled, applying the same rules to everyone; so it is infuriating when they articulate a rule and then ignore it. "Federal judges are the only senior government officials who have to set down in writing exactly why they do everything that counts," Silberman says. "I think the single most important thing judges can do when they write opinions is be honest about their reasoning." The justices, however, misrepresent their reasoning so egregiously that "I tell my law-school classes that it takes a year to teach law students how to understand the holding of a case."

Few circuit-court judges feel quite as hopeless about the current Court as Silberman does. Richard Posner, for example, who sits on the 7th Circuit Court of Appeals, says, "The Supreme Court has never paid much heed to its own precedents—that's nothing new." But Silberman's critique has wider resonance than you might guess. One conservative judge notes with weary amusement the tendency of justices of all ideological stripes to simply ignore the tough arguments that dissenters from their rulings offer. Given the justices' power not merely to strike down acts of the political branches but also to overrule—or just disregard—their own prior holdings, they "more or less inevitably … act as superlegislators pretending to be judges," he says. "The result is not a pretty sight."

Liberal circuit judges are equally harsh. In a public panel in 2003 William Fletcher, a judge on the 9th Circuit Court of Appeals, blasted the Supreme Court for distorting the facts of a case in the course of reversing an opinion he had written. "Politicians are politicians," he said. "We are accustomed to their half-truths and their untruths … But we are here dealing with a court. If a court will systematically change the meaning of words so as to distort what are the actual facts of the case, our judicial system is in trouble."

One liberal judge I spoke with charges contemptuously that the justices often seem unfamiliar with the factual records underlying the cases they decide. "I spend huge portions of my preparation time reading the record," he says. "They almost never read the record."

Some judgesare at least partly resigned to such shenanigans, which, as Posner suggests, are nothing new. Indeed, many judges see the Court's behavior as consistent with its history. Howlingly bad opinions, shot through with faulty reasoning and manipulated facts, have surfaced occasionally through the decades. But despite the attention such cases garner, they have never been the norm, and they are probably no more common now than in the past. Smaller, subtler failures of honesty and rigor, of the kind that drive lower-court judges nuts, may not be more common either. But they are more naked now. The sheer power of the Court is growing constantly, and as the Court asserts itself in more and more policy areas, its failings become more apparent and troublesome than in the past.

The justices don't have to observe precedent, so they fudge doctrine. They don't have to describe facts accurately, so they take liberties. They don't have to restrain themselves, so they don't. And they don't have to write opinions rigorously enough to give precise guidance to the lower courts, which do not have the luxury of winging it. So they hand down opinions that sometimes leave the lower courts breathless with astonishment. For example, I have heard no end of complaints from judges about the Supreme Court's recent series of decisions striking down state and federal sentencing rules. Part of their problem was substantive—some judges disagreed with the Court's ruling. A bigger cause for complaint, however, was that the Court had potentially invalidated thousands of sentences yet was not remotely clear about how the lower courts should handle the chaos.

The Supreme Court has a related problem with grandiosity—a tendency both to arrogate to itself decisions other actors are far better situated to make and to embellish its work with needless puffery. Justice Anthony Kennedy, not content to strike down state sodomy laws, began his opinion on the subject two years ago by rhapsodizing that "freedom extends beyond spatial bounds" and contains "more transcendent dimensions." This sort of rhetoric, which reads more like a second-rate philosophy term paper than a judicial opinion, is a far cry from the deep institutional modesty of, for example, Justice Byron White, who left the Court in 1993. Asked in 1962 about his view of the constitutional role of the Supreme Court, White responded, "To decide cases."

Richard Posner notes wryly that although the justices are "for the most part able lawyers," none is "a Philosopher King, or even a John Marshall, Oliver Wendell Holmes, Louis Brandeis, or Robert Jackson in depth of insight or … breadth of experience," so "it would be nice if they wielded their authority with greater restraint."

But it's hard to get a peacock to stop preening. And it's no less hard to create incentives for greater judicial rigor and honesty when the Supreme Court itself is the final word on what the law means. The only option, really, is shaming—and criticism of the justices from the outside doesn't seem to move them much.

Silberman speculates that the root of the problem is a design flaw in the Constitution itself. "If I had to do it all over again," he told me sadly, "if I were framing the Constitution, I would have provided that all Supreme Court justices sat for ten years and then came back as circuit judges"—in which role they would once again be bound by precedent and accountable to higher judicial authorities. As things stand, he says, "I don't have much hope. I'm so disillusioned, so much in despair … I think most judges think I'm a little naive to think the Supreme Court could ever be reduced in ego size to a court. Maybe that's right."

It probably is. But my guess is that if all the judges who privately share Silberman's anxiety—even in milder form—were more open about their views, shame would become a more powerful restraining force on the Court. Not even Supreme Court justices, after all, want to be held in contempt.

Benjamin Wittes is an editorial writer at The Washington Post.
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