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.