Your Humble Blogger has been chiming in to an interesting discussion on Lorem Ipsum about the Supreme Court CIPA case, and took a look at yesterday's slip opinions. There were 5 cases, and 24 opinions filed, including decisions, concurring opinions, dissenting opinions, and those that concurred in part and dissented in part.
- 7 opinions filed in Gratz v. Bollinger (the undergraduate case).
- 6 opinions filed in Grutter v. Bollinger (the Law School case).
- 5 opinions filed in United States v. American Library Assn., Inc.
- Only 2 opinions in American Ins. Assn. v. Garamendi (California's Holocaust Victim Insurance Relief Act), 5-4 (with an odd line-up of Souter O'Connor Kennedy Breyer and Chiefie, with Ginsberg, Stevens, Scalia and Thomas dissenting)
- 4 opinions in Green Tree Financial Corp. v. Bazzle (contracts and class arbitration)
I know very very little about the Supreme Court and its history; I don't know whether those numbers are really higher than usual. As I understand it, part of the job of the Supreme Court is to find in the specific case in front of them, and part is to establish precedent. I would think that having 5, or 6, or 7 opinions filed in a case makes it hard for a lower court next year to follow the precedent in a similar but not identical case.
I blame Chiefie, whose job it is to control the court. However, the scarier part is that the multiplication of opinions does make it seem that the nine justices do not enter into each case with open minds (guided by fixed principles), prepared for the give and take of intellectual discussion. There does not appear to be a meeting of minds on the court. It's not just that there are liberals, conservatives and moderates, it's that even the liberals do not seem to be willing to agree together. My concern is for the idea of the court, where the nine sit together (or their clerks do) and consider, and respect each other's ideas, and have, as a goal, agreement. If agreement is not possible with the nine, which it usually is not, then at least five should be able to agree on the decision, and four on the dissent. That they cannot seems to Your Humble Blogger to imply that they place a higher value on their own decisions over the court's function. I could very well be wrong, but that's how it looks to me.
Redintegro Iraq,
-Vardibidian.
In controversial and complicated cases, I don’t think 4 opinions is unusual. The 7 & 6 opinions seem overlarge, though.
I can see the Supremes as being somewhat at fault in the matter, but I would also raise the question of whether the diffuseness of the Court’s response to the laws may be the fault of the laws — not in terms of their constitutionality, but in terms of their quality as legislation. Are they clearly written laws whose provisions directly and clearly will accomplish what the law purports to be effecting? If the law is a bad law in these terms, it may make the Supremes’ position difficult. To rule on the law, they have to a) figure out what the law means, b) infer what its actual effects will be, and c) decide on the constitutionality of its intent and/or its actual effects. It’s much harder to reach clear agreement when you have three things to decide, only one of which is _really_ the question you are supposed to have to decide. And perhaps the Court’s diffuseness in their rulings on bad laws is appropriate — otherwise the Court would not only be ruling on the Constitutionality of the legislation, they would be, in a sense, re-writing the legislation: correcting the Congress’s draftsmanship?
I raise this possibility based on what I know of the “Child Internet Protection Act,” whose title alone shows bad writing and murky intention. It’s a foolish, craven law, written to make Congress look moral without actually accomplishing much. It requires libraries that receive federal funding to use BAD, INEFFECTIVE, and MALFUNCTIONING filtering software on their internet-connected computers, but, acknowledging that the software is B,I, and M, it allows the libraries to turn it off at the request of adult patrons, without making clear whether the library may or must require the adult patron to explain why he or she wants the filtering software turned off.
It doesn’t surprise me that reasonable people would have difficulty reaching agreement about what to say in ruling on the Constitutionality of this law — it’s written to muddy the waters around the Constitutionality of its provisions, precisely because the lawmakers a) knew what they were doing was really against the spirit of the Bill of Rights, b) didn’t want to have to vote against it, but didn’t necessarily want to make the law effective at doing what it purports to do. It’s a foolish, craven law, and I’m not sure I want the Supreme Court to be turning this dreck into clear precedent. Especially when the Court contains not only a group of reasonable, intelligent people but a set of unreasonable people whose legal perspicacity is dubious.
I suspect the language of the legislative attack on affirmative action was similarly bad, for similar reasons. The Court shouldn’t be let off the hook, but I wonder how much of the problems here are being created by Congress, and, if so, I wonder if it is proper or possible for the Court to correct the Congress in such matters.
Well, one of the main differences of opinion on the Court in the RIPA case does appear to have been how much weight to give the argument that the software is bad, ineffective and malfunctioning; there is certainly not a majority saying that the law is OK no matter how bad the software is.
Now that you mention it, surely a share of the blame does rightly belong to the legislature. However, Congress is well within its rights to pass foolish, craven laws (as long as they are intelligible and enforceable, and of course don’t conflict with the constitution); they oughtn’t do so, but if they do, the only constitutional recourse is to throw ’em out and get better legislatures.
It was Breyer, I believe, who dissented from the approval of the Sonny Bono Copyright Extension for Dead People Act by saying that there was no rational and constitutional way to interpret the act, that is, that the act was either irrational or unconstitutional, and so he voted to overturn it. I agree on the specific facts of that case (the actual intent was unconstitutional behind a facade of irrationality), but I don’t want Justice Breyer (or, you know, Justice Ashcroft) deciding what is or is not rational.
Ultimately, you are right: a foolish and craven, irrational, incoherent, and illiterate legislature cannot be easy for the Supreme Court to adjudicate. It would be good if the voting populace (or even those who don’t vote but could) placed some sort of priority on electing Congressment who are wise and courageous, rational, coherent and literate. It would be even nicer if the legislators themselves valued the act of legislation, and due deliberation beforehand. Wouldn’t it?
Thanks,
-V.
Coming to this a little late, sorry. Chris wrote: “Especially when the Court contains not only a group of reasonable, intelligent people but a set of unreasonable people whose legal perspicacity is dubious.” Chris, do you believe that some of the current Supreme Court justices have dubious legal perspicacity? I think some of them are bozos, but they seem to me to be largely well-versed in the law. Not that I know enough about the law to judge, of course; I guess what I really mean is that whenever I read an opinion that comes out of the Court, it almost invariably sounds reasonable and considered and well-thought-out. Maybe I don’t read the bozos’ opinions so often, but still.
(I certainly don’t deny that justices may have their own agendas. But I think they usually at least attempt to support their decisions with thorough grounding in law.)
Or am I misunderstanding your comment?
I’m not exactly a deeply-informed observer of the Supreme Court. But my sense is that Rehnquist, Scalia, and Thomas are ideologues before they are reasonable thinkers, and that Thomas and Rehnquist are not particularly good at law. I’m not a lawyer, and I have no direct evidence to present, so what I have is more of an opininion rather than a judgment. But if it is true that “they usually at least attempt to support their decisions with a thorough grounding in law,” such behavior would not be sufficient to change my opinion. I want more than an attempt to support decisions that fit with their own agendas with a grounding in law before I admit Supreme Court justices to have the commitment to reason and the legal acuity to serve worthily on our highest court.
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Backing up, one thought that comes to my mind behind multiplicity of opinions is ego. I don’t know if that’s applicable here, or not. Likely not for every justice on every decision.