The Legal System Is Much Bigger Than a Few High Profile Political Cases
Ruining the Entire Legal System to Make a Few Big Political Cases Come Out a Certain Way Is Very Bad
There’s an old, possibly apocryphal story about a Supreme Court Justice who got very mad at his clerks for referring to cases raising non-politically salient technical disputes as “dogs”. “Those cases aren’t dogs to the parties", he barked back at his clerks. He could have added- those cases also aren’t dogs to the judges, lawyers, regulatory agencies, litigants, and participants who do work related to those practice areas or are affected by them.
Yet I often feel as though our debates about the judicial system are strangled by the few high profile, usually United States Supreme Court cases that decide some hotbutton issues, like abortion, voting rights, or LGBT rights. Obviously those issues are extremely important- that’s how they became high salience political issues. But they are only a small portion of what the federal court system handles, and while you can argue that Planned Parenthood v. Casey is a more important case than Anderson v. Liberty Lobby, a civil procedure case that set forth the summary judgment standard in federal court, it’s harder to argue that the subject area of abortion affects more people than the subject area of civil procedure. 40 million lawsuits are filed every year in the United States, as compared to a little over 1 million abortions.
Why do we have court systems? Obviously, to resolve disputes between people. To prosecute criminals. To distribute estates, resolve marital separations and care for children, manage bankruptcies, appoint conservators and receivers for people and businesses that cannot manage their own affairs, etc. If I asked you that question, you would probably give a similar answer. But when we discuss the federal courts in our politics, that common sense answer goes away- the federal courts, seemingly, have the function of deciding a bunch of politically salient issues, and that’s all that matters. (To be fair, some of the functions I listed are conducted by state courts. But federal courts are still important- there are a lot of federal crimes, disputes between people in different states, intellectual property suits, and bankruptcy matters that are almost always handled in federal court.)
This creates a situation where people are willing to do things that are quite harmful to the federal court system in order to win politically salient cases. A most obvious example is the trend towards appointing very young federal judges. Now, there’s nothing in theory wrong with finding some extremely brilliant prodigy who is wise beyond his or her years and appointing that person to a judgeship. (I would still say a time limited state judgeship would be better than a lifetime federal one, but I will grant the premise anyway.) But that is not what is happening. Rather, younger and younger federal judges are being appointed in order to try and fix the results of politically salient cases for years to come.
The problem is that almost all of what these people will be actually judging is not politically salient cases, and now you have stuck the litigants of those cases with a very inexperienced judge. If you are a criminal defendant, facing 10 years in federal prison, how would you like it if the judge in your case has no experience in trials and only has a cursory understanding of the rules of evidence and criminal procedure? And obviously, I pick that example because a criminal defendant is highly sympathetic, but even in a business dispute, say your company has a $20 million claim that another company has stolen its trademarks, and the judge in your case is a total novice. Is that fair to anyone?
The young judges thing is a good example to use because I think everyone actually understands that appointing young judges is going to come with a significant cost. But another example- court packing- is right in the blind spot of a bunch of liberal activists.
Court packing proposals arise out of an obvious frustration. Republicans have done a little better than Democrats have at getting people onto the Supreme Court, and have had some better luck on timing, and thus, despite the parties’ winning roughly equal numbers of elections, the Supreme Court has a 6-3 conservative majority. What frustrates Democrats even more is that the Republicans have been winning some of those elections without winning the popular vote- a fact that isn’t really logically connected to the issue, because as dumb as the electoral college is, it is the rules of the game, but which gnaws on Democrats who feel unelected judges appointed by what they see as a minority party shouldn’t rule over them on major cultural and politically salient issues.
So the frustration is real. But the problem is, court packing assumes that the only thing the Supreme Court ever does is decide politically salient cases. In fact, the Supreme Court is incredibly important to the legal system. We have a system of stare decisis that we inherited from the British, and which relies on appellate courts, and especially the Supreme Court, to hand down comprehensible rules that lower courts and litigants should follow. For instance, take Anderson v. Liberty Lobby. If you are sued in federal court, your lawyer’s strategy to get you out of the case before trial will be dictated by that case. Your lawyer will collect evidence and frame issues and file pleadings all designed to position your case where you can meet the Anderson standard and get summary judgment. And your lawyer can rely on that- very few Supreme Court cases ever get overturned, and lower courts almost always look to follow them.
Imagine a world instead where the composition of the Supreme Court was constantly changing as parties went back and forth, expanding the Court in order to win the politically salient cases. Now what happens to Anderson? Well, the other side, or the judge, or even a Court of Appeals panel, might decide not to follow it, or to distinguish it, or to ignore it in your case, because there’s a possibility that the rapid changes of the composition of the Supreme Court will mean that the new justices will let them get away with it. And now play this out with every important Supreme Court precedent. You might as well test the limits! Because you never know how these new justices feel about the old precedents. Nobody, of course, will ever ask them about these things, because confirmation hearings are dominated with questions abut abortion and gay rights and voting rights.
The point is, for a system of vertical precedent to work, you need a reasonably stable Supreme Court. We saw a version of this demonstrated in California in the 1980’s- voters refused to retain three liberal California Supreme Court justices on a seven member court who were opposed to the death penalty. They were replaced by three conservatives. The Court then moved sharply to the right, doing such things as making it much harder to bring a tort lawsuit against a business, and sharply expanding assumption of risk law to leave injured plaintiffs in personal injury cases without compensation. And California Courts of Appeal moved even farther right, pushing the limits because they knew the California Supreme Court might let them get away with it. Nobody even discussed these things during the retention campaign- it was all about the highly politically salient issue of the death penalty. But if you start sharply changing a Supreme Court, everything is in play.
The bottom line is, a court system is about all sorts of different cases. Not just the ones you might care about. Stability is a huge, central value in the legal system, a value at least as important as how the next politically salient case comes out.