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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Disclosing How the Justices Vote on Certiorari Petitions
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Monday, February 02, 2015
Disclosing How the Justices Vote on Certiorari Petitions
Gerard N. Magliocca
The Supreme Court's lack of transparency is an issue that never dies. Sometimes the complaint is that the Court does not televise oral arguments. Sometimes people grumble that retired Justices keep their papers confidential for far too long or don't preserve them at all. I would like to raise a different concern, which is that I think people are entitled to know how the Justices vote on each cert petition.
Comments:
Perhaps the views of retired Justices on this subject might be helpful. I don't know if Justices Souter, O'Connor and Stevens would be willing to provide thoughts on this matter based upon their experiences. Transparency is great, but too much may blind - or obscure - what is really important. I'm for televising oral arguments. I'm for rules opening up to the public retired Justices' papers more quickly than at present. I'm for the Court increasing the number of cases it decides so that lower courts may benefit. (This may lead to more concise opinion writing from the Court's guidance) But the Cert procedure came about to prevent the Court with the ever increasing litigation appeals. Perhaps the procedure should be revisited so it may provide more justice. I assume Congress would have a role in this; but the experiences of retired Justices would be a good starting point.
I agree with Shag and I want say this is a great topic I hadn't considered, already well-laid out in a relatively-brief blog post. I look forward to hearing more about this process.
Judicial transparency, actually lack thereof, is discussed by William Baude in a NYTimes Op-Ed (re: orders of the Court) and by Adam Liptak's NYTimes Column (on unpublished opinions of Courts of Appeal), both appearing today. Also, Justice Kagan has expressed her druthers recently on cameras in the Court. Before this gets out of hand, perhaps there is a need for prioritizing judicial transparency issues.
I think Baude is on the right track in general; he was written about the range of outside of ordinary opinions the Roberts Courts have done in recent years. On that point, yes, it would be a good thing if they were more open about what they were doing there.
[There were various orders, at times with brief somewhat opaque comments, about abortion, voting, same sex marriage etc. this term alone. Baude also notes the rise of per curiams.] OTOH, I don't really care about SCOTUS not publicly providing the votes for each cert. petition they handle. It can be interesting to know (as shown in various accounts like "The Brethren) but "entitled"? Eh. I think it would matter to people and people will try to figure out if there is a message being sent by the vote. I think that might be counterproductive in the long run and lead to some misleading assumptions. There is after all, e.g., various reasons to take a case. This is especially the case if more than four vote for cert (the extras might not think much of it -- their votes are merely window dressing on some level) Do we need to know the order of the votes too? After all, as seen in accounts at SCOTUSBlog, certain cases are held over -- this suggests there is some interest but not enough. So, would knowing who "really" was interested also be something we were "entitled" to know? It's an interesting idea, but as a fan of more openness, that would be sort of far down there.
I'm all for more transparency, but I'm not sure this would accomplish anything useful. There are a lot of reasons why a given justice might vote against cert even if the issue was cert-worthy: there are complicating factual considerations that blur the cert-worthy issue, the Court is waiting on more developments from the lower courts, the record doesn't appear to address key points, etc. There could easily be a unanimous denial of cert in a case that most justices think was wrongly decided below, and where they think they should reach the issue (but in some other case); that sort of result, if disclosed, might discourage other litigants from filing a cert petition on that issue. And misreporting about a denial of cert as indicating the Court's view of the merits is very common and might affect how the justices vote (i.e., the justices might feel compelled to cast multiple votes for, or even grant cert on, an issue that would not otherwise get cert, just so they don't generate a headline "Supreme Court Unanimously Rejects Petition"). So I think the benefits here are pretty mixed at best.
Advocates coming before the Court would definitely benefit from knowing how the individual justices voted granted cert on their case. They would benefit even more if the could listen in on deliberations over cases during conferences. However, the desire of advocates for intelligence to make tailored pitches to individual justices is not a reason for the Court to provide it.
Advocates, as well as legal academics, might also misconstrue disclosures of cert voting by Justices. Interpretation of such disclosures might engender mere guessing what lurks in the minds of Justices. All so-called "intelligence" is subject to interpretation, whether such "intelligence" is good or bad, and sometimes the interpretation is good and sometimes it is bad.
Recording votes on matters other than the final opinion distracts from the proper inquiry - what does the law require the answer to the question posed to be. That is different from how do I get five votes. Moreover, all votes before the vote on the opinion necessarily should be tentative votes that change as briefing, argument, research, and opinion writing occur. To focus on why Justice X changed her position could inhibit such open minded consideration of the questions presented. No one is entitled to know anything other than the final opinion. Anything that inhibits an open minded exploration of the issues involved prior to the final opinion should be discouraged.
Recording votes on matters other than the final opinion distracts from the proper inquiry - what does the law require the answer to the question posed to be. That is different from how do I get five votes. Moreover, all votes before the vote on the opinion necessarily should be tentative votes that change as briefing, argument, research, and opinion writing occur. To focus on why Justice X changed her position could inhibit such open minded consideration of the questions presented. No one is entitled to know anything other than the final opinion. Anything that inhibits an open minded exploration of the issues involved prior to the final opinion should be discouraged.
What is clear is that the Justices on the Court do not call balls and strikes in real time, nor do they have the benefit (or detriment) of instant replay. The course of appeals is deliberative, taking its time to reach a decision that may not be unanimous. The parties submits briefs. Add to this the proliferation in recent years of Amici briefs. Then there is heard the political punditry, legal academics, all with the warp speed of the Internet, leading to the oral arguments, followed again by comments of the political punditry, legal academics, with the aid of the Internet, leading to the crescendo of the announcement of the Court's decision, which again leads to the political punditry, legal academics, again with the warp speed of the Internet, commenting on the decision and what it means. Does the public need more details on the deliberative process, assuming it could handle such details? We have political dysfunction with the elected branches. And the judiciary may contribute to this dysfunction. How would requiring disclosure of such details cure all this dysfunction? Might dysfunction actually be made worse (if that's possible)?
What is the practice of other high-level appellate jurisdictions? The rules of procedure of the UK Supreme Court (né House of Lords) do not mention a record of votes on decisions giving or refusing leave to appeal. I suspect this discretion is more the rule than the exception.
All supreme courts have to deal with a huge number of applications, only a few of which can be taken up. Publishing votes would slow down the rather brutal weeding, giving less time for deliberation on the cases retained. I also suspect that quite a few such courts, struggling under a caseload made unmanageable by to easy access (like the ECHR and the French Cour de Cassation), envy SCOTUS' right to control its caseload.
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It would be a shame to "waste" this thread so early merely because there seem to be no disagreements (subject, of course, to translation and analysis of the comments of SPAM-I-CAN) among commenters on Gerard's post. So here goes:
1. Over at Concurring Opinions Gerard's recent post "The Arizona Redistricting Case" starts off with this: "One disadvantage of blogging is that it occurs in real time, which can leave behind a string of contradictory posts when you change your mind about a complex issue. (Sometimes I feel like we need a blogging version of shepardizing.) " Gerard confesses to some of his flip-flopping on this case. While that case is interesting, my focus is on the parenthetical reference to "a blogging version of shepardizing. Imagine if such a feature were available. In anticipation of a post - or even a comment - one could test for his/her own potential "flip flops" and perhaps put them in context (or abandon the post or comment). What do commenters think about this? 2. The Sunday Book Review Section of the NYTimes (2/8/15) includes a review by Drew Gilpin Faust of Richard Brookhiser's "Founders' Son: A Life of Abraham Lincoln." This is a polite but critical review of the book. The title brought to mind Gerard's recent book "American Founding Son - John Bingham and the Invention of the Fourteenth Amendment." Gerard has offered an explanation of his title as being suggested by the publisher. As to Brookhiser, I think he may have picked his title personally to reflect his revisionism, considering his views on the Founders regarding slavery.
1. Blogging provides a chance to muse aloud and not being constrained by past comments probably is useful.
2. The review (Jill Lepore has another essay on Lincoln) has implications to the originalism debate. Lincoln tied himself to the Framers but so did others. Trying to find "one" answer there was somewhat forcing the issue. The Framers could guide, but Lincoln et. al. were ultimately on their own. As are we. Dorf on Law today (2/9) has a post dubious about an "originalist" stance on SSM, the tone of the piece akin to GM on this topic probably. I sort of resist, somewhat half-heartedly, that sentiment.
I think more updates and will be returning. I have filtered for qualified edifying substance of this calibre all through the past various hours. Agen Bola Terpercaya
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