an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Supreme Court is All Business – Or Half-Business, Anyway
Now that the Supreme Court’s 2009 Term is under way, it is interesting to look at how the docket is shaping up. Two categories of cases dominate: business cases and criminal cases. Business cases are roughly half the docket, and there’s a full plate of criminal issues as well. Let’s think about why that might be.
There are surely cases before the Court that grow out of the country’s financial troubles, most notably the challenge to the constitutionality of the Public Company Accounting Oversight Board. And the several cases involving debt collection and bankruptcy undoubtedly present themselves as more worthy of the Justices’ attention in the current economic climate.
Still, it takes time for issues of immediate public concern to blossom fully on the Court’s docket; most legal matters involving the economy are unlikely to have made it to the high court yet. Lots of this Term’s business cases have no obvious connection to current economic issues. Similarly, one might think that bad economic times breed criminal litigation, but the sorts of questions the Court is tackling – e.g., life without parole for juveniles, questions regarding sex offenders, and a spate of Miranda cases – have little to do with crime and the economy. (Besides, crime rates may be falling, not rising.)
The better answer rests in understanding the strategic interaction that takes place among the justices as they shape their docket. Cases appear on the docket when four justices vote to grant the writ of certiorari. Any justice voting to grant cert in a case should have the good sense to look ahead to what the vote count on the ultimate outcome is likely to be. If the case is “cert-worthy” by traditional criteria, but a justice is likely to lose big on the merits, the logical thing for her to do is vote to deny review. Political scientists call these “defensive denials.” (The alternative, when a justice knows he can win big, would be an “aggressive grant” – a case that might not be cert-worthy, but provides the opportunity for moving the law in a favored way.)
The present Court is in flux, and the justices are understandably wary about the way their colleagues will vote to resolve cases. The wild card, especially for conservatives in big cases, is Anthony Kennedy. The fact that he cannot necessarily be counted on to vote with them, might lead his conservative colleagues to avoid hearing these big ideological disputes. For the same reason, the left side of the bench would be similarly wary of the Man in the Middle and reluctant to take the same kind of cases.
In both business and criminal cases, however, ideology has not played out the same way as in many other sorts of issues. In the early years of the Roberts Court the justices were often unanimous in business cases. Although that sort of agreement has fallen by the wayside, and many business cases now are decided by close votes, those votes are not necessarily cast along typical ideological lines – the preemption cases of last Term being a good example. Similarly, the criminal cases often involve strange bedfellows. Many of the “liberal” justices can be quite conservative on criminal issues: Stephen Breyer is one example, and Sonia Sotomayor may prove another. And both Justice Scalia and Justice Thomas also have been known to jump sides on issues involving sentencing or the confrontation clause, to name but two.
So, a better explanation for the composition of the Court’s docket is that these are cases unlikely to divide the justices ideologically. Some of the cases are genuinely interesting or important ones, in which the outcome is not fore-ordained. The justices can vote to take these cases, and decide them in a deliberative way that is more in keeping with the public’s ideal of what the Court does. Other cases might be more predictable – the Miranda cases come to mind here – and yet there might be enough agreement on the Court to make it easy for the justices to grant cert in them as well.
From the justices’ perspective, business and criminal cases are a safe haven: that’s where we can expect to see the action.