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Friday, October 04, 2013

How many disputes is "too many" for the Court?

According to this report ("Kennedy Says Too Many Disputes Left for Court"), Justice Anthony Kennedy recently shared with a group at the University of Pennsylvania his view that "any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy."  He added, "I just don't think that a democracy is responsible if it doesn't have a political, rational, respectful, decent discourse so it can solve these problems before they come to the court."

Let's resist the temptation to snark a bit about the strangeness of these words coming from a member of the Court who has not seemed, over the past several decades, particularly squeamish about judicial supremacy and all that.  One the one hand, I agree, sort of, with what the Justice said, though I suspect that if I'm honest with myself (ed.:  Why do that?) I am, like most people, probably guilty of thinking that the "right amount" of Court-resolved serious questions is an amount that corresponds with the number of such issues I believe the Court has resolved correctly.  On the other hand, I am not sure it's right that even a decent, functioning democracy of the most ideal type should be expected to "solve" or "resolve" the kind of questions I suspect Justice Kennedy has in mind, if by "solve" he means "identify the Correct Solutions" to these problems or the "Right Answers" to these questions.  Certainly, such a decent, functioning democracy could, after plenty of "political, rational, respectful, decent discourse", take a vote regarding the solution or answer, but I'm assuming Justice Kennedy doesn't think that "high-quality discourse plus majority vote" should put the Court out of the judicial-review business.  So . . . what is he saying, exactly? 

Posted by Rick Garnett on October 4, 2013 at 01:38 PM in Rick Garnett | Permalink


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There is no set number here, obviously, but the general idea that we should try to resolve disputes outside of court is true enough in normal litigation and is also so in disputes that reach the USSC. In neither case does it mean that stuff won't be decided.

His overall point is not just "playing the the crowd," but a good ideal to promote, even if he at times doesn't show enough restraint when cases come to him.

Posted by: Joe | Oct 7, 2013 10:12:44 AM

A judge deciding Congress has acted unconstitutionally is not at all the same as, or inconsistent with, that same judge commenting that he and his colleagues are asked to answer that question far more often than he personally might prefer.

I am surprised to find myself sympathetic to Supreme Court justices' sensitivities to speaking in public, particularly when almost anything they might say is used later to try and nail them to the wall.

Posted by: guest | Oct 5, 2013 4:19:03 PM

Yet another irony here is that the Supreme Court has a discretionary docket. They choose to decide these big political issues instead of devoting their time to resolving circuit splits on boring (to them) legal issues in tax and procedure.

Posted by: Eric Rasmusen | Oct 5, 2013 11:18:52 AM

BTW, in this same talk, Kennedy said law reviews are helpful and professor blogs are invaluable. So there's a lot in this talk to make you go "huh?".

Posted by: Howard Wasserman | Oct 4, 2013 7:51:04 PM

It is a little difficult to understand what he means. I suppose it could be the fault of the journalist.

Or maybe he meant that if politicians started to make decisions after a rational, respectful discourse the SC would defer more to their decisions.

Posted by: Jr | Oct 4, 2013 5:00:16 PM

Rick: Your instinct is right--he is not saying anything meaningful, just playing to the crowd (and the press he knows is covering the crowd).

There is no correct amount of judicial review--there either is judicial review or not. There is always going to be a loser in those discussions and votes. Either that loser can turn to the courts--in which case those nine unelected judges must decide the issue--or the loser cannot turn to the courts--in which case the nine unelected judges are not deciding the issue, but we no longer have judicial review.

It's ironic, of course, because Kennedy has been running around joining various (sometimes moving) majorities in striking down a lot of federal and state laws--in other words, finally deciding important issues. So he is saying it has been a mistake for the public to allow him to do what he's spent the last 25 years doing. Actually, a lot of people might agree with that last statement.

Posted by: Howard Wasserman | Oct 4, 2013 4:05:27 PM

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