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Thursday, June 10, 2021

Whatever "the immediate political moment" is, Ignore It

Allow me to register a mild dissent to part of Howard's post below, in which he complains that the sudden last-minute issuance of opinions threatens to "overwhelm[ ] those whose job it is to parse, understand, and critique the Court's work in the immediate political moment," and notes that "scholars also do and should provide immediate comment and critique and that is impossible when every day produces multiple major decisions." I disagree on a number of counts.

I can understand an argument that the Court, like the other branches of government, in some sense serves and in many senses should be aware of the public. And I can understand an argument that the Court, in doing so, is likely to deal with intermediaries, since most of the public neither reads nor necessarily understands or even cares about individual legal opinions. But neither of those things require the Court, or any court, to try to assist specifically in "understanding" any particular opinion's role or significance "in the immediate political moment."

I doubt, frankly, that one's understanding of a judicial ruling is generally assisted by focusing on "the immediate political moment," since it is precisely an obsession with the "immediate political moment" that has the almost inevitable tendency to wreck judgment, supercharge motivated reasoning and partisan interpretation, and turn the minds of even (or especially) the best and brightest to jelly. But even for those who enjoy thinking about judicial opinions and other events in the "immediate political moment"--and I do think "enjoy" is the right word, since it is as much a hobby as a sign of any real engagement--it is not the Court's job institutionally to facilitate such efforts. It is its job to facilitate the issuance of opinions and their distribution to the public, full stop. The fact that an industry has sprung up around trying to read and opine on opinions within minutes of their issuance is true and unfortunate. But it's not one the Court ought to pay much attention to.

Nor do I agree that scholars "should" provide immediate comment and critique. The second word, critique, certainly not. The more immediate it is, the less scholarly it is likely to be and the less likely it is to draw on anything like the actual skills or capacities of scholars. Even "comment" is dubious. (And both are highly dubious, if one means comment or critique in the context of "the immediate political moment," a matter on which legal scholars have no specific expertise and which is as likely to skew their thinking as it is anyone else's.) The job of the scholar qua scholar is to provide scholarship--which generally takes time, care, and attention. Legal scholars--like lawyers, bricklayers, or anyone else--can provide immediate comment and critique. They are often asked to do so. They have lots of individual incentives to do so: they get on TV, they get well-known, they get to push particular narratives, and, for those who are politically engaged, they get to maintain the feeling, however illusory or self-serving, that they have influence or importance or engagement on public issues. They are also aware that their institutions, from deans to law school PR offices to main campus, love it when their school's name gets publicity as a repository, not of experts as such, but of experts who delight in particular in speaking to the press. But none of this is their job as such.

I doubt they do it particularly well, and I doubt that the ones who do so most eagerly are the ones who do it best or in the most scholarly fashion. I would be happy if it were otherwise. It would be nice if the scholars who spoke most often to the press emphasized the most boring but crucial details, rejected stupid or overheated interview questions and simply refused to play along with those lines of questioning, pointed out when they had not finished reading various opinions or stated that it was too soon to have a useful opinion about a newly issued one, openly emphasized the role of their own political views in influencing their commentary and warned readers or viewers that this surely affects the reliability of their commentary, and foregrounded the utter unknowability of longer-term implications. But there is a label for such scholars: "people who don't get called a second time." The media environment, especially in the immediate political moment and given the brevity and immediacy of the news cycle and the economics of current journalism, is not well-suited for scholarly commentary on judicial opinions. On the whole, I would rather they either did it absolutely right or didn't do it at all. But whatever choice they may make on these matters, none of it is their job qua scholars.   

None of this, of course, is to say that the Supreme Court should issue tons of opinions on the last day or week of the Term, or that they should ignore the role of intermediary institutions in distributing their opinions to the public. On the latter point, a far more useful response would be something like that of the Supreme Court of Canada, which (at least during some portions of the post-1982 years; I have no idea what the current status or approach of the Court is) has an Executive Legal Officer, whose job it is to give a careful, no-spin explanation of rulings on the day they are issued. Such an approach, which allows the Court to explain rulings (off the record and on an embargoed basis) to journalists before they are issued, would be elitist, have a somewhat undemocratic air, and be preferable to the likes of reporters--or "scholars"--rushing out to announce something based on a sentence or two that they have glimpsed on the last page of a lengthy opinion.

On the first point, it seems to me that instead of focus on, if you will pardon the repetition, the immediate political moment, we might think in a longer-term and more institutional fashion. Basing the size of the Court on last Term's opinions or those of the last several Terms is a lousy way to think about Supreme Court reform, and I would say the same about this. Institutionally, the scramble to get out opinions before the end of Term is embarrassing--no more embarrassing than much of what the other two branches do, but embarrassing just the same. I would much rather see them adopt a strict policy of issuing no more than two or three opinions on a given day, and to see them do so every day of a week during the last month of a Term rather than cramming everything into a few issuance days. I would, for that matter, be perfectly happy if they sat from the first Monday in October through the following first Monday in October. I'm sure there are some good reasons that the Court's calendar year is the same as that of academics and other school-teachers. But there are many bad ones. If the institution would be better served by the justices sitting longer, issuing opinions throughout the year, and having to give a miss to Aspen or Runnymede or Salzburg, I for one am willing to accept that sacrifice. They are already well compensated in pay and honor for what they do. Surely they can do it all year. 

A last word: I agree with Howard that Justice Breyer ought to retire. There is an excellent reason for it: He is 82 years old, serves in a federal government that is already far too much of a gerontocracy, and has served what is already an ample--indeed, excessive--tenure on the Court. I see no convincing reason why any Justice of the Supreme Court should serve longer than 20 or 25 years or past the age of 70. On this score, however, the last Justice to show any good behavior was Justice Souter, who understood that there are other things in life besides serving on the Court. More of his former colleagues should emulate him, instead of engaging in the awful competition to break records for length of tenure. These are excellent reasons to retire from public office, and they apply to a number of recent and current Justices and elected officials. I think they are more important than the immediate political moment. But one may take that view with a grain of salt, since, like most of my colleagues in the legal academy, I have no special expertise on that--whatever it is.     

Posted by Paul Horwitz on June 10, 2021 at 03:45 PM in Paul Horwitz | Permalink


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