Saturday, March 11, 2006

Debate Leads to More Law, Less Politics?

This article by Terry Eastland ends with the following interesting comment on the effect CJ Roberts is having on the Court:

"The other day Justice Breyer told an Alabama audience that the justices discuss cases more under Roberts than they did under Rehnquist. Roberts is surely responsible for that, and it marks an important change.

Justices Stevens and Scalia have both complained over the years about the conferences held on the Fridays of weeks with oral arguments. It is then that the justices at least tentatively decide cases, and yet under Rehnquist the justices typically did little more than declare their votes. For Roberts to invite discussion means that Roberts himself has to come to the conference table fully prepared. That's not hard to imagine. But the other justices have to come prepared as well, or risk embarrassment.

Over time, the Roberts effect may produce not only larger majorities and more stable rulings but also a Court that, thanks to conferences that really are conferences, pays more attention to working out the relevant law and less to mere politics. The distinction between law and politics is, of course, precisely what Roberts (and Samuel Alito) insisted upon during their confirmation hearings, and it lies at the heart of judicial conservatism. The prospect of the continuing advancement of that philosophy is a happy one, and a reason to say hail to this particular chief."


Sarah Kohrs said...

This is an encouragement! Perhaps people will have more faith in reasoned argument leading to truth if the judges actually take the time to reason instead of just voting their initial intuitions. It will be interesting to track the opinions after this shift on the court. Or perhaps I remain a starry-eyed idealist.

Andreas said...


When I (with class) met with JR, I asked him if he was making any changes procedurally "to help the court better fulfil its mission". He thought, and said no...maybe he doesnt see this as significant, but I share your hopes for a more stable court.

D said...

Having read only the posted excerpt, I see two flaws with the author's reasoning--or rather two instances where there is no reasoning. Also, I have a question for Sarah.

First, I don't see any support for the proposition that more case discussion means more law and less politics (assuming that distinction is even tenable). There is nothing magical about a conference discussion that necessarily changes the basis for individual justices' reasoning.

Second, I'm not sure why he says that "the other justices have to come prepared as well, or risk embarrassment." The justices enjoy life tenure. Why would a justice feel any more compelled to take part in the conference discussion than, for example, in the oral argument? And at the risk of pointing out the obvious, if the justices were concerned about embarrassment, the Court wouldn't issue opinions like Bush v. Gore.

Maybe other sections of the article explain these gaps in reasoning.

Lastly, Sarah--what makes you so sure that under the current (or recent past) procedure, the justices don't/didn't engage in reasoned judgment, rather than "just voting on their initial intuitions"? Different justices employ different methods for wrapping their brains around a case, including lengthy, in depth discussion with law clerks. We have no way of knowing what role "initial intuitions" have in the justices' decision making process, nor can we know (unless they tell us) if those intuitions will play a lesser/different role when the process involves more substantive conference discussions.

-Dave Lane

Andreas said...

Aave, holy s--- man, its a comment not an argument. take it at face value, you can disagree but you dont need to deconstruct it.

Your whole post is flawed.

Sarah Kohrs said...

You're right that my underlying assumption is that discussion of an issue brings out more facets and perspectives than just one person (even a very smart one!) attempting to see as many sides as he can himself. I think I'm going to stick with that assumption, since it seems true to me, and say that most people don't try to reason themselves out of their gut instincts, but rather to use reason to support those very instincts. Especially since on the court right now there are individuals with very diffferent idealogical bents, I think the justices would be forced to confront views opposing their own if they discuss things among themselves. I guess I don't expect Scalia to fully formulate Ginsburg's arguments as cogently or persuasively as she would herself. Or vice versa.

The point about the law clerks is also a good one, since this initially seems a way to get the benefit of different perspectives that I initially assumed was lacking if the justices don't discuss among themselves. Perhaps this would be sufficient, but I have doubts about whether there would be true differences among one particular justice's clerks. I wonder how much they share, idealogically, with the justice himself if they are clerking for him, and would assume there must be some level of like-mindedness between them. Perhaps this is an erroneous assumption; I'm not really sure! It was just my initial thought about the matter. I'm happy to discuss further! :-)

D said...


I believe that an intention of the folks who run this blog is to provoke interesting discussion. That's why I read it, and I enjoy taking part.


I think we agree, at least broadly speaking--more discussion of cases among the justices is a good thing.

-Dave Lane

Andreas said...

Fair enough Dave, just this didnt seem like the most appropriate opportunity to do so. Again, we are talking about an obervation about the court and what is oviously just a hypothesis thereon. I dont think there is any attempt to "make a case" regarding its accuracy, thus no reason to discredit it.

Shelby Reitz said...

This is an encouraging sign. As a mere 1L, I've already read quite a few opinions where it seems that the majority and the dissent are missing each others' points. In others, both have gaps in logic that make neither argument appealing. Maybe more discourse would reduce these problems.

As for the justices being prepared to discuss, even people with lifetime tenure have dignity and egos. No one wants to be the guy who doesn't know what he's talking about. Peer pressure is a powerful incentive, even if there are no formal penalties for being unprepared.

Charles Iragui said...

A thought:

If there is discussion, it might mean that there will be consensus or it might mean there will be synthesis. The former is getting everyone to agree, by persuasion, by intimidation or by compromise. The latter is the elimination of weak thinking in favor of strong.

In either case, it would seem likely that Roberts is well equipped to deliver a more united court. He is acknowledged to be a gifted psychologist, debater and constitutional thinker (though not a theoretician). He will probably dominate these proceedings.


On the issue of politics/law, can one not turn to Marbury for guidance? Marshall set out just this distinction. I believe Eastland has this divide in mind and looks forward to what Roberts promised: restrained jurisprudence. The line between law and politics may well be difficult to determine and lead to honest differences, but aren't these certainly two distinct concepts?

I would go back to the Judge Friendly post earlier (re Roe) to see the possible enormous impact on politics of this restrained view of juridical application of Law. True crisis in judicial power (eg Cherokee Case) involves defying its decisions. Bush v Gore offered such a possibility and the country owes Al Gore eternal gratitude for submitting to the judgment, and with such good form (maybe the best speech he'll ever give, and as a veteran of Gore '88 I heard many too many).


Sorry, I agree with Dave. So long as it's not ad hominem...