The Federal Circuit’s December 7, 2009 hearing of oral argument in Ariad v. Lilly has generated significant interest among those who follow patent policy. An en banc decision is expected within the next few months.
The dispute arises from the interpretation of 35 U.S.C. § 112, which states in relevant part:
|The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same . . . .|
All agree that this language includes an “enablement” rule, which requires that the specification enable a person having ordinary skill in the art (PHOSITA) to make and use the invention. More controversial is the phrase “written description of the invention” and whether that phrase entails a separate requirement apart from enabling the PHOSITA to make and use the invention. It appears that academics are split on the question, and most practitioners appear to disfavor a separate requirement.
This Essay briefly describes the dispute and then raises an important but previously undertheorized argument in favor of a separate written description requirement.
The judge-umpire analogy has become “accepted as a kind of shorthand for judicial ‘best practices’” in describing the role of a Supreme Court Justice. However, the analogy suffers from three fundamental flaws. First, courts historically aimed the judge-umpire analogy at trial judges. Second, courts intended the judge-umpire analogy as an illustrative foil to be rejected because of the umpire’s passivity. Third, the analogy inaccurately describes the contemporary role of the modern Supreme Court Justice. Nevertheless, no workable substitute for the judge-umpire analogy has been advanced. This Essay proposes that the appropriate analog for a Justice of the Supreme Court is not an umpire, but the Commissioner of Major League Baseball.
I. Introduction: The Need for “Political” Analysis
My participation in the excellent conference on case selection in the Supreme Court was surely based neither on my experience lawyering before the Court, nor on my systematic study of the case selection process as a methodologically sophisticated political scientist. That being said, I have studied and written about the Supreme Court, and I believe that I do have something to contribute to the discussion—I believe that the discussions tended to ignore a particular eight-hundred-pound elephant, which can basically be described as “politics.” There is, I believe, no “neutral” vantage point from which to assess the Court’s decisions as to how many cases it takes and, of course, which particular cases it chooses to hear. Instead, perspectives will inevitably reflect a series of political viewpoints. I should note that “political” in this context is not necessarily synonymous with Democrat or Republican (though on occasion it might be); rather, it refers to the answers one gives to some rather basic questions about how our political institutions should be organized.
The statistics are striking. While the number of merits cases has roughly declined by one half during the past three decades, the influence of the expert Supreme Court bar over the plenary docket during this same time period has increased approximately tenfold; expert practitioners now represent the successful petitioner at the jurisdictional stage in more than fifty percent of the cases. What is the basis of this measurement? I examined the petitions granted plenary review in several Supreme Court Terms, ranging back to October Term 1980 and extending to the most recently completed October Term 2008. I deliberately eliminated from consideration cases in which the Solicitor General was the petitioner or one of the petitioners because her influence is well established. And, I chose a fairly tough measure of what it means to be an “expert Supreme Court advocate”: an attorney either has to have presented at least five oral arguments before the Court or be affiliated with a practice whose current members have argued at least ten cases. Based on this measure, expert Supreme Court advocates were responsible for 5.8% (6 of 102 cases) of the petitions granted plenary review during October Term 1980. By October Term 2000, that same percentage had increased to 25% (seventeen of sixty-eight cases) and has steadily increased since—36% in October Term 2005 and 44% in October Term 2006—to boast more than 50% of the Court’s docket during both the most recently completed October Terms 2007 (53.8%) and 2008 (55.5%). I do not doubt that there is some inexactitude at the margins in counting cases and oral arguments and comparing Supreme Court Terms, but these trends are beyond marginal. They reflect a shift of an order of magnitude.
Why should we worry? Good advocacy is not a bad thing, of course, and it should not be especially surprising to discover that those who are more experienced advocates before the Court are especially successful in persuading the Court to grant their certiorari petitions. What is worrisome is the potential for an undesirable skewing in the content of the Court’s docket. The public should expect that the Court will devote its limited resources to address the legal issues that are truly the most important for the nation rather than those legal issues important to those who can secure representation of their interests by the Supreme Court bar.
II. The Environmental Law Cases of October Term 2008
It is not numbers alone that strongly suggest that the private Supreme Court bar is increasingly capturing the Court’s docket. A look at the cases themselves reinforces that suggestion. As described further below, the Court regularly grants cases at the urging of leading members of the private sector Supreme Court bar that are marginally certiorari worthy at best, at a time when the rates of granting certiorari are otherwise rapidly declining. No one may be more skilled in this respect right now than Sidley Austin’s Supreme Court practice, as underscored by the extraordinary number of cases arising under the Federal Employer Liability Act in which the firm has obtained High Court review on behalf of railroad clients.
Especially illustrative are the environmental cases from October Term 2008. For the first time, a series of industry clients last Term turned repeatedly to the expert Supreme Court bar for assistance in a host of cases arising under federal pollution control laws. The result was palpable and formed the basis of the best Term that industry has ever enjoyed before the Court in environmental cases.
The Court granted review in four cases that, absent the involvement of expert practitioners, would not have seemed to have had a remote chance of review. Two were Clean Water Act cases (Entergy Corp. v. Riverkeeper, Inc. and Coeur Alaska, Inc. v. Southeast Alaska Conservation Council) in which industry parties were merely intervenors in the lower courts and the federal agency that had lost the case declined to petition on its own and opposed Supreme Court review. Such federal opposition is almost always the death knell of a petition. If the Solicitor General is advising the Court that the federal agency that lost below is not seeking review that tends to end the matter. In one of those cases (Entergy), not only was there no circuit court conflict, but the lower court ruling was the first court of appeals ever to construe statutory language that has been on the books for more than thirty-six years. The third and fourth cases, Burlington Northern & San Francisco Railroad v. United States and Shell Oil v. United States, both arose under the federal Superfund law and raised legal issues of diminishing practical significance the Court declined to hear for decades. Not only is Superfund a retrospective liability law that has naturally dissipated in its application over time, but Congress has declined since 1995 to reauthorize the federal tax that funds the Act, so resources for the law’s administration have been running out ever since.
In all four cases, a high-profile member of the private Supreme Court bar served as lead counsel for industry petitioners: Maureen Mahoney in Entergy and Burlington Northern, Ted Olson in Coeur Alaska, Inc., and Kathleen Sullivan in Shell Oil. The bar’s coup de grâce last Term, however, was the Court’s denial of the Solicitor General’s petition in yet another Clean Water Act case, McWane, Inc. v. United States. McWane presented all the traditional criteria of a case warranting review—an express, deep, and wide conflict in the circuits regarding a legal issue of national importance; yet, the Court denied review after Ted Olson’s partner at Gibson Dunn, Miguel Estrada, filed an especially skillful brief in opposition to the government’s petition. There is hardly anything in Supreme Court advocacy as difficult as obtaining plenary review, but defeating a Solicitor General’s petition runs a close second. The Court grants the Solicitor General’s petitions for writ of certiorari about seventy percent of the time compared to between three and four percent for others.
III. The Susceptibility to Capture of the Court’s Jurisdictional Decisionmaking
Some might respond that even if the Court’s plenary docket has been captured, this is not the result of a hostile takeover. Any such development, it could be contended, results from the predilections of business-friendly members of the Court rather than the heightened skills of the advocates. Such an assessment, however, would both overestimate the role Justices play at the jurisdictional stage and underestimate the influence of the advocates. To be sure, the Justices—and not the advocates—are the ones with the votes necessary to grant certiorari. But the Justices are far more dependent on the skills of the advocates than is routinely appreciated.
Even with the introduction of the “cert” pool, neither the Justices nor their clerks can in fact spend significant time evaluating the certiorari worthiness of the literally thousands of petitions that must be reviewed. Once one subtracts the significant time necessary to decide increasingly complex merits cases and the other activities of a Justice these days, the clerks can spend on average only minutes for each cert pool memo, or at most a few hours for a handful. The Justices have, in theory, at most only a few minutes to review a petition and may in fact never read the petitions themselves. The Justices instead delegate the task to their law clerks—inexperienced recent law school graduates who lack both the requisite background and time necessary to consider the competing legal arguments on the merits, and to evaluate in a truly informed and independent manner the petitioner’s claims of circuit conflict and practical importance.
The upshot is a huge tactical advantage for those attorneys who know best how to pitch their cases to the law clerks. The expert attorneys know the trends in the Court’s recent precedent and the predilections of each individual Justice as evidenced in recent oral argument transcripts, speeches, and writings. Having once served as Supreme Court clerks themselves, the experts are also well versed in the generic limitations, susceptibilities, and tendencies of the clerks.
Their expertise extends to the securing of multiple amicus briefs at the jurisdictional stage in support of their request for the Court’s plenary review. They appreciate how amicus support substantiates their assertions regarding the importance of the legal issues proffered for review. And they have the professional connections with other members of the Supreme Court bar and the economic clout to generate the necessary amicus submissions. If news article and op-ed columns contemporaneous to the Court’s jurisdictional determination might be helpful, they can and will obtain them.
The expert advocates also invariably enjoy an advantage by dint of their sheer celebrity, at least within the confines of One First Street, N.E. The clerks know of the outstanding reputation of these expert advocates for working on important Supreme Court cases. Many of the clerks hope to and do in fact work for these experts’ law firms immediately or soon after their clerkships. And, for no reason more than the appearance of the name of the advocate on the cover of the brief, their petitions will receive more attention and respect. This is not an incidental advantage. In the barrage of petitions under review, visibility alone can make all the difference at the jurisdictional stage, especially when buttressed by multiple amicus briefs supporting plenary review.
The effect is twofold. Not only are the expert Supreme Court counsel able to make their petitions seem more compelling, but they are simultaneously able to make petitions filed by others less expert seem relatively weaker by comparison. The experts have, in practical effect, raised the bar for Supreme Court review through their outstanding presentations and significant amicus support.
IV. Reforming the Court’s Decisionmaking Process at the Jurisdictional Stage
The question is what, if anything, to do about the disproportionate influence the high Court bar increasingly has on the Court’s plenary docket. A full answer to that question, however, lies far beyond the purpose of this Essay, which seeks to initiate, and not end, the conversation. Nonetheless, I offer a few preliminary thoughts. First, part of the answer could, of course, be to improve the Supreme Court advocacy available to a wide range of interests beyond those who can afford to pay its market value. Mitigation already occurs to an extent as reflected in the private bar’s willingness to offer pro bono services, the development of expert solicitors general in many states, and the recent emergence of Supreme Court clinics in several of the nation’s leading law schools.
But, such mitigating efforts fall far short of filling the gap between those who have access to the resources of the expert Supreme Court bar and those who do not. Much of the private law firm pro bono effort occurs at the merits stage rather than at the certiorari stage and there are many subject matters (e.g., environmental, employment discrimination) that the private bar, because of conflicts with paying clients, will not take up, including when they oversee the law school Supreme Court clinics. It is undeniably a positive development to have the states represented more effectively than in the past, but they too are limited in their perspective and, for instance, may deepen rather than reduce the advocacy gap existing in criminal cases. Finally, the Supreme Court clinics offer some promise, but law students even at schools like Harvard, Northwestern, Stanford, Texas, Virginia, and Yale are still just that: students.
The disproportionate influence that the expert Supreme Court bar exerts on the content of the Court’s plenary docket is the problem, not solved by which cases the bar takes—business or public interest—but by the Court itself asserting more control. For this reason, I expect the fuller solution to the docket capture problem will be found, by analogy, to the kinds of structural reforms that have been made in administrative agencies to reduce the risk of agency capture.
As applied to the Court, such reforms would require changes in the Court’s internal decisionmaking process at the cert stage. The place to start is questioning the existing cert pool as the primary basis for evaluating which cases warrant plenary review. As currently structured, the law clerks lack the time, experience, and resources at the jurisdictional stage to evaluate in a meaningful way the claims made by expert counsel or to make up for the deficits of below-par counsel.
At the Yale Law School Supreme Court Advocacy Clinic Conference on the Court’s case selection process, speakers and audience participants suggested several preliminary ideas. One modest recommendation would be to replace the existing single cert pool with two competing cert pools, thereby increasing the number of clerks who provide a petition with a close review. Another would be the introduction of a two-step process to jurisdictional review in which the clerks would first identify potentially cert-worthy cases and then next examine that smaller subset of petitions more closely prior to recommending in favor of certiorari.
A more ambitious reform would be for the Justices to be more willing at the jurisdictional stage to seek input from those outside the Court who are knowledgeable about the issues raised by a pending petition. The Court currently seeks such input several times a year on pending petitions, but exclusively from the Solicitor General by way of formal orders inviting the Solicitor General to express the views of the United States on a pending petition. The Court could make similar requests from other knowledgeable organizations as a method of ensuring the wisdom of the Court’s jurisdictional determinations.
An even more dramatic structural reform would be the addition to the Court of an office of seasoned, career lawyers akin in skills to assistants to the Solicitor General; the attorneys in such an office would assist the Court at the jurisdictional stage in assessing the worthiness of cases for judicial review, by both questioning the exaggerated claims of some advocates and making up for the deficiencies of other advocates. Whatever the best approach, it is increasingly likely that the current potential for capture of the Court’s docket is a significant problem that warrants the Court’s attention.
Richard J. Lazarus is the Professor of Law, Georgetown University Law Center & Faculty Director, Georgetown University Supreme Court Institute. This paper was based on a talk delivered at the Yale Law School Supreme Court Advocacy Clinic and The Yale Law Journal Online Conference on Important Questions of Federal Law: Assessing the Supreme Court’s Case Selection Process, held in Washington, D.C., on September 18, 2009.
Preferred Citation: Richard J. Lazarus, Docket Capture at the High Court, 119 Yale L.J. Online 89 (2009), available at http://yalelawjournal.org/2010/01/24/lazarus.html.
I. Searching for Dragons to Slay
The contraction of the Supreme Court’s docket over the last eighty years has been abundantly documented. In the last decade, the Court’s docket has shrunk to an average of seventy-three cases per term, down from a high of around 230 cases in the 1930s and about 150 cases as recently as the 1980s. Simply to point out the phenomenon, however, is not to condemn it, or at least, not to condemn it effectively. Our nation and our laws have both changed markedly since the days when the Supreme Court could hear a sizeable portion of all cases where its review was sought. There are four principal reasons to think that the shrunken state of the contemporary Supreme Court’s docket is no cause for alarm.
First, when the Court takes a big case, it accepts a big risk. The dangers of deciding are often vastly greater than the dangers of letting the political branches and the lower courts wrestle a question through. When the Court overreaches or otherwise errs, the impact of its errors is felt throughout the land. It is preferable, however, that the impacts of judicial mistakes be limited and localized. The Court itself understands that the fewer cases it accepts, the fewer opportunities there are for mistakes that cannot be easily corrected. This is particularly true in constitutional adjudication, where even profound errors are beyond the capacity of the elected branches to rectify.
In many circumstances, therefore, deciding not to decide shows the Court at its statesmanlike best. But the Court, of course, is capable of leading constructively—if, that is, it has the time. For this reason, a highly selective docket is not only acceptable, but desirable. In superintending the vast enterprise of judicial business falling within its jurisdiction, the Court must have the time to take into account the entire picture of federal litigation, and the ability to understand the full range of consequences that its rulings are likely to bring. However, an overloaded docket will transform the Court into a harried and reactive institution at the worst possible time. The possibilities of unanticipated effects are so huge in this complex and interconnected society that a judicial body needs nothing so much as it needs reflection time.
Some commentators seem to believe that the Court should be hearing more cases simply to busy itself. They imply that the Justices are underworked, pointing to the Court’s talented clerks and three-month-long summer vacation. In fact, Chief Justice Roberts once remarked that “only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” Former judge Kenneth Starr adds a philosophical twist to these complaints, arguing that the Court should hear more cases because the discipline and time required to do so would discourage what he sees as a pattern of judicial activism.
These criticisms misunderstand the Supreme Court’s job. The Court is not a gerbil on a treadmill, deciding cases just to keep itself occupied. Larding its docket with busywork would increase the temptation for the Court to cut corners on its most essential and important tasks. Moreover, I am confident that if the Justices are inclined to legislate from the bench, their inclinations will find an outlet, no matter how many cases they have to decide.
Second, the Supreme Court is not failing to decide cases where its intervention is needed. Perhaps the most common complaint is that the Court should be resolving more lower court conflicts. Although it is true that the Court does not resolve all circuit splits, problems of disuniformity are very much overstated. Circuit splits are often more apparent than real, and at any rate, the world will not end because a few circuit splits are left unresolved. The argument that circuit splits should lead to more prolific Supreme Court review may seem appealing in the abstract, but it breaks down when proponents are asked to inventory the actual burdens of such splits on litigants and the public. As Professor Amanda Frost points out, many circuit splits are relatively trivial and impose only minimal costs of compliance on multistate actors. Many others contribute fruitfully to the dialogic quality of federal law.
Often, too, it may be more appropriate for Congress, a democratic body, to resolve circuit splits through legislation. And even with a reduced docket, the most important circuit splits remain likely to be resolved by the Court itself. It is folly to think, however, that the pluralistic nature of American law either can or should be entirely eliminated. If that were the ideal, the large differences between the legal systems of the various states, and the inequalities and compliance costs that attach thereto, would not be countenanced. The benefits derived from regarding the states as experimental laboratories do not wholly disappear when the subject becomes one of federal law. Arriving at sound judgments often takes time, and a rush to uniformity will not invariably provide it.
Others assert that the Court should hear more cases filed by pro bono attorneys and fewer involving business interests or that access to the Court’s docket is unduly restricted to the Solicitor General’s Office and the Supreme Court bar. Yet it can hardly be claimed that litigants in this day and age are deprived of their day in court if their claims don’t make it all the way to One First Street. It bears remembrance that even when certiorari is denied, several tiers of courts have already addressed the litigant’s case. America may have many shortages, but litigation is not among them. And the problem of unequal access to courts lies on the ground floors of the judicial edifice, not the Supreme Court.
Still others, such as Senator Arlen Specter, claim that the Supreme Court ought to be deciding more hot-button cases touching on major political issues of the day. But sniffing out political questions is not the Court’s job. Its mandate is limited to resolving “cases and controversies.” In fact, the more dry and technical the controversy, the more the Supreme Court may appear to be acting like a court of law. Conversely, an overload of hot-button issues might diminish the public’s confidence that the Court is truly upholding the rule of law. In all events, it can hardly be contended that the Court’s present docket is devoid of molten issues. The 2008 Term featured such topics as: the global War on Terror; political activity by labor unions; broadcast indecency regulations; the ability to sue pharmaceutical and tobacco companies; a post-conviction right to DNA evidence; and the Voting Rights Act. Two Supreme Court cases—one dealing with affirmative action and the other with strip-searching schoolchildren—themselves received a substantial measure of public attention, and even the treatment of creditors in Chrysler’s bankruptcy proceedings made a cameo appearance on the Court’s docket.
Third, the public clamor for Supreme Court docket reform is simply not present. Granted, the topic is not one likely to fire the public imagination, but it is still worth noting that the clamor for reform comes primarily from elite appellate lawyers and distinguished academics. I intend no disparagement of Washington’s premier appellate practice groups in noting that an expanded Court docket is not detrimental to their business. And while academia serves a valued purpose in probing the weakness of the status quo, the burden remains on the reformers to show that more Supreme Court litigation is the answer to some pressing public need.
Why in fact is the public not best served on occasion by lowering the Court’s profile and trimming the pervasiveness of at least its constitutional presence? The center of action in America need not be always at the nation’s highest court. While litigants whose certiorari petitions are denied would no doubt like the Court to hear more cases, their gripe is not with process, but with outcomes. That sort of dissatisfaction, however, is insoluble: there is no reform that has ever been devised that can make both sides in an adversarial contest come out the winner.
Finally, even if the Supreme Court’s docket really is something we should be worried about, the situation can be counted upon to resolve itself. First of all, the courts of appeal are by and large in sync with the Supreme Court. As new appointments make their way onto the circuits, that harmony may or may not fray. If more circuit courts begin to diverge from the Supreme Court in their outlook, more petitions for certiorari will be granted. Furthermore, in recent years, Congress has passed fewer pieces of sweeping legislation, presenting fewer opportunities for the Court to intervene. Again, when the need arises, the Court can be counted upon to weigh in.
At the moment, the Court is evenly balanced in terms of ideology. Thus, the outcome on the merits once certiorari has been granted is not always easy to forecast. As a result, the Justices are sometimes said to engage in “defensive denial,” choosing to deny review rather than risk finding themselves in the minority once the case is decided. Moreover, the even division of the Court leads to fractured opinions, which take more time to compose, making it harder to hear other cases. If a clear ideological majority emerges, the Court may grant review more often. Thus, the reduced Supreme Court docket seems more the product of present conditions than a permanent state of affairs. It is difficult to understand why so many complain about a problem whose causes are cyclical and whose resolution by the Court itself seems so foreordained.
II. First, Do No Harm
Even if it were true that the Supreme Court is taking too few of the cases it should be taking, the solutions that are being urged by reformers would do more harm than good. Some critics have called for radical changes to the mechanism of Supreme Court review, proposing the creation of a separate body to select the Supreme Court’s docket for it. This “Certiorari Division” would be composed of circuit court judges and would be required to select at least eighty cases each term that the Supreme Court would be obliged to decide. Others have proposed expanding the Court’s docket by increasing the Court’s membership, using three-Justice panels to decide cases, and shortening the Justices’ summer vacations. These are all bad ideas.
First, the one result they can be counted upon to produce is more litigation, with all its attendant evils. Encouraging more Supreme Court litigation will undermine the interest of litigants in finality and the interest of the public in certainty, particularly if the Supreme Court is broken up into panels. An expanded docket will create incentives to file more certiorari petitions and amicus briefs—costing clients more money. Lawyers may like that, but it is hardly good for litigants or the public. More certiorari petitions also drain Supreme Court resources, compromising the Court’s ability to give full consideration to each individual case it hears.
Expanding the Court’s docket would exacerbate the Court’s already-existing scheduling difficulties. The most difficult and significant cases will continue to be pushed back to the end of the term, no matter how long or how short the Justices’ vacations are, and an expanded docket will subject more cases to end-of-term frenzy. More hurried decisionmaking is in no one’s interest. Even on the bedrock matter of clarity, a fractured Court or unclear opinion may leave the law murkier than it was before. And, of course, the passive virtues celebrated by Bickel have no place in the stampede to decision envisioned by reformers.
Second, such proposals would lead to further politicization of the judicial process. Appointments of circuit judges to the Certiorari Division, for example, would inevitably stoke the kind of overheated political agitation that already surrounds federal judicial operations. Furthermore, whatever benefit the Certiorari Division might have for the Supreme Court, it would have collateral costs for the courts of appeal. Circuit judges do not have time to pore over hundreds of certiorari petitions, and removing them from their normal caseloads for certiorari duty would leave fewer circuit judges available for their primary job of actually deciding cases. Moreover, the speculation that would surely arise over the judges’ potential motivations in granting or denying review would distract them from their circuit court duties. For one thing, court of appeals judges would be reviewing the work of their peers and friends, and that difficulty cannot be entirely resolved by removing judges from the review of cases in their home circuits.
A bit of history may be helpful here. Several decades back, many esteemed legal commentators floated the idea of creating a National Court of Appeals between the circuits and the Supreme Court to resolve circuit conflicts and to relieve the Supreme Court of some of the burden of its work. The idea captivated many in theory, but such practical problems as selecting judges to staff the court and delineating its jurisdiction were so numerous that I can hardly begin to scratch the surface. Because certiorari would still lie from the National Court of Appeals to the Supreme Court, the new court threatened to postpone the day of finality for everyone and to turn federal litigation into a parody of Jarndyce v. Jarndyce. So the National Court died the merciful death that every white elephant deserves. The Certiorari Division is but a muted variant of the old idea of overlayering judicial systems, and it should be rejected by those opposed to bloat in judiciaries as well as bureaucracies.
History sheds a different sort of light upon the practice of the certiorari pool. I recognize that, even with Justice Stevens and now Justice Alito outside the pool, it is still decried as placing too much responsibility in the hands of the law clerk preparing the pool memorandum. The time was, however, when the certiorari pool was hailed as a salutary innovation. Even the reduced number of petitions in the late ‘60s and early ‘70s threatened to burden the Justices substantially and to reduce the attention they could give to petitions and argued cases. The idea of the pool was to assure that most petitions had at least one hard look and that the Justices could supplement with their own internal study any cases about which they had a question. That basic concept still seems to me a sound one, and those who advocate doing away with something, such as the pool, would do well to remember the serious problem that led to its birth.
|Finally, and perhaps most importantly, tampering with the structure and operations of the Court is nothing less than playing with constitutional fire. While Congress undoubtedly has the power to regulate many aspects of the Court’s operations, the controversy over Franklin Roosevelt’s court-packing scheme showed that the power must be used sparingly and claims of benevolent reform should be viewed with deep suspicion. Congressional reform of Supreme Court structure sets a dangerous precedent that can be used to undermine judicial independence and the separation of powers in the future. Establishing a separate Certiorari Division, expanding the Court’s membership, limiting the Justices’ terms, or breaking the Court up into three-Justice panels can serve as a divide-and-conquer strategy for dealing with a coequal branch of government, a strategy whose transparently partisan nature will not be diminished by being draped in the mantle of “reform.” The Constitution, after all, vests the judicial power in “in one Supreme Court.” It is the legislative branch, not the judicial, that the Constitution breaks in two. And yet panels, Certiorari Divisions, and the like would do exactly that.|
The administration of justice is a complicated matter. In the absence of clear evidence that things have run amok, we should remember that the perfect is the decided enemy of the good. After all, if we cannot trust the Supreme Court’s judgment in deciding what to decide, how can we trust its judgment in deciding what it has decided to decide? At some point, the reformers are simply going to have to let the Court be the Court.
Perhaps it is well to take a step back. I do not underestimate for a moment the Supreme Court’s timeless role in protecting individual liberties and the equal dignity of all citizens. Yet, in my respectful judgment, the judicial hand has also overreached. The great challenge for the Supreme Court is to demonstrate that a tribunal imbued with such vast and final powers can likewise exhibit a basic modesty and respect for the people and their many and varied representative institutions. It is that fundamental respect for the ability of other public and private actors to do their assigned jobs that is needed, and the docket tinkering does nothing—absolutely nothing—to ensure it. The reforms will lead, if anything, to aggrandizement and away from the truth Brandeis and Bickel sought to teach.
The Hon. J. Harvie Wilkinson III is a Judge of the United States Court of Appeals, Fourth Circuit.
Preferred Citation: J. Harvie Wilkinson III, If It Ain’t Broke . . ., 119 Yale L.J. Online 67 (2009), available at http://yalelawjournal.org/2010/01/07/wilkinson.html.
As the output of the Supreme Court shrinks, from about 150 cases per Term decided with full opinions in the mid-1980s to about seventy now, concern has grown over whether the Court is deciding too few cases and consequently leaving too many important cases and issues undecided. The extent to which the concern is justified, however, depends in part on what is meant by “important,” and in part on whether it is important that the Supreme Court decide important cases. If we distinguish publicly important from legally important cases, we see that the Court rarely takes on the former, nor has it done so to any appreciable extent since the 1930s. But as the Court’s docket shrinks, it is also deciding fewer legally important cases, a recent and unfortunate change from past practice.Moreover, and again in a shift from past practice, the Court is even less willing than in the past to provide legal guidance in the legally important cases it does take. This regrettable consequence is caused largely by an information deficit, for little in the Court’s current procedures is directed to giving the Court the information it needs to decide which cases are legally important and to know what kind of guidance the lower courts are likely to require.
I. The Strategic Importance of Unimportance
Is it important that the Supreme Court take on the important policy issues of our times? That the Court has traditionally done so is a commonplace, but whether the commonplace is true depends on how we phrase the question. Asking whether much of what the Supreme Court does is important is very different from asking whether much of what is important is done by the Supreme Court, and without knowing which we are asking, we cannot intelligently evaluate the Court’s case selection process.
The difference between how much of what the Court does is important and how much of what is important the Court does emerges upon even a casual glance at the daily newspapers. Although the Court has in recent years addressed important issues of gun control, campaign finance, burdens on interstate commerce, capital punishment, punitive damages, presidential power, detention of enemy combatants, sexual orientation, and religion in the public sphere, among many others, it has decided no cases determining the authority of a President to commit troops to combat outside of the United States, whether in Afghanistan, Iraq, Kosovo, or anywhere else. Although, of course, the Supreme Court’s structural and procedural decisions will have an indirect impact on the substance of policy, the Court has not directly decided cases involving health care policy, federal bailouts of banks and automobile manufacturers, climate change, the minimum wage, and the optimal rate of immigration. And nothing the Court has decided for years is even in the neighborhood of addressing questions involving mortgage defaults, executive compensation, interest rates, Israel and Palestine, the nuclear capabilities of Iran and North Korea, gasoline prices, and the creation of new jobs.
This list of issues the Supreme Court has not addressed was not, of course, chosen randomly. Rather, it is a list of the issues that dominate public and political discourse today, a list that might be surprising to some in terms of its distance from what the Supreme Court is actually doing. A few years ago I wrote about this gap between what the public cares about and the issues the Supreme Court engages, and updating the data three years later does not change the general picture. When asked in nonprompted fashion to name the most important issues facing the country, Americans overwhelmingly name health care and the economy first and second, and also identify as among the most important issues the wars in Iraq and Afghanistan, employment/jobs, education, and, more recently, immigration, an array of topics at the top of the “most important issues” poll that has varied little for the past eight years. In the most recent poll, from September 2009, health care was first, the economy second, employment/jobs third, budget/government spending fourth, and immigration fifth, then followed by education, the war, taxes, the environment, Iraq, homeland/domestic security, and regulation of banking and the financial services industry. Indeed, looked at more broadly, the 2009 list resembles those for much of the past three decades. Crime is occasionally more salient, as it was in the mid-1960s and mid-1990s, and the interrelated issues of pensions, retirement, and Social Security have often ranked high, but the most recent lists capture not only the long-standing importance of basic foreign policy and economic issues, but also the persistent nonappearance in the top ten (and usually even in the top twenty) of abortion, sexual orientation, race, gender, religion, free speech, and many of the other issues that represent the most salient part of the Supreme Court’s docket. In September 2009, for example, abortion ranked twenty-fourth, judicial and legal issues twenty-fifth, same sex rights twenty-eighth, crime and violence twenty-ninth, religion thirty-eighth, and gun rights forty-second.
When importance is measured by what the public and their elected representatives think is important, therefore, and by what the government actually works on, the Supreme Court’s docket seems surprisingly peripheral. That is not to say that what the Supreme Court does is not important. It is to say, however, that the Court’s actual business is less important to the public and to the public’s representatives than lawyers and law professors tend to believe. And it is hardly clear that there is anything wrong with this. By dealing either with low-controversy issues or with high-controversy, low-salience issues, and thus generally avoiding high-controversy, high-salience issues such as health care and the war in Afghanistan, the Court may possibly be attempting to retain that degree of public confidence and thus that quantum of empirical (or sociological) legitimacy that is necessary to secure at least grudging acquiescence in its most controversial decisions. We do not know the extent to which the Court’s avoidance of high-salience, high-controversy cases is deliberate, but whether deliberate or not it does seem plausible to hypothesize a relationship between the Court’s avoidance of these cases and the high esteem in which the Court continues to be held.
II. Measuring Legal Importance
It is one thing to recognize the strategic value of the Court’s avoidance of most of the publicly important issues, but quite another to see much value in Supreme Court avoidance of legally important issues—issues and question that are important in litigation and to lawyers and judges. Although even this claim requires further specification of what it means for an issue or case to be legally important, at least one measure would be the extent to which the issue frequently appears in lower court litigation. If that is the measure, however, then there is some evidence that the Supreme Court is little more inclined to take on legally important issues than to take on publicly important ones.
Limitations of space make it impossible in the present context to offer a full empirical analysis and support for this claim, but a few examples can suggest a hypothesis. Consider, therefore, the universe of litigation under the First Amendment’s Speech and Press Clauses. This is a large universe, especially in the federal courts, and a surprisingly large part of that universe is occupied by free speech issues arising in public employment and the public schools. The combination of these domains and their issues involving student and teacher speech, employee speech, organizational membership, and related topics is substantially larger than the quantity of lower court First Amendment cases dealing with the combination of obscenity and indecency, to say nothing of the even smaller domains of incitement, defamation, and the numerous other topics that dominate the casebooks. Yet although schools and public employee cases overwhelm the other categories of First Amendment litigation in the lower courts, the Supreme Court takes surprisingly few such cases. It has in roughly forty years taken only four cases involving speech in the public schools, two dealing directly with speech in colleges and universities, and eight that concern the free speech rights of various public employees. Although the quantity of litigation about speech in the schools and sexual speech is roughly the same (recognizing that there is some overlap), in the same period that the Supreme Court decided its four public school speech cases it decided at least thirty-seven dealing with obscenity, pornography, profanity, and indecency.
That the Supreme Court tends to take few cases in a number of high-litigation areas would be of less moment if the cases it did take were representative, and the decisions it issued useful in terms of providing guidance. But in fact neither of these occur. In Morse v. Frederick, for example, the “Bong Hits 4 Jesus” case, the Court, in deciding only its fourth student speech case ever and the first in more than a decade, took and decided a case that was highly unrepresentative of the student speech cases that bedevil the lower courts. And having taken the case, the majority issued an opinion that was so narrow, so case-specific, and so idiosyncratically about alleged encouragement of drug use as to provide virtually no guidance to the courts that have to deal with student speech issues.
Morse v. Frederick is hardly unusual. On a large number of issues of regulatory law, constitutional law, criminal procedure, and others, the Court’s cases have been similarly unrepresentative and its decisions similarly unhelpful. And thus if frequency of litigation in the lower courts combined with unanswered questions about the state of the law is some indication of legal, even if not political, importance, then the Court’s record of taking legally important cases is little stronger than its record of taking socially important cases, but with far less justification.
III. Information About Importance and the Importance of Information
When appellate courts make decisions, they engage in (at least) two tasks. First, they determine the outcome of the dispute between the actual parties to the litigation. And, second, they often set forth a rule that governs large numbers of other acts and events. In order to perform the latter task adequately, however, courts need to have some sense of the array of events that some putative rule, standard, policy, or test will control. The problem, however, is that courts find themselves suffering from a structural inability to obtain just that kind of information.
First, courts are of course not well situated to go out and actually research the field of potential application of some rule. Occasionally, one of the parties might do this in a brief, but it is rare, and even at the Supreme Court level amicus briefs seldom serve this function. None of the amicus briefs in Morse, for example, offered to tell the Supreme Court anything about the array of lower court litigation, and not even very much about the nonlitigated terrain that the Court’s decision would affect.
Second, everything we know about the availability heuristic and related phenomena tells us that a court attempting to craft a rule in the mental thrall of the particular case before it will likely assume, often inaccurately, that the case before it is representative of the larger field. And the fact that the court is obliged to decide that case as well as, often, to set forth a rule, or at least a precedent, means that the obligations to the case at hand may exacerbate the informational distorting effect.
Finally, and most importantly, the selection effect—the process by which cases with certain characteristics get to appellate courts and other cases with different characteristics do not—will almost certainly provide a serious distortion of information. Whenever the Supreme Court—or any court—sets forth a rule, standard, principle, test, or whatever, it creates the possibility of three different forms of behavior on the part of those governed by the rule. One is compliance, another is violation, and the third is what Gillian Hadfield has called “dropping out,” ceasing to engage in the behavior the rule seeks to regulate. So when the Court decided Miranda v. Arizona, for example, it created a world in which some police officers complied with Miranda by giving the required warnings before custodial interrogation, others violated by conducting custodial interrogations without giving warnings, and some stopped conducting custodial interrogations.
The selection problem arises, in part, because the courts will never see the dropout cases, and will rarely see the compliance cases. By seeing only the violations, therefore, they find themselves subject to a severe information distortion because they have not seen the cases of compliance and have not seen the dropouts. And insofar as this process is exacerbated as litigation ascends the appellate ladder, the Supreme Court, even taking into account the information provided by amicus briefs, the research done by the Justices and their clerks, and the fact that the Justices read the newspapers, will be at a severe informational disadvantage in deciding which cases to decide and how broadly or narrowly to decide them. Did the Court, when it granted certiorari in Morse, know how often student speech cases arise in the lower courts, and what kinds of cases they were? When the Court decided Morse on such idiosyncratic and narrow grounds, did it know what kinds of issues were arising in the cases below that it was not deciding? And, perhaps most importantly, did the Court know any of these things when it decided not to grant certiorari in numerous student speech cases in the almost two decades between Morse and its previous student speech cases? It is plausible that the answer to all of these questions is “no,” and plausible to suppose that the cause is a combination of structural informational disadvantage and psychological difficulty in seeing beyond the particular case and its particular parties and particular facts. More broadly, however, the problem may lie in the Court’s unwillingness to recognize fully the costs of nondecision. Judge Wilkinson applauds the Court for minimizing the number of cases it takes, arguing that such an approach reduces the “opportunities . . . for mistakes.” Such a view, however, assumes that Supreme Court mistakes are only mistakes of commission and not of omission. One way of understanding my argument in this Essay, therefore, is as a call to recognize that there can be errors of inaction as well as of action, and that it is an error to engage in a process of institutional design without taking into account the likelihood and harm of errors of mistaken inaction along with those of mistaken action.
IV. A Partial Solution?
There may not be an easy solution to this serious informational problem, but it is nevertheless the case that informational problems demand informational solutions. Putting aside important resource and resource allocation issues, we can ask whether the Supreme Court could create a process by which a few law clerks—a variation on the “cert pool”—did serious research for the use of all of the Justices about the frequency and nature of litigation below—not only for the cases in which certiorari was granted, but for the cases in which certiorari was seriously considered. Or could the Court demand such information from litigants and amici, either formally, or, more plausibly, informally, by signaling that petitions and briefs that did not contain a fair and comprehensive survey of the terrain of lower court litigation would be disfavored in the certiorari process? I do not know the answers to these questions, but they suggest that there are steps that might be taken or procedures that might be established to provide better information to the Court when it is deciding to grant or to deny certiorari, when it is deciding how broadly or narrowly to decide the cases it does take, and when the Justice writing for the majority decides how important it is, on the one hand, to write narrowly to keep the Court’s options open, or to write broadly in order to provide needed guidance, on the other. This information would go a long way towards making available the information the Court needs, or at least should need, in thinking about the legally important but publicly invisible issues it is neglecting to address, and in considering the actual nature of the legal and social terrain that will be affected by the rules it makes, the precedents it creates, the cases it decides, and the issues it ignores.
Frederick Schauer is the David and Mary Harrison Distinguished Professor of Law, University of Virginia. This Essay is based on remarks delivered at the Yale Law School Supreme Court Advocacy Clinic and The Yale Law Journal Online’s conference on “Assessing the Supreme Court’s Case Selection Process,” held at the National Press Club in Washington, D.C. on September 18, 2009. The author is grateful to Robert Blendon for assistance with poll results.
Preferred Citation: Frederick Schauer, Is It Important To Be Important?: Evaluating the Supreme Court’s Case-Selection Process, 119 YALE L.J. ONLINE 77 (2009), available at http://yalelawjournal.org/2009/12/09/schauer.html.
The Yale Law Journal Online is reissuing Elizabeth Pollman's Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech in light of recent developments at the Supreme Court.
With the Supreme Court hearing a new round of oral arguments in Citizens United v. Federal Election Commission, the Court appears poised to alter dramatically the landscape of corporate political speech law. The case concerns whether the government may limit a nonprofit political advocacy group from showing a film during election season when the film casts an electoral candidate in a negative light and is financed in part by corporate donations.
In The Constitutional Power To Interpret International Law, Michael Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, international law is “policy and politics.” For all the certainty with which his argument is advanced, however, it cannot survive close scrutiny. At its foundation, Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. The sources of law, meanwhile, are not singular, but plural. Even were international law not domestic law, it would still be law.
International law is “everywhere” in the United States: informing state CO2 emissions standards; providing inspiration for local civil rights codes; and overseeing the more than three trillion dollars in annual trade in goods, to name just a few examples. A reader of Professor Michael Stokes Paulsen’s essay, The Constitutional Power To Interpret International Law, might be forgiven for missing these important trends, because rather than focus on the ubiquity of international law and the myriad ways in which it has permeated U.S. legal, social, economic, and political life, Paulsen returns us to old arguments over whether international law is “law” or presents any binding restraints on domestic actors. This claim is based on a static, formalist approach to the foreign affairs Constitution that stands in contrast to the dynamic realities of transnational lawmaking today.
But for its contemporary particularities, Michael Stokes Paulsen’s essay The Constitutional Power To Interpret International Law would work comfortably as an excellent example of late-nineteenth-century legal scholarship, with all of its best and worst qualities. The piece makes for good reading; it is sweeping in scope, confident in tone, and certain of result. It is tightly argued in a self-contained order of doctrinal logics. Paulsen wears his ideology on his sleeve, not a bad thing. He is comfortable in the power of America’s constitutional faith, assuming that the United States can and should go it alone except to the extent that it serves the national interest. International law is never more than an option, he argues, and not a very appealing one at that. Paulsen believes that the Constitution should and will keep international law at bay.
A circuit split is in the making, and it could signal a shift with significant implications for federal arbitration law. Just eighteen months after the U.S. Supreme Court’s March 25, 2008 decision in the controversial case of Hall Street Associates v. Mattel, Inc., three circuits are already in ripe disagreement as to whether Hall Street abrogates the half-century old, judicially-created doctrine of “manifest disregard.”
Manifest disregard is a common-law exception to the limited grounds for vacatur of arbitral awards enumerated in the Federal Arbitration Act (FAA). This doctrine empowers courts to refuse to enforce awards that evince a “manifest disregard of the law,” understood to mean a willful defiance of clearly applicable law, not just garden-variety legal error. It has always been controversial for at least two reasons.
Four authors respond to Michael Stokes Paulsen's The Constitutional Power To Interpret International Law, printed in Volume 118, Issue 8 of the Journal. Robert Ahdieh, Julian Ku, Margaret McGuinness, and Peter Spiro contributed their reactions to, and critiques of, this Essay for YLJ Online.
Supreme Court nominee Judge Sonia Sotomayor was a member of the Yale Law School Class of 1979 and an editor of The Yale Law Journal. If confirmed by the U.S Senate, she would be the Court’s first Hispanic justice and its third woman. Judge Sotomayor would also join two other Yale Law School graduates currently on the Court—Justice Clarence Thomas ’74 and former Journal editor Justice Samuel Alito ’75.
While a member of the Journal, Judge Sotomayor published a student Note, Statehood and the Equal Footing Doctrine: The Case for Puerto Rican Seabed Rights.
Owen M. Fiss, Sterling Professor of Law at Yale Law School, tackled legal issues involved in the war on terror on March 5, 2009 at the 13th Annual John W. Hager Distinguished Lecture at The University of Tulsa College of Law.
The Pocket Part is pleased to present an adapted version of Professor Fiss's lecture, The Example of America. For an audio version of this piece read by the author please access the podcast here. On May 12, 2009, Professor Fiss published an article based on this piece in The Huffington Post, which can be accessed here.