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The Call for Supreme Court Reform

photograph of Supreme Court building facade

Representative Alexandria Ocasio-Cortez has called for reforms to the Supreme Court of the United States (SCOTUS), specifically increasing the number of justices. The reforms are needed, she says, because of the rightward tilt of decisions over the past year including Dobbs v. Jackson Women’s Health Organization (abortion) and 303 Creative LLC v. Elenis (public accommodations and discrimination). On CNN she claimed that if reforms do not occur, then SCOTUS will function “without any check on their power, without any balance on their power, then we will start to see an undemocratic and, frankly, dangerous authoritarian expansion of power in the Supreme Court.” The opinion pages of major journalistic outlets like The Washington Post include similar views decrying judicial behavior.

To assess the need for reform and effectiveness of potential solutions, we must first determine what it would mean to have a properly functioning judicial system. One way to evaluate our social and political institutions is through John Rawls’s constructivist lens presented in his seminal work A Theory of Justice (and elsewhere). Rather than starting with a specific (and contentious) ideal, we tie our conception of proper functioning to the product of particular processes. As Carla Bagnoli describes it, constructivism is a view that “insofar as there are normative truths, they are not fixed by normative facts that are independent of what rational agents would agree to under some specified conditions of choice.”

To make sense of this description I like to think about where constructivism fits into a picture of objectivity and subjectivity. At one end we have facts — statements such as “the cat is on the mat” — whose correctness is determined by a set of referents independent of any human observer. As long as there is a mat, there is a cat, and the two objects have the right kind of relationship, the statement is either correct or incorrect. This is a realist view in which there are objective truths to be discovered in the world. But moral, political, and legal decisions are different from such prosaic examples. So, some have argued that normative statements are mere matters of opinion, lack truth value, and may be little more than non-cognitive expressions of emotion like “SCOTUS decision — Boo!” or “SCOTUS decision — Huzzah!” In other words, there is no objective truth whatsoever to Rep. Ocasio-Cortez’s evaluative claim that SCOTUS is involved in “a dangerous creep toward authoritarianism.”

Constructivists attempt to locate themselves in between realist views and non-cognitivist views. In constructivist views, statements about morality, politics, and the law have independence from individual human beliefs and emotions, and thus they have a claim to being objective. But the truths in these normative domains are not discovered facts, as a realist would claim. The truths are created by a combination of the rules of the game which we construct, and the facts as they occur as we play the game.

What does this have to do with SCOTUS? Rawls makes a distinction between different types of games we can be playing in political arenas. The difference between these games is the nature of the procedures used to identify evaluative truths. One of these games involves imperfect procedures; another game uses pure procedures.

Imperfect procedures start with the assumption that there exists an independent criterion concerning what constitutes a correct answer, but that the practices available to an investigator do not guarantee that the correct answer will be identified. Rawls uses a jury trial as an example. Lawyers use the adversarial method to convince a jury of peers that the accused either is or is not legally guilty. But those who are watching often want a verdict to express not legal guilt but something more — namely did the accused actually act in a way that warrants a conviction or acquittal. As Rawls puts it, in a jury trial using the adversarial method, “[e]ven though the law is carefully followed, and the proceedings fairly and properly conducted, it may reach the wrong outcome.” The existence of the appeals procedure, and the work of organizations like The Innocence Project, suggests that the adversarial method does not guarantee the correct answers.

Alternatively, the major difference with a pure procedure is that a pure procedure does not assume the existence of an independent reality and criterion for what constitutes a correct answer. Instead, the procedure itself, when run, constructs the correct answer. An example of such procedures is a bracket procedure used in professional tennis tournaments. There is no answer to the question “who is the best women’s player at Wimbledon in 2023?” until the tournament is finished. Iga Swiatek may have been ranked number one in the world and the number-one seed at Wimbledon, but before the tournament finished, there was no answer to the question. Now that the tournament is over, we can answer the question: Markéta Vondroušová is the best women’s player at Wimbledon in 2023, despite being unseeded at the beginning of the tournament.

If we want to know whether SCOTUS or the other federal courts are functioning properly or in need of reform, we need to determine what type of procedure governs the practices of the courts and see whether SCOTUS is behaving in accordance with these conceptions. Begin with the following question: Is SCOTUS supposed to be operating in a manner consistent with imperfect procedural justice?

At first glance, that seems to be the case. Decisions made by SCOTUS are supposedly constrained by several independent criteria. First, the content of the U.S. Constitution, especially the Bill of Rights, is supposed to be an independent constraint on their rulings. SCOTUS can’t ignore issues of due process. SCOTUS and the legislative bodies have the ability to shape the nature of due process, but the Fifth Amendment requires that certain rules are followed. Next is the concept of standing which requires a plaintiff to have an interest that is violated, an “injury-in-fact.” This keeps the court from making decisions based on hypothetical cases of legal injury. There is also the concept of stare decisis, the idea that courts should honor precedent to create a predictable and consistent legal system (see here).

A Supreme Court justice that had this many constraints and attended to them should, as Chief Justice John Roberts stated in his confirmation hearing, see their “job as to call balls and strikes.” In other words, the role of a justice is to look at the facts of a case and consider the independent constraints of precedent, statutory laws, and constitutional laws, and merely make a judgment about the truth in the case.

Has SCOTUS lived within these constraints? Some have argued that the Plaintiff Lorie Smith did not have standing in 303 Creative LLC because a) no one asked her to make a website for a wedding between two people of the same sex, and b) no state agency invoked the Colorado Anti-Discrimination Act in legal action against her. She suffered no injury-in-fact. Further, given that Dobbs overturned an almost 50-year-old precedent in Roe v. Wade and SCOTUS overturned decades of precedent in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, there is reason to believe that the court is not abiding by stare decisis. Admittedly, stare decisis is not an absolute constraint, otherwise the ruling of Brown v. Board of Education would also be problematic. However, given the current willingness to claim that a previous case was wrongly decided despite being upheld by other decisions suggests it is currently no constraint at all.

Next, consider that Marbury v. Madison reinforced the concept of judicial review – the Court can invalidate laws and statutes considered inconsistent with the Constitution. Judicial review is effectively the power to interpret the prevailing legal institutions, especially the Constitution, to justify decisions. So, it is not simply the Constitution, but a justice’s interpretation of that document, that is operative in justifying SCOTUS decisions. Ultimately, a justice issues guidance as to the correct answer according to how their particular interpretive lens (originalism, contextualism, legal pragmatism, etc.) makes sense of the facts of the case. But that means the Constitution is not, by itself, an independent constraint on judicial decisions either.

In short, it is not clear that there are constraints on SCOTUS, so it looks like we should not see it as using imperfect procedures.

Does SCOTUS instead operate according to a pure procedure? It might seem so since we don’t really know the correct answer to a legal question until SCOTUS rules. The process of appealing a lower-court decision, SCOTUS hearing the case, and making a decision settles the matter. Pure. Procedure. So, on this view, SCOTUS in Dobbs, 303 Creative, etc., is functioning as it should, and the basis for criticizing the Roberts Court as radical, activist, illegitimate is questionable, as is the call for reform.

But it is important to note that SCOTUS is not like Wimbledon. Tennis tournaments have rules that are drawn up by one group of people, while another group of people act as judges during matches. The procedure — the bracket — then develops based on the actions of the players as overseen by the judges. This is decidedly different from how the Supreme Court currently operates. Between choosing judicial interpretive lens, interpreting the rules of standing, determining whether stare decisis should be honored, SCOTUS is fundamentally not like these sports tournaments. When a case comes before SCOTUS, the justices can act as both the umpires and the rules committee. They make choices about the relevant rules and their application after the legal competition has begun. In sports, all of these decisions are made and publicized prior to the first match. So, in very important ways, SCOTUS operates in a way that is not even consistent with a paradigm example of a pure procedure. In other words, these are not decisions created by a combination of the rules of the game which we construct, and the facts as they occur as we play the game. They are also constructed by those who are changing the rules as the game proceeds.

If we accept the above, then recent decisions show the Court is functioning as designed, but perhaps not functioning as we want. The decisions are not discovered by an imperfect procedure; they are not created by a pure procedure. Instead, they are the result of something else, such as expression of political power. So, what can be done? When evaluating institutions, Rawls would have us ask “is this how a group of rational individuals, unaware of their own biases or even personal characteristics, would design the rules of a judicial system?” If the answer is “No! This is not the design we want,” will increasing the number of judges fix the problem?  Unfortunately, increasing the number of justices, as Ocasio-Cortez suggests, will not make the court function properly — it will simply shift the balance of power. Instead, what is needed are enforceable constraints on the decisions of justices so that SCOTUS operates more like a sporting event and less like a pure exercise of political power.

 

The author would like to acknowledge the help of his colleague Dr. Dominic DeBrincat, Professor of History.

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On Judicial Philosophy: A Reflection on Judge Jackson’s Hearing

photograph of Ketanji Brown Jackson with law books behind

Judge Jackson’s recent confirmation hearing raises a variety of questions about the nature of judicial philosophy and what relationship it has with judicial “methodology.” In her opening statement, Judge Jackson outlines a three-step methodology to how she approaches each case: to clear her head, to examine the data, and to apply the relevant laws if it is her job. When pressed and questioned about what her philosophy is, she candidly maintained her judicial philosophy is her judicial methodology.

This has received a variety of attention. Some think her response is indicative of her defying being labeled by others. Others think she is required to give us her judicial philosophy, that her methodology is the bare minimum of what to expect from a judge. Indeed, some were analyzing and predicting what the judicial philosophy would be based on her previous remarks and experience.

While Judge Jackson’s response has been a highlight of Republican criticism, it would be rash to infer this question is pointless, a divisive tactic asked for the sake of moral grandstanding. It is worth addressing the nature of one’s judicial philosophy, its importance, and asking whether it is equivalent to a methodology.

Let us presume that a judicial philosophy comprises the values and stance from which one sees and evaluates judicial cases. In this way, a judicial philosophy is value-laden and often prescriptive of how to interpret the law and act. In contrast, a methodology is often only descriptive. This gives the impression that a methodology is fair, insofar as it does not necessarily subscribe to values and prescribe responses.

This distinction maps onto our standard use of the terms and some intuitive examples. Consider how an ethical philosophy not only describes but evaluates as well as prescribes certain actions. For instance, deontology describes and evaluates actions according to the well-known categorical imperatives, the rule of universalization, and the intrinsic value of rational agents. When the deontologist maintains “Don’t lie,” it is based on a value of rational agency and is universal in its scope and demand.

A methodology, in contrast, is procedural. Much like the surgeon who must conduct several steps to perform surgery, a methodology describes the steps of parsing data and conducting certain actions. Moreover, while a methodology evaluates appropriate actions according to the issue at hand, a methodology does not have certain prescriptions built-in (aside from, perhaps, the general prescription to act in accord with the role one stands in; consider how the Hippocratic Oath is an imperative to do no harm). Where a scalpel is required in some situations, an IV is required in others — it depends on the patient’s need.

If this distinction is plausible, then it follows that a judicial methodology and judicial philosophy are not equivalent. This is not to say, however, that the two cannot overlap. For every judicial philosophy can avail itself of a methodology, and vice versa. So, we need some clarity on what Judge Jackson means when she maintains her philosophy just is her methodology.

Would it be a problem to only maintain a judicial methodology without a judicial philosophy? At first blush, it would seem like a fortunate state of affairs if the judge were to be impartial like the surgeon with a methodology. One might argue by analogy that the judge collects the relevant data with a clear mind and applies the relevant tools according to the need. If the brain surgeon is not trained and equipped to conduct heart surgery, one would hope he denies the request to operate and calls his colleague! So too with the judge. Impartiality, after all, is necessary for a judge to be just.

Indeed, this cleanly depicts how Judge Jackson describes her own three-step judicial methodology in more detail:

  1. Remain neutral: to proceed “without fear or favor.” Before approaching any case, she clears her head of biases and prejudices.
  2. Evaluate the data: to receive all of the appropriate inputs for the case (e.g., hearings, factual records, etc.)
  3. Apply the law: to exercise the “Interpretation and application of the law to the facts in the case, and this is where I am really observing the constraints on my judicial authority.”

Regarding this last step, she may look at her jurisdiction to see if it is her place to hear the case. Like the surgeon who coolly evaluates cases and responses, one might think Judge Jackson’s methodology is sufficient for her role as a judge.

However, the surgical analogy fails on precisely the points it should help. On the one hand, it is questionable that both the surgeon and judge may coolly evaluate data. Does not collection of data require an evaluation of the case’s salient features? It would seem so, though perhaps this is a common problem. If so, it would be what I like to call a ‘work hazard’ for simply engaging in this activity and thus not uniquely problematic to this particular issue. On the other hand, the respective standards which the surgeon and judge consult and the corpus to which they apply these decisions are different. For the Constitution is not self-interpreting and is far from clear at many points. For example, whose right is it to bear arms? Moreover, the application is also an issue. For example, does the prohibition of ‘cruel and unusual’ punishment preclude the death penalty today? Both of these issues of interpretation and application require values to guide the judge.

To illuminate how a judge might offer different sentences based on different judicial philosophies, consider two prominent philosophies:

Originalism: Interpreting the legal text(s) according to the words and original context, most prominently the original author’s meaning and public understanding of the text.

Prudentialism (also known as pragmatism): Interpreting the legal text(s) according to the respective values and interests at play at the time of the case (Justice Breyer, whom Judge Jackson is to replace, exercised this methodology).

Based on the philosophy, one will have different answers to the above questions. According to originalism, “cruel and unusual” punishment might not preclude the death penalty. In other words, this could lead a judge be open to giving a sentence of the death penalty. Based on prudentialism, “cruel and unusual” may very well preclude the death penalty. Individuals’ sensibilities of what counts as cruel may differ from the original authors (e.g. are there really any “humane” methods of executing a human?) In other words, this could lead a judge to avoid such a sentencing. Indeed, based on the sharp decrease in numbers of executions since ‘99, there is good reason to think that sentimentality has shifted for what classifies as “cruel.”

I would suggest, then, that a judge not only ought to have a judicial philosophy but is required to have a judicial philosophy. A judge ought to have a judicial philosophy because it is both an obligation of the role and prudent to make explicit one’s values and interpretive methodology. A judge is required to have a judicial philosophy if only out of operational necessity. The Constitution and law must be interpreted and applied, and to take a stance on ‘no judicial philosophy’ is perhaps to take a stance on a nascent philosophy.

We could, of course, attempt to deduce Judge Jackson’s judicial philosophy. Some have pursued this route – she clearly maintains that “adherence to text is a constraint on my authority. I’m trying to figure out what those words mean as they were intended by the people who wrote them.” While such comments as this may be indicative of an originalist position, I find it more helpful to see how Judge Jackson’s minimal position is prudent and not unprecedented.

Judicial philosophies can unnecessarily be understood to signal a political philosophy. If offered in this forum, her position could very well be misunderstood and utilized to characterize her in different ways. This would not be unlikely, given some of the grandstanding and loaded questions from many senators. And Judge Jackson was admirably keen to avoid these issues and “stay in her lane.” So, regardless of whether a candidate is obliged to inform the committee or public of her position, it seems to be cautious in some respects.

Such a brief response is also not unprecedented. Consider, for example, Justice Sotomayor’s opening statement for her hearing before the Judicial Committee. When describing her judicial philosophy, Sotomayor stated that it’s

Simple: fidelity to the law. The task of a judge is not to make law, it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms, interpreting statutes according to their terms and Congress’ intent, and hewing faithfully to precedents established by the Supreme Court and by my Circuit Court.

Justice Sonya Sotomayor

It could very well be that this is a stock and trade answer for such a forum. Moreover, it is an intentionally minimal answer and thus, a cautious maneuver.

For all the prudence and precedence, however, the point stands: a judicial philosophy is distinct from methodology, and the former is necessary for a judge. While a judicial philosophy is perhaps part of a judicial methodology, it will not be the whole parcel.

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Does Australia Need a Bill of Rights?

photograph of Australia High Court building

Rights are one of the most recognizable ethical tools of the modern world. They have increasingly dominated the way we think about our moral lives – as individuals as well as nations. To invoke a right is to claim an entitlement. A claim that “I have a right to X” will often trump other arguments and interests. A right entails a duty – the right to freedom of expression entails a duty not to impede expression. In theory, if not always in practice, rights have been very important in guaranteeing the dignity and self-determination of persons. They are important because they promote those conditions necessary for well-being, for humans to flourish and for society to promote that flourishing.

But there can be a dark side to rights claims – for example, a claim to the right of free speech can be used to protect racism or lies, while the right to freedom of religion can be used to protect discriminatory practices.

Some important philosophical questions about rights remain a challenge: What kinds of goods should be guaranteed? What kinds of liberties does everyone deserve? Which moral considerations best explain the necessity of these rights? What should we do when these rights conflict with one another? Several of these questions are central to the national debate in Australia over whether a bill of rights needs to be officially adopted.

Australia is the only mature liberal democracy that does not have such a charter. Many feel that the introduction of constitutional rights is long overdue, while others do not believe that a bill of rights is necessary. In fact, many feel that the explicit enumeration of basic freedoms might even be a hindrance to the administration of justice. This has manifested as a tension between ‘old constitutionalists’ who believe that the combined functions of the parliamentary and judicial system provide the best, most flexible, and most democratic protections for Australians, versus those who think that citizens’ fundamental rights should not be left up to the whims of lawmakers and judges.

At the time Australia’s Constitution was written, early in the twentieth century, the inclusion of a bill of rights was rejected. It was argued that, in the words of former High Court Justice Michael Kirby, “a due process provision in such a bill of rights would undermine some of the discriminatory provisions of the law at that time.” Ultimately, it’s been the government’s legislative power which has expanded federal legislation and protected fundamental rights by creating specific statutes dealing with human rights questions or the removal of various kinds of discrimination.

Various parties feel this process has worked well because of its adaptability, where charters of pre-existing, inalienable rights can make the system too rigid and inflexible. Up to now, whenever this debate has arisen, the general sense has been that Australia’s parliamentary democracy works reasonably well, and its citizens have usually had a high degree of trust in legislators. If they do not act justly, particularly if they act oppressively, they will be dismissed from office at the next election.

A further objection to the introduction of a bill of rights is that it would lead to a kind of “judicial imperialism” by way of transferring power currently held by the legislative body to the courts – unelected (usually white, middle-aged, male) judges. The worry is that a bill of rights could result in the entrenchment of the values of said judges into law, in a way that would prevail even over parliamentary statutes.

But the fear of politicizing the courts and granting outsized power to unelected (and thus unaccountable) judges appears to be losing ground. One contributing factor is this era of increased populism – that is, anti-establishment sentiment – from which Australia, following the results of the most recent election, is certainly not immune. One might also add the erosion of public trust in democracy provoked by many different, powerful forces from corporate lobby groups to misinformation spread on social media.

Still, we should not discount the immense value of judicial flexibility. Rights which seem fundamental at one time, may not be appropriate in another – consider the United States’ right to bear arms. Having protections enshrined as rights makes them very difficult to amend later. The Australian Constitution, like the U.S. Constitution, is very difficult to alter; we don’t want the community to be stuck with rights that end up resulting in more harm than good. A bill of rights drawn up now may not have the capacity to deal with problems of the future. Given the speed of technological change, we may not yet know what problems lurk beyond the horizon. Better, perhaps, to deal with issues as they arise than try to predict the future. Allow parliament to legislate specifically the task at hand.

On the other hand, the democratic system may have its own flaws when it comes to ensuring equal protection for every person. It does, of course, favor the majority, and for this reason a bill of rights might be necessary to ensure the interests of minorities are equally protected. As Justice Michael Kirby said in a recent address on the subject:

Democracies look after majorities. Democracies are good at looking after majorities… In America, if President Trump does something which is considered unjust, there is provision for the appeal to the federal courts and ultimately the Supreme Court. But in Australia we have very few weapons if politicians in the majority don’t feel it is a matter they are interested in or that there are no votes in it.

There have been cases in Australia over recent years in which the government, for largely political reasons, has failed in its duty to treat all people with respect and dignity. A prominent example is Australia’s treatment of refugees, holding them in indefinite detention in substandard conditions. A bill of rights would ensure that basic protections, like the right to freedom from discrimination and freedom of expression, would be guaranteed for all. The vulnerable would be protected from the possibility of legislation taking away these necessary components for autonomy, self-determination, and self-respect. At their core, these rights communicate our convictions about principles like equality, justice, and kindness, the very essence of a good and free society. Perhaps it’s time they were explicitly articulated and collectively recognized.