Flaccid Court Bashing

The current issue of the Atlantic Monthly features a pair of opinion pieces fresh off the court-bashing bandwagon. Both authors suffer the same affliction: not much to say and a whole lot of space in which to say it. (I was planning to address both articles in a single post, but it got a bit long. I’ll post Flaccid Court Bashing, Part II later today or tomorrow.)

The first piece "Remote Control," which comes to us courtesy of Stuart Taylor Jr., intends to argue that "the Supreme Court's greatest failing is not ideological bias—it's the justices' increasingly tenuous grasp of how the real world works." I know this sounds fairly typical of the "Court is out of touch" argument that’s infected the population of conservative pundits, but Taylor puts his own bizarre spin on the critique.

The gist of Taylor’s contention is that most of the current Justices, having matriculated up from appellate judgeships, never cut their teeth as trial lawyers, and therefore, don’t understand the nitty-gritty realities of the legal system. In his words:

When a large majority of the Court's justices have never cross-examined a lying cop or a slippery CEO, never faced a jury, never slogged through the swamps of the modern discovery process, something has gone wrong. As the Court has lost touch with the real-world ramifications of its decisions, our judicial system has clearly suffered.

Considering that the Justices’ courtroom work involves a rather freeform questioning of attorneys, not witnesses, it’s not immediately clear to me why any of the experiences Taylor describes should be considered essential training for the Supreme Court. He attempts to advance his argument but veers off track.

The Court's slow disengagement from practicality was visible by the 1970s, when, for example, in a well-intentioned effort to protect students from unwarranted suspension and tenured public school teachers from arbitrary dismissal, the Court issued a series of decisions requiring hearings before such action. The justices presumably imagined simple, cursory hearings to guard against egregious abuses of power. Predictably, that's not what happened. Hearings quickly became clogged with lawyers, witnesses, trial-type formalities, multiple administrative and judicial appeals, and years of delay. To avoid such ordeals, many principals and administrators have simply stopped trying to remove thuggish students and inept teachers from our schools.

It may well be that the Justices don’t fully understand the practical ramifications of their rulings (I’m not sure this is true, but for the sake of argument, I’ll concede the point). But should the Justices really factor issues like potential logjams in the lower courts into their decisions about the constitutionality of given issues? This kind of thinking strikes me as both dangerously consequentialist and detrimental to the business of the court, which is, after all, deciding cases based on the constitution and legal precedent, not expediency. And besides, if lower courts are inefficient, it’s up to Congress, and not the Supreme Court, to pass legislation addressing the problem. I'm surprised that Taylor, who comes across as a pretty conservative guy, doesn’t recognize this.

--Matthew McCoy