The Not-so-Subtle Vices of a None-too-Passive Supreme Court


In an important 1961 article in the Harvard Law Review, Yale Law Professor Alexander Bickel—who was a leading constitutional scholar of his generation—defended the Supreme Court’s exercise of what he called “the passive virtues.” The Court could not possibly decide more than a small fraction of the cases that fell within its jurisdiction, Bickel observed. Because the Justices could not sufficiently limit their caseload simply by rejecting discretionary review of lower court decisions (by denying what are still known as petitions for writs of certiorari), they relied on other, not entirely honest, methods. They often summarily affirmed lower court rulings that they ought to have given plenary consideration, and they frequently manipulated gatekeeping rules such as standing doctrine.

Bickel did not merely describe the Supreme Court’s docket manipulation. His signal contribution was to praise it. Whereas another leading constitutional scholar of the time, Columbia Law Professor Herbert Wechsler, had complained (in another important Harvard Law Review article) that the Supreme Court did not consistently apply “neutral principles” in its substantive decisions, Bickel argued that by strategically ducking difficult and divisive issues—passively not deciding them—the Court preserved its legitimacy for those tough issues it directly confronted.

Bickel’s defense of the passive virtues was controversial. A third leading scholar of the period, Stanford Law Professor Gerald Gunther, objected in yet another important article (titled The Subtle Vices of the Passive Virtues) that Bickel’s approach (in both the 1961 article and his 1962 book The Least Dangerous Branch) amounted to insistence on what Gunther called 100 percent principle but only 20 percent of the time.

In 1988, Congress amended the statutes governing Supreme Court jurisdiction to give the Justices nearly complete discretion to choose which cases to hear. They have used that discretion to dramatically shrink their docket. In the 1940s, the Court decided as many as 200 cases per year; it decided about 150 cases per year well into the 1980s. But since the statutory change, the docket has shrunk dramatically. In the Term that ended last week, the Court heard oral argument in and decided fewer than 60 cases.

Yet the Court is not using its discretion in Bickelian fashion to duck difficult or divisive issues. Quite the contrary. A year ago, the conservative super-majority upended five decades of precedent by eliminating the constitutional right to abortion. Last week, the Court effectively cast aside case law permitting race-based affirmative action in higher education admissions that had also stood since the 1970s. And the Court has granted review in a case to be argued next Term that poses the question whether to abandon the decades-old practice of judicial deference to administrative agencies.

Meanwhile, despite the luxury of an uncrowded docket, the Court has in recent years bypassed full briefing and oral argument to decide an unusually large number of cases in an irregular posture. As University of Texas Law Professor Stephen Vladeck documents in his new book The Shadow Docket, many of these cases do not warrant expedited treatment. Moreover, unlike the Warren Court’s non-decisions that Bickel praised as prudent, the Roberts Court frequently uses its shadow docket to decide cases that it then gives precedential force.

That is not all. As illustrated by three high-profile cases the Court decided last week, the Justices continue to manipulate standing and related threshold jurisdictional doctrines. However, by contrast with the ducking practice Bickel observed, now the Court is straining to decide cases it need not resolve.

Standing to Challenge Student Debt Forgiveness

On the last day of the Term, the Court resolved two cases challenging President Biden’s student debt forgiveness program. The plaintiffs’ claim to standing in one of the cases was so weak that even a Court determined to reach the merits would have had difficulty doing so. Myra Brown did not qualify for any debt forgiveness under the program because her loans were commercially held. Alexander Taylor qualified for up to $10,000 of debt forgiveness but not the full $20,000 for which some borrowers were eligible. They sued, but they sought the invalidation of the entire program, which would have given them nothing.

Accordingly, in Dep’t of Educ. v. Brown, the Court unanimously held that Brown and Taylor lacked standing—also rejecting their claim that invalidation of the program might lead the Biden administration to promulgate a different debt forgiveness program that would benefit them. Of course that alternative theory did not give rise to standing; if it did, anyone could challenge any government program whenever they claimed that, in its absence, the government might do something else that would benefit them.

Unfortunately, that was not all that the Court had to say about the debt forgiveness program. In a companion case, various Republican-led states also sued. Their claim of injury was almost as far-fetched as that of Brown and Taylor. Of the state plaintiffs, Missouri had the best claim to standing, but even its argument was very weak. Nonetheless, in its eagerness to invalidate the debt forgiveness program, the Supreme Court’s conservative super-majority, in an opinion by Chief Justice John Roberts in Biden v. Nebraska, allowed Missouri standing on the ground that under the program a state-chartered entity—the Missouri Higher Education Loan Authority (MOHELA)—would lose money in processing fees that it would otherwise receive.

However, as Justice Elena Kagan (for herself and the other two Democratic appointees) observed in dissent, none of the resulting financial loss to MOHELA will be passed on to the state. MOHELA could have sued in its own name but chose not to. The Court, in allowing Missouri to sue based on another party’s injury, violated limits on federal court jurisdiction that conservatives have previously touted as an essential feature of separation of powers.

The Web Designer’s Made-up Case

In another high-profile case decided on the last day of the Term, the Court considered a free speech claim by Lorie Smith, who represented that she would like to start a wedding website design business but fears that Colorado would enforce its public accommodations law to obligate her to provide her services to same-sex couples on an equal basis with opposite-sex ones. Because designing a website involves “expression,” she said, the application of the law to her would amount to forcing her to express a message—approval of same-sex marriage—with which she disagrees.

Did Smith really have concrete plans to start a wedding website design business? There are reasons for skepticism.

The ostensibly bespoke websites that Smith includes in the portfolio of designs on her existing website—which advertises a range of services that do not yet include wedding websites—look less professional than the kinds of wedding websites one can create for free without any web design expertise (for example, here or here). Indeed, the text and images displayed in Smith’s portfolio look like they were created by Inspirobot—a joke site that randomly generates profound-sounding nonsense.

To be sure, Smith’s business site includes a “contact” link “[f]or a complete portfolio,” but clicking it simply produces a general contact form for prospective customers to contact her and refers media inquiries—such as the one I might send asking to see evidence of any actual custom websites she has created—to the anti-LGBTQ+ organization that argued her case. Accordingly, I am dubious about the reality of Smith’s entire web design business.

Meanwhile, even if Smith will be able to generate interest for her wedding website design services from real customers, it’s hardly clear that any of them would be same-sex couples. Indeed, last week it was revealed that one prospective gay client her lawyers cited to show that her case was real—a man named Stewart—was in fact a straight man married to a woman; he denies ever having contacted Smith or her business.

Despite the largely hypothetical nature of Smith’s case, the Supreme Court took it and reached the merits. Justice Neil Gorsuch wrote for the conservative super-majority in 303 Creative LLC v. Elenis that Smith’s right to free speech prevails over Colorado’s antidiscrimination policy. How big a hole the Court thereby punched in public accommodations laws is unclear, however, because the Court offered no guidance whatsoever about what counts as an “expressive” business that entitles its owner to override state policies forbidding discrimination based on race, sex, sexual orientation, disability, or other grounds when complying with such policies would contradict the business owner’s views.

There are made-up cases that warrant the Supreme Court’s attention. Griswold v. Connecticut, which established a constitutional right to contraception, was one that Bickel (writing about a predecessor case that presented the same issue) approved. But if the Court is going to bend its rules regarding hypothetical cases, surely it should do so to actually clarify the law. In 303 Creative, the conservative Justices struck a blow for the reactionary forces in the culture war but left the law at least as unclear as before they intervened.

Necessary Not to Decide?

In addition to being unnecessary and a source of confusion, the holding in 303 Creative is morally odious. The millions of Americans who are not self-employed have no right to express whatever bigoted thoughts pop into their heads while they are at work. There is no good reason to read the First Amendment to override antidiscrimination law and give such a right to owners of expressive businesses.

I also disagree with the Court’s merits decision in Biden v. Nebraska, although that’s a closer case. The dissent is persuasive that the emergency loan modification authority Congress delegated to the President is broad, but the link between the particulars of the loan forgiveness extended and the economic impact of the COVID-19 pandemic is tenuous.

Nonetheless, my critique of the Roberts Court’s anti-Bickelian approach to its docket does not depend on my substantive views. To my mind, the best ruling of the Term came in Moore v. Harper, in which the Supreme Court rejected the radical “independent state legislature.” A contrary ruling—one that accepted the power of state legislatures to act without state judicial oversight and potentially without even the possibility of a gubernatorial veto—would have given the green light for Donald Trump or a Trumpian imitator to accomplish lawfully what Trump tried to accomplish unlawfully following the 2020 Presidential election: to have state legislatures override the voters’ decision.

Yet despite my substantive approval of the result in Moore, I feel bound to acknowledge that it too reflects the Court’s appetite for deciding what it wants to decide. After the U.S. Supreme Court agreed to hear the petition on behalf of the Republican majority in the North Carolina legislature, the North Carolina Supreme Court’s personnel flipped from majority-Democratic to majority-Republican; that court then gave the Republican-controlled legislators what they had sought in the first place by shielding them from the plaintiffs’ challenge to partisan gerrymandering. As Justice Clarence Thomas (joined by Justices Alito and Gorsuch on this point) said in dissent, Moore should have been “a straightforward case of mootness.”

The majority opinion of Chief Justice Roberts avoided that conclusion with the observation that the new Republican-majority North Carolina Supreme Court overruled the reasoning of their predecessors earlier decision but not their judgment. And maybe there’s a technical sense in which that’s true—as Dean Vikram Amar and Professor Jason Mazzone argued in a Verdict column in May. But even if the case was not technically moot, it was not exactly a live controversy between these parties. Nearly the entire significance of the case concerns its impact on future election contests, not gerrymandering in North Carolina.

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Chief Justice Roberts has sometimes said that if it is not necessary to decide an issue to resolve a case, it is necessary not to decide the issue. He appears to have learned this principle of judicial restraint from the great Second Circuit Judge Henry Friendly, for whom Roberts clerked as a young lawyer. Maybe Roberts once believed this idea. Maybe he still does. Whatever his subjective beliefs, however, the Court over which he presides is about as distant from Friendly’s dictum and Bickel’s passive virtues as one can imagine. In its procedural legerdemain and its substantive agenda, the Roberts Court is none too subtle in its activist vices.

Posted in: Courts and Procedure


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