Mechanism Change and Judicial Capital

This post proposes a criterion for evaluating Supreme Court nominees besides their ideology and judicial methodology.  I argue that there are three types of changes that occur in jurisprudence, and that the often-overlooked middle type of change reveals as much about justices as either of the others.  Justices’ willingness to deploy the middle type of change should weigh as heavily on their selection as do conventional factors.

I.  Types of Change

Three basic types of change occur at the Supreme Court.   I term the first (and most granular) type of change “outcome/application” change.  These are the most nuts-and-bolts doctrinal shifts – the application of an existing doctrine to a new set of facts, or the altering of an outcome.  For example, the Batson doctrine – that litigants may not peremptorily strike jurors for certain reasons – originally only applied to racial strikes.  Then, the Court expanded Batson to encompass gender-based strikes.  This is an outcome-applicational change:  the application of an existing doctrine to new facts.  Even a reversal of an existing precedent constitutes basic outcome/application change if it simply reapplies the same doctrine and reaches a contrary result.

I term the third (and most global) type methodology change, and it has been discussed ad nauseam.  Methodology change encompasses debates about originalism, textualism, living documents, and the like.  It is the question of how we approach the problems writ large.  Largely due to the work of the Federalist Society in purposefully norming originalism and textualism, we have grown used to debates about methodology change.  They no longer affect the legitimacy of the Court, because they have become the accepted battleground for prospectively discussing judicial outcomes with potential nominees.

I term the second type of change mechanism change, and how judges manage it is an under-discussed component of their judicial philosophy.  Mechanism change is a candidate’s willingness to subvert or replace existing doctrinal pathways for arriving at outcomes.  A mechanism change occurs when the Court generates a new doctrine to address a new problem, or even more significantly, generates a new doctrine to replace an existing doctrine already addressing that problem.

II.  Mechanism Change and the Court’s Legitimacy/Capital

Justices do not usually debate mechanism change and its implications openly; or at least, those discussions are couched in seemingly technical, doctrinal terms.  But the current justices (as well as the late Justice Scalia) have divided themselves among those who are willing to frequently burn the Court’s capital to generate desirable mechanism change, and those who seemingly believe that mechanism change is a poor use of the Court’s capital.

As Georgetown Law’s Professor Cole has noted, the Supreme Court’s “power depends almost entirely on its public legitimacy.”  I believe that mechanism change takes an outsize toll on the Court’s legitimacy among educated observers of the Court:  as a practitioner, it is more disconcerting to see a brand-new test cut from whole cloth to replace an existing test than it is to simply see a result reversed.  It is not a coincidence that two of the all-time mechanism-change justices – Kennedy and O’Connor – perpetually vex district-court clerks.  Given these real costs associated with mechanism change, justices’ decisions about when to expend the Court’s legitimacy to promote mechanism change accordingly reveals a great deal about their priorities and their perception of how much legitimacy the Court has in its reserves.

These decisions do not break down among partisan lines.  The three justices I identify as most eager to deploy Court capital to effect mechanism change – Justices Kennedy, Thomas, and Sotomayor – are not united by partisanship or ideology (far from it).  Justices that seem most reticent to do the same – Roberts, Scalia, Ginsburg, and Kagan – are likewise far afield.

You can see these debates play out over decades.  Justice Kennedy and Justice Scalia sparred in the gay rights troika (Lawrence v. TexasUnited States v. Windsor, and Obergefell v. Hodges) over Justice Kennedy’s mechanism changes.  Justice Kennedy, in Lawrence, invoked the “liberty of the person both in its spatial and in its more transcendent dimensions,” not previously an articulated factor in judicial abolishment of a statute.  Lawrence, 539 U.S. at 562.  His Lawrence opinion generated an entire new doctrine, a constitutional polyglot drawing from equal protection, due process, and anti-stigma rationales.  Id. at 575.  This is fundamental mechanism change; Justice Kennedy was generating an entire new doctrine to address the problems of anti-homosexual discrimination.  Justice Scalia called him out on this mechanism-change deployment of the Court’s legitimacy; from the start of his dissent, he excoriated the majority for using existing strict scrutiny mechanisms that had governed fundamental rights for decades.  Lawrence, 539 U.S. at 586 (Scalia, J., dissenting).  He accused the Court of using an “unheard-of form of rational-basis review that will have far-reaching implications beyond this case.”  Id.

In Windsor, Justice Kennedy expanded on this rationale, reintroducing the concept of “animus” as a fourth ingredient in his home-brew constitutionalism.  Windsor, slip op. at *20; cf. Romer v. Evans, 517 U.S. 620, 632 (1996).  Scalia again took him to task.  Although some of Scalia’s umbrage was likely due to his personal antagonism to homosexuality, he seemed more incensed that Justice Kennedy had invoked a mechanism change to reach a result that is easily reachable through traditional pathways.  See Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) (reaching same result through existing intermediate-scrutiny pathway).

Justice Thomas likewise favors mechanism change.  He gives stare decisis no real consideration, see, e.g., Goldstein, and he believes that the Court should consistently use its capital to perfect its mechanisms.  His clearest articulation of this tendency is his concurrence in McDonald v. Chicago, where he argued that all personal-rights incorporation should occur through the Privileges and Immunities Clause, and not through substantive due process – despite substantive due process being the preferred mechanism for decades.  McDonald, at *5, 8-9  (Thomas, J., concurring).  This drew fire from even his conservative allies – Justice Alito wrote for the Court that “[f]or many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the SlaughterHouse holding.”  McDonald, at *10.  Justice Scalia was even more blunt in oral argument, taking to task the petitioner’s attorney when he attempted to travel the Privileges and Immunities path:

JUSTICE SCALIA: And if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when — when you can reach your result under substantive due — I mean, you know, unless you’re bucking for a — a place on some law school faculty — (Laughter.)

GURA: No. No. I have left law school some time ago, and this is not an attempt to — to return.

JUSTICE SCALIA: Well, I mean, what you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process? Which, as much as I think it’s wrong, I have — even I have acquiesced in it. (Laughter.)

Justice Sotomayor also seems willing to effect mechanism change when she needs to, although as I explored in a prior post, her mechanism changes are slightly subtler and generally occur in the shadow docket.

On the other side, justices both conservative and liberal attempt to preserve the Court’s resources and to not use them on mechanism change.  Justice Ginsburg opposed the motivated, largely unprecedented reasoning that Justice Blackmun employed in Roe v. Wade, wishing instead that the case had been decided on a simple (and established) equal protection rubric.  See Chicago Law Critique; see also Washington Post.  Other scholars have pointedly acknowledged that such a footing would give the abortion right greater “constitutional legitimacy.  Equality Arguments for Abortion Rights, UCLA L. Rev.

Justice Kagan has likewise shown a reticence to alter judicial mechanisms without exceptionally good cause, noting that the Court should avoid “upset[ting] expectations.”  Kimble v. Marvel, at *10.  And the Chief Justice has long pushed for “narrow decisions endorsed by large majorities,” , which while not exactly the same as avoiding mechanism change, is correlated to the goal.

To sum it up – there is no apparent correlation between ideology and willingness to push for mechanism change.  But it’s nevertheless a serious component of a judge’s philosophy.

III.  Evaluating Nominees

Presidents – liberal or conservative – should evaluate their nominees on this mechanism-change criterion, although such evaluation will be difficult for faithful lower-court judges.  If nothing else, those judges’ scholarly writing may shed some insight into whether they are eager to change legal mechanisms and create new pathways to resolving cases.  Importantly, this factor can be analyzed independent of judicial philosophy or partisanship – i.e., President Trump and future presidents will be able to pick among multiple justices who favor their worldview and nevertheless cull justices who favor more (or less mechanism) change.  My personal view is that they should select candidates adverse to mechanism change.  As people lose even more faith in the presidency and Congress, the Court must retain what legitimacy it has, and judges should avoid wanton mechanism change, no matter which ideological side it cuts toward.  Although I am an inveterate doctrine nerd, Chief Justice Roberts has the right idea – sometimes the doctrine must cede to judicial predictability and to conservation of the Court’s most important resource.  Mechanism change should be reserved for when the current regime is truly unworkable, and presidents should select judges who exhibit that restraint.



Mechanism Change and Judicial Capital

GVRs: The War in the Shadow Docket

On Monday, the Supreme Court’s order list figured a seemingly inconsequential spat between Justices Sotomayor and Alito.  They fought over an obscure procedural mechanism (the GVR) that the Court uses for cases it doesn’t even want to consider.  This post argues that their seemingly-mundane fight was actually over something larger.

The Supreme Court, in addition to its published opinions that dominate news coverage, puts out another entirely separate group of orders and opinions that rarely make headlines and are rarely signed.  Chicago professor William Baude has called this cluster of orders and opinions the “shadow docket.”  See, e.g., William Baude, Forward: The Supreme Court’s Shadow Docket, 9 NYU J. of Law and Liberty 1 (2015).  This shadow docket has several primary components, and all are appended to the Order List that the Court puts out about once a week:  grants and denials of certiorari, per curiam opinions (unsigned opinions disposing of cases on their merits), and GVRs.  GVRs stand for “grant; vacate; remand.”  These opinions grant certiorari (review); vacate the opinion below; and remand the case to the lower court for new consideration.  Often, the Court mandates this consideration “in light of” some recent opinion – i.e., if the Court has just put out a new death penalty case, they will remand for consideration “in light of” the rule that opinion announced.

GVRs could theoretically be uncontroversial; the logic underlying them seems clear.  But they are, in fact, a seeming source of tension between the justices.  Aaron-Andrew P. Bruhl described the controversies surrounding the GVR in the years leading up to 2009.  See Bruhl, The Supreme Court’s Controversial GVRs – And An Alternative, 107 Mich. L. Rev. 711 (2009).  In particular, he describes Justice Scalia’s heated reaction to Youngblood v. West Virginia, an unconventional GVR that did not follow normal GVR protocols, and for which Justice Scalia accused the Court of “sparing [itself] of correcting the suspected error.”  Bruhl, 107 Mich. L. Rev. at 714-15 (citing Youngblood, 547 U.S. 867 (2006)).  Justice Scalia’s general distaste for the use/misuse of the GVR vehicle continued.  In Webster v. Warden (2009), he wrote that the GVR should be used “to give the court to which we remand the first opportunity to consider” a new factor, and that the Court was misusing the practice as a rote error-correction mechanism.  Justice Scalia reprised these objections in Wellons v. Hall (2010), when he and the majority actively fought over the GVR’s role – the per curiam decision noting that GVRs preserve Court resources; Scalia noting that if the lower court erred, they should be reversed.

However, for as much as Justice Scalia was an enemy of the GVR, Justice Alito seems to have even more fully taken up the mantle of the anti-GVR crusader.  This shift matters because the GVR, in recent years, seems like it has become the scene of a proxy war between Justices Alito and Sotomayor over the role of the Court and over two ways of viewing American civic life.

Justice Alito genuinely opposes the GVR, at least in its current form. I went back six years and looked for every GVR that had an attached opinion.  Almost every time a justice wrote anything about a GVR since 2009, Justice Alito opposed the GVR’s invocation or wrote to narrow its scope.  See Adams v. Alabama (2016) (narrowing GVR); Williams v. Louisiana (2016) (dissenting from grant of GVR over JJ Ginsburg/Breyer/Sotomayor/Kagan’s concurrence in GVR); Volkman v. United States (2014) (narrowing GVR and writing “to highlight the nature of petitioner’s burden going forward”).  Importantly, Justice Alito’s opposition to the mechanism seems to be non-partisan.  See Elmbrook School District v. Doe (2014) (Alito declining to join Scalia and Thomas in calling for GVR of religious-freedom opinion).

From the other side of the ideological spectrum, Justice Sotomayor seems to have thoroughly embraced the vehicle – even from her early days on the Court.  In 2010, she dissented from the denial of certiorari in Williams v. Hobbs, noting that the Court should vacate the ruling below.  See also Hodge v. Kentucky (2012) (dissenting and recommending GVR).

These conflicts add another layer of nuance to the Court’s weekly order list. The liberal and conservative wings generally, and Justices Sotomayor and Alito specifically, are using GVR concurrals/dissentals to wage a full-scale ideological proxy contest over the role of the Supreme Court in American life.  That proxy contest embodies a core American conflict – local v. centralized control.  Liberals tend to favor more centralized control; conservatives tend to believe that localities do a better job managing their own affairs and embrace the lack of oversight that entails.

In the 1990s, the Court litigated these issues on the open-air docket and over the issue of federalism. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (fiercely-fought federalism opinion); United States v. Lopez, 514 U.S. 549, 567-68 (1995) (warning that Constitution does not countenance regime where there is no “distinction between what is truly national and what is truly local”).  But while federalism still finds places on the open-air docket, part of the fight has moved.  Just Monday, Justice Alito and Justice Sotomayor were back at it – penning dueling and emblematic opinions on the propriety of GVRing Tatum v. Arizona (2016).  Justice Sotomayor concurred in the decision to GVR; such a concurrence is unnecessary for a GVR.  Sotomayor noted that while the Court was asking the lower courts to re-do their analysis, such a re-do was necessary because the lower court had erred the first time.  She emphasized that the inquiry the Court was imposing on the lower courts was just and proper.  Justice Alito, contrarily, dissented from the GVR order.  He noted that the Court was “misusing the GVR vehicle” and that the Court does “not GVR so that a lower court can reconsider the application of a precedent it has already considered.”  He echoed, yet again, the Scalian criticism that the Court was “insisting on a do-over.”

At its heart, these decisions are a fight about how much supervisory authority the Supreme Court will exercise over the regional circuit courts.  Justice Alito argues, just as Justice Scalia did, that the Supreme Court should treat those regional courts with respect, that it should not force reconsideration without actually deciding cases.  And of course, the Supreme Court does not have the resources to issue merits opinions on every regional court error or potential error – so the Alito regime would result in considerable autonomy for the regional courts.  But unlike Justice Scalia’s howl-against-the-wind jeremiads in the 2000s, Alito has found an ideological adversary who will willingly engage him in the shadow docket – Sotomayor.  She, in essence, is arguing for a robust regime of review.  She wants the omnipresent threat of a GVR hovering over the regional courts.  It is worth noting that this is not totally unfair – the threat of a per curiam reversal hangs over every regional court that grants habeas relief.  But Justice Sotomayor is arguing for more centralized review of more types of opinions.

The shadow docket is interesting for many reasons.  But it is especially interesting if it is the place that Justices Alito and Sotomayor hone and craft their worldviews and their arguments.  Their fights in the shadow docket are a microcosm of a larger split.

GVRs: The War in the Shadow Docket