Archive for the ‘U.S. Supreme Court’ Category
Recently, the United States Supreme Court held an argument about the applicability of the plain-error standard to unsettled issues as of time of trial. It is an important issue of law and as a result the United States Supreme Court appointed Patricia Gilley to represent Mr. Henderson. The transcript begins as follows:
CHIEF JUSTICE ROBERTS: We’ll hear argument this morning in Case 11-9307, Henderson v. United States.
MS. GILLEY: Mr. Chief Justice, and may it please the Court: There are three primary points I would like to focus on this morning during my argument. First, the question presented by Mr. Henderson involves a very small subset of cases which are — which come before the Court under Rule 55 — 52(b) each year. These are the cases that were referred to as the special case in the Olano decision. They have errors which, at the time of trial, were unsettled or unclear; but, by the time they made it to the appellate court, they had become clear by a clarifying rule or a decision. Second -
JUSTICE SCALIA: What — what about the time they come up here? 52(b) applies to every court, does it not?
The transcript is an interesting read, but what you will not find is Ms. Gilley able to state what her two other primary points were—at least in that language. Ms. Gilley got out her first primary point and the barrage of questions from the justices followed.
No one seriously should think that lawyers have a right to summarize their three primary points at oral argument at the United States Supreme Court or at a motion at the trial court level. Oral argument is for the benefit of the judges, who can seek answers to factual and legal questions prompted by the briefs. Lawyers have the chance to make their full argument in their written brief. Few things frustrate a judge more than a lawyer in oral argument just reading from their brief.
But at the same time there is a need for judges to strike the right balance. Voice and respect (two of the essential elements of procedural fairness) ought to cause every judge at every level to occasionally reflect on their “style” during oral argument. Being an effective judge in presiding over an oral argument is a skill as much as it is an opportunity to learn about an individual case.
There are ways to get very good at presiding over an oral argument. Reviewing a video is a terrific step. Perhaps not as good, reviewing a transcript is an option. Asking a colleague to watch (and offering to repay the favor) can give judges insight. Getting feedback from lawyers occurs where there are judicial-performance evaluations, but if you sit in a place where there is no official judicial-performance evaluation, judges can create their own feedback surveys.
In an effort to foster a discussion about how judges should approach oral argument or improve your skills at achieving procedural fairness we asked several judicial experts. Here are their thoughts.
Kevin Burke
Justice Walter Carpeneti sits on the Alaska Supreme Court. He is a former trial judge and former Chief Justice of the Alaska Supreme Court. His comments:
First, while the form of oral argument suggests that it is an opportunity for counsel to present an argument to the court, the reality is that it is an opportunity for the court to have its questions answered. I say this because the briefs contain the parties’ arguments, crafted exactly as they wish to present them. Assuming that the judges read the briefs before the argument, all of the information exchange from counsel to the court has already occurred. (If this assumption is bad, this whole discussion becomes pointless.) Thus, attorneys should not treat judges’ questions as annoying interruptions of their carefully-prepared presentations; they should welcome questions as a window into what the judge is thinking and an opportunity to correct any errors the judge might be about to make.
Second, this reality should not trump the need for courtesy (both to counsel and to one’s judicial colleagues) and for projecting the appearance of fairness. Thus, I’d suggest that an appellate court should ordinarily let counsel make an introduction that (concisely) sets out the attorney’s main points before starting with questions. I’d suggest that interrupting counsel’s answers should be held to a minimum—to be done, for example, only if counsel has misunderstood the question, is rambling in his or her answer, or is obviously trying to obfuscate. I’d suggest that interruption generally is rude not only to counsel, but also often to one’s colleagues on an appellate bench, because interrupting counsel’s answer often means that the questioner has not gotten the benefit of a full answer to the question that he or she asked.
Third, I think that courts ought not to be rigidly parsimonious with time when the court’s questions have taken up all of counsel’s time. While the most able advocates can work their “outline” points (along with their key support for those points) into their answers along the way, not all attorneys are adept at this technique. We should be careful not to leave counsel with the notion that, because the court asked nonstop questions, he or she did not even get the chance to get a word (or a whole argument) in edgewise.
So, my summary: The main purpose of oral argument is to give the judge(s) the opportunity to ask questions and challenge the advocates to defend their positions, but this questioning should take place with courtesy and respect, and the attorney should not be left thinking that he or she was denied the opportunity to be heard.
Judge Rene Worke is a Judge on the Minnesota Court of Appeals. Prior to be appointed to the Court of Appeals she served as a trial judge, including a term as chief judge of her district. Her comments:
When trial court judges ask me about my life as an appellate judge, I always start out with, “If I knew then what I know now!” Appellate oral argument is drastically different than hearing oral presentations at the trial-court level. At the trial-court level, a judge has a myriad of cases on the docket and argument time limits are determined by the individual judges willingness to indulge, as well as calendar backup. As a solo decision-maker, a trial judge is able to ask questions of both counsel in logical sequence, i.e., “What do each of you think is the appropriate date for running of the statute of limitations?” rather than forgetting that particular question when it finally comes to respondent’s turn at the podium. A trial judge is focused on making decisions, moving counsel along, and keeping an eye on the time clock. An appellate judge is focused on clarifying points raised in the brief and deciding what points are most persuasive in an allotted and predetermined time frame—with the luxury of nitpicking the entire record before and after argument.
Appellate oral argument can be tedious. We sit for several cases, all presented on the same day in sequence. Once we are “out there,” we can expect to sit for several hours. Because we are not “solo” judges, we must also be mindful of being courteous to our two colleagues. On occasion, oral argument can turn into ping-pong match with judges eliciting from the lawyers record-facts that support a position they have. These fact-finding questions—or posturing—by an appellate judge can frustrate colleagues—questions can be slanted, redundant, very long, and more like a statement than a genuine question seeking an answer. Lots of judicial energy can be spent to support one’s judicial theory.
And much like solo decision-makers, appellate jurists also bring their personal likes and dislikes to the bench. For example I am known as a by-the-rules judge. When I preside, it is not likely that the time limits will be extended (after all, the lawyers can say it in their briefs and be succinct in presentation), but this is my will. When a colleague is presiding, he or she may do the exact opposite, and I am subject to that timetable. At a recent bench meeting, this very statement was made after a newer judge mentioned that he wished both sides had a rebuttal opportunity (”When you preside you can do what you want.”). Lacking collegiality as a panel, this can occur.
My particular court is courteous, and we haven’t had any specific instances of someone hogging the questions, getting us off track, or so on. However, I talk to other state appellate judges and hear just the opposite occurring. I think most of us agree that one’s professional life can be good or bad depending on who you are teamed with—much like marriage!
A final obstacle to my court experiences is the fact that we travel to hearing sites. Our official chambers may be in one location, but on occasion a judge may choose to work from home or be assigned to work at another site. This requires an additional challenge in scheduling meetings to discuss case outcome.
Personal performance goals: At oral argument, my preference is for the appellant to tell us what we are empowered to do under his theory, e.g., this is a de novo determination by the appellate court—there is no deference to district court—or the trial court erred in [X] and we need to do [Y]. I remind lawyers that I am a former district court judge when they do not concede the discretion afforded to district court. I am most proud of my judicial skills when I hold back and refrain from asking questions—silly Perry Mason style questions. No matter how ridiculous a position, it is not likely that an appellant will concede how wrong his position is by a judge pointing out every error in his case. “You’re right, let me withdraw my appeal,” just isn’t going to happen. I do enjoy spirited debates, but it doesn’t add much to the presentation to point out all shortcomings. Asking less or no questions may even lead to a shorter oral presentation under those circumstances.
In my opinion, tools such as peer or colleague critiques are likely the best mechanism for an appellate judge to get fair feedback. Watching a video will show personal tics or traits on the bench, but the viewer is not likely to discern a questioning style or manner that could be improved.
Eric Magnuson is the former Chief Justice of the Minnesota Supreme Court and for decades has been one of the Midwest’s premier appellate lawyers. His thoughts:
It is very difficult to instruct judges on how to conduct oral argument because argument is intended primarily to answer the questions of the court.
Having said that, I tell lawyers preparing for argument to begin with a one-minute declarative statement on why they win. It should not be a list of the arguments that will be made (per your example), but it should be a powerfully concise statement of the ultimate merits. Viz. – “Appellate courts can and do reverse jury verdicts when the plaintiff has failed to prove every element of their legal claim. This is such a case. The judgment cannot stand.” The why behind that argument comes next, but the advocate has staked out his or her territory.
Another example – “The broad discretion of the trial court in framing jury instructions does not include the discretion to inaccurately state the law. That was the case here. My client is entitled to a new trial.” If there is a second issue, a second sentence should suffice. If there is a third, perhaps another sentence, but by then the court may be losing interest, and perhaps a more global statement would be better.
If the advocate takes the first seconds of an argument to state an affirmative proposition, then the rest of the argument is just support. Questions can follow on any topic, but the advocate has made the essence of the argument.
I suspect that this may sound simplistic, but in my experience, a clear and concise statement of the merits right out of the box establishes more control for the advocate, and provides less opportunity for the court to move the argument in a different direction at the very start.
After that, Katie bar the door. But when the time is nearly up, the advocate should repeat the same opening statement—leaving the court with a clear idea of the relief sought and the reason it should be given.
Even the most aggressive judge is likely to let the lawyer get out two to three sentences, particularly if they are positive and forceful.
One of the reasons to focus on procedural fairness is that the public’s perception of it drives overall public approval of the courts. This is especially important in times like these, in which public confidence in government and other institutions is below historical norms. The United States Supreme Court is historically the leader in public support among courts, so it’s always of interest when Gallup reports the approval level for that court as it begins each term.
This year’s report card raises concern that the perception of the Supreme Court may be dropping on a long-term basis as people view them as increasingly political in their work. Gallup’s September 2012 survey showed less than half of the respondenrs, 49%, approving the way the court was handling its job with 40% disapproving. While that was up slightly from the 46%-45% approval found in a July 2012 survey—taken right after the healthcare ruling—it’s well below the 62% approval the court had in 2000 or the 61% approval it had in 2010.
Behind the number, though, is a partisan divide that has been evident since Bush v. Gore in 2000. Approval by Democrats slipped to 42% in 2001 and stayed in the 40’s until President Barack Obama’s election. But once he began appointing justices, support among Democrats increased to 75% in 2009. Republican approval reached 75% in 2006, but it fell to 49% in 2009. And a further drop in Republican support occurred after the healthcare decision: in September 2012, Republicans disapprove the job Supreme Court is doing (56%-36%) while Democrats approve it (57%-34%). Fortunately, Independents were positive (50%-35%), giving the court an overall approval in positive territory (49%-40%), even though slightly below the 50% mark.
On the plus side, Americans have greater trust in the judicial branch of government than in either the legislative or executive. Gallup’s September 2012 survey also asked how much trust respondents had in each branch, and 67% had a great deal or a fair amount of trust in the judicial branch, while the numbers for the other branches were 56% (executive) and 34% (legislative). And on this question there was less partisan divide: Republicans (62%), Democrats (69%), and Independents (68%) all had relatively good levels of overall trust in the judicial branch of government.
What’s the take-away message here? We’re in a time when public trust in government cannot be taken for granted, and there’s a growing suspicion that judges are political actors. Against this background, it’s vital that judges do our best to provide procedural fairness, which is a key component for maintaining public confidence in our work.
Steve Leben
Guest Blogger: Douglas G. Denton
When the United States Supreme Court issued its written opinion in Bush v. Gore, 531 U.S. 98 (2000), it did so at 10:00 p.m. on a Friday night. This culminated an intense week of briefing and oral argument regarding a Florida recount of the presidential vote. By releasing the opinion on a Friday night, the court genuinely believed that it was acting in the best interests of the nation – and was complying with requests from media – to provide immediate and instant access to the high court’s opinion, precisely when it was completed. What happened, however, was immediate on-air confusion. In their extreme excitement, reporters quickly realized that they did not know how to read a high court opinion. On the following Saturday, The New York Times reported on Friday evening’s events: “As Mr. (Brian) Williams offered bits of encouragement, the (MSNBC) reporter began flipping anxiously through the document. ‘Hang on, Brian!’ Mr. (Bob) Kur said, struggling to find a page that offered some encapsulation of the decision. ‘Looking for the summary.’ When at last he found something, Mr. Kur began reading aloud, but the legalese was almost impossible to make sense of. The mandate placed on television for instant clarity and coherence proved elusive … One problem for the networks was extracting a clear narrative (regarding the substance of the opinion) from the many people they had reading the document simultaneously.” (Peter Marks, Contesting the Vote: The Media; Once Again, the TV Mystery Prevails as Late-Night Fare, N.Y. Times, Dec. 13, 2000, at A1).
Memories of the fallout from the release of the Bush v. Gore decision prompted members of the 2008–2011 Harvard Executive Session for State Court Leaders to begin a dialogue regarding how and when opinions of the high court should be released. For example, what tools or strategies might encourage broad media and public understanding of opinions, particularly when a common high court policy is that “the opinion speaks for itself”? This dialogue led to extensive research by the Administrative Office of the Courts in California and the National Center for State Courts, including a survey of all 50 state high courts. It also lead to a new Harvard Executive Session Paper, “Opinions as the Voice of the Court,” which is co-authored by Wallace B. Jefferson, Chief Justice of Texas; William C. Vickrey, Retired Administrative Director, California Administrative Office of the Courts; and myself. The paper discusses the workings of state supreme courts and effective communication through the lens of procedural fairness.
Over the past decade, all courts – from the U.S. Supreme Court to the hundreds of trial and appellate courts across the nation – have evolved and learned how to better inform, prepare and engage with modern audiences. Effective collaboration between media, bench and bar is crucial to achieve public understanding of rulings, a key ingredient that helps achieve procedural fairness. “Opinions as the Voice of the Court” speaks directly to how the preparation and dissemination of high court opinions (including use of tools like plain language, summarization, and effective communication via the web) may help courts to ensure that each individual opinion—the voice of the court—successfully communicates and demonstrates to various audiences that the court has listened to parties, fulfilled its unique role as an arbiter of justice, and reached a fair outcome.
Douglas G. Denton is a Senior Court Services Analyst at the California Administrative Office of the Courts (AOC), San Francisco
Although we’ve emphasized that it takes time to assess the public’s reaction to a Supreme Court decision—and the effect of that reaction on the public’s goodwill toward the Court—blogs operate in the here and now. So we venture forth with some initial, tentative thoughts.
If opinion polls are a reliable indicator, the public may be disappointed in the outcome of the case—a New York Times/CBS News poll showed that 41% wanted the law struck down altogether and another 27% wanted the individual mandate struck down while keeping the rest. But the Court has had many opinions over the years that have gone against the trend in current public opinion, and in the past that hasn’t caused any lasting damage to the Court’s overall support from the public. In fact, one of the features of the Supreme Court in the past has been its ability to make unpopular decisions without losing public legitimacy, at least in part because the Court has been widely viewed as above politics.
We had expressed concern that this might change if the public perceived the Court had merely acted politically in handling the healthcare cases. Indeed, a Washington Post/ABC News poll showed that 50% thought the Court would rule based on “partisan political views.” So the public was initially skeptical about the fairness of the process.
What does today’s opinion tell the public about the fairness of the process the justices followed in reaching their decision? The initial news coverage has predictably focused on two aspects of the Court’s decision: (1) the outcome upholding the Affordable Care Act and (2) that the majority opinion was written by Chief Justice John G. Roberts, Jr. Indeed, in the big-picture view, which is where public opinion is formed, those are key points. And that means that the Chief Justice—the justice whose very role makes him the face of the Court—will be perceived by many as having decided the case on something other than “partisan political views.” That could certainly reinforce the historic public vision of the Court as an institution that places adherence to the rule of law above politics. In addition, whenever anyone paints the Court in partisan terms, members of the public may think back to the Chief Justice’s key vote in upholding the Affordable Care Act and conclude that the Roberts Court is not simply a political institution making decisions based on policy preferences rather than on the law and evidence.
The Court’s decision confirms our previously expressed view that the Chief Justice indeed had an open mind during oral argument, and that his questions were fair ones to be asked of both sides. In these days of pundits, many commented publicly that it was nearly a foregone conclusion that the Court would find the entire statute unconstitutional—based on what was observed at oral argument. Perhaps this high-profile example that such guesses can be wrong will also be helpful; the public may realize that oral arguments are part of the process of learning about and exploring the issues, not deciding them. An open process in which issues are explored, parties’ positions are better understood, and the Court then retires to consider everything it has heard, fulfills public expectations for procedural fairness.
We’ve only looked briefly at the written opinions at this point. The justices receive mixed grades in terms of being respectful, but—at least in their introductions and conclusions—they have tried to explain basic concepts involving the exercise of government power under the Constitution. But news-media commentary is likely to give prominence to those instances where one or more of the justices indulged in sarcasm and belittled the other side of the decision.
That leads us to wonder whether the justices might yet benefit greatly by writing more for a lay audience than for each other or for constitutional law scholars. When he wrote the draft opinion for Brown v. Board of Education, Chief Justice Earl Warren set out to write an opinion so short that it would be reprinted by newspapers and read by the public. Warren’s memo to his fellow justices accompanying the draft told his colleagues that the draft had been “prepared on the theory that the opinion[] should be short, readable by the lay public, non-rhetorical, unemotional, and, above all, non-accusatory.” He wanted to make sure that the opinion would be understood and accepted by the public.
Perhaps the Affordable Care Act has so many more moving parts than the concept of segregated schools had that it was necessary for the justices to issue opinions totaling 193 pages to decide the case and explain the decision. Even so, we know that public interest in the healthcare cases was high, and many more citizens would have read the opinion—and gained further appreciation for the Court—had the justices written shorter opinions more tailored toward a lay audience. Chief Justice Warren’s opinion in Brown, which took up only 14 pages in the United States Reports (including the syllabus prepared by the reporter to summarize the opinion) may remain a model of succinctness and clarity that modern courts simply do not approach.
In sum, the combination of a well-publicized oral argument that was fairly handled and allowed issues to be explored and a ruling in which the most prominent justice went against partisan stereotyping may augur well for long-term public support for the Court. Time—and future events—will tell.
Steve Leben, Kevin Burke, David Rottman & Tom Tyler
So we will need to wait until Thursday for the Supreme Court’s decision on the Affordable Care Act. Interest runs high. Today, nearly 100,000 people signed on to a live blog from Scotusblog.com to see whether the Court had ruled on the healthcare case and, if so, in what way.
We previously considered the healthcare cases from a procedural-fairness viewpoint. We gave the Court a passing grade for procedural fairness at oral argument: the two justices most closely watched, Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy, asked questions of attorneys both for and against the law, and each tried to explore the issues in an even-handed way. (See our April 3 blog entry.) We also noted that diffuse, long-term support for the Court has usually stood resilient in the face of short-term disagreements over specific cases. (See our April 13 blog entry.)
But there are also reasons for concern—that the Court’s decision in the healthcare cases may prove particularly significant in their impact on long-term public support for the Court as an institution. Gallup checks public approval of the Court before each September, just before the Court begins its new term. Approval in 2011 was down to 46%, down 15% in two years and lower than all but one other reading since 1973. At the same time (Sept. 2011), Gallup reported historically high levels of negativity toward all of the federal government, with 81% dissatisfied, an historic level.
One important factor in maintaining public support for the Court is the public’s perception that their concerns and interests are fairly considered there. But that’s not the expectation as we await the healthcare decision. A Washington Post-ABC News survey in April showed that 50% thought the Court would rule based on “partisan political views,” with only 40% saying it would rule “on the basis of the law” and the remaining 10% undecided.
Public reaction to two past decisions offers some insight into the likely impact of next Thursday’s ruling on public opinion; they suggest caution against over-reading any immediate reaction in public opinion to the healthcare decisions. The first is Kelo v. City of New London, the Court’s 2005 eminent-domain decision. It was coincidentally issued one day before Gallup began a three-day opinion survey about Court approval, and the 42% approval rating (compared to 48% disapproving) is the lowest measurement for Court approval during the history of the poll (1973 to present). But the Court’s approval quickly rebounded—to 48% by the annual survey in September 2005 and back to 60% a year later. The second is Bush v. Gore, the 2000 decision that had obvious political overtones. But the Court’s approval ratings were 62% in September 2000, 59% in January 2001, and 62% in June 2001, showing no ill effects on overall public approval.
Even with these cautionary words, however, we believe the healthcare cases may present a more significant problem—and opportunity—for the Court with respect to maintaining its long-term, diffuse support (what we sometimes call its legitimacy). Interest is high, and public skepticism with its national government is high too.
Polls have also shown that the public wants to see some or all of the law struck down. A New York Times/CBS News poll earlier this month had 41% wanting it struck down altogether and another 27% wanting to keep the law but overturn the individual mandate to buy insurance. But there still are millions of Americans who want the entire law kept in place, and all will be watching to see how their concerns have been taken into account.
The Court could improve its standing if it has reached consensus by at least six justices, which would demonstrate its ability to reach consensus on neutral principles that transcend party affiliation. In addition, to the extent that the Court’s written opinions honestly acknowledge the sincerity of opposing views, while carefully explaining the basis for the decision (or dissent), they will foster the appearance of a respectful institution that takes the people’s concerns seriously. In short, the justices will be viewed as having followed a fair process to reach its decision.
Steve Leben, David Rottman & Kevin Burke
This posting begins a transition from the recent series of blogs and comments pertaining to the rarified world of the US Supreme Court toward consideration of the more mundane and immediate setting of state trial courts. This post raises the question of how what we know about the sources of support for the Court is relevant when we consider support for trial courts. The answer depends, in part, on what we believe drives public support for the Court—and perhaps on the reason that brings a person into the courthouse.
Some political scientists argue that it is the very inaccessibility of the US Supreme Court that underpins its support. For example, Political scientists John Hibbings and Elizabeth Theiss-Morse argue: “The Court is more insular than any other political institution, and people like it for that very reason. People do not have to participate in or even see the deliberations of the Court” (pp. 200-201 in Stealth Democracy: Americans’ Beliefs about How Government Should Work). This suggests the Court is wise to prohibit televising of oral argument and, perhaps, that trial courts are doomed to low levels of support.
Other political scientists, however, highlight the role that knowledge of the Court plays in understanding why support varies among members of the public. Studies by Jim Gibson and his colleagues, for example, lead to a conclusion that there is a “to know them is to love them” effect in which the more knowledgeable someone is about the US Supreme Court, the higher their level of support will be (see James Gibson, “Public Images and Understandings of Courts” in Oxford Handbook of Empirical Legal Research, 2010). Gibson asserts that the this effect “is largely a function of the knowledgeable being exposed to highly legitimizing symbols of judicial power: the black robe, the privileged form of address, the deference, even the temple-like building housing most courts.” This suggests that the Court should open up oral argument to the public, and that being involved directly in a case may well enhance a person’s support for trial courts by increasing their level of knowledge.
A majority of American adults have had direct experience in a courtroom as a litigant, defendant, juror, witness, or spectator. Many of them have had multiple experiences with the trial courts, in multiple roles. They see the symbols in the temple-like building but also see the crowded dockets, delays, contentiousness, and compromises of the courts in action.
For at least some of these court participants, a link of the kind described by Gibson between greater knowledge and greater support seems plausible. Jurors are the best example. Former jurors consistently rate procedural fairness in trial courts highly. In a 2000 national survey of members of the public who had had direct court experience within the preceding 12 months, former jurors averaged procedural fairness ratings of 3.6 out of a possible 4.0; this contrasts with former litigants, who averaged 2.7 out of 4.0 (David Rottman et al., Perceptions of the Courts in Your Community: The Influence of Experience, Race and Ethnicity, NCSC, 2003).
A recent book, The Jury and Democracy (Oxford University Press, 2010), by John Gastil and colleagues, reports research that supports a knowledge to support link and also explores the potential impact of the experience of jury deliberation on jurors’ future civic and political engagement. The book is a product and discussion of three related studies conducted by the authors: a national sample of jury service and voting records, a three-stage survey of jurors in King County, Washington, and a smaller series of in-depth interviews with jurors. The book begins with a basic, but perhaps surprising, finding – that the experience of deliberating on a criminal jury causes jurors to become more likely to vote in future elections – the book then explores why the experience of serving on a jury has this effect. Ultimately, Gastil and his colleagues find that jurors leave the courtroom with increased respect for attorneys and judges, become more likely to pay attention to the news media and discuss community issues with neighbors, and more likely to be supportive of the jury system, local judges, and even the Supreme Court.
A future blog posting will look at the implications of how jurors respond to court experience—and the contrast to those who are in the courthouse for other purposes–for programs to increase support for the state courts.
David Rottman
There is intense speculation about the potential impact of the Affordable Health Care Act on the US Supreme Court’s standing with the American public. Decades of public opinion polling demonstrates the resiliency of the Court in withstanding case decisions that seriously displease large segments of the public. The Court appears to command the loyalty of the American people because of the manner in which it reaches decisions, not the specific decisions it reaches.
Will history repeat itself in the case of the Health Care Act? There are strong reasons for anticipating that the public’s loyalty to the Supreme Court as an institution will prevail, regardless of the case outcome. The partisan tumult associated with Bush v. Gore seemed at first to challenge such an expectation, yet after that case, overall support for the Court quickly reverted to its traditionally high (relative to other federal government institutions) level. In the short term, disenchanted Democratic-leaning Court supporters were instantly replaced with newly enchanted Republican-leaning Court supporters, leaving overall levels of support unchanged; however, even that effect was short-lived. One month after the decision, over 61 percent of Democrats professed a favorable opinion of the Court and only 29 percent an unfavorable opinion [Pew Research Center]. Support for the Court once again became equally prevalent among Democrats and Republicans alike.
Today’s Supreme Court justices may have reason for concern that history will not repeat itself and that their decision in the Health Care Act case could reduce diffuse support their institution receives from Democrats (and less certainly from Republicans, who already view the Court as too liberal, if the decision goes in the other direction). “Diffuse support” is a reservoir of good will on which the Court can draw, as opposed to the temporary “specific support” that it might receive based on agreement with a particular decisions. In procedural fairness terms, diffuse support comes from public perceptions that decisions are being made according to principles of respect, neutrality, participation, and trustworthiness. Things may have changed since 2000. The Court is increasingly being seen in partisan terms. A Washington Post-ABC News survey last Sunday asked a random sample of adults, “Do you think the Supreme Court justices will rule on this case mainly on the basis of the law or mainly on the basis of their partisan political views. Forty percent answered “on the basis of the law” and 50 percent based on “partisan political views,” with another 10 percent undecided. Those responses come at a time in which support for the US Supreme Court has been declining, most likely a manifestation of a general decline of trust in government across the board. The past may therefore be a less certain guide to the consequences of a decision viewed unfavorably by a substantial segment of the public, especially if Democrats see the decision as part of a series of specific disappointments with the Court. Support for the Court cannot in the long-run rest on new supporters from one party replacing former supporters from the other.
We have no way of predicting whether successive disappointments with specific Court decisions will lead to a decline in its diffuse support among a segment of the population. The historic relationship between the Court and African-Americans suggests, however, that groups who are dependable supporters can become persistent critics. Over time, the high level of support the Court enjoyed from the African-American community during the period of the Warren Court was replaced by atypically low levels of diffuse support. While African-Americans who grew up during the Warren Court era retained their loyalty, subsequent cohorts never developed a similar level of diffuse support. Bush v Gore also teaches us that one effect of the Health Care Act will be to at least modestly increase public knowledge about how the Supreme Court operates. People will talk about and think about the manner in which the Court is making its decision. This is both an opportunity and a risk to the justices. If what people learn and come to believe from news reinforces the belief that the Court follows a procedurally fair process, diffuse support for the institution will be enhanced. As Judges Burke and Leben noted in previous posts to this blog, the Court is taking some steps to expose its process to unprecedented scrutiny. That should be a plus. But the risk is real. In his analysis of the response to Bush v. Gore, political scientist Bert Kritzer noted that the Courts refusal to allow television cameras into oral argument may have served “to limit the vehemence of the public reaction to what the Court decides.”
On balance, the smart bet is on the Supreme Court’s continued ability to maintain diffuse support across the political spectrum. However, demonstrating procedural fairness in the decision and how it is presented will increase the odds of history repeating itself in June 2012 when the decision is announced
David Rottman
Guest Blogger:
Roger Hanson
Two recent procedural fairness blogs try to identify workable criteria of procedural fairness in appellate courts and especially during oral arguments. The bloggers rightly point out the importance of how judges conduct the proceedings and emphasize the importance of civility in questioning both sides and letting both sides address the court..
However, isn’t the acid test that attorneys or pro se litigants apply whether the judges understand the issues in the case? If so, isn’t a pertinent and operational criterion that the judges know the facts? Presumably, U.S. Supreme Court Associate Justice Antonin Scalia flunked this test when he brought up the Cornhusker Kickback in the recent argument over the Affordable Health Care Act. His behavior suggested an incomplete and incorrect understanding of the provisions of the law under review.
A related test concerns what the judges say about the briefs in a case. If so, isn’t it also pertinent and feasible to assess appellate judges by expecting them to address the dispositive issues submitted in the briefs raised by counsel or pro se litigants? Certainly judges are entitled to ask other questions that they believe revolve around what they think are the dispositive issues. However, in the American appellate system where premium value is placed on the briefs, shouldn’t oral argument recognize this established value?
One more test might focus on the authorities raised in the briefs. If so, isn’t it feasible and relevant to assess whether the most eminent previous court decisions cited by counsel or pro se litigants received some recognition? Yes, judges can easily make new law, but they operate in a legal system where past authority counts. And in the recent Affordable Health Care Act oral argument, I didn’t hear a lot of discussion about previous and relevant U.S. Court of Appeals decisions. That omission was striking to me as an observer.
It seems to me that additional tests are possible that concern the judges understanding of the issues.Those tests are worthy of future research and legal analysis, in my opinion.
Roger Hanson lives in Denver and is engaged in legal research for the purposes of legal reform. He assisted the Right Honourable the Lord Woolf in his report of civil justice in England and Wales and has worked in Afghanistan and the Philippines in addition to American state and federal appellate courts. He always roots for the Kansas Jayhawks.
In our last blog post, we said that the public attitudes about the judicial system at all levels could be significantly impacted by how well the justices of the United States Supreme Court adhered during oral argument to the elements of procedural fairness—voice, neutrality, respect, and trustworthy authorities. So how did the justices do? It’s an important question: This case has the potential to increase the sense of legitimacy in judicial decisionmaking, and it also has the potential to be a train wreck. Despite the importance of oral arguments, whether one of those two extremes will occur will be very dependent upon the final written opinion. But the oral arguments certainly set the stage for how people will view the process by which this case is decided.
On the whole, the justices performed reasonably well during oral arguments. Most asked good questions that seemed to be honest attempts to explore the strengths and weaknesses of each party’s positions. And this was certainly the case for the two justices whose role in the oral arguments probably mattered the most in public perception: Chief Justice John G. Roberts, Jr. and Justice Anthony M. Kennedy—Roberts because as chief justice he runs the show, and Kennedy because he is widely seen as the swing justice these days when the court is closely divided.
Both Chief Justice Roberts and Justice Kennedy asked questions of attorneys both for and against the Affordable Care Act. And both tried to explore the issues in an even-handed way. For example, while Roberts asked tough questions of the government’s lawyer regarding the individual mandate, he also interrupted one of the attorneys arguing the other side to have him respond to what Roberts perceived as the government’s main point. Kennedy openly discussed “concerns” he had regarding each side’s position. To opponents of the law, Kennedy asked that they address his “concern in the case” that the young person who chooses to be uninsured is “very close to affecting” insurance rates for others “in a way that is not true in other industries.” Kennedy also asked detailed questions of the government, which based part of its defense on the principle that the government had exercised its taxing power as authority for the mandate for each individual to buy health insurance. Kennedy asked them to assume that the government indeed could have used its taxing power and directly created a single-payer national health plan. He then said that “it can be argued that this is what the government is doing; [the government] ought to be honest about the power it’s using and use the correct power,” to which the government’s attorney provided a response.
Chief Justice Roberts acted evenhandedly in presiding over the arguments. Although the justices and frequent court-watchers may be used to it, the public was no doubt surprised by how often justices interrupted one another—and also interrupted attorneys while the attorney was still responding to another justice’s question. Roberts frequently asked attorneys to return to the question that had initially been asked by another justice but not fully answered, ensuring that the advocates had a fair chance to respond to the important questions that the justices had posed to them. From a fairness standpoint, however, it would be much better if justices didn’t interrupt each other so frequently, and if they allowed attorneys to finish their answers to other justices’ questions.
Media accounts of the arguments have tended to focus on attempts to predict the outcome based upon questions asked or attitudes exhibited during oral argument. Arguments from judges who have carefully studied the briefs often will produce some questions that express tentative positions, which is to be expected. While that may be the case, most of the questions still were usually fair ones that gave the attorneys a chance to respond to what the justices saw as weaknesses in their positions. Appellate advocates appreciate having the chance to address the points that are on the minds of the justices, and the justices generally gave them that chance.
Experienced lawyers—and judges—will tell you to be cautious about reading too much into a judge’s questions and comments during oral argument. Sometimes a judge will ask questions to confirm a tentative position the judge has arrived at based on the briefs. Sometimes a judge is aware of concerns a colleague has and will use the oral argument to garner support for a majority opinion. Sometimes a judge really has reached an immovable position. Two respected federal appellate judges once kept track—for 10 months—of how often oral argument had changed their minds in a case; one judge said it had 31 percent of the time and the other 17 percent. The confidence of pundits notwithstanding, it’s not always possible to tell how a case will come out based on the oral argument.
Only one justice simply seemed tone-deaf at times to the principles of procedural fairness: Justice Antonin Scalia. From a fairness standpoint, the public wants to perceive that the justices are considering the issues based on neutral legal principles, not in any political way. Yet Justice Scalia was the only one to introduce partisan politics directly into the discussion.
During the argument about whether the Medicaid provisions were unconstitutionally coercive on the states, attorney Paul D. Clement was explaining that 26 states thought it was a bad deal for them. Scalia interrupted and framed the issue as a purely political one: “Mr. Clement, I didn’t take the time to figure this out, but maybe you did. Is there any chance that all 26 States opposing it have Republican governors, and all of the States supporting it have Democratic governors? Is that possible?” Clement replied, “There’s a correlation, Justice Scalia.” The transcript shows that Scalia then said, “Yes,” followed by laughter from the audience. Scalia left it there, and another justice asked an unrelated question.
No one—Scalia, Clement, or anyone else—suggested how the party affiliation of the governors could relate to the legal issue being discussed. As far as we can tell, Scalia injected partisan politics directly into the discussion at this point solely to lead to a laugh line. Humor does have a place in arguments before judges. But a judge interjecting humor should be careful. Justice Scalia’s laugh line may well have come at a cost, as it undermined what we presume is the court’s desired perception that it decides case like this based on neutral legal principles, without consideration of partisan political overtones.
Justice Scalia made at least one other potentially questionable comment. In an argument of this length, people—and justices are people—do make mistakes, but this mistake was profound and went to undermining the trust people need to have about judges. When discussing whether the entire law should be struck down if the court strikes down the individual mandate, Justice Scalia made a perjorative reference to a provision that was contained in the Affordable Care Act but ultimately did not become law: “[I]f we struck down nothing in this legislation but the—what’s it called, the Cornhusker kickback . . . [i]t was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.” Using the term “kickback” in referring to a provision that provided benefits to one state, Nebraska, in exchange for the vote of its senator sounds more like a political attack ad than the sort of question a neutral judge would ask. It’s odd that Justice Scalia would ask such a question because his consistent position is that in interpreting statutes, legislative-history materials (like Congressional debate transcripts) should not be consulted, let alone the sort of media coverage that led to public discussion of the Nebraska provision. And while the provision Scalia refers to as the “Cornhusker kickback” was in the Affordable Care Act, another bill repealed it before it took effect. So the use of this example seems gratuitously partisan, even if that was not the intention.
Justice Scalia made one other comment that runs contrary to the image the public wants for its Supreme Court justices, and once again he ran aground by attempting to inject humor into the proceedings. When the attorneys were arguing about whether some of the provisions of the Affordable Care Act could remain in effect if the individual-mandate provision is struck down, Scalia invoked the Eighth Amendment’s prohibition on cruel and unusual punishment while expressing astonishment that the attorney had suggested justices review the full statute to determine what could remain in effect: “[W]hat happened to the Eighth Amendment? You really want us to go through these 2,700 pages?” The transcript shows laughter in response. But Scalia ended the exchange with a more serious suggestion that it really was unfair to ask a Supreme Court justice to read the Affordable Care Act in full: “Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?”
Other justices suggested that such a review wasn’t needed, anyway, based on the nuances of past Supreme Court cases on how to decide whether to strike down an entire statute or only parts of it. But a member of the public listening to the argument could easily have been left with the impression that Justice Scalia—a lifetime appointee to the nation’s highest court—wasn’t willing to take the time to read the full statute passed by Congress to make his decision. The public wants judges who will take all the time needed to make a good decision on an important issue, and the public certainly regards the issues in play here as important ones.
It’s too early to fully evaluate the court’s handling of these cases from a procedural-fairness standpoint. The written opinion or opinions of the justices are likely to have a much more profound impact on how the American people view judicial decisionmaking than the oral arguments. Ideally, the opinion would be joined by more than five justices, which itself would suggest that the justices reached consensus on neutral principles that transcend party affiliation. But whatever the vote margin, opinions that honestly acknowledge the sincerity of opposing views while carefully explaining the basis for the decision (or dissent) will help the nation to respect the judicial process. Anything less could cause lasting damage.
Steve Leben and Kevin Burke
Beginning Monday, March 26, 2012, public attention will focus on the United States Supreme Court in a way that’s essentially unprecedented. Sure, there have been many important cases in the Court’s history, but few have had timing like this. It’s a Presidential-election year. The health-care cases divide the country, even if the precise legal issues are not yet well understood by the public. And there are lots of pundits poised to comment, few of whom will actually be objective.
In this environment, the Court will hold three days of oral arguments on issues surrounding the Patient Protection and Affordable Care Act—the 2,400-page law called Obamacare by its detractors and the Affordable Care Act by its supporters. The nation’s 24-hour news cycle will be focused like a laser beam on the Court, but there will be no television cameras, no live radio broadcast, and no blogging, twitter, or other reporting from the courtroom.
Even so, what the public perceives about whether the justices gave a fair hearing to both sides may have a lasting impact on public attitudes toward the judicial system at all levels. What will the public be looking for? And is the Court equipped to provide it?
Based on decades of research, the public will be looking for the elements of procedural fairness—voice, neutrality, respect, and trustworthy authorities. To be sure, the public will also make judgments about the merits of this case. But there is a lot more at stake: the legitimacy of the judicial process is also being tested.
To pass that test with the public, the Supreme Court needs to conduct the argument with a keen eye on the goal of demonstrating that courts decide issues in a way different than the political debates of a presidential campaign or the legislative process. Among other things, to achieve procedural fairness, the justices will need to let attorneys actually make some points without being interrupted, to appear willing to listen (better yet, actually be willing to listen), and to avoid arguing from a clearly predetermined position.
The normal case in the U.S. Supreme Court gets one hour for oral argument. This case is getting five and one-half hours spread out over three days. Allowing that extra time was wise from many perspectives. First, justices who want to explore the issues along with the advocates will have the time to do so, rather than feeling the need to quickly stake out a position and argue for it in an attempt to persuade colleagues in advance of the justices’ private case conference where decisions are made. Second, media coverage will emphasize the extent of time devoted to hearing argument in the case, said to be unprecedented in the modern era. Third, the media will be able to explain each of the major issues during the time slot in which argument is being made.
But even with ample time, the attitudes demonstrated by the justices will frame perceptions of their fairness. Senator John McCain attended the oral argument on the McCain-Feingold campaign-finance bill that he had sponsored. When the Court ultimately ruled in Citizens United v. FEC (2010) that the government could not ban political spending by corporations in candidate elections, Sen. McCain spoke in an interview about the attitudes he had observed during oral argument:
“I was not surprised at the Supreme Court decision. I went over there to observe the oral arguments. It was clear that Justice Roberts, Alito, and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to [the law.].” (CBS, Face the Nation, Jan. 24, 2010.)
Sen. McCain has certainly been around the block and heard harsh attacks. Yet he remembered several months after oral argument that there had been “very skeptical and even sarcastic comments” made by several justices.
Even though the Court refused C-SPAN’s request to televise the hearings, the Court will expedite release of transcripts and audiotapes from its normal practice, in which tapes aren’t released until the end of the week. This time, tapes and transcripts will be posted on the Court’s website as soon as they are available; the Court’s public-information office says that the morning session should be available by 2 p.m. each day and that the afternoon session on Wednesday, March 28 (the only afternoon session), should be available by 4 p.m. that day.
This means that the public will be able to hear—the same day—the tone used by justices in asking questions or, for some justices, making arguments. The admonition given recently in this blog by Minnesota appellate judge Francis J. Connolly is one that members of the U.S. Supreme Court should pay heed to next week: “We need to remember that we are not cross-examining a hostile witness but rather probing an attorney’s argument.”
Because of the media attention that will be focused on the U.S. Supreme Court next week, this will be a seminal moment for public perceptions of the justice system. The justices can do a great service to the country by demonstrating procedural fairness throughout the arguments.
Steve Leben and Kevin Burke
[For background about the Supreme Court’s proceedings on the health-care law, and for links to transcripts and audiotapes as they are released, go to SCOTUSblog.]
Procedural Fairness For Courts and Judges 