In the New York Times yesterday John Pfaff reflected on a serious problem at the Supreme Court. Increasingly its opinions rely on statements of facts that are later determined not to be true. And Professor Pfaff is also right that the Court as institution is not well designed to find facts. He notes correctly that opinions often rely for their assertions on amicus briefs of experts. But the obvious problem is that these briefs are generally pieces of advocacy seeking a particular result.
Unfortunately, his solution of creating a technical body of advisers to the Court for sorting out factual determinations is unwise. Experts can also make mistakes and in some areas have strong partisan and methodological biases. They would also necessarily work in secret.
Chip Mulaney and I have argued for a different solution: unless the facts on which a holding turns are obvious, stipulated, or reflect an adversarial process below, the Court should remand the case for factual findings by a trial court. It could then choose to hear any relevant parts of the case again on a full factual record.
Debates over government practices and processes in the U.S., like the Senate’s filibuster, typically come amidst specific disputes, such as Gorsuch’s confirmation. As a result, support or opposition to those practices or processes typically depend on whose ox is getting gored in the particular debate. Republicans last week eliminated the filibuster for Supreme Court nominees, Democrats opposed it. Democrats eliminated the filibuster for lower-court nominees and executive officers in 2013, Republicans opposed it. Given the taboo has been violated in these debates, and voters responded with little more than a yawn, I wouldn’t bet on the filibuster’s long-term continuation for ordinary legislation.
There’ll be some differences with its elimination, but I expect the overall effect will be a wash.
There is much to be said in favor of a supermajority rule for confirming Supreme Court Justices. As Mike Rappaport and I argue in the Judicial Filibuster, the Median Senator and the Countermajoritarian Difficulty, the result of such a rule will be more moderate justices, less likely to go to any extremes. At a more theoretical level, a supermajority rule will temper the countermajoritarian difficulty — the problem created by an unelected judiciary invalidating the decisions of the popularly elected branches. Judicial review under this confirmation rule would be more likely to impose the long-term limitations on popular government that most people themselves desire.
The filibuster, however, is a weak supermajority rule, because a partisan majority of Senators can change it any time through the so-called nuclear option. Despite my preference for a supermajority confirmation rule, the filibuster is unlikely to survive, if Senator Chuck Schumer has implied, the Democrats are inclined to filibuster Trump’s Supreme Court nominees. Noah Feldman is thus wrong in claiming that it is plausible that the Supreme Court will continue to operate with only eight members.
First, the filibuster for Supreme Court confirmations has been gravely weakened by the previous Democratic controlled Senate’s elimination of the filibuster for other nominations, both for the executive branch and for the lower federal courts.
It has been a disorienting year for classical liberals. The presidential candidate of the more classically liberal of the two major parties took some positions wildly at odds with classical liberalism, like opposition to freer trade, enthusiasm for government intervention in corporate decision making, and hostility to some civil liberties. He won the Presidency in part because of some of those positions.
But then the same candidate announced the nomination of a substantially better cabinet from the classical liberal perspective than those Hillary Clinton would have appointed. It is through these generally decent appointees that he must largely govern, not by twitter.
He also shows every sign of following through on his commitment to appointing a justice sympathetic to enforcing the constitution as written and thus better implementing a charter broadly reflecting the classical liberalism born in the eighteenth and nineteenth century, although not of modern libertarianism. Once again the relative success of classical liberalism is made even clearer if potential nominees are not evaluated against a standard of utopian perfection, but compared to the result-oriented justices(s) that Hillary Clinton promised to appoint.
Here then are a few classical liberal resolutions for this strange era.