Tag Archives: Adam Liptak

As the Supreme Court ends another Term the attention continues to be on the Justices themselves and their voting patterns. This past Term featured a higher than average number of unanimous opinions. But as Adam Liptak from the Times has noted, these opinions seemed to mask disagreements among the Justices. Why then the unanimity? One hypothesis is that the Justices are trying to shore up the institutional integrity of the Court having become more sensitive to or cognizant of the charge that the Court with its numerous sharply divided opinions along idealogical lines is a nakedly political institution. But does this sort of unanimity (some might call it unanimity for the sake of unanimity), if that is what it appears to be, really enhance the legitimacy of the Court in the long term?

One can argue that it does not. In its most benign form, the Court is simply “kicking the can down the road” in its refusal or inability to grapple with sensitive legal issues, even if doing so would lay bare the ideological fault lines within the institution. Another more cynical interpretation is that the “conservatives” on the Court, having made institutional integrity the central focus of the Court’s agenda, are challenging their more liberal colleagues to be the ones to blink first. “Dissent if you dare” may now be a common refrain by Chief Justice Roberts, the supposed architect of the Court’s recent approach toward greater unanimity. And the conservatives can afford to wait since they, more so than their liberal colleagues, are the ones who have prevailed in cases which have presented the most contentious issues of the day. Why fix it if it ain’t broke? or so the saying goes.

The downside of all this is that Court deprives the country of the guidance it needs to govern its affairs. Fostering unanimity means declining more cases or accepting more “easy” cases — ones that perhaps don’t carry the kind of political baggage that cases about gay marriage or contraception do — or delaying to another day a ruling on a broader but more contentious issue in a case that the Court has accepted in favor of a more narrow but less contentious point. There are sound reasons for these approaches, the details for which are beyond the scope of this post. But institutional legitimacy is not one of them.

It is foolish to think that fractured decisions deprive the Court of credibility. The cases that reach and are accepted by the Court are often ones that have already split the lower courts. Add to this the fact that judges by nature have their own predispositions and prejudices, it should come of no surprise that cases often end up being decided by a bare majority. And this is as it should be since fractured opinions also foster healthy debates among the justices themselves and in the public at large on the correctness of one view over another.

The Court’s legitimacy comes not from the actions of the Court itself but from the views and beliefs of the people whose rights and duties are the subject of the Court’s decisions. So long as the Court stays true to its duty of interpreting and when necessary making law that best reflects its view of what the Constitution requires, then its legitimacy as a governmental entity is sound. This is so even if one or more members of the public disagree with how the Court interprets the Constitution.

What is more important from the standpoint of the Court’s legitimacy is the public’s understanding and acceptance of the decisions that are actually issued. This necessarily takes time and it requires the involvement (in the form of outreach, education and so forth) of individuals and groups who often have no relation to the Court. But none of this is possible if the Court makes an effort to decide fewer cases or skirts an issue in a case just because it is one whose resolution would divide the Justices.

Like this:

The Times’ Adam Liptak continues his exceptional reporting with a column today on the impact of the Supreme Court’s decision in Iqbal v. Hasty. Here is an excerpt:

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

The old world was mechanical. A lawsuit that mouthed the required words was off and running. As the Supreme Court said in 1957 in Conley v. Gibson, a lawsuit should be allowed to go forward “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Things started to change two years ago, when the Supreme Court found a complaint in an antitrust suit implausible.

In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.

“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”

Liptak also quotes Justice Souter dissenting from the majority’s decision in Iqbal. What he does not mention, however, is that Souter had authored the opinion that really gave birth to this new “plausibility” standard: Bell Atlantic Corp. v. Twombly. Whether Souter envisioned when writing Twombly that his opinion would one day be interpreted by his colleagues to impose an even stricter standard of pleading and thus make it harder for plaintiffs to have their claims heard by a jury will probably remain a mystery. There is little doubt, however, that Souter was kicking himself in Iqbal for having had a hand in that process.

In today’s New York Times, Adam Liptak, the paper’s long-time legal correspondent and now Supreme Court guru, surveys the latest Supreme Court term that just ended this past Monday. He called Justice Kennedy “the most powerful jurist in America” – an especially scary proposition, since that can only mean more 5-4 decisions for the foreseeable future, with both the “liberal” and “conservative” wings of the Court courting the vote of America’s most powerful and perhaps fickle jurist.

The introduction of Sonia Sotomayor as the Supreme Court’s next Associate Justice will, of course, do little to change that power dynamic. As Liptak observes:

If Judge Sonia Sotomayor is confirmed by the Senate, she will succeed Justice David H. Souter, a liberal who spent almost two decades on the court. Her record on the federal appeals court in New York suggests that her views are largely in sync with those of Justice Souter, though there is some evidence that she will turn out to be more conservative in criminal cases.

The arrival of a neophyte justice coupled with Chief Justice Roberts’s increasing mastery of the judicial machinery foreshadow a widening gap between the Democratic-led political branches and the Supreme Court. Indeed, the court appears poised to move to the right in the Obama era.

Chief Justice Roberts has certainly been planting seeds in this term’s decisions. If his reasoning takes root in future cases, the law will move in a conservative direction on questions as varied as what kinds of evidence may be used against criminal defendants and the role the government may play in combating race discrimination.

Sotomayor’s presence on the Court will, however, mean dark days for the criminally accused. As Liptak himself pointed out, when push comes to shove, Sotomayor has generally sided with the Government in criminal matters. The fact that Sotomayor received the endorsement of eight national law enforcement organizations is reason enough to be worried. The Alliance for Justice, a public interest organization, reviewed Sotomayor’s record on criminal matters as a judge in federal court in a lengthy report. It praised her “cautious style” which, according to the organization, “reveals the temperament of a former prosecutor who understands the real-world demands of prosecuting crime and fundamentally respects the rule of law, while remaining alert to the rights of criminal defendants.” Judge Sotomayor couldn’t have said it better herself. More troubling is the fact that Sotomayor is supposed to have lived in areas like the South Bronx whose residents and communities have been ill-served by increasingly harsh and conservative policing and anti-crime policies crafted, as is the case here in Atlanta. Of course, reasonable people may differ on what “criminal justice” means, and Sotomayor’s current views on the matter are by no means an indication that she has forgotten her roots or those regular joes she often claims to have in mind when crafting her judicial decisions. Yet it is puzzling that for someone who shares Obama’s newly minted judicial philosophy of empathy for the individual, Sotomayor is all too comfortable siding with the institution and those in power. Then again, there is little indication she has ever strayed from that circle for most of her adult and professional life.

Barring any last-minute revelations, Sotomayor will eventually take the bench on the Supreme Court. When she does, Justice Roberts will have gained another ally in his quest to strip criminal defendants of their rights.