The Will of the People has received mention again this week in the New York Times  Paperback Row September 30 2010.   Read the article

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Now that the Supreme Court’s 2009 Term is under way, it is interesting to look at how the docket is shaping up.  Two categories of cases dominate:  business cases and criminal cases.  Business cases are roughly half the docket, and there’s a full plate of criminal issues as well.  Let’s think about why that might be.

One obvious explanation is probably only partially correct.  Given the downturn in the economy, and the fact that economic issues have dominated American politics over the past year or so, it is not surprising that these sorts of issues are heavily-represented on the Court’s docket.  As is evident in The Will of the People the Court is usually embedded in the issues of greatest importance to the American people at any given point in time. 

There are surely cases before the Court that grow out of the country’s financial troubles, most notably the challenge to the constitutionality of the Public Company Accounting Oversight Board.  And the several cases involving debt collection and bankruptcy undoubtedly present themselves as more worthy of the Justices’ attention in the current economic climate.

Still, it takes time for issues of immediate public concern to blossom fully on the Court’s docket; most legal matters involving the economy are unlikely to have made it to the high court yet.  Lots of this Term’s business cases have no obvious connection to current economic issues.  Similarly, one might think that bad economic times breed criminal litigation, but the sorts of questions the Court is tackling – e.g., life without parole for juveniles, questions regarding sex offenders, and a spate of Miranda cases – have little to do with crime and the economy.  (Besides, crime rates may be falling, not rising.)

The better answer rests in understanding the strategic interaction that takes place among the justices as they shape their docket.  Cases appear on the docket when four justices vote to grant the writ of certiorari.  Any justice voting to grant cert in a case should have the good sense to look ahead to what the vote count on the ultimate outcome is likely to be.  If the case is “cert-worthy” by traditional criteria, but a justice is likely to lose big on the merits, the logical thing for her to do is vote to deny review.  Political scientists call these “defensive denials.”  (The alternative, when a justice knows he can win big, would be an “aggressive grant” – a case that might not be cert-worthy, but provides the opportunity for moving the law in a favored way.)

The present Court is in flux, and the justices are understandably wary about the way their colleagues will vote to resolve cases.  The wild card, especially for conservatives in big cases, is Anthony Kennedy.  The fact that he cannot necessarily be counted on to vote with them, might lead his conservative colleagues to avoid hearing these big ideological disputes.  For the same reason, the left side of the bench would be similarly wary of the Man in the Middle and reluctant to take the same kind of cases.

In both business and criminal cases, however, ideology has not played out the same way as in many other sorts of issues.  In the early years of the Roberts Court the justices were often unanimous in business cases.  Although that sort of agreement has fallen by the wayside, and many business cases now are decided by close votes, those votes are not necessarily cast along typical ideological lines – the preemption cases of last Term being a good example.  Similarly, the criminal cases often involve strange bedfellows.  Many of the “liberal” justices can be quite conservative on criminal issues:  Stephen Breyer is one example, and Sonia Sotomayor may prove another.  And both Justice Scalia and Justice Thomas also have been known to jump sides on issues involving sentencing or the confrontation clause, to name but two. 

So, a better explanation for the composition of the Court’s docket is that these are cases unlikely to divide the justices ideologically.  Some of the cases are genuinely interesting or important ones, in which the outcome is not fore-ordained.  The justices can vote to take these cases, and decide them in a deliberative way that is more in keeping with the public’s ideal of what the Court does.  Other cases might be more predictable – the Miranda cases come to mind here – and yet there might be enough agreement on the Court to make it easy for the justices to grant cert in them as well.

From the justices’ perspective, business and criminal cases are a safe haven:  that’s where we can expect to see the action.

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Pundits are predicting the Supreme Court is poised to invalidate a key provision of the campaign finance laws in the Citizens United case.  They were making similar predictions regarding the pre-clearance provisions of the Voting Rights Act last term – but in that instance the Court ducked.  The interesting question is why the Court would avoid controversy in one case, but not the other. 

With regard to the Voting Rights Case – NAMUNDO v. HolderJack Balkin and I both felt the Court was responding to the political environment the justices face.  The Voting Rights Act is popular with Democrats and had recently been renewed with overwhelming majorities in both houses of Congress.  Barack Obama is in the White House.  Over-ruling a key provision of the recently-renewed congressional law might have brought the Court in for some serious and uncomfortable criticism.

But if the justices are seeking to avoid this kind of trouble, why would they feel safe to go ahead and strike down the ban on corporate electioneering in the Bipartisan Campaign Reform Act. 

One answer might involve salience.  Campaign finance is not an issue that seems to rank high on the public’s list of important issues.  Of course, it is not clear that overturning the voting rights law would have brought much of a public backlash either.  The threat in that case seemed mostly congressional, and so this difference may not be determinative.

On the other hand, Citizens United was a First Amendment case.  The justices are particularly lacking in deference to Congress when it comes to the First Amendment.  Think here of internet porn, school prayer, flag burning.  But still this begs the question.  Why is the First not like all other amendments when it comes to judicial review?

A related answer might involve the media.  Perhaps the justices may have more leeway in First Amendment cases because the media – which understandably loves the First Amendment – offers the Court some cover from the political heat in these cases. 

And in fact, the tension between cleaning up politics, and suppressing speech to do so, has split the left over the constitutionality of the campaign finance provisions.  This is a message readily apparent to the justices from the amicus briefs filed in Citizens United.  As Mark Graber has argued persuasively, such splits in the governing coalition create yet further space for the justices to go ahead and rule as they would like.

For all the reasons that held sway in NAMUNDO the justices might ultimately conclude that discretion is the better part of valor.  Half-way measures have been urged on the Court that would allow it to stop short of overruling Austin v. Michigan Chamber of Commerce and striking the corporate electioneering provision of BCRA.  But this time there are reasons on the other side as well.

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The Sotomayor hearings were just one more instance of the same tired, old debate we keep having about the Supreme Court.  Do the justices decide cases on the basis of law? Or do other influences, like politics or the identity of each justice, come into play?  The answer is:  both.  And it is high time we come to grips with that reality.

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