81. How to Describe *This* Court

The Supreme Court's two biggest rulings last week tee up an important but complicated question: What's the right way to contextualize major rulings that divide the justices in unexpected ways?

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

The Court’s two most significant rulings last week both at least appeared to confound those who assume everything the Court does splits the justices along predictable ideological and political lines. That’s the focus of this week’s “Long Read,” but first, the (other) news…

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On the Docket

Last Monday’s Order List came with no new grants of certiorari (we’re still holding at the paltry total of *8* cases for OT2024), but with a dissent from the denial of certiorari by Justice Jackson (joined by Justice Sotomayor) in Sandoval v. Texas. In particular, Jackson objected to a Texas-specific procedure in death penalty cases in which the trial judge holds a special session with the jury pool prior to the ordinary voir dire, at which the defendant is not present, and during which the judge can pre-evaluate potential jurors and give them information about the defendant and the allegations against him. Jackson argued that the defendant’s absence during this stage raises a serious due process question under the Court’s own precedents—and one on which lower courts have divided, so that the Court should have, at the very least, taken up the issue. It’s hard to disagree.

Wednesday brought with it the Court’s expected ruling in the Louisiana congressional redistricting case, but with a couple of surprises. First, the Court’s order staying the district court ruling—and clearing the way for Louisiana to use a second majority-minority district in the 2024 election cycle—expressly cites to Purcell. Second, and related, the three Democratic appointees all publicly dissented, with Justice Jackson writing an opinion (just for herself) explaining why invocation of Purcell here was premature, if not inappropriate on its face, given what actually happened in the district court and what still has to happen. In other words, the order created the strange optics of a decision handing a short-term political victory to Black voters in Louisiana (and, likely, Democrats), over the public dissents of the three Democratic appointees (more on this below).

Finally, the Court handed down three more decisions in argued cases on Thursday, the most significant of which was, without doubt, the third:

1. In Harrow v. Department of Defense, Justice Kagan, writing for a unanimous Court, held that a filing deadline for appealing rulings by the Merit Systems Protection Board (which, among other things, hears claims from federal employees about allegedly wrongful employment practices) is not “jurisdictional,” meaning that it can be overcome in cases in which the claimant’s failure to meet the deadline wasn’t their fault. Harrow is just the latest in a long line of cases in which the Court, over the last two decades, has reached the same conclusion about an array of federal statutory deadlines.

2. In Smith v. Spizzirri, Justice Sotomayor wrote for a unanimous Court in a technical case about procedure in arbitration cases, holding that, when a party so requests, a district court must stay, rather than dismiss, a lawsuit after finding that at least part of the dispute is subject to arbitration.

3. Finally, in CFPB v. Community Financial Services Association of America, the Court, by a 7-2 vote, upheld the constitutionality of how Congress has chosen to fund the Consumer Financial Protection Bureau (and a host of other agencies). Writing for the Court, Justice Thomas held that, as a matter of Founding-era understanding, Congress satisfies the Appropriations Clause so long as it passes a statute authorizing the drawing of the relevant money from the treasury and imposes limits on the amount—and that the rest is up to Congress. Justice Alito, joined by Justice Gorsuch, dissented. There’s also a solo concurrence from Justice Jackson. But perhaps most interestingly, Justice Kagan penned a concurrence about “how to do originalism” that was joined not only by Justice Sotomayor, but by Justices Kavanaugh and Barrett. It will be fascinating (and, potentially, quite important) to see if this separate opinion is laying down a marker for debates over constitutional interpretation in the big decisions still to come—and, if so, whether this reflects a new coalition of justices on that (recurring) point.

I’d be remiss in not also noting the news broken by Jodi Kantor in the New York Times late on Thursday—about an upside-down flag flying outside of Justice Alito’s home in the days leading up to President Biden’s inauguration in January 2021. Perhaps even more remarkable than Kantor’s reporting were Alito’s two responses—first in his public comment to Kantor for her story, and second in a conversation he apparently had with Fox News’s Shannon Bream. There’s a lot to say about this entire episode; some of it is what I’m planning to focus on in this Thursday’s bonus issue. In short, though, I think Alito’s responses to the episode have been even more problematic than the episode itself—and that’s saying something. More on that later this week.

Speaking of this week, we expect a regular Order List at 9:30 ET this morning, which very well could include new cases for next Term. And the Court is also set to once again hand down opinions in argued cases from the bench this Thursday at 10:00 ET. So, we’re likely to get more news before Memorial Day. I’m unaware of any emergency applications likely to attract the full Court’s attention, but, as always, that could change in a hurry.

Finally, and least importantly, as I previewed in last week’s bonus issue, the paperback version of The Shadow Docket comes out tomorrow. If you’re looking for a belated Mother’s Day present, or an early Father’s Day present, or a “Please Distract Me From How Bad the Mets Are” present, Basic Books is offering 20% off with the code “VLADECK24” at this link.

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The One First “Long Read”:
How Do You Measure, Measure a Court?

Both of last week’s big decisions—the stay in the Louisiana redistricting case and the reversal in the CFPB funding case—raise a larger question about how we should measure/describe decisions by the Supreme Court. In the Louisiana case, for instance, a lot of folks seemed to have trouble understanding why the Democratic appointees would publicly dissent from a ruling that will almost certainly produce a short-term benefit for Democrats (by likely ensuring that Louisiana will send two Democrats, and not just one, to the House in the next Congress). The only explanation is by Justice Jackson, but I think it’s safe to say that all three of the Democratic appointees have broader objections to the Purcell doctrine—both in general and as applied, rather expansively, here.

And then there’s the CFPB case, where lots of folks did a double-take at the headline that Justice Thomas wrote the opinion saving the CFPB—the brainchild of Senator Elizabeth Warren and the ramping up of which was one of the major policy achievements of the Obama administration. One might think that aggressive governmental protection of the rights of consumers ought not to sort us into our usual partisan or ideological camps, but c’est la vie.

So what should we make of these two developments? Are they evidence, as some of the Court’s defenders would be quick to claim, that the Court isn’t nearly as ideologically divided and extreme as even its more nuanced critics make it out to be? That criticisms of the Court are overstated? At a more basic level, with more major decisions coming, at least some of which won’t just sort the justices into Sharks and Jets, how should we understand what those rulings tell us about the Court, writ large?

There’s no one easy answer to this question—but that, in itself, is an important point to start with: The Court does a lot. And not all of it—indeed, by volume, not even a majority of it—could properly be described as “ideological” in the sense that it puts the six Republican appointees and the three Democratic appointees on opposite sides. The question is what to make of the headline-generating stuff the Court does that defies ideological predictions. And I’d like to suggest that, as we think about how to answer that question, we keep four different—but related—methodological problems in mind.

Problem #1: Selection Bias / Circuit Effects

First, and most significantly, it’s incumbent upon all of us to keep in mind that the Court is choosing virtually all of the cases it decides. Not only does this produce a significant (and hitherto neglected) selection bias in any effort to make broad statistical claims about the Court’s decisionmaking, but it also means that there’s no consistent baseline against which to measure the Court’s decisions. Think about it this way: The Court could divide the exact same ways in the exact same number of cases over the course of two different terms, and yet, without knowing anything about the underlying cases, we’d have absolutely no way to compare those two terms to each other. And so it is with the CFPB case: The Court has 11 different cases from the Fifth Circuit this term, many of which are at least loosely comparable to the CFPB case—where the most ideologically right-leaning appeals court in the country handed down a ruling likely to be vacated or reversed by a coalition including the three Democratic appointees and at least some of the Court’s Republican appointees. (Just like last term.) If the same justices were voting to reverse decisions from the Fourth or Ninth Circuits that had, e.g., ruled for the Biden administration, the same votes would look a lot different with respect to what they told us about the Court. We’re almost certainly going to come back to this with the mifepristone cases; the domestic violence Second Amendment case; and the social media cases before this Term is up.

Problem #2: What is the Relevant Baseline for Claims About This Court?

The pervasiveness of outlier Fifth Circuit rulings on the Court’s docket this term doesn’t just underscore how selection bias infects any effort to measure the Court on the whole; it also raises the distinct but related point about what, even if we could control for the selection effects in some way, we’re actually comparing the Court to. That is to say, when using adjectives like “moderate” or “radical,” what’s the baseline against which we’re measuring these subjective understandings? Or, at least, from whose perspective are we measuring? Is it the median circuit judge? The median voter? The median law professor? (Lol.)

My own (evolving) view, for what it’s worth, is that the only claim we can make with any real persuasiveness is to compare this Court to its predecessors. So, for instance, when asking how “moderate” or “radical” the current Court is, I think the best we can do is to assess that in comparison to the Court of 10, or 20, or 30, or even 40 years ago. In that vein, the question ought to be whether those Courts would have handed down these rulings? If the answer is no, that’s when it becomes incumbent upon us to measure what’s different (and why). Again, some of that may depend upon the inputs (would lower courts have endorsed such a wackadoodle theory of the Appropriations Clause 10, 20, 30, or 40 years ago? I very much doubt it). But some of that also depends on the justices.

Problem #3: Reading Too Much Into One Case (or a Small Number of Cases)

If the relevant baseline is the Court of days past, it also seems like it would be wrong to generalize based upon individual (or even a small number of) decisions. For instance, I think it’s exceptionally likely that every prior Court would have reached the exact same result in the CFPB case, with the only difference being that the Court prior to 2006 would almost certainly have been unanimous. Of course, that’s not nearly enough information on which to compare this Court to its predecessors (in Lake Wobgeon, all the children are above average). Nor would a reversal rate by itself; a court of appeals could have a bad term just because it was on the short side of a bunch of non-ideological circuit splits, or in cases without the same ideological valence (like the Second Circuit last term). Instead, what is needed is some way to account for a broader pattern of rulings—especially those rulings that, for better or worse, alter settled understandings of, e.g., prior precedents; Congress’s (or an agency’s) powers; etc. That’s why, for instance, there’s so much focus on the overall body of administrative law cases the Court has this Term. Even with CFPB, we could still be talking in the next six weeks about a Court that has done more to rein in the federal government’s power than any Court since 1935—if not ever. That type of claim strikes me as a deeply defensible one, even with the caveats I’ve already articulated; it’s about comparing the Court’s behavior across a pattern of rulings to its predecessors.

Problem #4: What is the Relevant Time Horizon?

This last point (and the Louisiana redistricting case) get at one final problem in trying to measure the Court: It’s not just about what we’re comparing the current Court to; it’s about whether we’re focused on the short-term or long-term effects of its rulings (or, as I think is the right answer, both). In the Louisiana redistricting case, for instance, I think that the best explanation for the public dissents by the three Democratic appointees is not just Justice Jackson’s argument that the invocation of Purcell here was premature; it’s a concern about the expansion and normalization of Purcell writ large—given the majority’s rare, explicit citation to that unsigned, unargued ruling from 2006. In other words, headlines focused on the short-term (“Democrats likely to pick up second House seat in Louisiana”) have a hard time explaining the vote count. Headlines focused on the longer term (“Justices once again divide ideologically over how courts should handle late-breaking election cases”), much less so. The point is not that these comparisons are impossible; it’s that they require nuance and thoughtfulness—two things that, at least on social media, may often be in short supply. For me, it’s critical in discussing the Court to account for all of the potential effects of its decisions—both because they ought to matter and because at least some of the justices clearly are.

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Folks can and should draw their own conclusions about all of this. But as we head into a period with even more blockbuster rulings, at least some of which are likely to not split the Court between Republican and Democratic appointees, hopefully this provides at least some food for thought(s) before the next set of confusing (if not confused) headlines. Not every decision is a bellwether for what kind of Supreme Court we have. But just because it’s difficult to generalize doesn’t mean it’s impossible. It’s the careful analyses that will persuade readers of their ability to split that difference.

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SCOTUS Trivia: Justice Field Day

I’ve written before about Justice Stephen Field, perhaps the only justice who ever had holes specially cut into his judicial robes so that he’d be able to get to his guns. I mention him today because, on this date (May 20) in 1863, Field joined the Court as its tenth justice—kicking off one of two brief periods between 1863 and 1866 during which there would be ten active justices.

Field would serve on the Court well past his prime, and through December 1, 1897, achieving his well-known goal of setting the record (at least at the time) for longest-serving justice (he surpassed Chief Justice John Marshall by 42 days). If he remains on the Court, Justice Thomas would pass Field (who’s now second) on May 6, 2026. Thomas would pass Justice William O. Douglas and become the longest-serving justice in the Court’s history exactly four years from yesterday—on Friday, May 19, 2028.

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Until then, happy Monday, everyone. I hope that you have a great week!