Bonus 84: The Supreme Court's Two Hats

We don't talk enough about how the Constitution requires the Supreme Court to simultaneously perform two very different judicial functions—or the implications of having such distinct responsibilities.

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I was motivated to pick today’s topic by several examples of the silliest kind of Supreme Court hot takes—pieces that take one or two decisions in which the Court did not divide sharply along ideological lines as proof that the Court is not “more” ideologically divided than its predecessors. I’ve written before about some of the elementary statistical and methodological errors that tend to infect these pieces. But it also led me to think about whether there’s an easier descriptive way to separate the Court’s more ideologically charged cases from the less ideologically charged side of the docket. It would be circular if the answer was the vote count; and it would be unhelpfully subjective if the answer was based upon my (or your) own views of which legal questions are (and aren’t) ideological.

With that in mind, I wanted to use today’s issue to expand upon an idea to which I often come back in my Federal Courts classes—that the Constitution invests the same justices serving on the same Supreme Court with two very different sets of responsibilities: to serve as our constitutional court, which is not just about interpreting the Constitution but enforcing the separation of powers, federalism, and government accountability writ large; and to serve as our supreme court of appeals, where the Court’s function is merely to go last, so that there can be uniformity and finality when it comes to the meaning of even the most mundane provisions of federal law.

Some countries (like Germany) assign these two distinct functions to entirely separate tribunals staffed by different jurists, and even located in different cities. Others (like Israel) assign them to the same justices, but formally distinguish between the capacities in which the justices are sitting, with different procedural and substantive rules (like standing) depending upon which type of case it is. The American approach, in contrast, is reflected in the first sentence of Article III of the Constitution: We have “one Supreme Court,” period. That text, and the tradition it has precipitated, obfuscates the extent to which, in reality, it’s more accurate to say that we have two. Viewed through that lens, at least some of the discourse surrounding the Supreme Court starts to look a bit different—and, perhaps, a bit more nuanced.

The Bundesverfassungsgericht (the Federal Constitutional Court of Germany) sits in Karlsruhe, not Berlin—physical separation intended to reflect the Court’s structural separation from ordinary courts

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