A do-nothing Supreme Court

Like many other old folks, I am amazed at the rapidity of change when it comes to popular opinion and gay marriage.  And that brings me to abortion. I remember exactly where I was when Roe v. Wade was decided. I was clerking for Judge Ross and I was in chambers when the news came. Incidentally, Judge Ross had taken Justice Blackmun’s seat on the Eighth Circuit. In any event, Roe hit like an atom bomb. The mushroom clouds from that decision still fill our sky. Justice Ginsburg has said as much.

Yesterday, when the stay was lifted on the Ninth Circuit decision on gay marriage, I was very pleased. I fervently hope that the Supreme Court never has to decide the gay marriage issue. If the Courts of Appeal all go in one direction, the Supreme Court can do nothing. Unlike Congress, a do-nothing Supreme Court is a good thing.*

Photo credit: Icemanbg

Photo credit: Icemanbg


*Legally speaking, I express no opinion on the merits of the gay marriage issue.

25 responses

  1. So now, you are advocating the commission of treason (Cohens v. Virginia)?

    I have these thingies called inalienable rights. Including, I might add, the right to marry a consenting adult of my choice. Well, at least this stupid piece of paper says so. But it appears that the only rights I have are the ones Your Lordships are willing to dole out.

    Is this the rule of law, or rule by judges (Anastasoff)?

    If I have a right, you owe me a corresponding duty. At least, that was the way it was under English law, where they still respect the concept of binding precedent.

    Can I have my British citizenship back?

  2. But judge, isn’t true that a circuit split is not required to accept cert? Especially for an issue of such national importance?

  3. Having no opinions and not allowing ones’s opinions to dictate one’s decisions are two different things. And make no mistake about it, had people not known the direction you would take on the bench, you would still be practicing law. As for gay marriage and abortion, the right to do whatever one wants with ones body is inherent in the Constitution, a document which from the beginning was a biased document, designed to keep those in power in power, something they could do without the need to regulate who married who and who miscarried on demand.

  4. Lorin,

    I think you meant to write: “And make no mistake about it, had people known the direction you would take on the bench, you would still be practicing law.” That is, remove the “not” from the original sentence. That picky nit noted, you are probably right.

    All the best.


  5. Cornhead,

    Sure that’s true. But, I am a big believer in the passive virtue of the Supreme Court doing nothing when at all possible. If the Courts of Appeal all go one way, I fail to see a compelling reason for the Supreme Court to speak.

    All the best.


  6. RGK,
    This view is not, I suspect, popular. People seem to be trained by the media to believe that the Supreme Court is the great solver of all woes perpetuated by our government. They think of Roe v. Wade, Brown v. Board of Education, and other such cases as a shining example of what the Supreme Court should do. They believe in an activist court.

    I would refer them to Taney’s Ex Parte Merryman (and the Dredd Scott decision of course), and Hammer v. Dagenhart. Out of all the cases that I have ever read, Dagenhart still gives me more willies than any other Supreme Court decision.

    Activist courts are not necessarily a good thing. They can be, but I believe that force should be carefully controlled and reserved for when it is needed most.


  7. The product of ruined lives is a good choice. Law students of my generation were still taught by those who were scared by the old substantive due process and preached judicial restraint. Early criticism of Roe was their last stand in the academic community. In part because of the politics of Roe we are divided between defenders of a living constitution and those who want to resurrect what they see as the true but banished constitution. Judge Janice R Brown for instance is strong believer in the old substantive due process. The problem is that each side in the academy or on the bench can craft lawyerly arguments of great elegance and each SCOTUS appointment looks like life or death. Kennedy is on both sides depending on the issue and we have our one Justice SCOTUS. A period of support like yours for the classic judicial restraint would give us all a rest. Thank you.

  8. “Yes” on Citizens United, and “maybe” on Bush v. Gore. By the way Marsha, if you think I have been intellectually dishonest in some way, please do me the honor of saying so, and then offering some proof. That way, we can have a more focused discussion.

    All the best.


  9. Your British citizenship would only give you what you want because of the European Convention oh Human Rights and the Human Rights Act, and there is a strong movement to renounce the one and repeal the other. Justice Jackson famously used the absence of a British Constitution and no judicial review in the UK to show that freedom would not be endangered by judicial restraint. An early supporter of the SNP did argue the Act of Union was a constitution and the Queen’s number violated it since there was no Elizabeth I of Scotland. In a wonderful piece of judicial restrain the Court of Sessions held the Queen could pick whatever number she wanted.

  10. Wonderful example of confusion is Abigail Alliance case on unproven cancer drugs, when other Ginsberg and Brown found a constitutional right for terminal patients to take and doctors to prescribe, En banc DC Circuit followed Marshall’s contrary opinion from SCOTUS and Rose Bird had written a dissent in a Cal. manslaughter similar to original DC panel though she built on Roe rather than self defense, the new right hiding in the 2nd Amendment. As they used to tell us at the ball park,”you can’t tell the players without a score card”

  11. So SCOTUS is putting pressure on the Sixth, especially Jeff Sutton the swing vote (mini-Kennedy), now that the Ninth has folded.

  12. I’m down with a quiet Supreme Court. We have too many laws on the books already; we don’t need more “law” made through court decisions.

    Activist courts are not necessarily a good thing.

    These are never a good thing. A couple of examples of the dangers of judicial activism:

    CJ Taft, for the Court in Bailey v Drexel Furniture Co expressing his dismay in his decision and the greater danger from ruling otherwise [emphasis added]:

    It is the high duty and function of this court…to decline to recognize or enforce seeming laws of Congress, dealing with subjects not entrusted to Congress, but left or committed by the supreme law of the land to the control of the States. We cannot avoid the duty even though it require us to refuse to give effect to legislation designed to promote the highest good. The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant or the harm which will come from breaking down recognized standards.

    And Justice McReynolds in dissent of the activist ruling in NLRB v Laughlin Steel Corp:

    We are told that Congress may protect the “stream of commerce” and that one who buys raw material without the state, manufactures it therein, and ships the output to another state is in that stream. Therefore it is said he may be prevented from doing anything which may interfere with its flow.

    … May a mill owner be prohibited from closing his factory or discontinuing his business because so to do would stop the flow of products to and from his plant in interstate commerce? May employees in a factory be restrained from quitting work in a body because this will close the factory and thereby stop the flow of commerce? ….

    [I]f this theory of a continuous “stream of commerce” as now defined is correct, will it become the duty of the federal government hereafter to suppress every strike which by possibility it may cause a blockade in that stream?

    “Better to let 10 guilty go free than imprison a single innocent” has far broader application than just guilt or innocence of an individual.

    Eric Hines

  13. This raises a question I have always wondered about: Where in the Constitution does it give judges the authority to ration justice as they see fit?

  14. With a shrinking Supreme Court docket and some cases dropping off the calendar, many Supreme Court watchers thought the same-sex marriage cases would be the blockbuster for this term. In fact, many Supreme Court lawyers apparently were jockeying for position to have their case granted.


  15. The US is a signatory to all sorts of human rights treaties, but judges have interpreted them into oblivion. It never ceases to amaze me that in a country whose founders complained about no taxation without representation would deny the citizens of the District of Columbia any representation in Congress, and the citizens in Puerto Rico, any representation at all.

  16. Art,
    Is it justice to leave things as they are or to change them? I don’t know the answer to that. I don’t know what justice is. It’s a lot easier to figure out what it is after the fact.

  17. Justice is for philosophers. It is the job of courts to determine the law, and not only when they feel like it.

  18. Curmudgeon,

    I strongly agree with you that: “Justice is for philosophers. It is the job of courts to determine the law . . . .” Most proponents of judge-made “justice” have no idea what they mean by the term. In that sense, “justice” is similar to “joke”–each comedian and each judge get’s to write his or her own punch line.

    As for your statement “and not only when they feel like it,” that’s right too, but it only goes so far. Sometimes, judges, and, this is particularly true of federal appellate judges and Supreme Court Justices, have an obligation to say nothing. Think of “standing” or “ripeness” or “mootness” or just good old common sense. In fact, we need far less judge-made law rather than more. Judge-made law is, and should always be, suspect in a democratic society like ours.

    All the best.


  19. Even in the age of statutes most state law is still common law, and outside of Con law what law do fed judges make, though their readings of statutes can be suprising and Erie has some strange children. Precedent still controls most common law cases, and since 1966 practice notice HL and now UKSC have had power to overrule prior cases. Have you judge become a fan of codification of state law, torts perhaps or contract?

  20. Supreme Court watchers know the quickest way to get cert granted is to have a circuit split. That’s how my firm got a cert grant last term in Paroline. All of the circuits but the Fifth ruled one way and the Fifth was the outlier. (BTW, four of the nine justices essentially took the position that RGK’s approach to restitution in child porn cases was correct. Four others says the law was so messed up Congress had to fix it.).
    Right now, there is no circuit split on same sex marriage. But that could change.
    The Fifth Circuit just finished briefing in the Texas same sex marriage case. Given the makeup of the Fifth Circuit, it could again be the outlier. If so, that probably will be the cert grant.

  21. I don’t know how that is possible. Ripeness and mootness define justiciability. As long as it fits within that window, I don’t see how a judge can NOT decide it. And CJ Marshall agrees with me.

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