“Ask the Author” with David Stras: Part 3

This post is part 3 in our discussion with Professor David Stras of the University of Minnesota Law School (part 1 is here, part 2 here). Professor Stras has written extensively on issues surrounding the Supreme Court; in this entry, we discuss his paper advocating a revival of circuit riding for Supreme Court Justices, “Why Supreme Court Justices Should Ride Circuit Again,” which can be found here.

In what circumstances could a proposal to re-institute circuit-riding be enacted? How could your proposed bill gain political legs, especially considering that it’s unlikely to be supported by the Justices?

The practice of circuit riding could be reinstituted through the ordinary legislative process, and requires no constitutional amendment. In the thinly-reasoned opinion of Stuart v. Laird, 5 U.S. 299 (1802), the Court held that a far more onerous form of circuit riding, which required the Justices to perform circuit duties for six months or more per year, passed constitutional muster because of the “practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction.” As I state in the paper, the Court was wrong on its sparse reasoning, but ultimately reached the correct holding. A far less onerous form of circuit riding consisting of just one week of required circuit duties per year would surely pass constitutional scrutiny under the holding of Stuart and the Court’s more recent Appointments Clause jurisprudence.

The political undercurrent is already present for a bill such as the Circuit Riding Act of 2007, even though there are no bills in Congress currently calling for the revival of circuit riding. We are just constrained by the imagination of the current Congress. Indeed, Justices Stephen Breyer and Sandra Day O’Connor have recently conducted a media tour (Jim Lehrer, Charlie Rose, etc.) and participated in a conference at Georgetown University Law Center in which the continued importance of judicial independence was the primary concern. During those events, both Justices recounted instances in which the judiciary was the focus of attacks from the legislative branches or the electorate at large. Let me make clear that I do not propose the revival of circuit riding as an attack on judicial independence. To the contrary, I believe that the revival of circuit riding is entirely consistent with the Framer’s vision for an independent judiciary. However, some of the same goals associated with failed jurisdiction-stripping legislation and other attacks on judicial independence in recent years can be accomplished through much less politically divisive means, such as the revival of circuit riding. For instance, I agree with Professors Arthur Hellman and Carolyn Shapiro, who have noted the tendency of the Court in recent years to be Olympian, issuing fewer opinions but granting certiorari in an increasing number of important cases that permit it to make sweeping rulings. Time spent circuit riding could foster humility in the Justices by familiarizing them with the difficulties faced by lower courts in implementing the Court’s often sweeping and occasionally confounding rulings.

In an era where the Justices remain opposed to something as commonplace as having cameras in their courtroom, do you think it’s realistic that, as you write, “their visits could turn into noteworthy annual events for some communities, resulting in coverage by local newspapers and accompanying social engagements open to local lawyers and judges, or even the general public?”

This is an excellent question, and I agree with you that it is unlikely that the current Justices would favor the revival of circuit riding. However, I think that the Court’s objection to cameras in the courtroom raises slightly different concerns than a return to circuit riding. The Court’s objection to cameras may be much more a product of history and process than an unwillingness to be placed in the public spotlight. If so, I understand the Court’s objection: the process has worked pretty well for more than 200 years with just the litigants, the members of the Court, and spectators being present in the Courtroom during oral arguments. Unlike Congress, the proceedings of the Court have historically taken place without much grandstanding by the attorneys and the Justices. In fact, many attorneys have been struck by the short distance between the podium and the Justices and the conversational tone that oral arguments sometimes take. Introducing cameras into the Courtroom might change that dynamic as Justices may feel pressured not to ask tough or impolitic questions, or may just grandstand in front of the cameras. Without expressing an opinion on cameras in the courtroom, I have little doubt that broadcasting the arguments on C-Span would change the dynamics of a process that has worked pretty well for over 200 years.

In contrast to cameras in the Courtroom, circuit riding has a long and storied history that spans more than 100 years of this country’s existence. Many of the most important and revered Supreme Court opinions were written during a time when the Justices spent six months or more traveling around the country delivering grand jury charges and presiding over circuit proceedings. It is true that some Justices would not welcome the opportunity to mingle with local judges and Justices, but I think that others would relish it. I would not be surprised if some of the more socially-adept Justices, such as Justices Thomas and Breyer to name just two, really enjoyed the opportunity to interact with local judges and members of the bar. Indeed, many of the Justices look forward to their occasional visits to law schools to give a speech or to judge moot court. Conversely, local judges would really enjoy the opportunity to sit with Supreme Court Justices. Having clerked on two circuit courts myself, I can say that the judges sometime mention the time that they chatted with their Circuit Justice at a judicial conference, or sat with one of the retired Justices on a panel. They speak to those experiences with fond memories and pride, and those opportunities would only increase if circuit riding were revived.

Tying this paper back to your other one about life tenure: if it’s true that circuit riding would be a way to ensure that Justices do not stay on the Court when they are physically unfit to serve, is that a good justification for such a law?

If encouraging mentally or physically infirm Justices were the only benefit from my proposal, I would not be in favor of reviving circuit riding. More straightforward ways of achieving that objective exist, such as introducing pension reform as we proposed in the Golden Parachute article. However, other advantages of circuit riding fall under the general rubric of “exposure.” By spending one week each year performing the duties of a circuit judge, the Justices will be exposed to new communities, the laws of various states, and areas of federal law that are not generally represented on the Supreme Court’s plenary docket. As stated above, it will also force the Justices to apply binding opinions that they had a hand in crafting, which will hopefully foster greater humility when they return to the Court each October to decide a new batch of cases. The foregoing advantages accrue directly to the Court and the Justices, and the fact that an increase in workload would encourage more timely retirements is only a side benefit of my proposal, not its primary justification.