Ask the author: Three decades of Court watching – a political scientist’s take on the Court
on Feb 14, 2014 at 12:35 pm
The following is a series of questions posed by Ronald Collins to David M. O’Brien on the occasion of the publication of Storm Center: The Supreme Court in American Politics (W.W. Norton, 10th ed., 2014).
Welcome, David. Thank you for taking the time to participate in this Question and Answer exchange for our readers. And congratulations on the publication of the tenth edition of your book on the Supreme Court.
Question: Perhaps I am mistaken, but I assume that in the academy constitutional law is today seen largely as the domain of law professors. Of course, even if true, it was not always so. You first studied under a noted political science professor who wrote in the area of constitutional law and then early in your teaching career you were a colleague to yet another political scientist who was also a giant in that same field. Can you identify them and say a few words about them?
Answer: That is a fair assessment. In the last half century, political science has moved in the direction of studying primarily public opinion and political behavior, and away from law and institutions (not only courts, but the presidency and Congress as well). At the same time, though, law school professors have increasingly adopted the methods of economics, political science, history, and empirical legal studies. Nonetheless, the Constitution remains a political and public document, open to interpretation by not only law school professors but all citizens. Indeed, constitutional law embodies a history of our great legal and political struggles for governmental accountability and civil rights and liberties. And that, of course, is not solely the domain of lawyers and law school professors.
As you suggest, I was fortunate to have studied with the late Professor C. Herman Pritchett, whose book The Roosevelt Court (1948) started the so-called “behavioral revolution” in the study of the Supreme Court by focusing on Justices’ voting alignments and disagreement rates. Justice Felix Frankfurter thought that it was nonsense, but the Harvard Law Review soon adopted Pritchett’s methods in its annual review of the Court’s term – a statistical analysis that has been overtaken by the “stat packs” of SCOTUSblog. It is important, however, to note that unlike some contemporary political scientists studying the Court – who, in the words of one of the leading scholars of judicial behavior, can “teach con.law without reading the Court’s opinions” – Pritchett remained interested in ideas and competing judicial philosophies.
I was no less influenced by working with Professor Alpheus T. Mason, a leading constitutionalist and judicial biographer of Chief Justice Taft and Justices Louis Brandeis and Harlan Stone (which also disturbed Justice Frankfurter and led him to basically assign former law clerks/professors to write the definitive biographies of his judicial icons – Justices Oliver W. Holmes, Benjamin Cardozo, Louis Brandeis, and Robert Jackson, and Judge Learned Hand). Mason’s work in the Justices’ papers definitely influenced me. And, as you note, I was (and remain) influenced by my long-time and dear colleague at the University of Virginia, Professor Henry J. Abraham, who remains an inspiring teacher and avid Court-watcher at the ripe age of ninety-two.
Question: How did you come to write Storm Center?
Answer: My Judicial Fellowship at the Supreme Court in 1982-1983 had a profound impact. At that time, I worked on studying the Court’s docket (and its historical changes). At that time Chief Justice Warren E. Burger was complaining about the “Court’s workload” and lobbying for the creation of a new appellate court. The experience of working at the Court convinced me that most books on the Court were rather shallow. Hence, after leaving the Court, I decided to write a book on the institutional development of the Court and a kind of collective portrait. And I came to know Justice William J. Brennan, Jr., who granted me access to his papers (much to the chagrin of Chief Justice Burger). That in turn led me to looking at portions of some sixty Justices’ private papers and seven presidents, when doing new editions.
Question: Storm Center, which was first published in 1986, is now in its tenth edition. Generally speaking, what major changes have you seen in that span of almost three decades?
Answer: First, the Court’s docket of cases has grown enormously – from around 5,000 cases in the 1980s to over 9,000 cases now per Term. During that time, however, the number of granted cases has declined from about 180 cases per term to fewer than 80. Second, the Court (like other institutions) has become more bureaucratic and has incorporated various new technologies. Finally, jurisprudentially, the Court has become more conservative – not enough for some and too much so for others – except with regard to the First Amendment guarantee for freedom of speech and press.
Question: How has the Court’s certiorari docket changed and what observations would you offer in that regard?
Answer: As I noted, the Court’s docket has almost doubled in the last thirty years. And yet the Roberts Court grants review in less than one percent of the cases – far less than during the Warren and Burger Courts. The influence of the “cert. pool” – in Paul Freund’s view, the “junior Supreme Court” – has also grown. In addition, under Chief Justice John Roberts the so-called “passive virtues” – jurisdictional considerations — have become more predominate (in contrast to what Gerald Gunther termed “the duty to decide”). In short, Chief Justice Roberts aims at making good on President Richard M. Nixon’s goal of remaking through his appointments a Court of “judicial self restraint”—in the image of Justice Frankfurter.
Question: In one of your charts in Storm Center you provide some interesting figures about the Court’s subject matter docket between 1825 and 2010. I see that the lion’s share of cases in more recent times involves the Court’s jurisdiction and questions of statutory interpretation. In the larger scheme of things, do you think such cases are as important as, if not more so than, the banner headline cases involving individual rights?
Answer: The increasing dominance of jurisdictional and statutory interpretation cases reflects a bare majority of the current Court’s and, in particular, Chief Justice Roberts’s concern with limiting the role of the Court and federal judiciary. Put differently, jurisdictional questions define the role of the Court and delimiting that role has become more important for a majority of the Roberts Court than “banner headline cases.”
Question: You note that apart from Justice Antonin Scalia, none of the current Justices typically writes the first draft of his or her opinion – unlike, say, Justice Oliver Wendell Holmes in past times or Judge Richard Posner today. How, if at all, do you think that the modern law clerk approach to preparing first drafts of opinions, subject to a Justice’s subsequent editing, affects that character and quality of the Court’s output?
Answer: Well, there have been several consequences: notably, longer, more heavily footnoted opinions. In addition, at the end of each Term, the influence of law clerks often is most notable because the structure and tone of some Justices’ opinions change – their “voices” are overwhelmed by their delegation to and reliance on clerks for opinion writing, as well as the “crunch” at the end of the Term.
Question: You quote Justice Tom Clark as saying that the power of assigning opinions is perhaps a Chief Justice’s “single most influential function,” which he labeled as an exercise in “judicial-political discretion.” In that regard, what have you noticed about the assignment of opinions by Chief Justice John Roberts since he came on the Court in September 2005?
Answer: Chief Justice Roberts, like prior Chief Justices, tends to take for himself major cases, such as the Affordable Health Care case. Otherwise, Chief Justice Roberts tends to assign cases to other Justices in his majority that (1) will maintain or expand the majority, and (2) decide the case on the narrowest possible ground.
Question: In what fundamental sense do you think that the Roberts Court differs from the Rehnquist and Burger Courts?
Answer: There is no doubt that a bare majority of the Roberts Court is more conservative than either the Burger or Rehnquist Courts. (I leave aside the fact that each time the Court’s composition changes we have a new Court; and thus the reference to the Court by the name of its Chief Justice is in many ways misleading.) Looking backwards, though, it is interesting to think about the Court’s move in a more conservative direction in terms of the changes in its Commerce Clause rulings – from Justice Robert Jackson’s opinion in Wickard v. Filburn (1942) to the opinions in the 1970s and 1980s by (Chief) Justice William H. Rehnquist (who clerked for Justice Jackson), to the ruling in National Federation of Independent Business v. Sebelius (2012). In the latter decision, Chief Justice Roberts (who clerked for Rehnquist) drew the line at Wickard and possibly signaled the Court’s abandonment of its post-New Deal deference to Congress.
Question: The opening chapter of Storm Center (titled “A Struggle for Power”) begins with an extended discussion of the “law and politics” of the Roe v. Wade (1973) decision. Do you think the Roberts Court will ever overrule Roe? What about “stealth overruling,” as Barry Friedman used the phrase in connection with the history of Miranda v. Arizona (1966)?
Answer: I do not think that Roe v. Wade will be overturned (depending on one’s understanding of its “essence”) but rather dismantled – chipped away in a similar fashion to that with Miranda. Recall Chief Justice Rehnquist’s opinion in Dickerson v. United States (2000), which reaffirmed “the essence” of Miranda as a constitutional ruling, while still disagreeing with its basic holding and acknowledging all of the exceptions to Miranda that the Court had subsequently sanctioned.
Question: Did the ruling in Shelby County v. Holder (2013) setting aside Section 4 of the Voting Rights Act surprise you? What do you think it portends in terms of the Roberts Court’s overall jurisprudence?
Answer: Not a surprise but another example of Chief Justice Roberts’s efforts to limit the public’s reliance on the federal courts to enforce the rule of law, while doing so in the least controversial way – analogous, perhaps, to the bare majority’s ruling in Gonzales v. Carhart (2007), which upheld a federal law banning so-called “partial-birth abortions” without overruling the earlier decision in Stenberg v.Carhart (2000), which had struck down a virtually identical state law prohibiting certain late-term abortion procedures.
Question: In light of National Federation of Independent Business v. Sebelius (2012), do you think we will see any more consideration of Commerce Clause challenges by the Roberts Court? If so, do you think the Court might retreat from its current Commerce Clause jurisprudence?
Answer: Some members of the Roberts Court would overturn much of the post-New Deal Commerce Clause jurisprudence, as suggested earlier with respect to Wickard v. Filburn. To be sure, Chief Justice Roberts’s opinion in Sebelius went too far for four other Justices and not far enough for four others. So, much depends on future changes in the Court’s composition.
Question: What to you think of the idea, advanced by my colleague Kathryn Watts, of Congress declaring the Justices’ court papers to be public property?
Answer: That is a terrific idea, but unlikely or as likely as cameras in the courtroom in the near future. One of the consequences of the first edition of Storm Center was that Chief Justice Burger imposed a twenty-five-year embargo on the release of his papers, given to the William & Mary School of Law; notably, he also did not give his papers to the Library of Congress, as did his contemporaries, Justices William Brennan, Thurgood Marshall, Harry Blackmun, and Byron White, for example.
In addition two other considerations come to mind that will haunt future scholars of the Court: First. some Justices “edit” their papers either by (a) destroying portions of their files, which is what Justices Hugo Black and William O. Douglas did; or (b) making “editorial comments” on their law clerks’ memos and draft opinions, which is what Justice Lewis F. Powell, Jr., did (and Chief Justice Burger vowed to do, in order to counter possible materials in the papers of Justices Douglas and Brennan). Second, since so much of the Court’s work – cert. memos, draft opinions, etc. – is now done by law clerks and via e-mails and electronic transfers (as Justice Blackmun’s papers indicate), there is the matter of whether those interactions will be preserved and made available in future collections of the Justices’ papers whenever they ultimately become available.
Ron, thank you.