Open-Minded Justices?

by Carrie Severino

Carl Sagan observed that “It pays to keep an open mind, but not so open your brains fall out.” 

This week Politico published a profoundly silly piece that illustrates this danger. I would have dismissed it as written by someone utterly unfamiliar with the inner workings of the Supreme Court if it had not been authored by two law professors, former ambassador to Malta Doug Kmiec and Barry McDonald, a former clerk to Chief Justice Rehnquist. 

The article bemoans the recent Supreme Court leaks, and that sentiment is reasonable enough. Ed Whelan recently did the same, likening the current hostility among the justices to a spat between a husband and wife. Let’s just hope they can put things back together by October.

Kmiec and McDonald, however, propose to respond to the situation with a series of inapt and frankly bizarre recommendations.  

First they take a page out of former senator Arlen Specter’s playbook and conclude that whatever ails the Court could be remedied by putting its proceedings on C-SPAN. After all, that has kept Congress from devolving into political gamesmanship, opportunistic soapboxing, and unseemly leaks and shenanigans.

They suggest that “cameras might also enhance open-minded decision-making, since justices might go out of their way to demonstrate evenhandedness.” The prospect of justices putting on a show for the cameras to illustrate their broadmindedness before going back to chambers to vote as they please frankly doesn’t inspire me with confidence. Kmiec and McDonald at least admit that cameras could have the opposite effect, making justices pick positions because of inappropriate reasons — popularity with their target audience, for example — or encouraging them to adhere to positions from oral argument that further examination suggests are legally incorrect.

If the idea that the Supreme Court would be improved by making it more like The People’s Court seems naive, their other suggestion defies both the rules of logic and good sense.

Kmiec and McDonald, falling into the typically academic search for yet-uninvented problems, worry that the “process of opinion-following-decision has all the appearance of providing a post-hoc rationalization for an intuitive — and perhaps politically-influenced — judgment already reached.” They paint a picture in which the justices’ pre-argument preparation is limited to getting a briefing from their clerks and being fed some insightful questions for oral argument, then just voting on a hunch and going back to rationalize it in writing later (or, presumably, task their clerks with coming up with a rationale). 

It sounds like they are confusing the Supreme Court with the branch of government across the street.  

I can’t speak to how things were run in Chief Justice Rehnquist’s chambers, but I can assure them that in my own experience at the Court the justices weren’t just skimming the decisions the night before and winging it from there. I believe the justices have almost all made enough inquiry to have more or less made up their minds before oral argument. The quantity of “flips” in position after argument is in fact very low, let alone flips later in the process. And there is nothing inherently wrong with flipping (for legal rather than political reasons).

Even if their description were accurate, one might rhetorically ask what they would suggest instead, writing first and voting afterward?  

In fact, yes. 

They recommend assigning opinions not based on who is or is likely to be in the majority (because even a straw poll would be prohibited), not based on whose reasoning is likely to be most consistent with that of the Court as a whole (because of course all the justices have kept their minds fabulously open and antiseptically thought-free up to this point), but rather simply based on whose turn came next in line and who was up on his work. 

Their obsession with an open mind takes a flying leap into the impossible when they predict that “the opinion writer will not know the specific outcome until after research and legal reasoning have led to it.” To a point one would like to agree. Of course the justices in real life do this research and legal reasoning well before oral argument, and certainly before they vote on the case. But Kmiec and McDonald seem to suggest that the justice must write the decision before he knows what it says. (“Vote on it so we can find out what’s in it” anyone?). It makes one think of the unicorn’s advice to Alice: “You don’t know how to manage Looking-glass cakes. . . . Hand it round first, and cut it afterwards.’  

Perhaps the Malta sun has been a little too hot. Perhaps we should be unsurprised because this was the same sort of decision-making process that led to Professor Kmiec endorsing candidate Obama in 2008 and then being shocked when that check for 30 pieces of silver bounced.

If this article was meant to provide more creative ways for Chief Justice Roberts to improve the integrity of the Court, we can only hope he learned his lesson from the last time he took advice from the op-ed pages on how to best run the Court. 

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