Is the U.S. Supreme Court a court? On the one hand, the answer seems obvious. It says so right in there in the name. Plus, the justices wear those funny robes. Strong evidence, I admit. On the other hand, see every Supreme Court decision involving constitutional law over the past century and a half. I could rest my case there, but I haven’t gotten to the point yet. If the Supreme Court is a court, it is a weird one, and that often creates a great deal of confusion about how the Court does or should operate.
Generally speaking, we might think that a key characteristic of a court is that it resolves disputes in accord with some pre-established set of legal rules. It is not clear that the Supreme Court actually does that. The justices have relatively little interest in resolving disputes, and they have little concern for pre-established legal rules.
Let’s unpack that a bit.
American constitutionalism is famously about written rules. Our constitutions are filled with “thou shalt nots.” So much so that many unfortunately jump to the conclusion that the entire point of a constitution is to impose limiting rules. And certainly for several decades, the American experiment with written constitutions stood out for the ways in which it bound government officials with legally enforceable rules.
By now it is hard to deny that the president – or more broadly, the executive branch – plays a crucial role in interpreting the Constitution. The constitutional assertions of the second Bush administration became infamous. The American Bar Association convened committees to ponder whether it was appropriate for the president to offer constitutional interpretations when signing bills into law. Investigative reporters revealed the advice that Justice Department lawyers offered members of the executive branch on how force could be deployed overseas, prisoners could be interrogated, and international electronic communication could be monitored. The Office of Legal Counsel – the…
Mike Lee knows a thing or two about the Constitution. Utah’s junior senator is the son of Rex E. Lee, the founding dean of the law school at Brigham Young University and Ronald Reagan’s first solicitor general. Lee recounts attending his father’s oral arguments at the U.S. Supreme Court, which he characterizes as a somewhat more decorous version of dinner table conversations in the Lee household. The younger Lee went on to graduate from the law school his father helped found, to clerk for Justice Samuel Alito when the latter was on the U.S. Court of Appeals for the Third Circuit (later joining Alito again as a clerk at the U.S. Supreme Court), and to specialize in federal appellate court litigation at an elite law firm.
I’ve always thought that the brouhaha over signing statements was much ado about nothing. During the presidency of George W. Bush, liberals discovered signing statements and decided they were bad and connected to a “lawless” executive enthralled by an idiosyncratic and dangerous theory of a unitary presidency. Except that signing statements as such had nothing to do with theories of the unitary executive, signing statements had long been issued by presidents across the ideological spectrum, and it was less that evident why signing statements in and of themselves were supposed to be dangerous. Unsurprisingly, the Obama administration has gone back to business as usual on many facets of executive power that were denounced by liberals just a few years ago, signing statements included.
But my esteemed colleague Mike Rappaport raises a more interesting question about signing statements.
Everybody knows that judicial activism is a bad thing. There was a time when liberals flirted with the idea of reappropriating the term and celebrating their newfound commitment to aggressive judicial action, but that time has passed. The Kennedy brothers thought it was a positive good that a potential nominee (Byron White) was “basically an activist.” Justice Arthur Goldberg thought of himself as a judicial activist. Legal theorist Ronald Dworkin began his career calling for “an activist court.”