The Supreme Court Is Controversial Because It Is Choosing Controversial Cases

If it wants to stop being viewed as a culture warrior, it should return to a boring docket with less sexy but more important cases in its new term

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Tomorrow, the Supreme Court will sit for its annual “long conference,” where it’ll decide which cases it should consider from the requests piled up during its summer recess. Critics have recently heaped vast amounts of abuse on the Supreme Court for a variety of reasons. They have directed fire at the justices for taking gifts from influential friends without reporting them and pressuring others to buy their books. They have also been criticized for  overturning long-established precedents on controversial culture war issues. And then there is their overreliance on the “shadow docket” —especially the practice of taking up cases on an emergency basis and issuing rulings without full hearings or argumentation— to halt major policies.

Some of this criticism is justified and some of it is not. But the court deserves much more criticism for one issue than it has received: What it has not done. Specifically, what cases it has chosen not to elevate to its docket. Even as the Court wades into controversial matters, an examination of what it has left untouched is, to put it mildly, puzzling.

On the eve of the conference, therefore, it would be worth highlighting just a few legal areas where the court has ignored major threats to our liberal order. A core part of the court’s job is precisely to act in the face of such threats to our free society, even if they don’t make for snappy culture war headlines. Unfortunately, the court has been willing to do so less and less.

Discretionary Power and Powerful Indiscretions

The justices now have almost unlimited discretion in deciding what cases to rule on. This wasn’t always true. As University of Texas law professor Steve Vladeck details in his recent book The Shadow Docket, before 1925, almost all of the court’s cases were from direct appeals that the parties involved had a right to have heard. The court had little power not to take them. That gradually changed as Congress authorized the court to have a greater say, primarily through a fancily named device called a writ of certiorari that allowed it to review lower court rulings if four justices agreed to do so. Over the years more and more cases that would have been direct appeals in the old days could now only get to the court as a writ of certiorari. Today, with just a few tiny exceptions, all of the court’s rulings arise in cases it does not have to hear.

With great discretion comes great responsibility. Well, in theory. Perhaps unsurprisingly given that the justices are human, now that the court has near total control over the cases it takes, the number of cases has notoriously decreased since the 1970s when it regularly decided well over 100 per year. Today that number is the lowest it’s been since the Civil War. In its just-completed term, the number of merits opinions—in which the justices accept a case, hear a full briefing and oral argument, and issue a ruling with one or more written opinions—was down to 57. The previous few years were not much higher. Even if you throw in a few expedited “shadow docket” rulings, the number doesn’t move much. To my lights, Vladeck’s thesis about the court abusing its “shadow docket” seems a bit overblown. There are examples of sloppy work but sometimes the court just has to act quickly. But his point about discretion and its potential for abuse and misuse—especially non-use—is well taken.

In public statements, the justices have at times said these numbers are down because worthy cases just aren’t there. If that’s true, then I’d love to hear why they haven’t taken cases on the issues highlighted below.

Unqualified Impunity

Readers of The Unpopulist will have likely heard of qualified immunity. It’s a legal fiction that lets government officials off the hook for liability when they commit unconstitutional acts in the course of their duty. But if a victim can’t point to a previous case where officials were successfully convicted for virtually identical facts to their own, as Cato’s James Craven explained on this site some months ago, then the offenders are often found immune, even if the judges agree that they indeed did violate the victim’s constitutional rights. This doctrine has become associated with police misconduct but applies to all government officials—from post office workers to public school teachers.

In recent years, there’s been an avalanche of criticism of the doctrine and a strong reform movement has emerged proposing a range of solutions from junking the doctrine entirely to paring it back. It includes lawyers and scholars across the ideological spectrum, but also federal judges, including some of the justices themselves. What’s more, the court itself created qualified immunity; it’s not something that has existed as a matter of historical practice or enacted by Congress. Reforming it would simply mean the court correcting its own mistakes.

Yet the court has denied oodles of reform attempts. This included nine cert petitions in spring 2020, disappointing many who thought the court was going to take on the issue. The only case where the court has seriously said anything to make the doctrine easier on victims in the last few years was not in a standard case but in a summary reversal, without oral argument, in a three-page opinion. That case, Taylor v. Riojas, concerned a prisoner left to wallow in a jail cell’s feces for six days. The court ruled that facts like those are so outrageous that qualified immunity isn’t available even though there’s no prior case with similar facts. Taylor was helpful—but only a little.

There are many more qualified immunity issues that wouldn’t involve junking the doctrine and aren’t controversial to anyone except police unions and their most reflexive supporters. Reforms could include requiring courts to decide whether an official violated the Constitution—and establishing law for the next case—even if they find there is qualified immunity, shifting the immunity burden from the victim to the defendant, and curtailing appeals by government officials when their qualified immunity claims are denied (which happens around a third of the time the issue comes up) allowing the trial to proceed. Yet, as of this writing, petitions on these reforms and others continue to go into the court’s circular file.

License to Silence

Free speech is an issue the court has not shied away from. Except, oddly, when it’s speech to earn a living. Its choice here really leaves you scratching your head about the justices’ priorities.

It’s long been true that the First Amendment protects all speakers, those who are paid to speak and those who aren’t. The citizen writing a letter to the editor receives just as much protection as the journalist paid to write a story. And beyond the journalist, the court made clear in recent years that the full force of free speech law applies to various “speaking occupations.” In a 2010 case the court unanimously held that a group of lawyers (who, of course, speak for a living) received full protection even though their clients in the case were foreign groups accused of providing support to terrorists. And in a 2018 case a majority of justices did the same for pro-life crisis pregnancy clinics who were fighting a California law requiring them to inform clients about abortion.

At the same time, the court has turned away cases in less hot button, but extremely important, areas. The 2018 ruling left some ambiguity on what is protected “speech” and what is much-less-protected “conduct.” The court has yet to go back to this subject. It would be wise for it to do so in these less sexy topics as well. Sadly, that’s not been happening.

My colleagues at the Institute for Justice represented a woman who tried to apply these recent precedents in a challenge to Florida’s dietician licensing law. Our client Heather Kokesch Del Castillo advised her own clients in California—which has no dietician license—on topics such as eating less sugar and exercising more. She and her family then moved to Florida after her husband, a military officer, was transferred. She worked there without any complaint from clients until a sting from the state department of health shut her down, barring her from giving diet advice without a license.

In federal court Heather argued that her diet coaching is First Amendment speech. Yet the federal court of appeals that covers Florida, the Eleventh Circuit, ruled otherwise, distinguishing the crisis-pregnancy ruling and concluding her “speech” was actually the “conduct” of dietetics. This split with other circuits, my colleagues argued, so they petitioned the Supreme Court. Yet in December of last year, its  writ was denied without comment —never mind that a split on the circuit courts is exactly when the Supreme  Court is supposed to step in.

The same speech-or-conduct question has arisen in other cases involving something more controversial: “conversion therapy” that aims to “turn” gay minors straight. Several states have banned the practice. Challenges to the laws argue that such bans violate psychologists’ and their patients’ (or their parents’) free speech rights. A federal appellate court upheld Washington state’s ban last year and a cert petition from that case is currently pending at the Supreme Court. If the court takes that case after turning down Heather, it’ll demonstrate that something is off on the court’s calculus.

Searching for Searches

A “search,” as that term is used in the Fourth Amendment to the Constitution, has a lot more applications than it did just a few years ago. Not only can government agents search your house, person, car, and papers, but also your email and all that data you store on your phone. More than at any other time, third parties possess that data on our behalf. Yet, after a few first steps, the court has inexplicably stopped searching for answers on how to deal with this brave new world.

For decades the court treated private information and the Fourth Amendment along fairly straightforward lines. If you physically possessed information, perhaps your own diary or accounting books, then if the government looked at it without permission, it constituted a “search,” that search needed to be “reasonable” and (usually) backed by a warrant.

Sometimes, however, personal information would be in the hands of third parties, such as your bank. And the court has said that when that’s the case, you lose your Fourth Amendment interest in the information even if the third party promises to keep it safe.

As we share more of our information with third parties, our ability to fight “searches” becomes more attenuated. This came to a head five years ago in Carpenter v. United States, when the court made a narrow, ad hoc, exception to its “third party doctrine” in the prosecution of a bank robber who was nabbed via cell tower information. Indeed, even some of the dissenting justices saw that reform was needed. One of them, Justice Gorsuch begged for some lawyer somewhere to give him a workable theory true to the Fourth Amendment and traditional notions of property that would nevertheless protect private data in our new age.

Yet the court has been eerily silent on Fourth Amendment matters recently. It has not ruled on a case interpreting the Fourth Amendment, on any issue, in over two years. That’s a long time for a court that used to take up this issue multiple times a year. This isn’t because of a lack of petitions trying to address Gorsuch’s lament—not to mention other Fourth Amendment issues such as the growing ubiquity of surveillance cameras.

Why the silence? Cynical minds might say the justices have misplaced priorities. Others might speculate that there’s no obvious majority on these issues and so they don’t even want to try. In any case, the pile-up in the lower courts will continue until the court attempts to squarely resolve problems such as the third-party doctrine amid new realities.

Boring Justice

I could go on. My colleagues recently tried to get the court to address the lackluster protection for the right to earn a living, petitioning it in a case in which Kentucky prevented Nepalese immigrants from servicing their community with home healthcare visits. Another one challenges the District of Columbia’s requirement that daycare providers have a college degree. Again, silence.

Much of the court’s docket concerns matters far too boring for mere mortals—bankruptcy, appellate procedure, employee benefit plans and the like. With ever-shrinking cert grants, though, even practitioners in those areas are concerned. In fact, it seems no one is happy with the drop—other than those interested in stirring up controversy.

Perhaps this is a passing phenomenon of a new court majority which will turn around and get back to addressing more below-the-fold issues. With the long conference embarking—and its new term starting next week—here’s hoping the justices will do more so that we can shift our focus back to their actions rather than inaction.

But if the court’s recent history is any indication, don’t hold your breath.

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