By Leon Galis
U. S. Supreme Court nominee Amy Coney Barrett took a lot of incoming during her confirmation hearing for declining to say how she’d rule on hot-button issues likely to come before her on the Court. Natural as it is to want our nominees to preview their performance for us, if they actually did that, it wouldn’t show them to be transparent and forthcoming. It would be disqualifying.
There is a short answer and a long(ish) answer to my title question, the latter being the rationale for the former.
The short answer is in the American Bar Association’s Model Code of Judicial Conduct, whose Rule 2.10 (B) says, “A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.”
To understand why Rule 2.10 (B) is in the Model Code, you have to understand what federal courts do. They don’t entertain issues in general, abstract terms, like “abortion good,” “racial discrimination bad,” etc. They don’t, in other words, issue what are called in the trade advisory opinions. Rather, they’re bound by Article III of the U. S. Constitution, which says that the judicial branch’s power extends to all “Cases” and “Controversies” of the sort Article III enumerates. And the Supreme Court has interpreted the “cases-and-controversies” provision in a way that the late Justice Antonin Scalia explained clearly in Lujan v. Defenders of Wildlife.
Your ticket to the federal courts isn’t just some generalized complaint about something somebody or other has done or omitted. To even get a hearing, you have to have “standing,” which includes three elements.
First, you must have suffered a “concrete and particularized” injury, which is “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”
Second, you have to show that the injury you’ve suffered was caused by the conduct of the person(s) you’re complaining about.
Third, you have to show that it’s “likely,” not just “speculative” that a decision in your favor will “redress” the injury you’re claiming.
The burden of proof is on you to show that you’ve satisfied all three standing requirements and only if you’ve discharged that burden do you even get the time of day from the courts.
If you’ve done all that and your petition is among the approximately 7000 filed with the Supreme Court every year, you have to hope that yours will be among the mere 80 or so that the Court will accept for a hearing. The Court is on the lookout in particular for cases about which the circuit courts disagree.
So what’s going to land in the Court’s in basket is a petition that, as it’s worked its way through the lower courts, has accumulated a voluminous record of arguments and counterarguments, probably including a sizable stack of amicus curiae, “friend of the court,” briefs supporting and opposing the petition.
If Barrett is confirmed, when she gets one of these bulky packages, while she may be familiar with the general topic involved, it’s unlikely that she’ll have seen that exact case with those exact arguments before. The standing requirements and the Court’s selection process tend to filter out cases that would have the Court just retracing steps already taken.
She and her clerks are expected to go over the record with exquisite care and sober deliberation. In addition, she’ll have to test her views against those of her eight colleagues who’ve combed over the case records just as thoroughly as she has. Only after she’s been through that process will she be in a position to render a decision. That’s why it typically takes months for the Court to decide its cases.
Even this brief account of what Supreme Court justices do, available to anyone with an internet connection, should make clear why Barrett can’t answer questions in a confirmation hearing that she kept calling “hypothetical.” The reason the Model Code of Judicial Conduct admonishes judges not to tell people in advance how they’ll decide cases is that it’s jurists’ duty not to decide cases until they get them and have immersed themselves in the record that’s the only legitimate basis for decision.
So if, in response to questions at a confirmation hearing, nominees are eager to speculate about issues not before them, just in the abstract and utterly divorced from the dense context of an actual “case or controversy,” that should at least arouse the suspicion that their minds are closed on that subject. But a jurist beyond the reach of arguments from the lower courts, the amicus briefs pro and con, the views of court colleagues in conference and the results of clerks’ research is unfit for any judicial post above the level of traffic court.
Members of the Senate Judiciary Committee know all this. But many voters don’t, and I shudder to think how many in light of a 2018 C-Span poll showing that 52% of them couldn’t name a single member of the Supreme Court.
Leon Galis is an Athens native who returned to town in 1999 after retiring from the faculty of Franklin and Marshall College in Lancaster, PA. Since 2008, he has written dozens of columns for local Athens publicatuons, and is a frequent contributor at LikeTheDew.com and Medium.com.Galis is a professor of philosophy emeritus, with broad interests in current events and cultural commentary. You can read additional works by Galis at https://medium.com/@leongalis