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This week on Amicus, I spoke with Ben Johnson, an associate professor at the University of Florida Levin College of Law. His work focuses on governance by committees, and he recently published an article in the Atlantic, “The Little-Known Rule Change That Made the Supreme Court So Powerful.” We spoke about the Supreme Court’s legitimacy, and how it operates as a gatekeeper for what kind of legal decisions are made these days. This excerpt of our conversation has been lightly edited and condensed for clarity.

Dahlia Lithwick: At the beating heart of the concern that animates both your law review and your Atlantic piece is this question of: The court is always making choices, and they’re not always visible and legible to us. Steve Vladeck’s been on this show. He worries a lot about the discretionary docket, which is your point. And it would be useful for you to unpack it, because I think it’s not intuitively obvious that it’s not just that the high court is picking its cases, it’s actually picking its issues within the cases, like going through a box of chocolates. So can you just take us back to how this used to be done and how that shift started to happen? I think your larger point is that initially this was just a court that couldn’t keep up with its workload.

Ben Johnson: So if you just go back and think about what is a court: Two people have a problem with each other. They’ve got a fight between them. We’d like to resolve that peacefully in front of a tribunal. And so there’s some things that, for the plaintiff to prevail, they have to prove to a court. If they can prove those things, then they win.

So suppose they win, then the defendant appeals. Now the defendant is the petitioner at the appellate court, and there’s a set of things that the defendant has to be able to convince the court of in order to reverse the lower court. Or there’s a set of things that if the original plaintiff can maintain, will be able to preserve the judgment below.

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But effectively what’s supposed to happen at the appellate court level is the appellate court takes a second look at what happened at the trial court and says, Did they screw up so badly that we need to reverse this thing? And they have to look at everything that happened below to figure that out. And for the first 130, 140 years or so, that’s how the Supreme Court operated. Any time somebody appealed, the Supreme Court had to take the case, and they had to review the entire record below for error. If they found anything on the record below that was deeply problematic, they reversed it.

Come to 1925 and we get something called the Judges Bill. And here, Chief Justice Taft, formerly the president, said that the Supreme Court should have absolute and arbitrary control over its agenda. It arranges for Congress to give the court massive jurisdiction, which means “We will get to choose what cases we hear.” But the congressmen are sort of concerned that the justices aren’t going to take their jobs super seriously anymore, will maybe not work that hard. So they asked the justices, “What are you going to do with this power?”

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The justices say, “Any time we grant cert, we’re going to decide the case in the ordinary course, which means all the questions within it.” And Congress was very clear that this is what was going to happen because they wrote a statute on it. Effectively, there are old-school legal devices that say you have to review the entire record for mistakes. That’s what the justices promised to do in 1925.

In 1927, there is a case called Olmstead, which is the wiretapping case out of Washington state. It’s a fun case where there’s a bootlegging operation that gets caught in a wiretap. And so the question is whether or not this warrantless wiretap violates the Fourth and Fifth amendments.

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But there was a question in the case about whether or not the warrantless wiretap that was undertaken in violation of state law could be included in the evidence in a federal trial. And the defendants in that case petitioned to the Supreme Court and asked not only the Fourth and Fifth amendment questions about search and seizure and due process, but also the evidentiary question about whether or not it’s appropriate in a federal trial to include evidence that had been recovered in violation of state law.

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And what Taft said, despite having told Congress differently 18 months before, was, “We’re going to take the case, but we’re only going to ask the constitutional questions and we’re going to skip over the evidentiary question.”

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After that, it’s off to the races. By 1939, the Supreme Court’s changed its rules. Instead of reviewing the entire case, they’re only going to review the questions presented. Along the way, starting back with Olmstead, the court has taken this to mean that not only can they limit their review to the questions that a petitioner asks, but they can change the questions that a petitioner asks. They can remove questions, like they did in Olmstead. They can add questions from time to time. And maybe the best example of this is Citizens United. The question of whether or not the campaign finance reform violates the First Amendment and whether or not it should be overruled, that was actually waived in the lower courts. That was no longer a part of the case at all. And then the Supreme Court put it back in.

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So we are a long way from a world where a court simply looks at what happened below and figures out whether or not they did something wrong. We’re now in a world where the court looks at a case in the lower court and says, “Hmm, this is an opportunity for me to say something I’ve been wanting to say for a while and to reaffirm or make some new law that I’ve been wanting to make for a while.” And I think that’s a dangerous place. I think it’s important to note here that the Roberts Court is not exceptional in this. The Supreme Courts used this to do some things people like, and some things that people don’t like. It strikes me as not what they ought to be doing. And it’s certainly not what they told Congress they would be doing.

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QOSHE - Here’s How the Modern Supreme Court Accrued So Much Power - Dahlia Lithwick
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Here’s How the Modern Supreme Court Accrued So Much Power

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17.01.2024
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This week on Amicus, I spoke with Ben Johnson, an associate professor at the University of Florida Levin College of Law. His work focuses on governance by committees, and he recently published an article in the Atlantic, “The Little-Known Rule Change That Made the Supreme Court So Powerful.” We spoke about the Supreme Court’s legitimacy, and how it operates as a gatekeeper for what kind of legal decisions are made these days. This excerpt of our conversation has been lightly edited and condensed for clarity.

Dahlia Lithwick: At the beating heart of the concern that animates both your law review and your Atlantic piece is this question of: The court is always making choices, and they’re not always visible and legible to us. Steve Vladeck’s been on this show. He worries a lot about the discretionary docket, which is your point. And it would be useful for you to unpack it, because I think it’s not intuitively obvious that it’s not just that the high court is picking its cases, it’s actually picking its issues within the cases, like going through a box of chocolates. So can you just take us back to how this used to be done and how that shift started to happen? I think your larger point is that initially this was just a court that couldn’t keep up with its workload.

Ben Johnson: So if you just go back and think about what is a court: Two people have a problem with each other. They’ve got a fight between them. We’d like to resolve that peacefully in front of a tribunal. And so there’s some things that, for the plaintiff to prevail, they have to prove to a court. If they can prove those things, then they win.

So suppose they win, then the defendant appeals. Now the defendant is........

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