Judicial Strategy

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JUDICIAL STRATEGY

That judges shape much public policy is a fact of political life. The significant questions are how, how often, how effectively, and how wisely they influence policy. Each of these inquiries poses normative as well as empirical problems. Here we shall be concerned only with legitimate strategies that a Justice of the United States Supreme Court can employ to maximize his or her influence. We shall focus mainly on marshalling the Court.

A Justice, like any strategist, must coordinate limited resources to achieve goals. He or she must make choices—about goals and priorities among goals and also about means to achieve those goals. Intelligent choices among means depend in part on accurate assessments of the resources the Justice controls and of the limitations that others may impose on use of those resources.

The Justices can order litigants, including government officials, to act or not act in specified ways. Less tangibly, judges also have the prestige of their office, supported by a general cultural ethos of respect for the rule of law. In particular, a Justice has a powerful weapon, an opinion—a document that will be widely distributed by the Government Printing Office and several private firms. That opinion will justify—well or poorly—a particular decision and, explicitly or implicitly, the public policy it supports.

A Justice's power is limited by the nature of judicial institutions. Judges lack self-starters. Someone has to bring a case to them. Furthermore, while they can hold acts of other public officials constitutional or unconstitutional and so allow or forbid particular policies, it is much more difficult for judges to compel government to act. The Supreme Court can rule that blacks are entitled to vote, but it cannot force Congress to pass a civil rights law to make that right effective. Moreover, the Court can hear only a limited number of cases. It depends on thousands of state and federal judges to carry out its jurisprudence. And no Justice plays an official role in selecting, retaining, or promoting judges.

Second, a Supreme Court Justice needs the agreement of at least four colleagues. And each Justice can write a separate opinion, dissenting or concurring, in any case.

Third, and more broadly, the Court is dependent on Congress and the President for appropriations and enforcement of decisions. Each of these branches has other important checks: The House can impeach and the Senate can then remove a Justice. Congress can increase the size of the Court, remove at least part of its appellate jurisdiction, propose constitutional amendments to erase the effects of decisions or strike at judicial power itself, and use its access to mass media to challenge the Court's prestige. The President can even more effectively attack the Court's prestige, and he can persuade Congress to use any of its weapons against the Justices. He can also choose new judges who, he hopes, will change the course of constitutional interpretation.

Fourth, state officials can influence public opinion to pressure Congress and the President. State officers can also drag their heels in carrying out judicial decisions and select judges who are hostile to the Court's jurisprudence.

Fifth, leaders of interest groups can pressure elected officials at all levels of government. And when judicial decisions threaten or support their values, these people seldom hesitate to apply whatever political leverage is in their self-interest.

Commentators—journalists and social scientists as well as law professors—constitute a sixth check. If judges make law, edward s. corwin said, so do commentators. Justices who want their jurisprudence to endure must look not only to immediate reactions but also to the future. What commentators write may influence later generations of voters, lawyers, and public officials.

A Justice confronts these limitations simultaneously, and each of these groups will include a range of opinion. Any ruling will elate some and infuriate others, and the political power of various factions is likely to vary widely. In short, problems of synchronizing activities are always present and are typically complex.

The first audience a Justice must convince is composed of other Justices. The most obvious way of having one's views accepted by one's colleagues is to have colleagues who agree with one's views. Thus ability to influence the recruiting process is a difficult but fruitful means of maximizing influence. (See appointment of supreme court justices.) Justices who cannot choose their colleagues must consider how to persuade them.

Although treating others with courtesy may never change a vote or modify an opinion, it does make it more likely that others will listen. When others listen, intellectual capacity becomes critical. The Justice who knows "the law," speaks succintly, writes clearly, and analyzes wisely gains distinct advantages.

Practical experience can be a valuable adjunct. Logic is concerned with relations among propositions, not with their desirability or social utility. According to william o. douglas, several Justices were converted to Chief Justice earl warren's position in brown v. board of education (1954) because of his vast political experience. Strength of character is also crucial. Although neither learned nor gifted as a writer, Warren led the Court and the country through a constitutional revolution. It was his "passion for justice," his massive integrity, Douglas also recalled, that made Warren such a forceful leader. "Is it right?" was his typical question, not "Do earlier decisions allow it?"

In another sense, intellect alone is unlikely to suffice. Justices are all apt to be intelligent, strong-willed people with divergent views about earlier rulings as well as public policy. They are also apt to differ about the Court's proper roles in the political system—in sum, about fundamentals of jurisprudence. At that level of dispute, it is improbable that one Justice, no matter how astute and eloquent, will convert another.

Facing disagreements that cannot be intellectually reconciled, a Justice may opt for several courses. Basically, he can negotiate with his colleagues or go it alone. Most often, it will be prudent to negotiate. Like policymaking, negotiation, even bargaining, is a fact of judicial life. Writing the opinion of the Court requires "an orchestral, not a solo performance." All Justices can utilize their votes and freedom to write separate opinions. The value of each depends upon the circumstances. If the Court divides 4–4, the ninth Justice, in effect, decides the case. On the other hand, when the Court votes 8–0, the ninth Justice's ability to negotiate will depend almost totally on his capacity to write a separate opinion that, the others fear, would undermine their position.

To be effective, negotiations must be restrained and sensitive. Justices are likely to sit together for many years. Driving a hard bargain today may damage future relations. The mores of the Court forbid trading of votes. The Justices take their oaths of office seriously; and, while reality pushes them toward accommodation, they are not hagglers in a market, peddling their views.

The most common channels of negotiating are circulation of draft opinions, comments on those drafts, and private conversations. A Justice can nudge others, especially the judge assigned the task of producing the opinion of the court, by suggesting additions, deletions, and rephrasings. In turn, to retain a majority, the opinion writer must be willing to accede to many suggestions, even painful ones, as he tries to persuade the Court to accept the core of his reasoning. oliver wendell holmes once complained that "the boys generally cut one of the genitals" out of his drafts, and he made no claim to have restored their manhood.

Drafts and discussions of opinions can and do change votes, even outcomes. Sometimes those changes are not in the intended direction. After reading felix frank-furter ' s dissent in baker v. carr (1961), tom c. clark, changed his vote, remarking that if those were the reasons for dissenting he would join the majority.

Although the art of negotiation is essential, a Justice should not wish to appear so malleable as to encourage efforts to dilute his jurisprudence. He would much prefer a reputation of being reasonable but tough-minded. He thus might sometimes find it wise to stand alone rather than even attempt compromise. It is usually prudent for a Justice, when with the majority, to inject as many of his views as possible into the Court's opinion, and when with the minority to squeeze as many hostile ideas as possible out of the Court's opinion. There are, however, times when both conscience and prudence counsel standing alone, appealing to officials in other governmental processes or to future judges to vindicate his jurisprudence.

Although Justices have very limited authority to make the other branches of government act, they are not powerless. Judges can often find more in a statute than legislators believe they put there. obiter dicta in an opinion can also prod other officials to follow the "proper" path. The Court might even pursue a dangerous course that might push a reluctant President to carry out its decisions lest he seem either indifferent to the rule of law or unprotective of federal power against state challenges.

Lobbying with either branch is also possible. Indeed, judicial lobbying has a venerable history running back to john jay. Advice delivered through third parties may have been even more common. Over time, however, expectations of judicial conduct have risen so that even a hint of such activity triggers an outcry. Thus a judge must heavily discount the benefits of direct or indirect contacts by the probability of their being discovered.

The most obvious weapon that a Justice has against unwelcome political action is the ability to persuade his colleagues to declare that action unconstitutional or, if it comes in the shape of a federal statute or executive order, to disarm it by interpretation. These are the Court's ultimate weapons, and their overuse or use at the wrong time might provoke massive retaliation.

A Justice must therefore consider more indirect means. Delay is the tactic that procedural rules most readily permit. The Justices can deny a writ of certiorari, dismiss an remand, the case for clarification, order reargument, or use a dozen other tactics to delay deciding volatile disputes until the political climate changes.

Under other circumstances, it might be more prudent for a Justice to move the Court step by step. Gradual erosion of old rules and accretion of new ones may win more adherents than sudden statements of novel doctrines. The Court's treatment of segregation provides an excellent illustration. If missouri ex rel. gaines v. canada (1938) had struck down separate but equal, the Court could never have made the decision stick. Indeed, years later, when it excommunicated Jim Crow, enforcement created a generation of litigation that still continues.

Strategy is concerned with efficient utilization of scarce resources to achieve important objectives. Its domain is that of patience and prudence, not of wisdom in choosing among goals nor of courage in fighting for the right. The messages that a study of judicial strategy yields are: A web of checks restrains a judge's power; and If he or she wishes to maximize his or her ability to do good, a judge must learn to cope with those restrictions, to work within and around them, and to conserve available resources for the times when he or she must, as a matter of conscience, directly challenge what he or she sees as a threat to the basic values of constitutional democracy.

Walter F. Murphy
(1986)