The Supreme Court sometimes abandons longstanding or widespread readings of its own precedents by blaming a dissenting opinion. “Our previous majority was fairly clear,” the Court effectively says, “except that the dissent in the relevant case cast a spell over readers, leading them astray.” This practice of blaming dissents is both interesting and consequential, appearing for example in Gant as well as the recent decision in Lightfoot.
When he accepted the President’s nomination to Supreme Court, Judge Neil Gorsuch went out of his way to praise other judges for adhering to “their judicial oaths to administer justice equally, to rich and poor alike.” Gorsuch’s understanding of that same oath could shape decades of precedent on everything from access to courts to the imposition of criminal fines. So, during his confirmation hearings, the Senate should ask Gorsuch what he understands his oath to mean—particularly the part about doing “equal right to the poor and to the rich.”
In a forthcoming article, I discuss the history of the judicial oath’s “equal right” principle, including its role in recent confirmation hearings. For instance, when then-Judge John Roberts was nominated to the Court, Senator Richard Durbin asked about the relationship between being a Justice and doing justice: should a federal judge “take into consideration that in our system of justice the race goes to the swift, and the swift are those with the resources, the money, the lawyers, the power in the system?” Roberts enthusiastically agreed, adding that “the judicial oath talks about doing justice without regard to persons, to rich and to poor.”
President Trump is preparing to nominate someone to the US Supreme Court, presumably creating an opportunity for confirmation hearings to ventilate competing views of the judicial role. I have a draft paper that discusses one aspect of a judge’s duty: the federal judicial oath to do “equal right to the poor and to the rich.” It turns out that several of the reported front-runners have commented on this oath. Here, I’ll explore some interesting albeit brief published comments by the most recent figure to float to the top: Judge Neil Gorsuch of the Tenth Circuit.
Last Wednesday, the Court issued an opinion in Lightfoot v. Cendant Mortgage Corp.—a case about federal jurisdiction that serves as a useful illustration of a distinctive way of using and modifying precedent: narrowing. Lightfoot is also interesting in raising the possibility that narrowing jurisdictional precedents might be a special undertaking that ought to be governed by distinctive principles.
“At a time when almost every other federal court has a readily accessible electronic database, why can’t the Supreme Court?”
That was how I ended a post from August 2014. By then, it was already long past time for the Supreme Court to develop something like the PACER electronic docket system that has operated for many years in the lower federal courts.
With governmental surveillance becoming ever more ubiquitous, detailed, and automated, it’s become possible to imagine a regime of perfect surveillance, or an essentially boundless ability to detect crimes. Of course, perfect surveillance is now and may always remain hypothetical. But the prospect of digital panopticism is salient enough to appear in debates about real-life problems, and thinking about the extreme case of surveillance perfection might be a useful way of illuminating features of our more mundane reality. So the question arises: How might perfect surveillance alter our world?