In a post over at Concurring Opinions, Nate Oman writes:
I recently had a conversation with an acquaintance about the predicament of con law scholars. He made the point that the decline in the Supreme Court’s docket has had a big impact on con law scholarship. It used to be the case, he said, that the Court was churning out enough new decisions that con law professors could keep busy working out doctrinal puzzles and fitting the new cases into their vision of the fabric of constitutional law. With fewer cases to work on, however, con law professor have to find something else to do.
I’ll disagree with Nate’s acquaintance about one thing: I don’t think that the cause of this dynamic is the size of the Supreme Court’s docket. The Supreme Court can make a lot of changes to the law in just a handful of decisions. They don’t need lots of cases to do that.
At the same time, Nate’s acquaintance is on to something important that is often overlooked these days in debates on the role of the Supreme Court. Relative to most periods, the last few years have been a pretty boring period for the Supreme Court. Now before everyone jumps at this, please note the important caveat: relative to most periods. I’m making a relative statement, not an absolute one, and I suppose I’m implicitly limiting it to the period of the modern Supreme Court of the post-WWII era. True, there is lots of fear or hope that the law will change dramatically in the future, and the Supreme Court’s cases fiddle with the law here and there, but relative to other periods this is a time of considerable stability in existing public law doctrine.
I was thinking of this recently when I read the first edition of the criminal procedure text I recently joined. The first edition of Kamisar & Hall’s Modern Criminal Procedure — as of this summer, it’s Kamisar, LaFave, Israel, King & (gulp) Kerr, but back then it was just Kamisar & Hall — came out in 1965. I recently purchased a copy of it, both because I was interested in the evolution of this book in particular and because recently I’ve been reading a lot about the history of criminal proceudre.
The 1965 edition of the Kamisar casebook is truly remarkable. It’s hard to overstate how uncertain the law was at the time. The Supreme Court was in the midst of ditching many of the centuries-old doctrines of criminal procedure and replacing it with new doctrines. As a result, reading the casebook is something like reading a movie review written by someone who just watched half a movie, was forced to leave, and immediately had to write a review sumarizing the first half and offering lots of speculation about what might happen in the second half of the movie. (Incidentally, I gather this state of flux explains the somewhat odd title of the book: it’s “modern” criminal procedure because it’s about the new set of decisions that were being handed down.)
I plan to blog more in-depth about this at some point soon, because it’s a really interesting story, but think of the difficulties of trying to write a criminal procedure casebook in the summer of 1965. Most of the major topics in criminal procedure had been upended by 5-4 decisions within the last five years. In the Fourth Amendment chapter, Mapp v. Ohio was one of your older precedents: that 5-4 decision had been around for a full four years. For your Fifth Amendment chapter, the Court had just applied the Fifth Amendment to the states one year ago by another 5-4 vote in Malloy v. Hogan. Your material on confessions would feature the 5-4 decision in Escobedo v. Illinois, which was a year old. Finally, your Sixth Amendment chapter had to be based heavily on Gideon v. Wainright, which had been around for two years (although it was a relative rock in the doctrine, being unanimous as to the result).
Plus, the Court’s decisions were strongly hinting at even more dramatic changes ahead. You could look at the tea leaves and recognize that some big changes were coming to the law of confessions, searches, and stops and frisks. Indeed, the Court was about to decide three of the basic building blocks of today’s criminal procedure doctrine: Miranda v. Arizona (still a year away), Katz v. United States (two years away), and Terry v. Ohio (three years away).
Criminal procedure is just one area, but I think it provides an interesting lens to see the rest of the Court’s docket. These days, even most of the “big” Supreme Court cases are on relatively narrow topics. So I wouldn’t be surprised, going back to Nate’s post, if con law scholars are kind of bored these days. Relative to other eras, not that much is happening.
That’s my impression, at least. Am I mistaken? I look forward to your comments.
UPDATE: I should also point out that the Court’s small docket is in fact related to the relative stability of existing law. It’s not the cause of the stability, but it is another result of it. The current Court is very heavily focused on resolving circuit splits, and that leads to fewer grants and decisions that are more likely to be interstitial than we might see otherwise.
I guess it depends what you mean by “public law”. It’s more of a wild ride for administrative law today, as the Chevron consensus breaks down or at least mutates…
I would say that one must also consider the cases being decided. Though there are fewer cases related to con law, it seems that some of the ones being brought to the court have huge implications. Perhaps not the decisions, but the issues at hand are quite extensive. Consider Hamdan, for example. It is noteworthy for multiple reasons: it was closely decided, it ruled against the administration, it ruled the military bound by the Geneva Conventions–and that the Conventions had been violated. The future implications of this are, as of yet, unknown. This goes to one of the most intrinsic con law question– the balance between the legislature, executive, and judiciary. Scholars, I’m sure can spend quite some time on determining the effect of hamdan in relation to historic con law cases, including Youngstown.
I think part of the reason that Crim Pro and Con Law hasn’t changed all that much is because of the views of justices who were/ are in the center. Justice Kennedy and Justice O’Connor were both very much minimalists, seeking to limit each holding as much as possible. Kennedy is still a minimalist and may (we’ll see about that) become even more minimalist. Chief Justice Roberts also seems to be a minimalist and so is Justice Ginsburg. I think the court will continue on its “boring” path. One influential conservative, one influential liberal and the very important middle are all minimalists.
Well, you’re right in one sense, one that may be especially relevant to criminal procedure but that is more broadly applicable. To put it in Fred Schauer’s terms, we might conclude that the most interesting and dynamic periods are those in which the Court decides that some activity is henceforth to be considered constitutionally salient. When the Court colonizes some new set of conduct, it suddenly opens up an entirely new area, both for the formation of conduct rules within that area and for scholars to draw connections with or point out inconsistencies with the way the Court already regulates other areas. Incorporation broadly is one such mechanism of colonization, but so is simply saying that something previously unrecognized as a constitutionally interesting area of conduct — and I suppose you could fill in examples here from the crim pro field. So one means of making con law more “interesting” would be for the Court to claim some new field of conduct as constitutionally salient. But another way is for facts on the ground to change significantly. If some new practice arises, the Court will have to deal with it; and while it can first try to deal with it through the existing and “stable” doctrinal framework, the fit may be bad enough to either reveal significant instabilities in current doctrine or require new doctrine-formation to deal with the new activity. I suppose one example, maybe not the best one but the Court hasn’t yet fully accounted for it, would be the rise of public-private partnerships.
Tangentially, we could be even more fine-grained and agree that certain Terms of the Court are more “boring,” certainly for public law scholars, than others. Who among us non-Elect types hasn’t felt a mixed pang of bitterness and pity for a friend who made it to The Show but ended up clerking in a Term whose highlights mostly involved ERISA cases? I must say that every now and then I will meet a former clerk who is modest and unassuming enough actually to say that he or she had a somewhat boring Term.
(OK Comments: Paul writes, “If some new practice arises, the Court will have to deal with it; and while it can first try to deal with it through the existing and “stable” doctrinal framework, the fit may be bad enough to either reveal significant instabilities in current doctrine or require new doctrine-formation to deal with the new activity.” Cough, cough, um, yes, I’m sure there must be some examples of that somewhere.)
Two quick points: First, this would seem to tie in with last week’s discussion about teaching and the presence/absence of a canon. Some fields have a more entrenched canon, and that’s likely to make them more boring, because there’s no conversation/judicial action at a foundational level.
But there’s also the possibility of foundational change outside the Court. It may be that the Court just isn’t at the center of the action any more (just as it hasn’t always been in the past). I think public law probably remains quite interesting, even if what’s coming out of the Court is boring. The tough part now is to figure out where the action has moved. One possibility is to the realm of private institutions, another is to that of international ones.
It’s interesting to hold this discussion up next to Professor Tribe’s heralded letter to Justice Breyer, published the Green Bag (see http://www.scotusblog.com/movabletype/archives/2005/05/commentary_on_t.html). After all, Tribe is holding off on completing his treatise precisely because constitutional law is in such “flux” that it’s impossible to organize the cases along ascertainable trajectories. It sounds as though he finds the state of public law far less “boring” than does Professor Kerr!
[OK Comments: As you can imagine, I didn't find Professor Tribe's explanation particularly persuasive. I can understand why Tribe decided to stop updating his treatise: it seems to me that, for a range of reasons, Tribe's influence isn't what it used to be. But I didn't quite understand the flux argument.]
Orin, it seems to me that 1) Apprendi and its progeny and 2) the Confrontation Clause are excellent examples of ongoing ferment in the criminal procedure arena. No?
[OK Comments: It's certainly some new law, but my sense is that this would have been pretty standard stuff in the 1960s. Crawford hinted at major change, but post Davis it looks like it isn't delivering that much. Apprendi and its progeny are big, but the 60s had similar decisions that no one even remembers. A good example is the Supreme Court's 1964 decision in Jackson v. Denno, which held that it violated Due Process to let juries determine the voluntariness of confessions. (In some jurisdictions, juries would hear the evidence of voluntariness and decide for themselves, and were told to exclude the evidence if they thought the confession was involuntary. Denno struck this down.) Denno created a lot of turmoil, as lower courts had to have "jackson v. denno hearings" to determine if there was error in pending cases due to the jury's improper consideration of the sentence. But today no one remembers Denno.]
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