7. Pigs in the Poke

During his confirmation hearings, Chief Justice John Roberts said: "I think I should stay away from discussions of particular issues that are likely to come before the court again."  He also said: "I don't want to express conclusions on hypothetical questions …  Those cases come up all the time and I do need to avoid expressing an opinion on those issues."  He said the same thing many other times, too, in many different ways.  No doubt we'll soon hear Judge Samuel Alito similarly being careful not to comment on cases he might be called upon to decide. 

 But is it true that the Surpeme Court decides cases?  In a literal sense, sure.  The Constitution limits the Court's jurisdictions to "cases and controversies".  But the justices themselves frequently assert that they are involved in a more ambitious project.  Justice Breyer (joined by Justices O'Connor, Souter and Stevens), once said: " I realize that we cannot act as a court of simple error correction".  The phrase "error-correction" refers to the ordinary appellate process of reviewing the decision rendered by a lower court in a particular case, to determine if the lower court erred.  Justice Stevens (joined by the late Justice Marshall) spelled it out: "In my judgment this Court's scarce resources would be far better spent addressing cases that are of some general importance 'beyond the facts and parties involved'".  What they mean is that the Supreme Court doesn't, or at least shouldn't, simply decide cases.

This distaste for error-correction is no crotchet of the so-called liberal justices.  Just this year, Justice Thomas (joined by Justice Scalia) opined that the Court should decline to decide a case when the issue presented was not an "important question, but merely a matter of case-specific error correction." 

For the justices, then, there are two categories of cases: those that present important questions, and those that merely require "case-specific error correction."  The latter are the individual cases about which Chief Justice Roberts was so careful not to express an opinion.  The former are denominated important because they are vehicles for announcing rules of broad application.  In one famous child-murder case Justice Stevens wrote: "The emotional aspects of the case make it difficult to decide dispassionately, but do not qualify our obligation to apply the law with an eye to the future as well as with concern for the result in the particular case before us."  By "the emotional aspects of the case" he meant its particular facts.  By "an eye to the future" he meant that the Court should take care to announce a rule crafted to produce optimal results in other cases.  His point was precisely that the justices should put to one side the facts of the particular case in order to announce a rule designed to produce desirable results in (hypothetical) future cases. 

Again, the so-called conservatives on the Court have no quarrel with this approach.  A few years ago Justice Thomas wrote:

We have emphasized repeatedly that the State's use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution.  Rather, a Fourth Amendment violation is "'fully accomplished'"  by the illegal search or seizure, and no exclusion of evidence from a judicial or administrative proceeding can "'cure the invasion of the defendant's rights which he has already suffered.'"  The exclusionary rule is instead a judicially created means of deterring illegal searches and seizures.

Of course, only future wrongful searches and seizures can be successfully deterred.   Thus on the one hand we have nominees saying it would be inappropriate for them to express an opinion about cases they might be called upon to decide, while on the other hand we have justices already in office saying it would be a mean and paltry thing for them to decide cases only.  Their job, the already-confirmed justices keep telling us, is not merely, or even primarily, to decide individual cases, but also to decide how lower-court judges should handle hypothetical future cases.

Granted that nominees shouldn't prejudge individual cases, out of fairness to the litigants, why shouldn't they tell us how they would have lower court judges handle as-yet-nonexistent cases?  The conventional position of Supreme Court nominees, boiled down, is that they should be entrusted with the power to formulate prospective rules of universal application to govern American society, and even to alter it fundamentally  – but that American citizens have no right to know what those rules will be until they are imposed on them.