278. Lurking in the parchment (updated)
A couple weeks ago the Supreme Court issued what might be the shortest opinion to come from its prolix clerks' word processors:
The case, U.S. v. Claiborne, was slated to be yet another sentencing decision, possibly indeed the long-awaited occasion on which the Court actually caught the tail it's been chasing for so many years. Maybe Justice Ginsburg would write two opinions disagreeing, haughtily, with herself! (See post 230 and post 252.) Here's a preview from Cornell's Legal Information Institute, explaining what the case was supposed to be about, and here's a news story explaining the pathetically violent way the case became moot. (So if Claiborne hadn't received his below-Guidelines sentence, he would still be alive??)
The justices, exhausted from the hard labor of not deciding so many cases (see post 8 and post 202), are just about ready to knock off for their three-month vacations, so it's a sure bet that the Claiborne opinions (my prediction: at least five irreconcilable ones) were already written long before Claiborne died. Now the Court will have to find another case (Professor Berman points out that there's no shortage of candidates) in which to issue those opinions.
It would be difficult, I think, to imagine a clearer illustration of the incoherence of the Court's function. The justices are always reminding us that they don't decide cases. They don't engage in the despised "error correction" - that is, merely ensuring that justice is done in the individual case. (See post 7.) On the contrary, they see their task as "provid[ing] guidance concrete enough to ensure that [sentencing statutes] will be applied with an acceptable degree of consistency by the hundreds of district judges that impose sentences every day."
But if the Court's job is to provide guidance to hundreds of judges hearing hundreds of cases every day, what difference does it make whether Mario Claiborne is alive or dead? - much less whether he deserved a lenient sentence. The facts of a given case are rarely more than a deception strategy, a way of maintaining the pretense that the Court is a court even when it's exercising executive and legislative powers. (See post 263.)
The Court's real job, in the justices' view (and in the view of most lawyers and lower-court judges, too, I think) is to uncover constitutional principles lurking in the parchment, obscured (until the very moment of the announcement) by the words thoughtlessly printed over them. And the justices don't need a live defendant to do that.
So here we have the Court stymied in its ambition to announce its newest rule of universal application, one guaranteed to affect the fate of tens of thousands of Americans, because of the necessity of going through the motions of pretending to be deciding a specific case.
But don't worry. They'll just slap another defendant's name onto the top of the opinions they've already drafted and issue them next year, instead.
UPDATE: As reader Greg May points out, Professor Michael Dorf made the same basic point last week, with the difference that he analyzes it in conventional legal terms. It seems to me that the law has nothing to do with it, because there is no law governing the Supreme Court. An anonymous comment at Sentencing Law and Policy suggested there would be a due process problem if the Supreme Court simply released its already-written Claiborne opinion(s) with another defendant's name attached. But the way our system works, nothing the Supreme Court does can be unconstitutional, unless and until the Supreme Court itself says so, at which point its new pronouncement will instantly, seamlessly replace it. At that moment, every lawyer and judge in the country trying to accomplish anything within the judicial pyramid will have no choice but to agree that Oceania has always been allied with Eurasia.
The issue raised by the Claiborne case is simply this: no one but poor Mr. Claiborne and his family would have cared about his case if it had been about him. The Supreme Court's decision to hear his case rather than any of the thousands just like it was arbitrary, in itself meaningless, or nearly so. (There may have been some procedural wrinkle that made it more appealing to the clerks than other candidates.) It was simply a vehicle for announcing a new rule of universal application - a new sentencing law, to control every federal case ... until the next time the Court returns to the task of cleaning up its mess, Cat in the Hat Comes Back-style.
Professor Dorf sees it as a legal issue. I see it as a political issue. We have a powerful government agency exercising extra-constitutional powers while pretending not to. Legal doctrines seek to justify the exercise of power, and to many people's minds they actually succeed, but it's the exercise of power that counts.
Wednesday, June 13, 2007 at 10:32PM in Intellectual dishonesty watch, Supreme Court's role
Reader Comments (3)
Some, of course, might believe that. More have enough recognition of how the Court and the legal system work to say no more than that the various Justices have crafted a new rule of cartography (assuming they have and that it can be identified) with which we must deal. And some will, naturally, say that the Justices (at least those in the majority) are simply foisting a false geography (flat earth, anyone?) on the rest of us.
You know that, of course, since you yourself won't be hornswaggled. Why declare that I will be?