1.17 Courts

Profs Greer and Jarman discuss the US judicial system, its affects on our lives and how we can influence court decisions. Why are there SO. MANY. COURTS? And what does this mean for policy and democracy?

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• Music: 'Blippy Trance' by Kevin MacLeod

Transcript

Holly Jarman: 0:09

Hello, and welcome to the HMP governance lab podcast. I'm Holly Jarman. I'm a professor of health management and policy at the University of Michigan. And I'm here with my colleague, Scott Greer. And we're going to be talking to you today about courts.

Scott Greer: 0:24

Because Americans are globally known for loving lawyers and loving litigation. We say we aren't. But when you look at our propensity to make the courts make our big decisions for us, and the scale of our legal industry and the number of lawyers we have, and the number of wannabe lawyers that we have. It's clear no matter what we say, we love lawyers, and we love court.

Holly Jarman: 0:47

And this is a really long standing thing around the American political system. I have a quote here from Alexis de Tocqueville, who was a French man who came over in the 1830s. And he said, scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. And I do think that that fundamental truth holds today. And so the extent to which the us more than other countries, has a lot of courts, and has a lot of litigation is quite distinct.

Scott Greer: 1:26

So let's talk about the federal court system, bearing in mind that the US has lots and lots of court systems, including 50, state courts, which are interpreting state constitutional law. So there's a Michigan State Constitution and a Hawaii State Constitution, and they have their own state courts, which do most criminal and normal civil law, they're the courts you're most likely to engage with as a normal citizen, or a normal criminal. And they're bound by state Supreme Courts interpreting state constitutions as well as federal law. We're today going to focus on the US judicial system, in part because state courts frequently look broadly a lot like the federal system,

Holly Jarman: 2:05

I always think of the system as like a series of Russian dolls, essentially, there's just so many courts. So 50, States Courts, as we mentioned, and then there are you have to learn these by title. So title three courts, Title One courts, and then a bunch of other specialty courts. So let's go over those. So title three courts includes the nine member Supreme Court, which has considerable autonomy. So again, from a comparative perspective, if we look at what other highest courts in other countries do, the Supreme Court has quite a bit more autonomy than they do to review law 13 circuit courts of appeals, and 94 federal district courts, which are organized into 12 Regional circuits. At this point, if you want to pause this podcast and go and look at a map, I would not blame you. So there's the title three courts, Title One courts, and the specialty courts address different subjects. So these include, like Tax Court, we have courts just look at tax cases, military courts, the Federal Claims Court, and a bunch of trade courts. So we not only have in the federal system, a bunch of generalist courts, we also have these specialist courts that are looking at particular forms of law and legal disputes. Now, you might ask, what does this system create? It's quite unique in the US in terms of just having more courts and everybody else? Well, in political science, we talk about the idea that people who are looking for legal redress who are trying to start a court case, engage in this process of forum shopping. So forum shopping means you're going to look around and try and understand which courts have the which court has the best environment for your case, where are you most likely to get a favorable result, because each of these courts has a distinctive personality because of the way that judges are selected, and also like a record, so different specializations even in the generalist courts. So the parties in a legal dispute are likely to seek out the courts that are most favorable to them. So an example is the DC Circuit Court of Appeals has a really highly administrative caseload. And another example is the Ninth Circuit Court of Appeals, which is large and much more liberal than some other courts.

Scott Greer: 4:41

And it goes beyond that, for example, the district court that's the level below the Court of Appeal, the circuit courts in East Texas is famously really important in patent law, because in the 1980s in the 1990s, the war on drugs meant that a lot of drugs offenses became federal law. And federal district courts were clogged up with minor drug dealers. At the same time, people invented patent trolling, which is where you buy a bunch of patents from a defunct company or something. And you file a lawsuit saying that Apple or Google is infringing on your patent. And the idea is that they pay you to go away that it's cheaper to settle. And this is a very, very lucrative business. And the patent trolls discovered that there was one relatively unused District Court in the whole federal system, and that was East Texas. And so there was this regular Conboy of Silicon Valley lawyers who all had to travel down to East Texas to argue in District Court about cases in which some patent troll was trying to get money out of Oracle or Microsoft or Google or something. And to this day, the East Texas District Court is a really big player in Silicon Valley IP law. The other thing is a lot of these courts, they get their personality based on the chance of who got to appoint them. So for example, since we're down in Texas, the Fifth Circuit Court in New Orleans is really, really conservative, because most of its appointees were Trump appointees. And before that, George W. Bush appointees. So if you want to bring the most conservative legal theory that passes the laugh, test into the federal court system, you'll file a suit at that court in New Orleans.

Holly Jarman: 6:27

a caveat here at this point. So so far, we're really focusing on civil law cases, not criminal law cases. But we shouldn't really forget that both types of cases have consequences for civil rights. The other way in which the US is distinctive, in terms of its court system, is really the number of people that have been put in prison, the number the ways in which crime is constructed, socially constructed, if you can remember back to that concept, and the social construction of criminals and what criminals can or cannot do, in terms of someone carrying a conviction, and their ability to participate in society participate in the electoral process.

Scott Greer: 7:11

We can't underline this sufficiently. The United States is absolutely out of line with the century every country in the world with the possible exceptions, depending on how you count of China, Russia and South Africa, for the number of infractions that lead to a jail sentence for the length of our jail sentence for the likelihood that we put you in jail if you commit a crime when you're a juvenile. And as a result for the sheer scale of the prison system. As an economic component, especially of rural economies, Michigan's Upper Peninsula is substantially dependent on the state courts funneling a large number of people into jails so that the up may have people in good state jobs as prison guards there's a private in in, there's a private prison industry that has an interest in its own preservation, as well as prison guards unions. There's County Sheriff's who depend on the revenue from housing state prisoners in county jails, in Louisiana, for example, that's the main way County Sheriff's survive. This is a very, very big part of our economy. It's got terrible effects on the people incarcerated. And as you might imagine, incarceration is by no means a racially egalitarian process in the United States,

Holly Jarman: 8:26

right? The prison industrial complex is real, and kind of adheres to the basic principle that we know as political scientists that you create a constituency for something people will fight to keep that thing going. And so you put a prison somewhere and you put a bunch of courts somewhere. There is a constituency then for litigation, and a constituency for conviction and a constituency for keeping people in prison. And so, unfortunately, that is how the US political landscape has evolved.

Scott Greer: 9:01

And the Upper Peninsula is a great example of that, because governor john Engler distributed prisons across the Upper Peninsula. And there was a lot of resistance because you don't have to be a super sophisticated social scientist to realize that putting a prison in your town might make it a less pleasant place. So a lot of up communities actually didn't want the prison. And their intuition is correct. locating a prison has bad health effects on the surrounding community, more drug abuse, more stress, these aren't necessarily such great jobs, people come home with stress and with ready access to drugs, basically. Nonetheless, once they're there, and the community is dependent on the prison, then the community mobilizes to protect the prison, which means mobilizing to defend. needlessly long, needlessly young, needlessly promiscuous sentencing of people to jail that don't really need to be there.

Holly Jarman: 9:53

Right. And that has ongoing effects, obviously, on communities and on people's ability to pay Participate in things like the electoral process. So then you get a community where the prison population is a significant proportion of the overall community population. And what Furthermore, the people in the prison are demographically distinct from the community, and geographically distinct from the community. And so Furthermore, then they can't vote. So they don't, as prisoners have a say in how that community functions. So they don't have a voice in in the debate over the prison and debate over how sentencing should go going forward.

Scott Greer: 10:38

But that's enough about the carceral. State, we just want to underline that it's an enormous challenge for public policy and politics, including health and public health policy. Let's jump over to the Supreme Court, which is as far as you can get from an upper peninsula prison full of convicted minor drug dealers as you can get it's an a goal of the American legal profession.

Holly Jarman: 10:58

But it's also equally a very big challenge to public policy. So let's put our comparative hats on one more time. The US Supreme Court is also a bit distinctive and weird in comparison with the higher courts in the land, in that it has some quite substantial powers of judicial review. So the ability for a court to grant certiorari really makes a significant difference. What does that really mean, Scott?

Scott Greer: 11:28

This is simply that the court decides to hear the case, it's that simple. The court has what we call docket control, which means that it decides whether it wants to listen to me. So for example, in election law cases, since the court rolled back the Voting Rights Act requirement that a bunch of jurisdictions that are prone to racial discrimination and voting get preclearance from the Department of Justice, they now have to file if you object to something that they're doing in electoral law, you have to file an urgent case to a federal judge, the federal judge then can make a decision, you can appeal that and then the Supreme Court decides whether or not it wants to listen to you. I'm picking the electoral law cases because a huge amount of American election law is now being made on the basis simply of the supreme court saying I do or do not wish to listen to this case at all. Now, in normal times, far more cases are appealed to the Supreme Court than ever get heard. So getting one of these writs is really important. And it's highly political, the judges don't want to see cases where they don't think that it will be decided in a way that they like. But they do have to respond to some realistic things. Sometimes it's such an important issue in policy terms. And sometimes there's been a division between the federal circuit courts. So if two federal circuit courts say the fifth and the ninth here are basically the same issue and don't agree, that's something that the Supreme Court is very likely to take up as a case. Because if you have major discrepancies between Circuit Court rulings in the United States, that's bad for the integrity of American law. So no case can be assumed to be appealed to the Supreme Court. And Supreme Court decisions are all political. And that includes, which cases do they want to admit at all?

Holly Jarman: 13:14

Right. And more than that, this idea that giving the Supreme Court extensive docket control giving it substantial powers of judicial review, is by design, it was intended constitutionally to be a counter majority Aryan power that would balance other branches. And so the other thing, the other thing around the Supreme Court, as I'm sure you're all aware right now is that supreme court justices are nominated by the president and confirmed by the Senate. And so they serve until they retire or they die, or they can be impeached by the house and convicted by the Senate, which would get them out of office. And so as you are all aware, I'm sure nomination of a Supreme Court justice is intensely political, because that person is going to be there for a considerable amount of time, most likely, because impeachment and conviction are incredibly rare. That person is going to be partisan. This is an entirely partisan process. Let's not forget, because they're nominated by the President have to go through Senate confirmation. But also the process is kind of not very well so circumscribed in the Constitution. And so that causes some problems, including, if you are it makes the senate quite powerful. So the confirmation process in the Senate, therefore, if you remember, if you listen to some of our other podcasts where we talk about the legislative process and the budgetary process, the Senate can, to some extent, create its own rules and has some flexibility there. So if you have someone in control of the Senate, who is actually very capable of understanding the complicated rules and playing them to their advantage, That is not going to go well for you if you don't want to see a confirmation process

Scott Greer: 15:04

proceed. And I want to underline that this is a moving target because for a long time, Supreme Court judges tended to be much more political figures, not the extremely rarefied law professors we see now. And they tended to be accepted by the Senate as a matter of course, and so you had very high votes for confirmation frequently was 99 100 to zero. This changed and became slowly more partisan until mitch mcconnell faced Barack Obama's decision to nominate Merrick Garland after judge Antonin Scalia died in 2016. And McConnell, leader of the republican senate simply refused to consider Obama's nominee Merrick Garland, McConnell, who is very clear about what he's doing politically. disingenuously argued that it was legitimate for a president to nominate somebody and have that person be confirmed in the year before an election. Well, a lot of the therefore leaving a Supreme Court that was stuck at eight votes for about a year. Then, when justice Ruth Bader Ginsburg died, in 2020, McConnell decided that that rule didn't apply. And since the people had voted for a republican senate and a republican president, he would support the senate confirming his her replacement justice, Amy Kony Barrett. McConnell, is a wonderful figure, because he makes it perfectly clear that what he's doing is explicitly partisan, but then he named it a rule in order to fit with the decorum of the Senate, the elite legal profession. The takeaway from this is the court is becoming more overtly partisan and more overtly a part of party politics than it's been for a very long time. And we are now seeing regular party line confirmations in the senate of people whose key selling points is simply their youth, healthiness and fidelity to the main ideology of their political party. This is probably really dangerous, both for the quality of American law and also for the legitimacy and authority of American courts.

Holly Jarman: 17:09

Right. And in addition, the kinds of people that you get through this process, that they're just not representative of the US population as a whole, obviously, their Supreme, the elite, historically very white and very male, as a group. And so the court doesn't fulfill the same representative function as Congress is supposed to. And so then you're you're stuck with this set of people for a considerably long period of time,

Scott Greer: 17:42

because they have constitutionally lifetime appointments, the structure of the courts, the nomination process for the courts, what the courts can hear, that's all set by Congress. It's a simple piece of legislation to say that the Supreme Court has nine members, and you could have a different piece of legislation to say has 13. That's all set by Congress, the scope of what the courts can do is set by Congress, but the lifetime appointment is in the Constitution. And the thing to underline about the power of the courts is they have the power that other branches, grant them, because legislators have the power of the person a tremendous amount of popular validity. executives have a popular vote and command of the public machinery, courts depend on other actors in the political system listening to them. So the danger of an overtly partisan court is that it gets out there where it's seen as partisan. it incurs opposition from other powerful figures and its legitimacy is damaged. And once a court loses its legitimacy. It doesn't have any other way to enforce its decisions. Let's back up from that nightmare scenario, and quickly run through some of the things that you do when you're playing by normal rules to try and influence a court.

Holly Jarman: 18:51

Oh, I didn't know I was enjoying the nightmare scenario. I guess that's why I'm a political scientist, because I enjoy thinking these things through. Alright, what are some ways to influence the courts if and including Scott's discussion, which which may well come up in the next year as a key talking point for some politicians, the idea that expanding the court, or otherwise changing the way that the court can operate by changing legislation is on the table. But as an ordinary person who's not making laws? What can you do? So one of the things you can do is file a brief. So these amoc is curiosity, friends of the court, so you can file an amicus curiae brief. And so that's a third party to a dispute. So not either side. That's that's battling it out in the court. But you can file a brief that contains additional information on the case that may be helpful to in theory to the court in making its decision. So you can either take one side over the other in that brief Or you can aim to generally influence the decision by providing maybe some scientific or social scientific evidence. So these get called Brandeis briefs. So these ambiguous briefs get filed according to some rules that were adopted by the Supreme Court in the 1960s. And they have some kind of detailed instructions on how our briefs should be organized, certified, submitted, and it's kind of form and content. But what people tend to do is work together in advocacy circles, with lawyers who provide either fee for or pro bono services, to compile these briefs. And you usually get an enormous list of sign ons and people who have put their name to the brief. And then the brief gets sent off on behalf of all those organizations and or people. And so, the only kicker here is that an amicus curiae brief, does have to have permission from the court or consent from the parties to be filed. And so there has the court has to really be able to accept those briefs. And then there's a seven day window in which to file these things they normally take a lot longer to write. But that's something that a lot of public health advocates do participate in.

Scott Greer: 21:20

And these actually matter, because how did these decisions get written? They're basically written by 27 year olds, because essentially, each judge has clerks and the clerks are in a pipeline, right? So for example, Clarence Thomas makes a point of not taking clicks from Elite law schools, most of the other judges take clerks pretty much exclusively from Yale, which is the funnel for Supreme Court appellate work and legal academia at the elite level in America. And they're law students who probably made Law Review, at a minimum, they got really good GPAs their professors have networked specifically with Supreme Court judges, which is why law professors, especially at Yale, write op eds about how brilliant and good and smart judicial nominees are. The clerks get them, the clerks know exactly as much as you would expect. A 27 year old with a really good legal education knows about any given public policy issue. Probably they know not as much about public health, as you know about the finer points of constitutional law. So they really need these advocates briefs. And they are pretty good at sniffing out what's good evidence, what's Bs, and who's on the right side of the issue from the point of view of their judge. So you're obviously going to have a very different approach and a very different response to your brief if you send it to Sonia Sotomayor, versus if you send it to Clarence Thomas, because ideologically they're very different. And they're responsive to different issues. Sotomayor is much more interested in responding to statistics than Clarence Thomas, who is much more of a natural law kind of thinker. So these briefs work and you constantly see it because they're cited as the evidence in the decisions in the concurrences. And in the dissents that are the main output of the Supreme Court. So if you can get involved in an amicable brief, absolutely do it because it's actually an effective way. Because bear in mind, you're writing for a 27 year old elite lawyer, who has seen very little of the world that you live in and actually wants your expertise.

Holly Jarman: 23:25

So the overall takeaways here, I think, really are we have a lot of courts. And we have a system, which is a political system and a legal system, which is set up to encourage a lot of court cases, a lot of litigation. And there's money invested in that system in the context of litigation. And there's political capital invested in that system. It because much of what courts do is quite partisan, at least when it comes to civil cases. So we have a lot of courts, we have a system that's set up for a lot of legal action. And though we should pay attention to ways in which as public health advocates, we can influence courts, and the good news, is that what we do does matter HMP governance podcast if you're interested in learning more about our research, come and find us at HMP governance lab.org or follow us on Twitter at HMP. gov