The Volokh Conspiracy
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Goldsmith's Sense and Edsall's Nonsense about the Supreme Court (Updated)
A New York Times column on the Supreme Court offers a misleading picture and errant analysis.
Last week, Thomas Edsall penned a column for the New York Times, "The Supreme Court Has Finally Found a President It Likes," arguing that the Supreme Court's conservative majority "has become a key enabler of President Trump's agenda." The column repeated (albeit in somewhat exaggerated form) common critiques of how the Supreme Court has handled requests for extraordinary relief from the Trump Administration, and in the process painted quite a distorted picture of the Court and its actions. (For my prior take on these questions, see here and here.)
Harvard law professor Jack Goldsmith, in his latest Executive Functions post, "Sense and Nonsense about the Supreme Court Interim Orders," takes aim at the Edsall piece, and some of its most severe distortions. As Goldsmith notes, Edsall frames his entire piece with Adam Bonica's claim that the Supreme Court is in "open conflict with the lower courts," siding with the Trump Administration in 93.7 percent of cases while district courts ruled against the administration 94.3 percent of cases. Nonsense.
"There are many things wrong with these numbers," Goldsmith notes. For starters, Bonica cherry-picks numbers, looking at different time periods and sets of cases to calculate the numbers. Further, Bonica takes no account of the fact that neither set of cases is neutral; both are the result of strategic choices by the litigants. As Goldsmith notes, the Trump Administration has only sought Supreme Court review of a small fraction of adverse district court orders.
[T]he Supreme Court is ruling only on cases where the Solicitor General thinks (among other variables) that the lower court reasoning is relatively weak. When Bonica says that the Supreme Court "reverses almost automatically," he is ignoring the crucial fact that the Court sees only a fraction of lower court rulings, and then only ones that are skewed for likely government success.
The real percentage of district court orders reversed by the Supreme Court remains in single digits. "This is not open conflict."
If one wants to fairly assess the extent to which the Supreme Court is at odds with lower courts, one also has to account for forum shopping in the district courts. Just as the Trump Administration is carefully choosing which orders to challenge, those challenging the Trump Administration have been very selective about where to file suit. Thus it is no accident that the vast majority of nationwide injunctions entered against the administration were issued from just five judicial districts. Writes Goldsmith:
Bonica and the New York Times are committing a variant of the empirical analysis sin of "testing on the dependent variable": they draw sweeping conclusions from a subset of cases that is small, highly unrepresentative, and unexplained.
Things do not get better when Edsall tries to attribute the Supreme Court's behavior to an unprincipled and inconsistent application of unitary executive theory. As Goldsmith notes, Edsall uncritically swallows Professor Joseph Fishkin's (false) claim that President Trump is the first President to try and fire the head of an independent agency.
We are not in uncharted waters. And the Trump administration is not "the only modern president to really try" to fire heads of independent agencies. The Biden administration did so too, and first. The Biden administration did not, as Fishkin says, "respect[] the laws Congress passed in this area." As I wrote in the Times in May: "Mr. Biden extended the Supreme Court's unitary executive case law to fire the statutorily protected commissioner of the Social Security Administration." Biden also fired other for-cause-protected agency members in disregard of congressional statutes and in reliance on Supreme Court unitary executive decisions.
Edsall's discussion of the unitary executive theory is also a bit confused insofar as he applies it to the debate over nationwide injunctions in cases that concern the scope of executive power, and the scope of courts' equitable authority, and do not directly implicate the extent to which the Executive Branch is unitary. The extent to which executive power (whatever its scope) must ultimately be subject to the President's direction and control has relatively little to do with whether district courts have the equitable power to issue universal injunctions and grant relief to parties not before the court.
In his Executive Functions essay, Goldsmith also addresses the claims that the Court is enabling the Trump Administration "to do destructive things" and should do more to explain its interim orders. On the first point, Goldsmith thinks "it is too early to say where the Court will come down on the scope of the president's unitary executive powers in Trump 2.0," and notes that some decisions (such as Braidwood) do not fit the pattern, but also acknowledges that some of the Court's decisions have "enabled Trump to change the reality on the ground in the executive branch in ways that will not be easily reversible, if at all, no matter what the Court does later." I largely agree, though I do not fault the Court for this so much as I fault Congress, as it is legislative inaction and obeisance, more than anything in the judiciary, that is empowering the Trump Administration.
On whether the Court should do more to explain its interim orders, I largely agree with Goldsmith's take, which is more nuanced than that presented by Edsall.
There is nothing illegitimate or new about the Court not explaining interim orders, even important ones. Interim orders are not final judgments. They resolve the "interim status of the law" during the months or years of adjudication in a case until final disposition by the Supreme Court. More explanation on interim rulings can help the Court convince the public that it is properly applying law to fact (though the explanations of its application of the interim order test often fail to persuade simply because the test is so indeterminate).
But I doubt the critics would be pleased with the more elaborate explanation for rulings they do not like. And there are tradeoffs. Mainly: the more the Justices write, the more they prematurely lock themselves in on the merits down the road, and the more they handcuff the lower courts via vertical precedent.
Edsall's column might have been better had he considered the views of a wider range of academics and commentators (and perhaps considered that a survey of like-minded views from academic echo chambers is not always the best way to reach an informed judgment). Though to be fair, I was among those from whom Edsall solicited input before writing the column. I noted some of the above points, directed him to my prior writing on the subject, and (at his request) recommended that he reach out to others like Goldsmith to inform his take on the subject. Edsall may not have found my comments persuasive, or my recommendations helpful, but taking account of them might have helped him avoid some of the mistakes and misrepresentations in his column.
UPDATE: Over at Election Law Blog, Professor Richard Pildes notes the Edsall article embraces a "flatly wrong" and "disturbingly incorrect" claim made by Bonica about how the Court has approached the unitary executive theory in recent years. Notes Pildes, "the Roberts Court has had a clear commitment on the unitary executive branch theory for many years and it's been consistent about that – for better or worse."
