Chief Justice John G. Roberts Jr. wasn’t persuaded last week by a petition that
asked the Supreme Court to review the fairness of the settlement of a
lawsuit against Facebook. He joined his eight colleagues in deciding against
hearing the case. No big deal there. The case, Marek v. Lane, was one of
nearly 300 appeals the justices turned down upon their return from a
two-week recess.
But what distinguished this one from the pack was the chief justice’s four-page explanation of what he thought about the case and the issues it presented. He made it clear that he had doubts about the class-action lawsuit’s outcome, which, rather than sharing the multimillion-dollar settlement among the plaintiffs, who claimed that Facebook had violated their privacy, called instead for establishing a foundation to educate the public about privacy on the Internet.
While this particular appeal presented too narrow a slice of the “more fundamental concerns” about this increasingly popular kind of settlement, the chief justice said, “in a suitable case, the court may need to clarify the limits on the use of such remedies.” Citing a law review article that criticized such settlements as among the “pathologies of the modern class action,” he posed six questions, ending with “and so on,” which implied that there was quite a bit more that he wanted to know.
In other words: Bring me a case.
I wouldn’t ordinarily have paid much attention to a one-justice statement like this which, while not an everyday occurrence at the court, isn’t all that rare, either.
But this one rang a bell, coming as it did less than a week after a three-judge panel of the federal appeals court in New Yorkslammed Federal District Judge Shira A. Scheindlin for saying in effect to lawyers representing people complaining about the stop-and-frisk tactics of the New York City police: Bring me a case.
I fully recognize that the two instances are not directly comparable. This isn’t a column about l’affaire Scheindlin, which is still unfolding, continuing to mesmerize and baffle the New York legal world. I don’t know the back story of what led the appellate panel, without a request from or notice to anyone, to remove Judge Scheindlin from the stop-and-frisk case on which she ruled in August. She found the city’s tactics racially discriminatory and appointed an outside monitor to oversee reforms. The Bloomberg administration is aggressively seeking to get the ruling overturned (Mayor Michael R. Bloomberg denounced the judge for “brazen activism”) before it has to turn City Hall over to the mayor-elect, Bill de Blasio, a strong critic of the stop-and-frisk policy who has said he won’t pursue the appeal.
There must be a back story of some sort, because the facts don’t support what the appeals panel did. Judge Scheindlin “ran afoul” of the code of judicial conduct, the panel said, for compromising “the appearance of impartiality surrounding this litigation” in having improperly invited the plaintiffs to file the very case that she then decided against the city.
The panel also didn’t like the judge’s press interviews, during which she spoke in generalities without discussing the case itself. That complaint seems on its face so unfounded that I won’t go into detail. But her asserted violation of the “related case rule” is interesting. The judges’ characterization of what she said and did indeed sounds pretty bad. But the entire exchange at issue, from December 2007, when Judge Scheindlin heard a request from civil rights lawyers to reopen the settlement in an earlier police case, paints a different, much more nuanced picture.
The lawyers appearing before Judge Scheindlin back then were accusing the city of not living up to its three-year-old agreement in the earlier case. She refused their request to reopen the settlement, and in fact seemed annoyed rather than sympathetic about what she regarded as a belated effort. That case was over and done she said: “You are trying to put a square peg in a round hole.” If there was a continuing problem, she said, the plaintiffs needed to bring a new case: “If you think they are violating their written policy, sue them.” She would take a new case as “related” under the court’s rules; in other words, a new case wouldn’t be randomly assigned to a different judge. “How could it not be related to this whole long seven or eight years we have lived together on this case?” she asked.
The entire colloquy runs to 42 pages, and read in context (as I assume, without much evidence, that the appellate panel took the trouble to do), it’s very hard to conclude that anything improper occurred. In a brief filed last Friday, New York City’s top lawyer, Michael A. Cardozo, asserted that under the District Court’s rules, a new case can’t be deemed “related” to a case no longer pending. By bending the related-case rule, he argued, Judge Scheindlin violated the city’s “due process rights to a neutral arbiter and to present a defense.”
And yet if the violation, if there was one, was so obvious and grievous, it seems odd that the city waited until last week -- nearly six years after the case was filed a month following that hearing (in which a city attorney participated) -- to find fault with it. If a disappointed litigant waited six years to appeal an adverse judgment, I can only imagine how quickly Mr. Cardozo and his office would move to have the appeal thrown out of court. This saga is far from over.
In any event, no one is accusing Chief Justice Roberts of any kind of ethical violation in issuing his invitation to bring the Supreme Court another challenge to the newfangled species of class-action settlement that he finds troubling. Nor am I suggesting that his statement was in any way improper. But it sheds light on an underappreciated aspect of the court’s institutional behavior, on what one might call the care and feeding of the docket.
Deciding which cases to decide -- in effect, setting the country’s legal agenda -- is one of the Supreme Court’s most important functions. Each of the 70 or so hourlong time slots the court sets aside for argument represents a precious resource, given that the justices select the 70 cases that they choose to hear from a pool of some 8,000 appeals that reach them each term. The court likes to present itself as simply the passive recipient of the country’s legal disputes, from which it will resolve the most significant.
But it’s not quite that simple. The court is an active participant in shaping its own destiny through a continuing dialogue with a legal system attuned to its every nuance and primed to respond accordingly. The court’s role in this respect might be seen as closer to legislative than judicial; one federal judge I spoke with this week said the chief justice, with his list of questions about class-action remedies, sounded like the chairman of the Senate Judiciary Committee convening a hearing. Unlike Congress these days, the court can actually make things happen.
Two terms ago, for example, the court decided a case on the rights of public employees who declined to join a union and who objected to the union’s use of the fees that the terms of their employment required them to pay in lieu of union dues. The dispute the court resolved in favor of the objecting employees in that case, Knox v. Service Employees International Union was a fairly narrow one. But in his majority opinion, Justice Samuel A. Alito Jr. ranged well beyond the question at hand to suggest strongly that the First Amendment should be interpreted to bar the entire “agency shop” arrangement, under which nonunion employees could withhold their financial support of a union’s political activities but have to pay the equivalent of the dues that go to support collective-bargaining activities.
Long accepted in labor law, the purpose of the agency shop is to prevent those who receive a union’s benefits from being free-riders on their fellow employees’ dues money. But in the public sector, Justice Alito wrote, “the compulsory fees constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights.”
It didn’t take long for anti-union forces to hear that message and devise new lawsuits accordingly. One such case, Friedrichs v. California Teachers Association, filed by a conservative public-interest organization, the Center for Individual Rights, is now pending in Federal District Court in Los Angeles. A constitutional argument that would have been deemed wild-eyed just a few years ago is being watched with intense concern by public sector unions and their allies.
On Tuesday of this week, the Supreme Court turned down New York State’s appeal of a federal court decision that granted habeas corpus to a state prison inmate, convicted more than 20 years ago of a home-invasion burglary. One of the victims had identified the defendant in court as the man who brandished an ax and terrified her and her husband as he robbed them. The conviction was upheld in state court. But federal appeals court, affirming a grant of habeas corpus by the District Court, held that the witness identification had failed to meet legal standards. The appeals court cited social science studies casting doubt on the reliability of witness identification.
It was that citation that appeared to get the attention of Justices Alito and Antonin Scalia. In a four-page opinion dissenting from the court’s refusal to hear this case, Unger v. Young, they said the appeals court’s decision “creates loopholes” in the Supreme Court’s own restrictive rules for habeas corpus, specifically the requirement that federal courts confine themselves to the record that was before the state court at the time of its decision. “The importance of this issue warrants review at this time,” the two justices said. Well, evidently not this time -- but sometime soon.
Perhaps my favorite example of an opinion-as-invitation was Justice Clarence Thomas’s concurring opinion in a 1997 case,Printz v. United States. The decision invalidated a provision of the Brady gun-control law that required local sheriffs to carry out federal restrictions on gun sales. The law violated states’ rights, the majority said. Justice Thomas agreed, but then went on to address a question not in the case, one well outside the mainstream of constitutional discussion at the time: whether the Second Amendment guaranteed a personal right to own a gun.
“As the parties did not raise this matter, however, we need not consider it here,” he wrote, adding that “perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms ‘has justly been considered as the palladium of the liberties of a republic.’ ” Eleven years later, in District of Columbia v. Heller, Justice Thomas and the country got the answer.
Bring me a case. Stay tuned.