The Supreme Court’s main strength lies in adjudicating disputes based on things that have already happened. It is less good at predicting the future.
On Wednesday, for instance, it shut down plans to broadcast the same-sex marriage trial in San Francisco partly for fear that witnesses in the case would be harassed if their public testimony were made more public. That conclusion is known in the trade as speculation.
Consider first of all that we are talking about a trial held in open court and subject to intense press coverage. The witnesses are mostly paid experts whose views on the subject are already well known. “They’re not, after all, in the witness protection program testifying against Mafia bosses,” Eva Rodriguez wrote in The Washington Post.
Then add to the analysis that the additional coverage the court forbade was only closed-circuit transmissions to a few other federal courthouses around the country. (There had been talk of posting video on YouTube, but the idea was never approved and so was not before the Supreme Court.)
The people viewing the transmissions in the remote courthouses would have been barred from making recordings of the proceedings. Allowing the transmissions, Eugene Volokh wrote on The Volokh Conspiracy legal blog, was equivalent to “holding the trial in an extra large courtroom.”
“And most of the extra audience would be far from California,” Mr. Volokh added, “and therefore not especially likely to be able to effectively harass the witnesses in ways that turn on seeing the witness’s testimony.”
There were other grounds for the court’s 5-to-4 decision, including the majority’s sense that lower-court judges in California have twisted the procedural rules to allow video coverage, a point that resonated with Ms. Rodriguez and other commentators. But the court also grounded its ruling on a finding that opponents of same-sex marriage “have demonstrated that irreparable harm would likely result” from the transmissions.
The Supreme Court was also trying to see into the future last Monday, at arguments over when and how to require testimony from crime lab analysts.
When the court first ruled in June that prosecutors may not submit reports from such labs without accompanying testimony, the four dissenting justices warned that the decision would impose a “crushing burden” on prosecutors. Several of them repeated that point Monday.
“I don’t know except anecdotally,” Justice Stephen G. Breyer said, “but Massachusetts seems to be having huge problems.”
That depends on whom you talk to.
The chief trial counsel of the district attorney’s office in Boston, which handles about half of the state’s drug cases, told a symposium at the New England School of Law in November that “the sky is not falling.”
“Despite the dire predictions,” the prosecutor, Patrick M. Haggan, said, “defendants have not walked free. In the vast majority of cases where we have been required to produce the analyst’s live testimony, we’ve had that analyst there.”
But dire prediction sometimes seems the court’s default rhetorical mode.
Chief Justice John G. Roberts Jr., dissenting from a decision about judicial disqualification in June, said the majority opinion would “inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.”
That overstated the decision’s likely effect, Penny J. White, a former judge who is now a law professor at the University of Tennessee wrote in The Harvard Law Review in November. She said there would be no “onslaught of judicial recusal motions,” basing her view “on my experience as a state trial and appellate judge and my interaction as a judicial educator with judges from all 50 states.”
Other predictions can turn out to be prescient or perhaps self-fulfilling.
Justice Antonin Scalia, dissenting in 2003 in Lawrence v. Texas, said the majority’s decision striking down a state law making gay sex a crime would start a march toward the legalization of same-sex marriage.
“Today’s opinion,” he wrote, “dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”
The Lawrence decision’s reasoning was, indeed, cited by the state supreme courts of Massachusetts, California, Connecticut and Iowa in endorsing same-sex marriage.
Pamela Harris, executive director of the Supreme Court Institute at Georgetown University, said the dire dissent can be a double-edged sword.
“It makes the dissent’s case in a rhetorically effective way that can capture public attention,” she said. But “the dissenters almost necessarily end up endorsing a broad reading of a ruling they don’t like. I think you sometimes see justices refraining from writing those ‘end of the world’ dissents for just this reason.”
Poor predictions are not confined to dissents. Writing for eight justices in Clinton v. Jones, the 1997 decision allowing a sexual harassment case against President Bill Clinton to move forward, Justice John Paul Stevens confidently asserted that “it appears to us highly unlikely to occupy any substantial amount” of Mr. Clinton’s time. The aftermath of the decision dominated much of Mr. Clinton’s second term.
Justice Stevens also made a prediction in his dissent in Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush.
“Although we may never know with complete certainty the identity of the winner of this year’s presidential election,” he wrote, “the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
The prediction, too, turned out to be wrong, said Lee Epstein, who
teaches law and political science at Northwestern. “Political scientists
have shown,” she said, “that the court’s legitimacy didn’t suffer in the
wake of the decision.”