Legal scholar Alexander Bickel, writing in 1961, famously described the Supreme Court’s strategy of deciding not to address particular subjects as its “passive virtues.” But Professor Leah Litman, ’10, says that things have changed.
In fact, Litman argues in a forthcoming paper that the current court’s reluctance to decide certain matters amounts to “passive vices,” which she defines as “occasions where passivity carries significant costs that Bickel either overlooked or undervalued.”
Litman recently answered five questions about the paper:
1. How and when did you start thinking about the current court’s passivity?
Two things prompted this paper. One is a previous paper that I co-wrote with Professor Dan Deacon on legalistic non-compliance.
That was focused on occasions where the second Trump administration hasn’t complied with lower court orders even though it says it’s doing so. That led me to consider federal court principles in terms of motive—when something might be concerning because of why it’s being done.
The second thing is the ongoing discussions about the Supreme Court’s use of the shadow docket. Some people attempt to minimize what the court has done on the shadow docket by relabeling it as the emergency docket and normalizing what the court is doing.
2. What’s an example of how the current court uses passivity?
By passivity, I mean instances where the court has made a conscious choice not to definitively decide the merits of a case while at the same time invoking a posture of deference toward the executive branch by disturbing lower court rulings that have gone against the administration.
One example is occasions where the Supreme Court has paused lower court rulings that invalidated the administration’s attempt to cancel or rescind federal funds that had been appropriated by Congress—for things like foreign aid or medical research grants.
Another involves various interventions where the court has suggested there has to be deference toward the executive with respect to immigration—on immigration enforcement, roundups and stops in Los Angeles, or the administration’s practice of sending people to third countries that aren’t their country of nationality or origin.
3. What effect does this have on the legal system?
First is on the separation of federal powers. The court’s interventions have often allowed the executive branch to implement really novel and sweeping expansions of executive power. That’s really important; one of the defining trends of the last century is the expansion of presidential power.
Second is minimizing the extent to which the public can engage both with the Supreme Court and with the executive branch. When the Supreme Court is doing these interventions more passively—unannounced, on the shadow docket—it’s more difficult for the media to plan for covering those decisions and to communicate what the court is doing to the public.
4. How do we evaluate when the court’s passivity might be a positive versus a negative?
We have to think about what the court’s objective purpose is. What is the court’s passivity designed to achieve, and what is it actually achieving on the ground?
This paper isn’t focused on coming up with the definitive account of what the court’s objective purpose is. But it does suggest that a very plausible account of the court’s objective purpose—not what the justices are subjectively trying to do, but what their course of action is well suited to doing—is that the court’s passivity is designed to enable the second Trump administration, and to disempower the courts and the public from checking it.
5. Could anything be done to address this?
One recent segment on Last Week Tonight with John Oliver was about the shadow docket. At the end of the segment he said the time is now—the next couple years—to normalize conversations about Supreme Court reform, to get the public to believe that the Supreme Court is a political body and they need to be treated as part of the political process.
I view this project as part of a series of projects that are related to that end—trying to show the ways in which the court is acting as a political and indeed a partisan institution, and to lay the groundwork for more meaningful public conversations about the Supreme Court’s proper role in our constitutional democracy.