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Free & Fair

Crawford and the Amicus Court: Further Support for a Non-Partisan Advisory Tribunal

What does Crawford tell us about the U.S. Supreme Court’s ability to resolve highly contentious election law cases? The answer depends upon one’s psychological disposition towards optimism or pessimism, because Crawford is a glass that easily can be described as either half full or half empty. It’s a glass that will look better, however, if it helps prompt the creation of an “Amicus Court” to assist the Supreme Court, as described below, in improving its appearance of impartiality in future election disputes.

Half-Full . . .

The optimist in me is delighted that Crawford did not result in a 5-4 division, as it easily might have. Voter identification has been a polarizing topic in the polity at large, and there were reasons to expect that polarization would have carried over into the Court’s consideration of the issue. But the outcome suggests an effort to transcend the predicted ideological divide in the case: the Court’s four liberals on one side, the four conservatives on the other, and Justice Kennedy the tiebreaker.

Instead, the lead opinion in Crawford spoke for Justice Stevens, Chief Justice Roberts, and Justice Kennedy. Justice Stevens, the longest serving member of the Court, is by virtue of his seniority the leader of its liberal wing. Chief Justice Roberts, as Chief Justice, is the most senior of the Court’s four conservatives and thus inevitably a leader among them. Justice Kennedy is, given the Court’s current membership, its centrist member. The fact that these three joined together signals judicial leadership on their part, seeking out common ground that could bring both sides together around a middle position.

Justice Breyer’s dissent, too, is additional evidence of an attempt at consensus-building at the Court in this case. He points out just how much he can agree with the 3-Justice lead opinion, parting company only towards the very end of the analysis. He doesn’t apologize for disagreeing about the bottom line, but it is apparent how much he would have preferred to find a way that all four of them could have stayed together in the case.

Half-Empty . . .

Yet depart he did, and the threesome in the lead could not find any other Justice to follow their path for even as far as Justice Breyer did. Justices Souter and Ginsburg went their own separate way more quickly than Justice Breyer, and although the remaining three Justices (Scalia, Thomas, and Alito) shared the same formal disposition of the case as the lead opinion—affirming the lower courts’ dismissal of the case—they clearly adopted their own separate path to this conclusion.

The fact that six of the nine Justices could not sign on to the lead opinion’s effort to find common ground brings out the pessimist in me. But for Justice Stevens, the voting at the Court fit the ideologically predictable pattern. Wouldn’t it have been nice to see an opinion of the Court speaking for at least seven of the nine? That would have been truly consensus-building. Or even an opinion of the Court for 5 Justices in the middle—if only Stevens, Roberts, and Kennedy could have brought Breyer and Alito on board—leaving Scalia and Thomas dissatisfied to their right, with Souter and Ginsburg objecting on the left. That kind of 5-2-2 result would show the center of the Court as exerting gravitational pull to resist the kind of centrifugal forces that ended up leaving the 3-Justice lead opinion without additional joiners.

The Severe Imprecision (and thus Essential Lawlessness) of Burdick

My pessimism, however, runs deeper than mere voting alignment at the Court. It concerns the doctrinal weakness—indeed perhaps emptiness—that permits the Justices to go off in whatever direction they wish in this kind of election law case. The constitutional law that the Justices are enforcing in Crawford, which is the constitutional law applicable in any lawsuit that challenges the state’s rules for casting and counting ballots, is not sufficiently binding on the Justices themselves to require them to sublimate their own divergent ideological predilections.

It is striking that all nine Justices saw Crawford as governed by the test articulated in Burdick v. Takushi, 504 U.S. 428 (1992). (Even Justice Breyer, who would have framed the test according to one of his own separate concurrences, did not dispute the applicability of Burdick and, in fact, cited to where the other Crawford opinions employed it.) Yet the Justices could not agree on how to formulate the test, much less how to apply it to the facts of this particular case.

One should not fault the Justices too much on this score. The Burdick test is especially fuzzy. All it does is ask the Justices to identify and assess the interests of voters affected by the challenged regulation, and then do the same for the government’s interests underlying the regulation, to be followed by a cost-benefit analysis. Arguably, Burdick imposes no constraints upon the Justices in their performance of this cost-benefit analysis. Indeed, it is this unfettered flexibility with which one can use Burdick that caused Justices Scalia (with Justices Thomas and Alito) to urge a more stringent understanding of the test. But Justice Scalia did not prevail on this point, and thus Burdick balancing in the hands of the other six Justices is simply whatever they wish it to be.

The consequence of this unfettered judicial discretion is that it matters hugely who the Justices are who do this Burdick balancing. In the hands of a more liberal Justice, like Souter, Burdick balancing looks very different than when conducted by Kennedy—or even Stevens, when he is attempting to forge a middle-of-the-road consensus. Maybe if all the Justices committed themselves to conduct Burdick balancing, not as they individually would prefer, but instead in accordance with the mindset of a model moderate Justice (who would that be?), then there would not be so much ideological divergence on the implementation of Burdick in particular cases. But even if that were feasible—if one is not temperamentally a moderate to begin with, how easy is it psychologically to emulate one?—it appears that among Justices the temptation to “get a case right” from one’s own personal jurisprudential perspective is too great to subordinate that view in order to achieve the overriding interest in building a moderate consensus on the Court. I take this observation to be the most pessimistic conclusion from Crawford: even Justice Breyer, who is temperamentally moderate, could not bring himself to deviate from his own view of the “right result” in order to achieve a less ideologically fractured outcome.

Personality-Dependent Decisions

But if the outcome of any application of Burdick depends primarily on the identity—and personal ideology—of the individual Justices who happen to sit on the Court at the time an important election law case arrives there, why should it be these nine individuals rather than some other? More to the point, why should the Court’s center of gravity reside with Justice Kennedy, a Republican from Sacramento, rather than Justice Breyer, a Democrat from Cambridge? It is of course a question one could ask about any area of constitutional law, and a simple formalist answer is that the Constitution provides a process for appointing Justices to the Court, and following that process has given the country the particular set of Justices that we have.

That answer is unsatisfactory, however, at least for election cases, which involve Democrats and Republicans pitted against each other in court—as they are in their political campaigns—and the goal of a judicial resolution is a nonpartisan decision dictated by law, not by the partisan or ideological preferences of the particular judges who happen to hear the case. If election cases were decided according to the independent requirements of the law, so that the identity of the particular judges who happened to hear them were irrelevant (they would all come to the same objective conclusion about what the law requires in the given case)—then the method of appointing Justices and the particular mix of Republicans and Democrats on the Court at any given time wouldn’t matter. But with the implementation of Burdick as idiosyncratic and personality-dependent as it is, then the resolution of an election case that is equally fair to Democrats and Republicans alike is one that has an equal number of Justices from each party. To break any tie, however, the balance of power in the center of the Court must be held by an independent from neither party, or at least one who is equally accepted by both parties.

I made a similar point last week, without reference to Crawford, in an essay published in Legal Times. There, I argued for the creation of a non-partisan “Amicus Court” to assist the real Supreme Court in deciding election cases in a way that appears to be fair and impartial between competing candidates and parties. The division among the Justices in Crawford only confirms my judgment on the need for an Amicus Court. Moreover, to return to the optimism with which I began, the fact that Justices Stevens, Roberts, and Kennedy attempted to forge a consensus suggests that there would be at least some receptivity among the Justices towards the deliberations of a well-structured Amicus Court—and, most important, these consensus-seeking Justices could use the “decisions” of the Amicus Court as leverage against their colleagues who may be tempted to submit to the centrifugal forces of their personal opinions.

How an Amicus Court Would Have Helped in Crawford

Suppose a nine-member Amicus Court had preexisted Crawford. Let’s suppose, following the structure set forth in the Legal Times essay, that the Amicus Court had consisted of three Democrats, three Republicans, and three “neutrals” or “independents” chosen by the first six. Suppose further that these nine members have impeccable credentials and are considered leading lights by the Justices themselves: contemporary titans of the law along the lines of Lloyd Cutler and Erwin Griswold, as I suggested.

Now, here’s the key point. Let’s assume, for the worse, that even these nine legal luminaries cannot reach a consensus on how to decide Crawford according to the dictates of precedent (in other words, Burdick) and the Constitution. The three Democratic judges of the Amicus Court vote to invalidate the Indiana law, while the three Republican judges vote to uphold it categorically, and the three neutrals adopt a middle position, rejecting a wholesale invalidation of the statute but permitting it to be subjected to more targeted attacks.

One might say this situation looks a lot like the actual result in Crawford. It does, and there are at least three important implications:

First, if this tripartite division of the Amicus Court had been submitted to the real Supreme Court in the form of an amicus brief in Crawford, it might have had the effect of causing more Justices—Breyer and Alito, most likely—to sign on to Stevens’s opinion. Why? Because looking at the opinions of the Amicus Court would have been something like looking in a mirror—a particularly sharp one—and perhaps not liking exactly what one saw. Would Justice Breyer really want to be thought of as reaching nothing more than the “Democratic” position—since he could do no better than the wisdom of the Democratic judges on the Amicus Court?

Likewise, is it consistent with Justice Alito’s self-image that he is merely espousing the party-line Republican position in Crawford? He doesn’t have to think so when he joins two other Republicans (Scalia and Thomas) and simultaneously sees three other Republicans (Stevens, Roberts, and Kennedy) taking a different point of view; in that circumstance, Alito can rationalize that there is no single party-line position in the case. But when the Stevens-Roberts-Kennedy opinion mirrors that of the three neutrals on the Amicus Court, and Alito’s potential vote with Scalia and Thomas mirrors the party-line position of the Republicans on the Amicus Court, the partisan nature of his potential vote comes starkly into focus. Not liking that appearance, Alito might end up willing, even if somewhat begrudgingly, to join the neutral-middle position. In this way, the Amicus Court might have facilitated the kind of 5-2-2 outcome that would have been far preferable to the 3-2-2-1 result actually reached in Crawford.

Second, even if reflecting upon the deliberations of the neutrally structured Amicus Court did not have this centripetal effect on the members of the Supreme Court more temperamentally inclined towards moderation, a 3-3-3 outcome in the Amicus Court’s deliberations on Crawford would be beneficial in another way. Without the Amicus Court, many Democrats will inevitably be suspicious of the lead opinion in Crawford, even if not deservedly so. They’ll look at the Justices who signed on to the lead Crawford opinion and see three Republicans. Maybe three Republicans more moderate than Justices Scalia, Thomas, and Alito but three Republicans nonetheless. They’ll wonder what the result in Crawford would have been if the Court had been more balanced among Democrats and Republicans. They’ll end up thinking that their side didn’t get a fair shake—and in a case that sets the rules for their competition against Republicans in elections (including the presidential election, which if they won would permit them to appoint more of their members to the Court). The deck is stacked against them, and the Republican members of the Court just make it easier to perpetuate partisan electoral victories, thus making it more likely that the Republicans will stay in control of the Court. (Again, not necessarily justified reasoning, but nonetheless understandable given the circumstances.)

By contrast, if the three neutrals on the Amicus Court issued exactly the same kind of opinion as Stevens, Roberts, and Kennedy did in Crawford itself, that situation would put this 3-Justice plurality in an entirely different light. Democrats would see that they could do no better from a nine-member court structured to be equally fair to Democrats and Republicans alike than the actual lead opinion in Crawford itself. True enough, the Justices joining that lead opinion all happen to be Republican appointees, but the deliberations of the Amicus Court demonstrate the irrelevance of this: three neutrals would have adopted exactly the same centrist opinion. In this way, nothing could enhance the credibility of the lead Crawford opinion as fair and impartial more than the existence of a well-structured Amicus Court whose own impartial deliberations yielded the same controlling opinion.

Third, and this is the converse of the second point, suppose that the opinion of the three neutrals on the Amicus Court deviated somewhat from the actual lead opinion in Crawford. Suppose, for example, that the middle ground opinion of the Amicus Court’s three neutrals was written in a way that was noticeably more friendly to the possibility of targeted attacks on a voter ID law (even as it rejected the wholesale “facial” attack on the law as written). That circumstance would give one pause in appraising just how centrist the lead opinion in Crawford actually is. Maybe the Crawford lead opinion does tilt right more than it should, even if it was a good faith attempt to find common ground.

If the three Justices who signed on to the lead Crawford opinion saw that the three neutrals on the Amicus Court had staked out a position somewhat to the left of theirs, that observation might cause them to adjust accordingly. After all, if the goal of the joiners of the lead opinion in Crawford is to be fair-minded and impartial in a highly politicized election case—as Crawford was—then these three Justices might accept the position of the three neutrals on the Amicus Court as the best evidence of fair-minded and impartial reasoning on the contentious issue. Remember, after all, the supposition that the members of the Amicus Court are highly respected among the Justices themselves, and so these three consensus-building Justices on the actual Supreme Court might be inclined to conform their position to the one cogently developed by the Amicus Court’s three neutrals. That would give them the best chance of attracting additional votes from other Justices on their left and right and thus would most likely put the Court on the best institutional footing in announcing a decision to the public. In this way, the reasoning of the three neutrals on the Amicus Court could contribute positively to the deliberation of actual Justices most inclined toward consensus-building.

Conversely, however, if the three Justices on the lead opinion in Crawford stuck to their position in the face of a more balanced and centrist opinion from the three neutrals on the Amicus Court, that situation would expose the lead opinion as leaning more Republican than a truly impartial nine-member court would. Yes, the lead opinion would be less partisan than the opinion of Scalia, Thomas, and Alito. But it nonetheless would be more partisan than the position of three neutrals on the equally balanced Amicus Court. The complaints of the Democrats that the Court was stacked against them in an election case, in this circumstance, would be well founded. While this is not an indictment that I would wish to make of the Supreme Court, the deliberations of the Amicus Court would expose its validity.

Conclusion: Let’s Build an Amicus Court Quickly

Thus, the Amicus Court is the tool that can substantiate—or, more optimistically, refute—accusations that the Court’s decisions exhibit an unfair partisan bias in election cases. For that reason alone, the creation of the Amicus Court would be extremely valuable. But, potentially even better, the possibility that the Amicus Court would show the well-minded Justices to be unintentionally partisan, despite their efforts towards a middle ground, might cause these Justices to do a better job. By revising their judgments to be more balanced and centrist, these Justices would increase the likelihood of consensus on the Court.

This kind of consensus, more than anything, would improve public confidence that the Court decides election cases fairly and impartially, according to law and not personal ideology. Public confidence of this sort would be a great asset going into this fall’s general election, and beyond.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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