Sending Signatures To The Supreme Court: Disgusting? Definitely Dumb? Or Maybe A Good Thing?

The People's Brief is on its way to the Supreme Court, but some of the vitriol it aroused highlights the skewed understanding commenters have of the Court.

Two weeks ago, I wrote about an opportunity for members of the public to sign on to a Supreme Court amicus brief in support of same-sex marriage. The People’s Brief has stopped accepting signatures now — I hope you signed on! But even though the brief is complete, I want to return to one of the themes that sprang up in the comments.

One commenter wrote:

Personally, I’m disgusted by the notion of trying to sway the Supreme Court with an amicus brief that doubles as a petition. The judicial branch is supposed to be above politics and the whims of the people.

Disgusted? That’s pretty strong language, more characteristic of the dying debate over same-sex marriage than of a discussion regarding the role of the judicial system.

Another commenter responded to the first:

You took the words right out of my mouth (keyboard?).

I think you and I disagree on a lot politically, but this is definitely dumb. Imagine the next abortion/gun control debate where the supreme court is inundated with letters/petitions from both sides.

If you want to show that the public supports the issue, write your legislator. That’s not what the court is for.

Definitely dumb? Let’s think about this.

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Public interest lawyers may sometimes be accused of idealism, but no nonprofit lawyers I know have nearly as idealized a view of government as these commenters seem to have. The comments operate on the assumption that legislators work in a political context, listening to “the whims of the people” to make policy, while judges toil away “above” the political fray, objectively applying law to facts. According to the commenters, that seems to be what “the judicial branch is supposed to be” and “what the court is for.” But not only is the commenters’ notion of a detached, objective judiciary false in practice — it’s not even true on the books.

Let’s start with the Supreme Court.The Court’s Rule 10 spells out how it decides which cases to take. The Rule states that this decision is a matter of “judicial discretion” and then lists criteria that “though neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers.” This discretionary exercise is plainly not a mechanical application of objective factors. In fact, it hinges on the highly subjective word “important,” which appears in the rule six times. Let’s look at Rule 10(c) in particular: the Court may grant a petition for certiorari and review a case where “a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court.” What legal criteria guide a justice in determining whether a question is “important” and “should be settled?” (That’s a rhetorical question, but if you insist on an answer, it’s: none.)

The Federal Rules of Appellate Procedure contain a similar provision that guides Circuit Courts in deciding whether to grant en banc hearing of a new case or rehearing of a case that’s already been decided by a panel. Rule 35(a)(2) allows for en banc review where a case “involves a question of exceptional importance.” What’s a question of exceptional importance? The rule provides one example — a circuit split — but nowhere limits en banc review to this circumstance.

So both the Supreme Court’s and Circuit Courts’ rules ask judges to consider whether a case is “important” without specifying what that means. One possibility is that something is “important” if it affects a lot of people. It goes without saying that a petition with tens of thousands of signatures helps to make that case.

But wait, you say. Even assuming — without conceding, of course — that a signature-gathering mechanism like the People’s Brief might help a court decide what’s “important,” that doesn’t matter here. The Court already granted cert in DeBoer. We’re now talking about merits consideration, which is a different question entirely.

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And that’s true. But here’s where I think public interest lawyers might approach things differently than client-focused private lawyers. We’re used to thinking of the courts as a means to achieve policy (and political) ends: lawsuits can end legal segregation, bring us closer to equality for women, and take steps toward abating climate change. You may think this is “not what the court is for.” If so, you’d be in good company. For example, Chief Justice Roberts wrote in dissent in Massachusetts v. EPA for himself and Justices Scalia, Thomas, and Alito:

Global warming may be a “crisis,” even “the most pressing environmental problem of our time.” Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change.

Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury, and attempting to tie that injury to the Government’s alleged failure to comply with a rather narrow statutory provision. I would reject these challenges as nonjusticiable.

I, on the other hand, think this is exactly what the Court is for (as did the five-justice majority in Massachusetts v. EPA). And it’s what public interest law is all about. The People’s Brief is a natural offshoot of this approach to the law.

And yes, if other organizations follow the precedent of The People’s Brief, then the Supreme Court might receive filings on divisive topics like abortion and gun control. Some of these filings I might not like or agree with. Boo hoo. But I certainly don’t think this would be “disgusting.” Instead, when the strategy is executed well — as I think The People’s Brief has been — it will let advocates offer the Court a window, however narrow, from its cloister of deep privilege out onto some of the lives that its decisions will affect. And that’s a good thing.


Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.