Courts

In The Trump Immunity Case, The Supreme Court Is Not Writing A 'Rule For The Ages'

Courts know only the facts before them, so courts decide cases. They don't write for the ages.

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I can’t believe that I have to explain this to the Supreme Court.

But someone has to do it — and urgently — so I guess I’m the guy: Despite what Justice Gorsuch apparently thinks, the Supreme Court does not write rules for the ages. The Supreme Court decides cases. Then it goes home.

Legislatures write rules for the ages. Legislatures draft broad laws that govern conduct generally. Legislative drafting is thus hard. Legislators must anticipate all of the ways in which laws could be evaded or misused, or ways in which laws could be used appropriately, but harmfully, because the legislative language was inartful. Legislatures write broad laws. That’s what legislatures do.

Courts don’t do that. Professor Alexander Bickel famously titled his grand treatise The Least Dangerous Branch precisely because courts don’t act in the abstract.  As the Amazon page for Bickel’s book tells you, “Bickel’s most distinctive contribution to constitutional law was to stress what he called ‘the passive virtues’ of judicial decision-making — the refusal to decide cases on substantive grounds if narrower grounds exist to decide the case.” I’m not asking you to read the whole book, Chief Justice Roberts and the rest. Just read the Amazon page; that’ll do.  Courts rule only on the facts before them in the narrowest possible way. Then they stop writing.

Decades ago, when I clerked in the Ninth Circuit, a judge on one of our panels would sometimes write, “I’ll go along with this opinion so long as you say that the rule applies only to ‘the facts and circumstances of this case.’ ” We’d always agree to that request, because it’s self-evident: Every decision applies only to the facts and circumstances of the case. That’s how the common law works.

When a later case comes along, the judge in that later case must decide whether the earlier decision is binding, i.e., whether the decision announced in the first case controls the second. If the second case cannot be distinguished legally from the first, then the earlier precedent controls the result. If the second case is legally distinguishable from the first in a relevant way, then the earlier precedent does not control.

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That’s the common law.

So how could Gorsuch have said, during the Trump immunity argument last week, that the Supreme Court was “writing a rule for the ages” and that Gorsuch was “not concerned about this case as much as future ones“?  That’s wrong, and he should know it. 

There’s a good reason why courts do no more than decide the case before them.  In the case before the court, lawyers have presumably thought hard about the particular facts involving their clients. After all, those facts are the essence of the dispute. The facts will dictate what the court decides. The issues surrounding those facts are thus presented cleanly and intelligently. The court decides the result based on those facts. Period.

If the court tries to do more than that, the court will screw up. The lawyers are concerned only with the interests of their clients. The lawyers are not thinking carefully about the interests of future litigants who might be affected a broad rule.

The court doesn’t have any information about future litigants. The court’s imagination is too limited to anticipate future situations in which a broad rule might (or might not) make sense. So courts don’t write broad rules.

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Don’t ask me. Ask Bickel. Or any lawyer.

Legislatures, of course, are entirely different from courts. Legislatures hold hearings to gather information from people interested in broad-ranging laws.  Lobbyists, who know the interests of constituents who will be affected by laws now and in the future, talk to legislators.

Legislatures have the power to be informed generally, so legislatures have the ability (and authority) to draft general laws.

Legislatures can write for the ages.

Courts know only the facts before them, so courts decide cases. They don’t write for the ages.

Gorsuch should draw two conclusions from this:

First, everything I’ve just written is stuff they teach you in the first month of law school.  Maybe Gorsuch doesn’t remember these principles because it’s been so long since he studied them.

If so, he should take a refresher course because these rules matter. The Supreme Court should do only what it is empowered to do and what it has the capacity to do intelligently.

It should not try to draft a broad rule to govern all possible future situations.

Second, that should make the Trump case much easier. Decide whether Trump can appropriately be prosecuted on the facts pleaded in the indictment. If Trump can be prosecuted, then explain why, and affirm the appellate court decision. 

If Trump cannot be prosecuted on the pleaded facts, but the mistake in the indictment can be fixed, then reverse the decision and remand to let the prosecutor try to fix the error. But be careful here. This is where you’re speculating, because you don’t know what a new indictment — in this case, or in future ones — might say. Give a suggestion of what the prosecutor must plead in a revised indictment, making clear that you are not yet articulating a hard-and-fast rule. The Supreme Court won’t actually know if a new indictment is sufficient until it sees what the new indictment says and lawyers have argued about the sufficiency of the new indictment.  

Lastly, of course, if Trump cannot be prosecuted on the pleaded facts, and it’s impossible for the prosecutor to fix the error, then say so. Explain your decision, and reverse the appellate court’s decision without remanding for further proceedings.

Affirm. Reverse and remand. Reverse without remand.

Those are three pretty good choices, don’t you think? Now that you mention it, those are the choices the professors talked about in law school and the judges talked about on the Ninth Circuit.  

But writing “a rule for the ages”?

It’s not what courts are empowered to do. It’s not what courts have the tools to do. And your limited imagination almost guarantees that writing a rule for the ages will lead to a bad result — which would be unfortunate, for the ages.

Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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