Without Precedent

The Atlantic Magazine, September 2005

Conservatives complain that the Supreme Court is too liberal. Liberals complain that it’s too conservative. Both charges are inaccurate: in reality the Court is a careful political actor that arguably represents the center of gravity of American politics better than most politicians do. The real problem is not the Supreme Court’s politics but the depressing quality of its work.


This is hardly a radical opinion. In fact, it’s the viewpoint of many of the people who ought to know best how to evaluate the Supreme Court’s decision-making: judges on the lower appeals courts. When one talks to them about America’s top court, frustration with the justices’ performance is a common theme. Naturally, some of this frustration is political, and some of it is the sort of griping you hear from middle management about top management in any organization. But what’s most striking is a basic unhappiness with the Court’s quality and integrity—a sense from the left, right, and center alike that the Court blithely ignores its own principles and precedents when they’re inconvenient; rules on matters not properly before it to reach the result the majority seeks; misstates facts; and issues shoddy opinions that give insufficient guidance to the lower courts. In short, the justices routinely behave in a manner they would never tolerate from the judges whose opinions they review.

Much of this carping is private, but not all. Laurence Silberman—now a senior judge on the D.C. Circuit Court of Appeals—has for years been railing publicly against the Court for its infidelity to its own precedents. In some opinions he has openly taunted the justices. In one he called the Supreme Court a “noncourt court” that “rarely considers itself bound by the reasoning of its prior opinions.” In another he accused the justices of dishonesty for being unanimously unwilling to “restrict their own ability to reach out to issues not presented in cases brought to the Court” or to “justify that practice by openly acknowledging the Supreme Court as not subject to normal judicial constraints.”

Silberman is a controversial figure, a conservative luminary who inspires deep suspicion among some liberals. But he is an unusually principled man, with a particularly admirable history of putting politics aside when it counts. His critique of the Court, moreover, is not essentially political but methodological. The cases that drive him wild involve not hot-button social issues (though he certainly has opinions on those) but obscure and apolitical rulings that don’t rile normal passions—for example, the one in a 1993 case involving insurance and banking regulations issued by the comptroller of the currency. What’s more, Silberman is as unsparing of the conservative justices—some of whom are his close friends—as he is of the Court’s liberal wing.

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