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Supreme Court Press—A Commentary by Paul Gewirtz ’70

The following commentary was published in The New York Times on July 2, 2010.

Supreme Court Press
By Paul Gewirtz ’70

IT is no secret that the current Supreme Court is an activist one in striking down congressional legislation — just look at the prominent cases from the court’s just-completed term, most notably Citizens United v. Federal Election Commission, in which a 5-4 majority of the court’s more conservative justices struck down key provisions of Congress’s bipartisan campaign finance laws.

But “activism” can be measured in ways other than striking down legislation. Indeed, this term’s leading cases highlight another type of Supreme Court activism that hasn’t received much attention: vigorously policing and overturning district court judges who ordinarily would have much more leeway — particularly when those judges had used that leeway in a liberal direction.

District courts are the front-line federal courts. Their judges hear evidence, manage trials, make factual findings, provide appropriate remedies and interpret and apply the law. In their interpretation of legal questions, district court judgments are always open to review on appeal. But in the judges’ other roles they usually have wide discretion, both because they have on-the-ground knowledge of a case and because our judicial system would be overloaded if appellate courts routinely second-guessed trial-court judgments.

Yet with little public attention, the Supreme Court, led by the more conservative justices, has been intervening in these district court roles. In January, for example, the court took the unusual step of granting an emergency stay to stop a district court in California from televising a civil trial over the constitutionality of that state’s Proposition 8, which prohibits same-sex marriage.

The district court had allowed the trial to be televised as part of a pilot program. But a 5-4 Supreme Court majority held that the district court hadn’t allowed enough public comment before making its decision — despite the dissenters’ argument that they could not find a single prior “instance in which this court has pre-emptively sought to micromanage district court proceedings as it does today.”

In April, an identical 5-4 majority overturned a district court’s award of fees to a group of civil rights lawyers who had won a case that transformed Georgia’s foster care system, even though the Supreme Court acknowledged that district courts usually have the power to grant such enhanced fees, and that the award turned on the district court’s fact-intensive and on-site judgment.

Also in April, the same 5-4 majority yet again reversed a district court, this time over the enforcement of the court’s own injunction against a constitutional violation, something traditionally left to the district court’s discretion. The underlying issue, which involved the display of a cross on federal land, was an ideologically charged church-state question — but that aspect of the case had been settled by an earlier decision barring the display of the cross. The only legal issue before the Supreme Court was the district court’s enforcement of that previously ordered remedy — a matter traditionally within a district court’s discretion.

Labels like “conservative” and “liberal” are simplistic, of course, but in each of these cases a conservative court majority reined in a district court decision that, within an area of traditional discretion, leaned in a direction usually favored by liberals — greater judicial transparency, incentives for lawyers who litigate civil rights cases and insistence on the strong enforcement of church-state separation.

By wading into realms where the district courts traditionally have leeway, the Supreme Court majority undoubtedly believes it is correcting lower-court mistakes. But appellate courts usually give district courts flexibility and review trial court decisions only for significant legal errors. Whether they would have made the same decision as the trial court is usually irrelevant. I, for one, personally oppose the televising of district court trials, but also believe that the district court in California had the prerogative to decide differently.

To be fair, there were also cases this term in which the Supreme Court deferred to district courts in performing their traditional roles, at times unanimously. And of course district court judges do sometimes make significant legal errors that must be corrected by the Supreme Court, even when affirmed by appellate courts.

But there have been enough recent Supreme Court decisions of a different sort to reveal a pattern of intervention in areas of traditional district court discretion. This kind of activism is lower profile than overturning Congressional legislation, since it’s internal to the judiciary itself. But it should get more attention than it has, because it is another important way the current Supreme Court is using its power to shape and restrict government decisions.

Paul Gewirtz is a professor at Yale Law School.