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Response to Tara Leigh Grove, The Power of “So-Called Judges”, 93 N.Y.U. L. Rev. Online 14 (2018).

James Gibson and Michael Nelson have written another compelling paper examining how Americans think about the Supreme Court. Their essential finding is that various versions of criticisms of the Court made by President Donald J. Trump are not substantially undermining public support for the Court. This Reply—prepared for a symposium held at the New York University School of Law—questions how much this and related papers tell us about how people think about the Court when they actually care about the Court. This study and other important ones like it are measuring how people think about the Court when the policy implications of Court decisions are presented to subjects as relatively low. Their findings tell us a lot, but not everything. They do not tell us what happens when passions about the Court are high—precisely the moment when the Court could be at its greatest jeopardy and convincing people to believe in the Court for reasons independent of the policies it delivers is the hardest. We can have confidence about how people think about the Court when they do not care about it, but not how they think about it when they do.

President Trump’s repeated and unsparing criticisms of the federal judiciary provide an opportunity to examine how public critique of the U.S. Supreme Court affects Americans’ willingness to support the institution. We report the results of an experiment embedded in a nationally-representative survey of Americans that varied in both the source (President Trump or distinguished law professors) and content (legal or political) of the criticism aimed at the Court. Our results—perhaps surprising to many—demonstrate that the greatest decline in support for the Court came among those respondents who learned of criticism by law professors that the Court’s decisions are politicized. The results have important implications for our understanding of the Court’s legitimacy under President Trump.

Can national judiciaries play a role in resisting democratic backsliding? This essay explores the role of courts in the context of democratic erosion by examining case studies from South Africa and Colombia that showcase positive models of judicial intervention. Such positive results are not pervasive—Hungary’s and Poland’s experiences, for example, cut in the other direction. But by examining the institutional and political conditions under which national judiciaries have impeded, if not prevented, backsliding, it is possible to gain some insight into how courts can play a role in supporting democratic practice.

SYMPOSIUM INTRODUCTION

“Ad hoc procedure” seems like an oxymoron. A traditional model of the civil justice system depicts courts deciding cases using impartial procedures that are defined in advance of specific disputes. This model reflects a process-based account of the rule of law in which the process through which laws are made helps to ensure that lawmakers act in the public interest. Judgments produced using procedures promulgated in advance of specific disputes are legitimate because they are the product of fair rules of play designed in a manner that is the opposite of ad hoc.

Actual litigation frequently reveals the inadequacy of procedures created according to this traditional model. To fix the procedural problems that arise in such cases, litigants, judges, lawyers, and legislatures can design procedure on the fly, changing the “rules of the road” as the case proceeds. Ad hoc procedure-making allows the civil justice system to function when ordinary procedure fails, but it challenges the rule-of-law values reflected in the traditional model of procedural design. Instead of being created by lawmakers who operate behind a veil of ignorance, ad hoc procedure is made by actors seeking specific outcomes in pending cases. The circumstances in which ad hoc procedure is created raise concerns about lawmakers’ motivations, the transaction costs of one-off procedural interventions, the wisdom and fairness of those interventions, and the separation of powers.

This Article introduces the phenomenon of ad hoc procedure and considers its place in a world where much procedure continues to be made through the traditional model. Focusing on ad hoc procedural statutes, the Article contends that such statutes’ legitimacy—or lack thereof—depends on different factors than ordinary civil procedure. Unable to claim legitimacy from the circumstances in which it is crafted, ad hoc procedural legislation must instead derive legitimacy from the need to address a procedural problem and the effort to produce substantively just outcomes.

In a 2013 article, I explained that the Supreme Court and federal circuits had cut back significantly on plaintiffs’ ability to bring class actions. As I explain in this article, that trend has subsided. First, the Supreme Court has denied certiorari in several high-profile cases. Second, the Court’s most recent class action rulings have been narrow and fact specific. Third, the federal circuits have generally rejected defendants’ broad interpretations of Supreme Court precedents and arguments for further restrictions on class certification. One explanation for this new trend is that defendants have been overly aggressive in their arguments, losing credibility and causing courts to push back. Another is that courts are retreating from the view that pressure on defendants to settle is itself a reason to curtail class actions. It remains to be seen, however, whether this trend is the new normal, or merely a respite from the decline of class actions.