What SCOTUSblog's Tom Goldstein Doesn’t Miss About The Court
What SCOTUSblog's Tom Goldstein Doesn’t Miss About The Court
The veteran Supreme Court advocate discusses his retirement, the future direction of the Court, and the justices' new code of conduct.
Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!
A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.
I’ve been urging the U.S. Supreme Court to adopt an ethics code—one that starts with the Code of Conduct for U.S. Judges, which lower-court judges must follow, but tweaks recusal rules. Recusal presents particular difficulties to a nine-member court with no ability to replace recused justices.
On Monday, the Court adopted a formal ethics code for the first time in its history. And it’s what I envisioned: in essence, the code for lower-court judges, with modified recusal rules but no specific enforcement mechanism—yet. This welcome step should help increase public trust in the Court.
At the end of the day, though, public trust will depend most heavily on how the justices decide the cases before them. So where is the Supreme Court headed next? It’s an incredibly important question, but getting good answers is harder than you might think.
Many of the most insightful observers are lawyers who argue regularly before the Court. But they tend to be circumspect because of their day jobs.
Enter Tom Goldstein. He argued 45 cases before the high court, more than all but a handful of advocates, and is co-founder and publisher of SCOTUSblog. But because he retired from appellate practice earlier this year, he was willing to speak candidly about the Court with me.
He began by saying, to my surprise, that he doesn’t miss standing at the advocate’s lectern in front of the justices, a dream for many litigators.
“Take a real lawyer, like a public defender,” Goldstein said. “That PD could spend as much time arguing in court in a week, and certainly two weeks, as I spent arguing before the Court my entire career. There’s a lot of oral-argument preparation that is astronomically time-consuming, much more so than the argument itself, and I never defined myself in terms of those moments.”
Goldstein added that opportunities to argue before the Supreme Court should be distributed far more broadly than they are today. There’s “an enormous problem with diversity,” with SCOTUS arguments dominated by “a lot of old white guys”—which he described as “utterly messed up.”
As for what Goldstein liked best about arguing before the Court, he cited “extremely talented opponents” and “extremely demanding justices,” who push you to do your very best—“because you will get smoked by the other side, and smoked again by the justices, if you don’t really figure the case out.”
Goldstein also appreciated how, when litigating before the Supreme Court, you’d “start from scratch. As much as the Court is about letting cases percolate, once they decide to hear a case and consider an issue, they give zero s**ts about what has been said before.”
Alas, justices’ willingness to consider issues tabula rasa might have contributed to Goldstein’s retirement. In a March interview, he said that in light of the Court’s current composition, there’s “very little that an advocate for the little guy can hope to accomplish anymore.”
“I deeply respect the Court, and the justices have an enormous amount of integrity and work very hard,” Goldstein told me. “It’s just that the Court is now in a form ideologically where the outcomes are going to be very one-sided.”
“We used to fight over the vote of Justice O’Connor, then Justice Kennedy. Then it was, ‘I have a really clever argument to get the Chief [Justice John Roberts].’ Now, none of that matters, and I have better things to do than beat my head against that wall.”
And Goldstein doesn’t expect that to change anytime soon. Strategic retirements—Republican appointees retiring under Republican presidents, Democratic appointees retiring under Democratic presidents—preserve the current ideological balance. And the days of justices “evolving” on the bench are over.
“We have farm teams now,” Goldstein said, referring to lower courts where potential nominees demonstrate their ideological bona fides. “When you put justices on the Supreme Court these days, they are known commodities, fully vetted and tested. Justice [Amy Coney] Barrett is as advertised: very thoughtful, hardworking, interested, interesting—and very solidly conservative. And that won’t change in five years.”
At the same time, Goldstein doesn’t think the Court is moving as rapidly and radically to the right as other observers do: “There will be cycles. Justices tend to take up a question, decide it, and then let it sit. They want to see the ripple effects from what they say and how lower courts react.”
Take the Second Amendment and United States v. Rahimi, concerning a federal law that prevents a person subject to a domestic-violence restraining order from owning a gun. Proponents of stronger gun laws fear that the Court might hold the law unconstitutional. But when we spoke in October, before Rahimi was argued, Goldstein wasn’t too worried.
“As the Court enters a field it tends to erect guardrails, and I think Rahimi could end up being a guardrail. The Court cares enormously about domestic violence, which has come up in multiple oral arguments of mine without a direct connection, and the doctrine articulated most recently [in New York State Rifle & Pistol Association v. Bruen] seems potentially boundless.”
Goldstein thinks “the Court will be quite comfortable restricting firearms possession by people with domestic-violence restraining orders,” using Rahimi to say, ‘We are working through what the Second Amendment prohibits, but there are some important limits.’”
Rahimi was argued before the Supreme Court last week, and it looks like Goldstein will be right. Few if any justices seemed to be leaning toward Rahimi’s position.
And although the justices decide cases based on the law, not public opinion, I can’t help wondering whether their views of the law might be affected by the public-relations nightmare that would arise from declaring the federal government can’t keep deadly weapons out of the hands of domestic abusers. Is that really where the justices want to spend their political capital and public goodwill?
“The Supreme Court has always had a seemingly bottomless well of public support,” Goldstein said. “Even if recent polling shows it has gone down materially, it has never gone down far enough that it affects the Court’s work.”
Might adoption of a formal code of ethics help reverse the decline in the Court’s approval rating? I reached out to Goldstein for his thoughts after the news broke.
“The code will improve the public’s perception that the justices are acting ethically, and the Court is certainly much more focused on these issues,” he said. “But the lack of detail or an enforcement mechanism makes me doubt it will make much substantive difference.”
As Alexander Hamilton famously wrote in Federalist No. 78, the judiciary “may truly be said to have neither force nor will, but merely judgment.” And in the end, it’s the wise exercise of that judgment, not the trips the justices take or the gifts they receive, that will determine the verdict on the Supreme Court in the court of public opinion.
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Saying that the court should expand the pool of people who argue before it is something that seems appealing until you think about it a bit.
Look, either who argues before the court does or doesn't make a difference in the quality or direction of their opinions. If not then it seems like oral arguments themselves represent more of a liability than benefit so let's assume it does.
In that case, then one would tend to assume that experience and familiarity with the court would help the advocates do this job better. Just look at the performance of the PD in Raihmi to see why this tends to be the case. And surely probably the most important thing for the court is having high quality opinions (not to mention reaching, if not correct, at least consistent results) so it feels very shortsighted to just dismiss all these concerns in favor of the feel good position of more people getting to argue before the court.
And the problem with just allowing more access is there is no way to guarantee the people with the outside expertise end up arguing the cases where that matters (while having SCOTUS expertise always matters).
Now the narrower concern that the court should have a set of specialists but those specialists should be more reflective of the country along gender or race or etc lines might have a stronger prima facia case but I honestly just don't think this matters much since the general public will only look at the racial and gender makeup of the court. But in the long run this will probably shift to match the makeup of the court clerks and if the justices don't care strongly about representation in their clerks I'm skeptical the nation will either.
This was excellently written, and Goldstein’s input on how recent Supreme Court judges have approached decision making is what many Americans fail to understand.