Monday, January 18, 2010

Predicting the Future: Is it a Proper Role for the Supreme Court?

Adam Liptak wrote a fascinating article in today's New York Times regarding the habit of Supreme Court Justices to predict the future based on the resolution of the cases the Court adjudges. Principally, Liptak opines that "The Supreme Court’s main strength lies in adjudicating disputes based on things that have already happened. It is less good at predicting the future." Indeed, prescient--and in many cases, dire--predictions can often be found scattered about important dissents. Liptak illustrates this phenomenon:
When the court first ruled in June that prosecutors may not submit reports from such labs without accompanying testimony, the four dissenting justices warned that the decision would impose a “crushing burden” on prosecutors. Several of them repeated that point Monday.

“I don’t know except anecdotally,” Justice Stephen G. Breyer said, “but Massachusetts seems to be having huge problems.” That depends on whom you talk to. The chief trial counsel of the district attorney’s office in Boston, which handles about half of the state’s drug cases, told a symposium at the New England School of Law in November that “the sky is not falling.”

“Despite the dire predictions,” the prosecutor, Patrick M. Haggan, said, “defendants have not walked free. In the vast majority of cases where we have been required to produce the analyst’s live testimony, we’ve had that analyst there.”
These predictions are often more than mere rhetorical jabs waged by a disgruntled dissenter; they are sometimes found in majority opinions. As Liptak notes:
Poor predictions are not confined to dissents. Writing for eight justices in Clinton v. Jones, the 1997 decision allowing a sexual harassment case against President Bill Clinton to move forward, Justice John Paul Stevens confidently asserted that “it appears to us highly unlikely to occupy any substantial amount” of Mr. Clinton’s time. The aftermath of the decision dominated much of Mr. Clinton’s second term.
Given this, one wonders why the Justices even bother--particularly given the justiciability concerns such predictions evoke (to the extent the predictions relate to future legal issues that are not before the Court).

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