Paying attention.

Photographer: Andrew Harrer/Bloomberg

Yes, the Justices Read the Headlines

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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On Monday, just a few days after the shootings in San Bernardino, California, the U.S. Supreme Court announced it won't hear a challenge to a Chicago suburb’s ban on semiautomatic weapons. On Wednesday, in the wake of a semester’s turmoil over race on campuses from Missouri to New Haven, the court is hearing a challenge to affirmative action.

Coincidence? Well, sort of.

The court’s actions -- refusing to hear the gun challenge while considering affirmative action -- are case studies of judicial timing that raise a broader question: How is the court influenced by day-to-day headlines and current events? The answer turns out to be more complicated, and more interesting, than you might think.

To start with, it's important to remember that the justices are limited in their actions and case selection by parties’ decision to ask them for review. Unlike, say, the Supreme Court of Pakistan, which opens cases on its own motion (sua moto, in law Latin), the U.S. court can't actively shape its own agenda.

Yet it would also be a mistake to see the court as completely passive when it comes to content and timing. Most fundamentally, the justices get to choose which cases they want to hear. To hear a case – “granting certiorari,” in technical parlance -- requires the agreement of four justices. And while the justices may give a reason for why they don't accept a given case, they don't have to.

The assault-weapons case from Highland Park, Illinois, is a perfect example. The case came to the Supreme Court through the U.S. Court of Appeals for the Seventh Circuit. It raises a substantial and important issue of federal law. That would be enough for justices who think the Illinois law is unconstitutional to grant cert if they really wanted to, as Justice Clarence Thomas made clear in his dissent from the decision to deny.

At the same time, there was a perfectly ordinary bureaucratic reason for the Supreme Court to deny cert: There's no conflict among the different courts of appeal on the legal issues. Several states have similar gun laws, but so far no federal court has struck them down. In October, the Second Circuit upheld bans in New York and Connecticut. And as I noted at the time, the Supreme Court could potentially avoid the issue so long as the appeals courts don't split.

All this brings us to timing: Are the justices affected by something like the San Bernardino attack?

At the margin, there's no question that they can be affected.

Justices Thomas and Antonin Scalia clearly couldn't care less about the attacks when it comes to the challenge to the assault-weapons ban. They think the constitutional logic is clear and on their side. That's consistent with the cavalier attitude both take in general to the court’s internal and external politics: Let justice be done, even if the heavens should fall.

Chief Justice John Roberts, in contrast, is much more attuned to real-world political complexity. He wants to win cases, and he wants to preserve the institutional legitimacy of the court. Assuming for the sake of argument that he would share Thomas and Scalia's basic constitutional view about assault weapons, he’d understand that the timing couldn't be worse to hear such a case.

For one thing, the swing voter, Justice Anthony Kennedy, is highly aware of public attitudes and opinions. Roberts would worry that he'd lose Kennedy if the gun case came up at a such a historical moment as when the country is focused on San Bernardino and the effects of automatic weapons on domestic security.

Even if the conservatives could get Kennedy's vote, Roberts would be concerned that the legitimacy of the court would be negatively affected if it struck down an assault-weapons ban. Even the hype that would accompany an agreement to take the case, along with the buildup to oral argument and the decision, would subject the court to critical attention on the gun issue.

The affirmative-action situation is a bit different. The Texas affirmative-action case being argued today has been in front of the court before. Last time, in 2013, Kennedy sent it back to the lower courts for closer scrutiny of the University of Texas’ rationale and techniques for admissions. 

Kennedy was intentionally deferring a decision, buying more time for himself and his colleagues to work through the issue. It’s possible he also wanted to get the controversial gay marriage decision out of the way before turning to the controversial affirmative-action issue decisively.

The case has now made its way back to the Supreme Court, pretty much on its own timing. Kennedy, of course, couldn't have anticipated this fall’s national focus on campus race issues. Affirmative action has always been a big-ticket issue for the court, but the juxtaposition of today's argument with this past semester's controversy is a coincidence.

That doesn't mean, of course, that the current mood on U.S. campuses won't affect the outcome. The court is sometimes criticized for being isolated from the real world, but if there's one set of institutions the court understands well, it's universities. Almost all the justices’ law clerks were students in the past four years. They still have friends on campus. The justices themselves also regularly visit campuses.

Kennedy therefore knows that striking down affirmative action as unconstitutional would almost certainly have a different, more explosive political effect in 2016 than it would’ve had in 2013. That won't decide the issue definitively for him. But if there were a way he could push the issue down the road one more time, he probably would. And that would be no coincidence.

(Corrects day Supreme Court will hear oral arguments in affirmative-action case in first paragraph.)

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net