Amicus Curiae Brief — Robert A. Rucho, et al., Appellants v. Common Cause, et al.

Nos. 18-422, 18-726

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------ROBERT A. RUCHO, et al.,

Appellants,

v.

COMMON CAUSE, et al.,

Appellees.

-----------------------------------------------------------------On Appeal from the

United States District Court for

the Middle District of North Carolina

-----------------------------------------------------------------LINDA H. LAMONE, et al.,

Appellants,

v.

O. JOHN BENISEK, et al.,

Appellees.

-----------------------------------------------------------------On Appeal from the

United States District Court for

the District of Maryland

-----------------------------------------------------------------BRIEF OF DAVID ORENTLICHER AS

AMICUS CURIAE SUPPORTING NEITHER PARTY

-----------------------------------------------------------------DAVID ORENTLICHER

Counsel of Record

UNLV WILLIAM S. BOYD SCHOOL OF LAW

4505 S. Maryland Parkway, Box 451003

Las Vegas, NV 89154-1003

(702) 895-2333

david.orentlicher@unlv.edu

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICUS CURIAE ......................

1

SUMMARY OF ARGUMENT ..............................

1

ARGUMENT ........................................................

2

I.

II.

III.

IV.

IDEOLOGICAL BALANCE AND DUE PROCESS ..........................................................

2

IDEOLOGICAL BALANCE AND ORIGINAL

INTENT .....................................................

7

IDEOLOGICAL BALANCE AND SUPREME

COURT PRECEDENT ...............................

8

POTENTIAL CONCERNS WITH A REQUIREMENT OF IDEOLOGICAL BALANCE ......................................................... 10

CONCLUSION..................................................... 14

ii

TABLE OF AUTHORITIES

Page

CASES:

Burch v. Louisiana, 441 U.S. 130 (1979) ....................12

Caperton v. A.T. Massey Coal Co., 556 U.S. 868

(2009) .......................................................................10

Republican Party of Minnesota v. White, 536 U.S.

765 (2002) .............................................................. 8, 9

Taylor v. Louisiana, 419 U.S. 522 (1975)......................4

Tumey v. Ohio, 273 U.S. 510 (1927) ..............................9

Williams v. Florida, 399 U.S. 78 (1970)........................4

CONSTITUTIONAL PROVISION:

Or. Const. art. I, § 11 ...................................................11

STATUTE:

Or. Rev. Stat. § 136.450 ...............................................11

RULE:

Fed. R. Civ. Pro. 48(b)..................................................12

OTHER AUTHORITIES:

AMA Council on Ethical and Judicial Affairs,

Code of Medical Ethics (2017) ................................13

Alan Blinder, The Quiet Revolution: Central

Banking Goes Modern (2004) ...................................6

iii

TABLE OF AUTHORITIES – Continued

Page

Megan Brenan, Confidence in Supreme Court

Modest, but Steady, Gallup (July 2, 2018)................6

Kathleen Dolan, Gender Stereotypes, Candidate

Evaluations, and Voting for Women Candidates: What Really Matters?, 67 Pol. Res. Q. 96

(2014) .......................................................................14

Lee Epstein et al., Ideological Drift Among Supreme Court Justices: Who, When, and How

Important?, 101 Nw. U. L. Rev. 1483 (2007) .............3

Lee Epstein et al., The Behavior of Federal

Judges: A Theoretical and Empirical Study of

Rational Choice (2013) ..............................................3

European Parliament, Dissenting Opinions in

the Supreme Courts of the Member States

(2012) ................................................................... 4, 11

Charles Gardner Geyh, The Dimensions of Judicial Impartiality, 65 Fla. L. Rev. 493 (2013) ....... 2, 10

Paula L. Hannaford-Agor et al., Are Hung Juries

a Problem?: Executive Summary (2002) .................11

Lu Hong & Scott E. Page, Groups of Diverse

Problem Solvers Can Outperform Groups of

High-Ability Problem Solvers, 101 Proc. Nat’l

Acad. Sci. 16385 (2004) .............................................6

David Orentlicher, Supreme Court Reform: Desirable—and Constitutionally Required, 92 S.

Cal. L. Rev. Postscript PS29 (2018) ..........................2

iv

TABLE OF AUTHORITIES – Continued

Page

Scott E. Page, The Difference: How the Power of

Diversity Creates Better Groups, Firms, Schools,

and Societies (2007) ..................................................6

Martin H. Redish & Jennifer Aronoff, The Real

Constitutional Problem with State Judicial

Selection: Due Process, Judicial Retention,

and the Dangers of Popular Constitutionalism, 56 Wm. & Mary L. Rev. 1 (2014) .......................2

Gabriel Serbulea, Due Process and Judicial Disqualification: The Need for Reform, 38 Pepp. L.

Rev. 1109 (2011) ......................................................10

Nate Silver, Supreme Court May Be Most Conservative in Modern History, FiveThirtyEight

(Mar. 29, 2012) .........................................................13

Geoffrey R. Stone, Chief Justice Roberts and the

Role of the Supreme Court, Huffington Post

(May 25, 2011) ...........................................................5

Cass R. Sunstein, Unanimity and Disagreement

on the Supreme Court, 100 Cornell L. Rev. 769

(2015) .........................................................................5

The Federalist No. 10 (James Madison) .......................7

The Federalist No. 76 (Alexander Hamilton) ...............8

Hope Yen, Roberts Seeks Greater Consensus on

Court, Wash. Post (May 21, 2006) .............................5

1

INTEREST OF AMICUS CURIAE1

This brief amicus curiae is filed by and on behalf

of David Orentlicher, Cobeaga Law Firm Professor at

UNLV William S. Boyd School of Law.2 Prof. Orentlicher teaches and writes about constitutional law and

also served for six years as a state representative in

the Indiana General Assembly. His recent scholarship

has examined the problem of ideological partiality in

the judiciary, and he submits this brief in the hope that

its discussion of due process and ideological balance

will be of value to the Court.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

While this brief takes no position on the merits of

the cases, it does present a position on the manner in

which the cases should be decided. The Due Process

Clause promises litigants that they will receive an impartial hearing before a neutral court. And a neutral

court decides cases without any personal, political, or

1

The parties have consented to the filing of all briefs of amici

curiae. No counsel for a party authored this brief in whole or in

part, and neither counsel for a party nor a party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person other than amicus curiae made a monetary

contribution to the preparation or submission of this brief. Reimbursement for printing expenses may be sought from funds made

available by UNLV William S. Boyd School of Law to faculty for

their professional activities.

2

Institutional affiliation is provided for identification purposes only. This brief does not purport to present the institutional

views, if any, of amicus’ university.

2

other partiality. However, like other appellate courts,

this Court brings an ideological leaning to its work.

This compromises the due process principle of fairness

which is critical to the resolution of any legal matter

and especially matters such as political gerrymandering that go to the heart of our representative system of

government. Accordingly, principles of due process require the Court to ensure that it decides these cases in

an ideologically-balanced way.3

------------------------------------------------------------------

ARGUMENT

I.

IDEOLOGICAL BALANCE AND DUE PROCESS

When the Constitution provides its fundamental

guarantee of due process, it promises individuals that

they will receive an impartial hearing before a neutral

court.4 And a neutral court decides cases without any

personal, political, or other partiality.5

But this Court and other appellate courts typically

are not neutral courts. They generally have either a

conservative or liberal majority of Justices or judges,

3

Much of the argument in this brief is drawn from David

Orentlicher, Supreme Court Reform: Desirable—and Constitutionally Required, 92 S. Cal. L. Rev. Postscript PS29 (2018).

4

Martin H. Redish & Jennifer Aronoff, The Real Constitutional Problem with State Judicial Selection: Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism, 56

Wm. & Mary L. Rev. 1, 34, 36–37 (2014).

5

Charles Gardner Geyh, The Dimensions of Judicial Impartiality, 65 Fla. L. Rev. 493, 499–509 (2013).

3

and overall, that makes for either a conservative or liberal predilection. When a court has a liberal majority,

parties promoting a conservative viewpoint will be disadvantaged. Similarly, when a court has a conservative

majority, parties promoting a liberal viewpoint will be

disadvantaged.

To be sure, if judging entailed a purely objective

application of legal rules and principles to the facts, a

jurist’s ideology would not matter. But as empirical evidence demonstrates, a jurist’s ideology does matter.6

Some Justices and judges take more conservative positions, while others take more liberal positions.7 A conservative majority will render different decisions on

campaign finance, environmental regulation, or religious freedom than will a liberal majority. When this

Court’s decisions reflect the philosophical leanings of

the Justices, and decisions can be determined by a majority on one side of the ideological spectrum, our judicial system denies an impartial hearing to parties on

the other side of the ideological spectrum. And that is

fundamentally unfair in a constitutional system that

promises litigants due process in court.

6

Lee Epstein et al., The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice 103 (2013).

7

Lee Epstein et al., Ideological Drift Among Supreme Court

Justices: Who, When, and How Important?, 101 Nw. U. L. Rev.

1483, 1491 (2007). Amicus recognizes that things are more nuanced. From case to case, a judge or Justice will sometimes take

more conservative positions and other times more liberal positions. Nevertheless, for many cases, either a conservative or liberal majority will prevail.

4

Because it is unfair for litigants to have their cases

decided by an ideologically-skewed court, due process

requires reforms to ensure that decisions by this Court

reflect both sides of the ideological spectrum. Scholars

and others have proposed a number of approaches to

bring ideological balance to this Court, including

changes in the judicial appointment process. The simplest path to ideological balance would be for the Court

to follow the example of the jury, and render its decisions unanimously. That way, Justices on both sides of

the ideological spectrum would have to support the

Court’s opinions.8

The example of juries fits well. Amicus believes

that to be impartial, this Court should issue decisions

that reflect the views of Justices from both sides of the

ideological spectrum. Similarly, in defining the meaning of an impartial jury, this Court has required that

jurors be drawn from a fair cross-section of the community.9 As this Court also has noted, the due process

standards for jury size and jury unanimity reflect the

goal of group deliberation undertaken by a jury that is

representative of the community.10

This Court itself has observed a norm of consensual decision-making for most of its history. Until 1941,

8

Many European high courts also decide their cases on the

basis of consensus. European Parliament, Dissenting Opinions in

the Supreme Courts of the Member States (2012), http://www.

europarl.europa.eu/sdocument/activities/cont/201304/20130423

ATT64963 /20130423ATT64963EN.pdf.

9

Taylor v. Louisiana, 419 U.S. 522, 526–27 (1975).

10

Williams v. Florida, 399 U.S. 78, 100 (1970).

5

Justices typically spoke unanimously.11 Only about 8%

of cases included a dissenting opinion. Now, one or

more Justices dissent in about 60% of rulings.12 Amicus

agrees with the Chief Justice that greater consensus

on the court is desirable13 and that this Court functions

best “when it can deliver one clear and focused opinion.”14 More importantly, decision-making by consensus would bring this Court into conformity with the

constitutional requirement of due process.15

Due process is important not only for the litigants

before a court but also for the public generally. This is

especially the case when this Court decides issues of

great moment and that go to the heart of our representative system of government, such as the question

of political gerrymandering in these cases. For such issues, it is critical that the public feel that the Court

reaches its decisions fairly.

11

Cass R. Sunstein, Unanimity and Disagreement on the Supreme Court, 100 Cornell L. Rev. 769, 771 (2015).

12

Id. at 776–77.

13

Hope Yen, Roberts Seeks Greater Consensus on Court,

Wash. Post (May 21, 2006), http://www.washingtonpost.com/wp-dyn/

content/article/2006/05/21/AR2006052100678.html.

14

Geoffrey R. Stone, Chief Justice Roberts and the Role of

the Supreme Court, Huffington Post (May 25, 2011), https://www.

huffingtonpost.com/geoffrey-r-stone/chief-justice-roberts-and_b_

40277.html.

15

Concerns about ideological balance also arise with intermediate courts of appeal so they also should adopt unanimous decision-making. While a panel of three judges often can have either

three conservative or liberal members, ideological balance can be

readily achieved when cases are heard en banc.

6

But concerns about the role of judicial ideology

have markedly increased in recent years. A majority of

Americans once expressed strong confidence in this

Court. According to a July 2018 Gallup poll, only 37%

do now.16 Ensuring ideological balance would do much

to restore public faith in the Court’s decision-making

process. As a corollary, it also would do much to defuse

the highly contentious nature of judicial appointments.

If people on both sides of the ideological spectrum

knew their views would be reflected in Court decisions,

they would not have to fight over appointments to the

Court.

In addition to ensuring a fairer process, decisionmaking by consensus provides other important benefits. For example, it generates a more effective decisionmaking process. Studies on group decision-making

demonstrate that better outcomes result when the

decisions incorporate a range of perspectives.17 In

addition, unanimous decision-making ensures greater

stability in the law. When this Court can decide cases

by a majority vote, changes in the composition of

the Court can lead to major changes in the Court’s

16

Megan Brenan, Confidence in Supreme Court Modest, but

Steady, Gallup (July 2, 2018), https://news.gallup.com/poll/236408/

confidence-supreme-court-modest-steady.aspx.

17

Alan Blinder, The Quiet Revolution: Central Banking Goes

Modern 43 (2004); Scott E. Page, The Difference: How the Power of

Diversity Creates Better Groups, Firms, Schools, and Societies 2–3

(2007); Lu Hong & Scott E. Page, Groups of Diverse Problem Solvers Can Outperform Groups of High-Ability Problem Solvers, 101

Proc. Nat’l Acad. Sci. 16385 (2004).

7

jurisprudence. With unanimous decision-making, legal

doctrine will develop along a steadier path.

II.

IDEOLOGICAL BALANCE AND ORIGINAL

INTENT

What would the Framers think about this? On one

hand, they did not include in Article III of the Constitution a requirement for ideological balance on the Supreme Court. On the other hand, they did not reject

ideological balance. Moreover, they recognized the

need to amend the Constitution with a Bill of Rights

that includes the Due Process Clause’s guarantee of

impartial courts.

The Framers’ intent is consistent with this brief ’s

due process analysis. With ideological balance, this

Court would be more faithful to the Framers’ design

for our constitutional system. The Founding Fathers

worried greatly about “factions” pursuing their selfinterest to the detriment of the overall public good. Accordingly, the constitutional drafters devised a system

that they thought would contain the influence of factions.18 With regard to the judicial branch, the Framers

did not expect—nor did they want—a Supreme Court

that would reflect the views of only one side of the ideological spectrum. Indeed, when Alexander Hamilton

explained the Constitution’s appointment provisions

in The Federalist Papers, he emphasized the need to

18

The Federalist No. 10 (James Madison).

8

avoid nominations that reflect partiality instead of the

overall public interest.19

The Due Process Clause and original intent both

support ideological balance on this Court. As discussed

in the next section, the Court’s precedents are consistent with such a requirement.

III. IDEOLOGICAL BALANCE AND SUPREME

COURT PRECEDENT

In previous cases, this Court has observed that

constitutional concerns are not raised when a judge favors one or another ideological view.20 Anyone with the

appropriate training and experience for the judiciary

will have opinions on important legal issues. According

to the Court, due process prohibits partiality toward a

party to a proceeding, not partiality toward a legal

view that the party might advocate.21

But there are important reasons to distinguish

Court discussions of the issue. First, the question

whether an appellate court must exhibit overall ideological balance has not been decided by this Court. Rather,

the Court has considered the question of partiality

for individual judges. Moreover, it has done so in

cases addressing other issues of judicial neutrality.

19

The Federalist No. 76 (Alexander Hamilton) (discussing

the appointment provisions generally).

20

The opinion in Republican Party of Minnesota v. White, 536

U.S. 765 (2002), provides a nice summary of this Court’s discussions of the topic.

21

Id. at 777–78.

9

In Republican Party of Minnesota v. White, for example,

the issue before this Court was whether a state could

prohibit judicial candidates from announcing their

positions on issues that might come before them if

elected.22 In another case, Tumey v. Ohio, the issue before this Court was whether judges could have a financial stake in the outcome of their decisions.23

Second, this Court’s reasoning is consistent with a

due process argument in favor of a Court that decides

cases in an ideologically-balanced way. In Republican

Party of Minnesota, the Justices discussed the kinds of

partialities that should disqualify a judge, and this

Court wrote that a judge’s ideological predilection is

not disqualifying in the way that a personal financial

interest is disqualifying. It took that view in Republican Party of Minnesota and earlier cases because anyone who has the experience and training that would be

desirable in a judge will inevitably develop an ideological leaning.24 And as discussed, there are benefits to

having a bench of Justices with a range of ideological

perspectives. But the fact that we have individual Justices with ideological leanings does not prevent us from

ensuring an overall ideological balance on the Court.

Under a fair reading of the Constitution, litigants

22

Id. at 768. This Court held that the prohibition violated the

First Amendment. Id. at 788.

23

Tumey v. Ohio, 273 U.S. 510, 514–15 (1927). The Court held

that the judges’ financial interests violated due process. Id. at 534.

24

Republican Party of Minnesota, 536 U.S. at 777–78.

10

ought to be able to ensure that their cases are decided

in an ideologically-balanced way.

In addition, it is difficult to identify a good reason

for permitting this Court’s holdings to be decided by a

majority on one side or the other of the ideological spectrum. While we can point to the principle of majority

rule to justify conservative or liberal control in the executive or legislative branches, popular majorities do

not deserve special recognition in a judicial branch

that should be guided by legal principle rather than

prevailing sentiment.

IV. POTENTIAL CONCERNS WITH A REQUIREMENT OF IDEOLOGICAL BALANCE

In general, concerns about cost, efficiency, and fairness have limited policies to address judicial partiality.25 For example, one solution is recusal of the partial

judge. But if reasons for recusal are not strictly limited,

litigants might clog the courts with baseless recusal

motions,26 and lawyers might exploit the rules to game

the system in favor of their clients.27 Members of this

Court also have worried about strict recusal rules because there is no one who can step in for a disqualified

Justice.28

25

Geyh, supra note 5, at 514–15.

Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 890–91,

899–900 (2009) (Roberts, C.J., dissenting).

27

Id. at 903 (Scalia, J., dissenting).

28

Gabriel Serbulea, Due Process and Judicial Disqualification: The Need for Reform, 38 Pepp. L. Rev. 1109, 1136–38 (2011).

26

11

A requirement of unanimity avoids the concerns

raised by judicial disqualification. It promotes impartiality not by removing partial Justices, but by counterbalancing their partialities. Moreover, it can be

adopted by the Court on its own without the need for

legislative or executive action.

Still, one might worry that a unanimity requirement would lead this Court to deadlock with some frequency and leave too many issues to be decided by the

lower courts. However, a few considerations indicate

that it is unlikely to do so. First, this Court has an obligation to resolve critical legal questions, and we can

expect Justices to fulfill the duties of their position.

Second, decision-makers adjust their behavior to

their decision-making rules. When a simple majority

can prevail, people may look for simple majority positions. On the other hand, when unanimity is required,

people look for positions that can generate consensus.

Empirical evidence supports this analysis. High

courts operate successfully with a requirement of consensus in other countries.29 So do juries in this country.

Criminal court juries typically have twelve members,

and they have to reach unanimous decisions.30 Hung

juries occur, but not very often.31 Moreover, juries reach

29

European Parliament, supra note 8, at 17-20.

State juries in Oregon are the lone exception, where a supermajority of ten out of twelve is required for most cases. Or.

Const. art. I, § 11; Or. Rev. Stat. § 136.450.

31

Studies suggest an average hung jury rate of around 6%

nationwide. Paula L. Hannaford-Agor et al., Are Hung Juries a

Problem?: Executive Summary 2 (2002).

30

12

their unanimous decisions in a setting that allows

for less compromise than does a decision by a judicial

bench. A criminal jury must acquit or convict.32

To be sure, this Court has not always required unanimous jury verdicts under the Due Process Clause, but it

also has rejected non-unanimous jury verdicts when the

jury size shrinks.33 A Supreme Court with twelve members might satisfy due process with a supermajority vote

of ten, but with only nine members, unanimity would be

needed on many occasions to ensure ideological balance.

Of course, requirements of jury unanimity reflect

the gravity of the decisions at stake. Whether a jury

convicts or acquits has enormous consequences for the

defendant. Just as much is at stake with this Court. Its

decisions can have the same consequences for defendants when it hears criminal appeals. Other constitutional decisions also can have profound consequences

for the parties and the public generally. And even with

civil juries, while it is more common among the states

to require supermajority rather than unanimous verdicts, unanimity is required under the federal rules of

procedure.34

Consensus-based decision-making also works well

in non-governmental settings. The American Medical

32

In some cases, juries can compromise if they have the option of convicting on a less serious charge.

33

Burch v. Louisiana, 441 U.S. 130 (1979).

34

Fed. R. Civ. Pro. 48(b). The parties can waive the unanimity

requirement. Id.

13

Association’s Council on Ethical and Judicial Affairs

(CEJA) provides a useful example. CEJA develops

guidelines for physicians on the full range of ethical

questions in medical practice, including genetic testing, end-of-life decisions, and conflicts of interest.

CEJA also hears appeals of disciplinary proceedings

against physicians by state and other medical societies. CEJA has nine members who reach all of their

decisions by consensus. Under its requirement of unanimity, CEJA has been able to decide its appeals and

issue a comprehensive ethics code that includes

guidelines on many controversial matters.35

One might wonder whether decision-making by

consensus really would yield ideological balance. If all

Justices were either conservative or liberal, then even

unanimous decisions would have an ideological tilt.

This is a theoretical rather than practical concern. The

Martin-Quinn scores that have measured the ideological leanings of Justices since 1937 have found a mix of

conservative and liberal Justices throughout the entire

eight-decade period.36

If due process requires ideological balance, does it

also require other kinds of balance? Concerns about

partiality on this Court reflect concerns about ideological differences, which is not surprising. People’s views

35

AMA Council on Ethical and Judicial Affairs, Code of Medical Ethics (2017). Amicus previously served for more than six

years as Secretary to CEJA.

36

Nate Silver, Supreme Court May Be Most Conservative in

Modern History, FiveThirtyEight (Mar. 29, 2012), https://fivethirtyeight.blogs.nytimes.com/2012/03/29/supreme-court-may-be-mostconservative-in-modern-history/.

14

on policy questions are influenced more by their ideology than their other traits. Thus, for example, female

voters care more about the political party than about

the sex of candidates for political office and therefore

vote their ideology rather than their sex.37 Moreover,

an important virtue of decision-making by consensus

is that it ensures not only ideological balance but also

balance across a range of attributes that Justices or

judges bring with them to the bench.

------------------------------------------------------------------

CONCLUSION

As the principle of due process recognizes, it is not

only important that a court reach the legally correct

decisions, but also that it make its decisions in an impartial way. To ensure impartiality in these, and other,

cases, this Court should render decisions that are

based on a consensus of all nine Justices and therefore

reached in an ideologically-balanced manner.

Respectfully submitted,

DAVID ORENTLICHER

Counsel of Record

UNLV WILLIAM S. BOYD SCHOOL OF LAW

4505 S. Maryland Parkway, Box 451003

Las Vegas, NV 89154-1003

(702) 895-2333

david.orentlicher@unlv.edu

37

Kathleen Dolan, Gender Stereotypes, Candidate Evaluations, and Voting for Women Candidates: What Really Matters?, 67

Pol. Res. Q. 96, 98, 104 (2014).