ACTIVE VIRTUES.

• Author: Gilbert, Michael D.

ABSTRACT

Constitutional theory has long been influenced by the idea that the Supreme Court exercises "passive virtues," avoiding politically divisive cases that threaten its legitimacy. The Article inverts the logic. Supreme Court Justices (and other judges too) do more than avoid divisive cases that could weaken the Court. They seek "unity" cases--meaning cases where law and politics align--that could strengthen the Court. When judges seek unity cases to enhance their legitimacy, they exercise active virtues.

We develop the theory of active virtues and demonstrate its use. Our case studies come from the U.S. Supreme Court and tribunals worldwide, and they involve issues like voting, piracy, and police. Following the case studies, we situate active virtues in a broader theory of judicial power. According to our theory, courts balance divisive and unity cases like investors balance stocks and bonds. This portfolio theory of judicial power illuminates a range of topics, including docket control, activism, the counter-majoritarian difficulty, and the rule of law. Recognizing active virtues may have implications for today's Supreme Court, which faces a legitimacy crisis.

TABLE OF CONTENTS INTRODUCTION I. LEGITIMACY AND AVOIDANCE A. The Meaning of Legitimacy B. The Value of Legitimacy C. Legitimacy and the Passive Virtues D. Passive Virtues Worldwide II. LEGITIMACY AND ATTRACTION A. Defining Active Virtues B. On Unity Cases C. Examples: Timbs and Harper D. Active Virtues and Information III. EXERCISING ACTIVE VIRTUES A. Typology and Examples 1. Certificate of Division in the U.S. Supreme Court 2. Amparo in Mexico 3. Pakistan's Suo Motu Jurisdiction 4. India's Epistolary Jurisdiction B. Synthesis: Attraction and Strategy IV. JUDICIAL POWER AND VALUES A. The Portfolio Theory of Judicial Power B. The Case for Active Virtues C. Objections: Activism and Impartiality D. Coda: The Counter-Majoritarian Difficulty CONCLUSION INTRODUCTION

The Supreme Court is mired in controversy. According to critics, Justice Gorsuch occupies a "stolen" seat, (1) Justice Kavanaugh's testimony was "nakedly partisan," (2) and Justice Barrett was confirmed only eight days before a presidential election. (3) Commentators have advocated impeachment, court packing, term limits, and other reforms. (4) Chief Justice Roberts defended the judiciary, stating, "We do not have Obama judges or Trump judges, Bush judges or Clinton judges." (5) But that did not stop the bleeding. President Trump fired back: "Sorry Chief Justice John Roberts, but you do indeed have 'Obama judges[.]"' (6) The Court's approval ratings have dropped, (7) Justices fret, (8) and the controversial cases keep coming. (9)

But not every case divides the Justices or inflames politics. Consider Timbs v. Indiana. (10) Decided in 2019, Timbs involved the constitutionality of some asset forfeitures. In brief, states had been seizing valuable, personal property that was connected, sometimes only tangentially, to relatively minor crimes. (11) In a unanimous decision, the Supreme Court invalidated this state practice and issued an opinion grounded in law and popular among politicians, interest groups, and the public. (12)

What explains the persistence of cases like Timbs on the Court's small and often-acrimonious docket? One possibility is that these cases are leftovers. The Court practices "passive virtues," avoiding cases (or at least some cases) that are especially politically fraught. (13) If the Justices screen out enough controversial cases, there are bound to be some uncontroversial ones left in the stack. But this may not be the whole story. We offer a different account of Timbs, one that transforms it and similar disputes from leftovers to crucial players in the judicial enterprise.

Legitimacy is central to courts' power. Judges rely on other actors to comply, often voluntarily, with their decisions. Nebulous though it may seem, legitimacy drives that compliance. (14) To build and sustain their legitimacy, courts exercise passive virtues, avoiding some "divisive" cases where law and politics collide. (15) But they do not stop there. Courts also attract "unity" cases, meaning cases where law and politics align. When courts seek unity cases to enhance judicial legitimacy, they exercise active virtues. (16)

Timbs is a recent example of a unity case. The Justices resolved a dispute about an unpopular state practice in a way that cast the Court in a positive light. Now consider a second unity case, Harper v. Virginia Board of Elections. (17) Decided in 1966, Harper involved the constitutionality of state poll taxes. By the time of the case, federal poll taxes had been banned, most state poll taxes had been eliminated, and Congress had indicated its opposition to those that remained. (18) Yet a few recalcitrant states refused to give. The Supreme Court invalidated all poll taxes, issuing (as in Timbs) an opinion grounded in law and popular among officials and voters. (19)

Timbs and Harper are unity cases, and we believe deciding them grew the Court's legitimacy. However, we are not certain the Court took them for that reason. (20) Recent controversies notwithstanding, the modern Supreme Court may have enough legitimacy that deliberately practicing active virtues is unnecessary. But things were different for the early Supreme Court. While riding circuit in the 1800s, Justice Story manufactured disagreements in lower courts to push cases to the Supreme Court. (21) We will argue that some of these were unity cases and that Justice Story deliberately practiced active virtues.

Active virtues are not confined to the United States. This strategy of legitimation is a global phenomenon. The Supreme Court of India converted a newspaper article into a petition and a popular decision on bonded labor. (22) In Mexico, the Supreme Court bypassed an intermediate court and seized a high-profile case involving women mistreated by police. (23) We present these case studies and others, categorizing and uniting seemingly disparate court practices under the heading of active virtues.

In addition to describing active virtues, we situate their exercise in a theory of judicial power. Legitimacy depends on how courts decide cases. (24) Judges' decisions can be faithful or unfaithful to law, popular or unpopular with the public, acceptable or repugnant to state actors, and so on. Alexander Bickel argued that courts avoid cases that poison the mixture--cases like Naim v. Naim, which involved miscegenation in 1950s Virginia and pit law against politics. (25) We argue that courts attract cases that get the mixture right. Under our theory, judges balance divisive and unity cases like investors balance stocks and bonds. Thus, we call this the portfolio theory of judicial power. A good portfolio preserves the court's legitimacy by offsetting divisive cases with unity cases.

These ideas may have implications for today's Supreme Court. They point to a strategy that the Justices could follow (and, perhaps, that they are trying to follow already) to promote the institution's reputation. But the ideas have broader reach. The legitimacy problem is not limited to Roberts's Court--lower courts and state courts struggle with it too--and nor is it confined to the United States. Courts everywhere struggle to establish their legitimacy. (26) Scholars have shown that foreign courts practice the passive virtues. (27) Similarly, we show that foreign courts--in India, Mexico, and elsewhere--practice active virtues. (28) Thus, active virtues and the portfolio theory are not idiosyncratic features of the U.S. Supreme Court. They are general strategies of judicial power.

The idea of passive virtues is old and influential. Why did it take decades to develop its inverse and combine the two halves into a comprehensive theory of judicial legitimation? We believe the explanation lies in rushed logic. Bickel concluded that passivity promotes legitimacy, so scholars have concluded that behaving actively must undermine legitimacy. But that is not necessarily true. Scholars have held the mirror to Bickel at the wrong angle. We changed the tilt to reflect Bickel's premise, not his conclusion. His premise was that cases in the stormy seas of law and politics weaken courts. The inverse is that cases in calm waters empower courts.

The Article proceeds as follows. Part I reviews literature on judicial legitimacy and connects it to avoidance. Part II presents the theory of active virtues. Part III develops a typology of case attraction strategies and provides examples from the United States, Mexico, and elsewhere. Part IV situates active virtues in a broader conceptual and normative theory of courts.

1. LEGITIMACY AND AVOIDANCE

   "The judiciary," Hamilton wrote, "has no influence over either the sword or the purse." (29) Thus, it "depend[s] upon the aid of the executive arm even for the efficacy of its judgments." (30) Hamilton's short phrase identifies a deep predicament. Courts act in the name of the law. They tell others, including powerful presidents and legislators, what they can and cannot do. Yet courts have no mechanism for actuating their decisions. They cannot arrest, imprison, or collect fines. President Jackson captured it with a famous quip about Chief Justice Marshall: "[he] has made his decision; now let him enforce it!" (31)

   Notwithstanding President Jackson, many officials in many contexts comply with judges' orders. Why? Under what conditions will "people with money and guns ever submit to people armed only with gavels?" (32) Scholars have offered many answers. (33) We focus on one theme from this literature: judicial legitimacy. This concept underpins our original claims, which we develop beginning in Part II.

   1. The Meaning of Legitimacy

      What is legitimacy? The term is loaded, and scholars use it in different ways. (34) We focus on one particular form of legitimacy: sociological. (35) Institutions have sociological...