In the first post of the day —
"Jonathan Turley's civility bullshit about my calling 'bullshit' on his Court-packing plan" — I said some things about why I don't give powerful speakers the insulation of so-called "civility" and about the interplay between big journalism and the law professoriat. Not wanting to go unbloggily overlong, I said I'd do a second post parsing the details of Turley's blog post criticizing me for criticizing his proposal to enlarge the Supreme Court to 19 Justices. I call it...
This might need to go a bit long, so let's go to an inside page.
Turley's post is titled
"The Limits of Civility: How A Proposal On Reforming The Supreme Court Unleashed A Torrent Of Personal Attacks." Unleashed! Torrent! Personal! Attacks! You see how he goes big and emotional, not sober and restrained at all? He's a victim. But, I wonder, will there be any personal attacks made on me? I called his
idea "bad" and his
reason for it "bullshit." I rejected his implicit admiration for the utilitarian philosopher Jeremy Bentham, and I said he'd made an analogy that was "one of the worst... I'd ever seen." But
I didn't make any personal attacks. Ironically, it's a personal attack on me to accuse me of making a personal attack. I attacked his
ideas, not his person, but I did it with sharp language that was meant to hurt and did. He chose to respond in a personal way. Why? Because he can't or won't defend his ideas? Or is he simply taken aback that a law professor would attack with concision and ferocity?
On to the body of the Turleypost:
As many on this blog know, I rarely respond to criticism of columns that I run in USA Today or other newspapers. As a columnist, I feel that I am given a rare opportunity to express my views and criticism comes with the territory. However, I was taken aback by many of the comments in response to my Sunday column in The Washington Post discussing my proposal for the expansion of the United States Supreme Court.
Why
don't you normally respond to criticism? You take your high platform in mainstream media. You profess from that position, and the little people who carp about it may not seem worth your time. But now you will bother. Why? It seems that blogging has raised a few people to a significant enough level that it matches the perch you got from the Washington Post.
Though the proposal was given serious and supportive reviews by some sites like Forbes, some conservatives immediately assumed that I was a liberal simply upset with the anticipated ruling striking down the individual mandate provision of the health care law. When another law professor and blogger (Ann Althouse) joined this ill-informed and uncivil chorus, I thought I would respond.
I
didn't assume he was "a liberal simply upset with the anticipated ruling." What if
he hadn't read
my words carefully and he was attributing to me the things he believed he was hearing from a "chorus"? That would make
him ill-informed. That would be ironic. And, as we shall see, that
is what he is doing.
This blog has always strived to maintain a strict civility rule — distinguishing it from many other blogs by discouraging and sometimes eliminating ad hominem and personal attacks.
But you just hurled a series of insults at me. I only attacked your
ideas. But I myself don't preen about civility. I do what I do. It is what it is. And I leave it to the reader to figure out what it is. I have my standards, but I don't brag about how lofty they are. Turley trumpets his "strict civility rule," and he's already violated it.
Yet, I am still surprised by the lack of civility and responsibility by many — particularly fellow lawyers and academics — in responding to such proposals.
I'm not surprised that he's acting surprised, that he imagines he's a model of civility, or that he's making mistakes about me without noticing, or that he expects lawprofs to defer to other lawprofs. I find that all crushingly predictable. Can we get to the substance? I mean, my kindergarten teacher used to say "Ann, I'm surprised at you!" It hurt my feelings. But I'm old now, and I don't have much time.
[Update: Professor Ann Althouse has responded to my call for greater civility with a new blog entitled "Jonathan Turley's civility bullshit about my calling "bullshit" on his Court-packing plan." (Apparently both civility and factual accuracy fall into the same "BS" category for Professor Althouse). Notably, Professor Althouse does not address the fact that she was completely wrong in claiming that I was motivated by dislike for the anticipated ruling striking down the individual mandate in the health care case.]
And Professor Turley does not hurry to add that my new post includes a statement that I'm going to write another post — you're reading it now — in which "I'll respond to more of Turley's long, professorly post which denies that his Court-packing plan arises out of a distaste for the Supreme Court's opinions." Notably, Professor Turley does not address any of what I
did say in that post.
And speaking of "completely wrong," I never said he was motivated by his dislike for the anticipated ruling in the health care case. He has this long, long post about me, perseverating about how I have not read and understood him, but he has yet to read
my writing with much care at all.
My original post accused
the Washington Post of pushing the Court-packing proposal "in anticipation of the Obamacare decision." I'm saying that Turley was given an op-ed spot to promote his theory, last Sunday, because of the impending Obamacare decision, which WaPo is advance-spinning. It would be damned hard to deny that inference, and I stand by it. I then quote Turley saying "The health-care decision comes 75 years after the famous 'court packing' effort of President Franklin D. Roosevelt.... Roosevelt may have had the right idea for the wrong reason," and I assert that my belief that Turley has the essentially the same reason: "You don't like the opinions."
The opinions. That's a large, nonspecific category. I do infer Turley wants to diminish the power and prestige of the Court, but I'm not focusing on a particular case in the future.
Back to Turley:
The column generated a torrent of comments (roughly 1100 on the Post site alone). Many of these comments came from conservatives who immediately assumed that I was a liberal law professor who was just proposing this reform because I expected to the Court to rule against the health care law. Others asked why I did not propose this in the past and just suddenly called for an expansion on the eve of the health care decision.
That's not about me. I guess that's the "chorus."
Just to set the record straight.
First, before the health care law was passed, I spoke on Capitol Hill and expressed my personal opposition to the individual mandate law on federalism grounds though I felt that the Administration would have the advantage in the lower courts due to the current precedent from the Supreme Court. I then wrote and spoke against the individual mandate provision in columns, blog entries, and speeches....
Turley only links to one column, and it
doesn't say the individual mandate is unconstitutional. It merely states that there's a constitutional question that the courts will have to resolve. He's being very bland! (Actually, it's the same kind of restraint
I've shown on the issue.)
Back to Turley:
Second, I did not just come up with this proposal on the eve of the decision. See, e.g., “Unpacking the Court: The Case for the Expansion of the United States Supreme Court in the Twenty-First Century.” 33 Perspectives on Political Science, no. 3, p. 155 (June 22, 2004). I proposed the expansion of the Supreme Court over ten years ago. I have discussed the reform with members of Congress and it has been debated in prior years.
2004... 2002... this is post-
Bush v. Gore and post- a lot of cases that have led the law professoriate to work on ways to limit the power of the Court. I don't know (or assert that I know) the details about which cases bother Turley, but
to resort to Wikipedia, he is "frequently regarded as a champion of liberal and progressive causes," he's appeared frequently "on
Countdown with Keith Olbermann and
The Rachel Maddow Show," and he "has called for criminal prosecution of Bush administration officials for war crimes." I don't think my inference of his hostility to the Court's opinions is wrong, and I stand by my suspicion that his desire to dilute the power of Supreme Court Justices arises out of — remember my exact phrase — "a distaste for the Supreme Court's opinions."
Turley goes on:
Third, I have often agreed with the conservatives on the Court in its most controversial decisions. For example, like many in the free speech community, I agreed with the holding in Citizen’s United even though I disagreed with parts of the decision’s analysis and language. I have also said that I felt Arizona has a strong case on the immigration matter in claiming the right to enforce federal laws on illegal status.
Fine. I can see he's not the most predictably left lawprof in the academy. I never said he was.
Finally, the criticism of these readers and Professor Althouse below appear based on an assumption that the expansion of the Supreme Court would predictably add liberals.
Now, you're making inferences about me, so I guess inferences are okay. I made mine and you made yours. I'll set a good example by treating your assumption as a request to say whether that's what I really think. I don't!
There is no reason to make such an assumption since the expansion is spread over a decade.
I know that's the proposal, and I quoted your language to that effect in my original post. Without that slow phase-in, the proposal would be truly ridiculous (an obvious, partisan power-grab).
Moreover, the Senate is expected to either continue to be split roughly evenly between the parties or actually go Republican in the next election. There is certainly no reason to assume that the additions to the Supreme Court would include candidates to my liking.
Oops! He just admitted he wants liberals. Also, let me point out that it's Republican Presidents who've been disappointed by appointees who turn liberal. In recent years, we've seen Blackmun, Stevens, and Souter skew far from the politics of the Republican Presidents who appointed them. When's the last Democratic President whose appointee skewed conservative?
Indeed, I criticized Obama’s selections. I do believe that additional justices will add a diversity of experience and viewpoints regardless of philosophical leanings.
I agree the Court lacks diversity. (For example: no Protestants.) But I think more Justices will mainly dilute the significance of the position. As Turley ended his op-ed: "the power of individual judges is diluted." You get more of a faceless panel of legal experts, much less of a sense of particular human beings making decisions.
After a couple of decades writing as a columnist and doing legal commentary, I have no illusions about people writing anonymously about articles or positions. The Internet often seems to unleash the most vicious side of people who seem to believe that they are relieved of basic decency or civility by anonymity. However, I was surprised by lawyers who made these baseless claims, including claims that are directly contradicted in the article (like the notion that one president would appoint all ten justices or that the number was simply selected arbitrarily). A simple search on the Internet would have shown that I am in fact a critic of the health care law.
You have already made statements about me that are directly contradicted by the blog post you are talking about. So this hand-wringing about what
other people do is annoying. But hang on, because next is the part about me:
That brings us to University of Wisconsin Professor Ann Althouse who ran a blog blasting my column. Althouse makes the point in her headline: “Don’t like the Supreme Court’s decision? Propose a Court-packing plan!” She then states the column pushes for the packing of the court “in anticipation of the Obamacare decision.” She responds to the proposal with “Oh, spare me the bullshit. It’s the same reason. You don’t like the opinions. It was a bad idea then, and it’s a bad idea now.” I must confess that, when one of our regulars sent me this link, I was taken aback.
There's that word "aback" again. How many times does he need to tell us how emotional he got over the criticism? I mean, talk about bullshit. I don't really believe the Turley vapors come on that easily. Why is he begging readers to feel sorry for him? I suppose the answer is that he wants readers to get mad at me. Aren't I terrible? He had an op-ed in the WaPo and
I... I... criticized it!
I do not expect such ill-informed and uncivil attacks from a fellow academic. While Althouse writes a conservative blog....
Wait! Wait! Wait! Now, now, you wouldn't! You
wouldn't commit the very offense you accuse me of? Ah ha ha. Too rich! Too funny!
... and has been something of a lightning rod in the past, I would have thought that she would do a little research before going after another professor.
And I wouldn't have thought that you, a law professor, would talk about me not doing a little research before talking about me, a law professor, not doing a little research before talking about me (a law professor!). I write a
conservative blog? You mean the one where I wrote about why I voted for Obama? The one with 300+ posts favoring same-sex marriage? The one that consistently supports abortion rights?
In reality, I am calling for the expansion of the Court despite the fact that I would agree with the anticipated decision from the Court striking down the individual mandate. It is precisely the opposite of what is being suggested. Even though I expect to be on the winning side, I still do not believe it should be left to a single swing justice.
And, as explained above, I did not say one word about what I thought you thought about the health-care case. Think you might want to back off? You really deeply committed to this. It seems to me that you just don't want to hear any suspicion that your Court-packing proposal has a motivation based on the substance of the Supreme Court's opinions.
I understand that some bloggers are given to hyperbole like Althouse asking “If the greatest good is in the greatest number, why not 100? Why not 1000?” — even though the column (and longer original article) addresses this question with reference to how en banc appellate courts work and more importantly the high courts of other countries.
It was mockery based on your statement "sometimes the greatest good can be found in the greater number." Since you admit a desire to dilute the power of judges, it was fair criticism to link this idea of yours — the superiority of the greater number — to the hypothetical problem of majoritarian decisionmaking about what the Constitution means (which would be antithetical to the idea that it is the role of the judges to say what the law is).
(I must confess that I find it odd to see the arbitrarily selected number of 9 defended by objecting that adopting the average size of other top courts is arbitrary).
I didn't say it was
arbitrary. I didn't delve into the comparison to circuit courts, but if you want to know, I think it's a bad comparison, because what the Supreme Court does in its ordinary cases isn't like an entire circuit of Courts of Appeals judges, who only occasionally come together for an en banc decision. Ordinarily, Courts of Appeals judges decide cases in 3-person sets. Those case-deciding units are one-third the size of the Supreme Court, so we learn, if anything, that a smaller decisionmaking group is better. In other words, the Supreme Court is
already expanded.
It is the allegation that I am just making this proposal due to my opposition to the expected decision that is beyond the pale in my view.
Your view is bad. You're hearing a "chorus" and seeing beyond "the pale." Wake up. Sharpen up.
I understand that we cannot always control comments on our blogs (and free speech allows for considerable room of expression), but such attacks do not present a particularly good model for our students.
Yeah, so you need to stop. You, with the "strict civility" rule.
In her response to my call for greater civility and responsibility, Althouse responds by calling civility “bullshit” and says that she is “merely passionate and serious.”
Professor Turley, you have put something in quotes that
is not a quote. I said "I am passionate and serious about what I am doing...." I didn't say I was "
merely passionate and serious." I am many other things too, including fun-loving. And law-professor-ass-kicking. You're being such a stickler that you are making yourself into such a big target that this isn't even fun. What I am
passionate and
serious about is, as I say right there, "speaking clearly" and showing my readers things they might find it hard to see, such as how law professors, facilitated by elite media, try to trick them with words. That's what
bullshit is.
I am passionate and serious about calling bullshit on law professors. And I'm doing it again.
Rather than simply admit that she was wrong...
Because I wasn't!
... in suggesting that I was motivated by opposition to the expected ruling invalidating the individual mandate provision and a failure to simply confirm my position (which has been widely cited supporting the challengers), she again portrays the column as another example of how the Washington Post publishes columns “from law professors to launder its partisan politics into something with that looks scholarly and thoughtful.”
Hey, how about proving your good faith by
simply admitting you were wrong? And show me you understand that I'm saying the
Washington Post was using you, with your theory,
at a particular time for a particular reason. You're essentially discounting this point as if it's only a distraction that I'm putting up to keep from admitting I was wrong (which — have I ever told you? — I wasn't).
It appears that “passionate and serious” includes falsely stating another professor’s positions on cases as the basis for a personal attack.
No, but I will
passionately and
seriously say right now that you are misstating what I have said.
Indeed, Professor Althouse has yet to inform her readers that she was wrong in suggesting that I disagreed with the conservatives in the health care litigation (and that my proposal was motivated by that opposition).
You disagreed with the conservatives?
Ahem.
She merely states that “In a later post, I’ll respond to more of Turley’s long, professorly post which denies that his Court-packing plan arises out of a distaste for the Supreme Court’s opinions.”
What is the function of the word "merely" for Turley? Could it be...
bullshit?
Of course, the obvious suggestion was that the column was timed to anticipate the health care decision — a common theme in comments on her blog. I am not sure what “distaste for the Supreme Court’s opinions” means (though Professor Althouse’s reference to my dislike for a “decision” is now distaste for “opinions.”).
Oh! See, after all that bullshit, he's finally noticing my actual words. With his strict civility rule and staunch demands for accuracy, you might think that after he wrote
that he'd realize that he needs to rewrite everything he's just said about me. Why didn't he?! Where is the
civility? He's "not sure" but he can't make the mental effort to read the actual words of my original paragraph (even as amplified in this morning's post). Hello? Fellow law professor?! I said that
the Washington Post decided to run this op-ed in anticipation of the Obamacare decision and that I presume that
you have a distaste for (unspecified) opinions.
We all disagree with some of the Court’s decisions — even though I have agreed with the majority of the decisions from this Court. I often side with conservatives on federalism and other areas while disagreeing on other areas like free speech and criminal cases. I disagree with the liberal justices on other cases, but I am not motivated by a desire to pack the Court with libertarians (which is widely cited as closer to my own views on many issues) rather than liberals.
Fine. I still suspect that your desire to dilute the influence of individual Justices arises from a distaste for the substance of their work and not merely — merely! — from some wholly neutral, disembodied structural conception of decisionmaking supposedly modeled on en banc Court of Appeals decisions.
It would make no difference to me if this was the Warren Court. It is in my view demonstrably too small. While it may seem highly improbable in today’s rabidly political environment, it is possible to make such a proposal out of principle.
With or without rabies, the human mind does not operate in a substance-free vacuum.
Moreover, in a term with a series of 5-4 decisions on major cases and polls showing an increasingly unpopular Supreme Court, the proposal is obviously relevant to the current debate.
I have spent over ten years advocating for the expansion of the Court even though I often agree with the rulings of swing Associate Justice Anthony Kennedy. Putting aside the possibility that my proposal is based on principle rather than partisanship, I have never encountered a law professor advocating for incivility as a type of personal signature (a reaction shared by other leading legal bloggers like Scott Greenfield). I was hoping that raising the issue would result is a bit of self-reflection and possible dialogue on the loss of civility in our national discourse. While I did not expect an apology from Professor Althouse, I did not expect an academic to affirm the value of name calling and incivility — even when the blog is shown to be wrong on critical allegations.
And I don't expect an apology from you either. I've read what you have to say and given my response. I'd like to see you truly engage with the
substance of what I've written about you. And feel free to keep talking about
the form of what I've written. You've got a thing about
form instead of
substance. I care about form too. I care about sharp and interesting writing, and I intend to keep it sharp. And when that sharpness hurts elite law professors, I'm fine with it.
My only point is that the overall commentary following the column shows once again how we have lost the tradition of civil discourse in this country. The tendency today is to personally attack people with whom you disagree...
Remember your idea about "a bit of self-reflection"!
... and suggest hidden agendas or conspiracies.
That sounds sinister, but what does it say about me? Of course, I don't take things at face value!
Of course, I don't assume people only mean the things they are willing to put in writing! Law professors (and lawyers and judges and politicians) use words to manipulate people all the time. What I do on this blog is to try to pull apart those manipulations. With me, that's not just a "tendency." It's a mission.
I am always delighted to see spirited debate following a column, including those with whom I disagree. As in a classroom, I value the debate for its own sake — forcing people to consider alternative views and possibilities. The current tendency to shout down other voices with shrill or sophomoric attacks is degrading our politics and our society.
Oh, bullshit!
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