June 22, 2012

How can the Supreme Court escape from the perception that it's partisan?

Lawprof Barry Friedman is working on the theory that people have lost trust in the Court (or so the polls show) because they perceive the Court as political. (Friedman stresses that politics is different from ideology, ideology being something one actually believes in.)

Okay, so if the Court cares about the public's disapproval and wants to do something about it — which would be, ironically, political — then the Court should work to deflect the perception that it is political.

Well, then, the question becomes why do people perceive the Court as political? One answer is: Because it is political. In which case, people should be congratulated for their perceptiveness. Nice going, people. You are not dupes. But that's me saying that.

What Friedman is saying is that certain cases are making people see the Court as political. What cases?
Basically, Citizens United. Why do people think the Court is political because it valued free speech rights above a congressional effort to squelch speech 60 days before an election? Because elite lawprofs like Friedman have been telling people over and over that Citizens United was political, and you know how much people trust elite lawprof commentators... manipulating the perceptions of American people since... never.

Let's back up a minute. Citizens United came in 2010, the year that "marked the beginning of the current downward slide." Here's something else that happened in 2010: Elena Kagan joined the Court. The year before, Sonia Sotomayor joined. 2 Obama appointments in 2 years. Friedman talks about those 2 appointments, but only in the context of saying that after Kagan replaced Justice Stevens, it became true for the first time since 1953 that all the liberals are appointees of Democratic Presidents, and all the conservatives are appointees of Republican Presidents. (Stevens had been appointed by Gerald Ford and, Souter, whom Sotomayor replaced, had been appointed by George H.W. Bush. You have to go back really, really far to get to a Justice who went conservative on a Democratic President!)

Friedman concludes:
The more justices are seen as making decisions on partisan issues and the more cases are decided along the current 5-4 Republican-Democrat divide, the more the public will disapprove. 
See how that works? There are 5 conservatives and 4 liberals. The liberals, though they are the minority, need to win a whole lot more if the Court wants to recover the approval of the people. And that — if the Court were to buy it — would shift the Court to the liberal side without needing another appointment.

But here's the test of Professor Friedman's actual belief in his theory. What if President Obama gets the opportunity to replace one of the 5 conservative Justices? Would Friedman publish an op-ed pressuring the liberal Justices to vote with the conservatives in order to bolster respect for the Supreme Court? Or would he be cheering hooray for the liberal majority?

Oh, it's not that I think he (and his fellow elite lawprofs) would publish op-eds saying that out loud. I just think we'd be flooded with academic-sounding praise for all the thoughtful, well-reasoned opinions.


JSF said...

The Left have tried to delegitimize SCOTUS since December 2000.

It's like Ezra Klein wanting to abolish the Filibuster then the Senate, if the Rules work against the Left, Change the rules!

Hagar said...

Mr. Friedman suffers from Pauline Kael syndrome?

YoungHegelian said...

Has the Left forgotten what the Supreme Court did to southern culture when they ruled segregation unconstitutional? They turned southern culture upside down!

Why? Because that was what the law required. Segregation was unconstitutional, and the edifice built upon it had to be torn down root and branch.

And, now, it's the Left's hobby horse that's on the chopping block, and they're all whiny about how political it all is.

It really sucks to get pushed around by 9 lawyers in robes, doesn't it? Maybe you should have thought about that earlier.

gadfly said...

The court obviously was not political when it found imagined language in the Constitution to justify baby killing in Roe V. Wade.

wyo sis said...

Laws are like that innit? They sometime work for you and sometimes against you. Damn justice anyway. Can't we do something to change that?

Unknown said...

This is a new media phenomenon. The instant news cycle prompts the left to harbor the desperate hope that they can somehow influence SCOTUS by politicizing it, all the while accusing it of political bias.

Absurd, but fine. I do believe that the justices receive lifetime appointments. What remedy is being intimated? Vote for the President because he's only had time to appoint two politically correct justices?

I love the smell of leftie flop sweat in the early evening--smells like hell, but does presage victory.

Carol said...

My dipshit state is going to have a referendum on the ballot this Nov that would enable us to stamp our collective little feet!1!! about how we hate hate hate Citizens United because corporation is not a person!

But the initiative saying a fetus was a person got shot down.

Wally Kalbacken said...

To quote G. Gordon Liddy, "The secret is in not caring."

Jaske said...

Talk to George Lucas, is there any less fantastical past?

Bender said...

people have lost trust in the Court (or so the polls show) because they perceive the Court as political

Again, a substantial proportion of the American people totally lost any trust in, and respect for, the Court nearly 40 years ago.

And the lefties are only now noticing it??

Revenant said...

To quote G. Gordon Liddy, "The secret is in not caring."

Isn't that Bob Woodward quoting Deep Throat quoting G. Gordon Liddy?

The line's stolen from Lawrence of Arabia, anyway. :)

ricpic said...

Corporations? Evil corporations can contribute as much as noble unions? We can't have that! Snap out of it, Court!

edutcher said...

The public hasn't liked the Court since school prayer was struck down.

The Lefties are whining now because, with 4 Justices on the Court handpicked by hard Left Administrations, they still can't win.

ricpic said...

Frankly, I haven't liked the Court since Brown v Bd. of Ed. None of their holier than thou business. Not constitutionally that is. Little kids sent on hour long bus rides across town and for what? For judges to polish their I'm so holy stars.

Saint Croix said...

"How can the Supreme Court escape from the perception that it's partisan?"

They can't. The Justices not only injected themselves into the abortion wars, they started the damn war.

Pro-lifers are right about Roe v. Wade. And even if we're wrong, by God we're pissed off.

The piddling upset of a Barry Friedman is nothing compared to hundreds of thousands of protesters showing up at your door once a year.

I don't think tweaking your jurisprudence so it's more textualist and legalistic is actually going to save your reputation when you have blood on your hands. I'm so pissed I call Scalia names.

In the past the Supreme Court relied on black robes for authority, their unelected status, big Latin words like "fetus," and Pravda-like non-coverage of their infanticides.

But now we have the internet. We're free, like the Chinese. Any and all citizens can now see the results of this so-called "Constitutional jurisprudence." And you don't need a law degree to be appalled by facts.

In the future, if the Court wants to avoid partisan battles, I would suggest not writing about free-floating fetal heads and how difficult they are to grasp and remove. Or defining the handicapped as "anomalies" and bragging about how 90% of them are now terminated. Using vicious and anti-human rhetoric that suggests the unelected branch has been overrun by sociopaths, that's another no-no.

I believe the left manages to get 20 or so protesters to show up at its astroturf functions, no doubt paid for by union dues. Barry "Who?" Friedman no doubt thinks the might of the occupying army will bring the Supreme Court to its knees. Uh, no. The only people who are unhappy about that right-wing movie that wasn't censored are morons who don't actually like free speech.

Most Americans do like free speech. But we also like babies, and the Supreme Court's infanticide work is going to keep them in the hot seat for the foreseeable future.

The entire USA--the entire world--knows about Roe v. Wade. It's the bad opinion that is never resolved. It's the elephant in the room. It's the reason Bork was borked and Thomas was lynched.

Now the Supreme Court wants to avoid partisan attacks? Ha! All they can do is give up, and kick the fight out into the political branches. And then duck their head whenever anybody yells "baby-killer" at them.

Luke Lea said...

So was the Dred Scott decision political? Or just a Constitutional disaster?

Left Bank of the Charles said...
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Left Bank of the Charles said...

The majority on the Court could set a few clerks on the task of finding quotes from the articles of leading critics in the law schools to cite favorably in its opinions.

That's what the Yale guy wants, a few citations that make him feel like he is part of the legal conversation.

If only one the conservatives Justices would cite him, that would validate his entire career. A cite from a Kagan or a Sotomayor is just not as good in his eyes as one from a Thomas or Alito.

susan said...

The left has made an all-out war to control every thought, every narrative, such as constant harping on the ideology of the Court. It works, too. They humiliated Sandra Day O'Connor enough that she went to work helping the left after she left the Court. As for the schools, "We got the school books," said Todd Gitlin. And of course they have Hollywood and the media. The right didn't even know a war was going on until it was too late. If people hear the president of the US scold Supreme Court Justices on prime time television like they were a bunch of idiots-instead of his equals and invited guests- what else are people to think? Over time you can get people to believe anything. Most people in Egypt believe you should be stoned to death for adultery (Pew Poll).

Michael K said...

"Pro-lifers are right about Roe v. Wade. And even if we're wrong, by God we're pissed off. "

That decision was the one that convinced me that politics was the topic. Roosevelt found out how tough it is to take on the court even if the public is sympathetic.

Bob_R said...

This is so transparent I was trying to imagine a group of people gullible enough to buy. And then it hit me. He talks to Yale law students all the time.

Brad said...

@ Ann ....

Do these people really believe this stuff - or are they just trying to manipulate things to get results they like?

I know how lawyers work (I are one ... :) ) - we can usually argue any side of any issue toward the result our "client" wants.

IMO, Friedman wants liberal opinions.

Bender said...

The Court's description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. . . .

Roe's mandate for abortion on demand destroyed thecompromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. . . . to portray Roe as the statesmanlike "settlement" of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. . . .

The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges--leading a Volk who will be "tested by following," and whose very "belief in themselves" is mystically bound up in their "understanding" of a Court that "speak[s] before all others for their constitutional ideals"--with the somewhat more modest role envisioned for these lawyers by the Founders. . . .

--Scalia in dissent, Casey v. Planned Parenthood

Bender said...

I cannot agree with, indeed I am appalled by, the Court's suggestion that the decision whether to stand by an erroneous constitutional decision must be strongly influenced--against overruling, no less--by the substantial and continuing public opposition the decision has generated. The Court's judgment that any other course would "subvert the Court's legitimacy" must be another consequence of reading the error filled history book that described the deeply divided country brought together by Roe. . . .

But whether it would "subvert the Court's legitimacy" or not, the notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening. It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the Constitution has an evolving meaning, see ante, at 6; that the Ninth Amendment's reference to "othe[r]" rights is not a disclaimer, but a charter for action, ibid.; and that the function of this Court is to "speak before all others for [the people's] constitutional ideals" unrestrained by meaningful text or tradition--then the notion that the Court must adhere to a decision for as long as the decision faces "great opposition" and the Court is "under fire" acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be "tested by following" must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change--to show how little they intimidate us.

Of course, as the Chief Justice points out, we have beensubjected to what the Court calls "political pressure" by both sides of this issue. Ante, at 21. Maybe today's decision not to overrule Roe will be seen as buckling to pressure from that direction. Instead of engaging in the hopeless task of predicting public perception--a job not for lawyers but for political campaign managers--the Justices should do what is legally right by asking two questions: (1) Was Roe correctly decided? (2) Has Roe succeeded in producing a settled body of law? If the answer to both questions is no, Roe should undoubtedly be overruled.

--Scalia continued

Bender said...

The final nails in the coffin --

In truth, I am as distressed as the Court is--and expressed my distress several years ago, see Webster, 492 U. S., at 535--about the "political pressure" directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today's opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls "reasoned judgment," ante, at 7, which turns out to be nothing but philosophical predilection and moral intuition. All manner of "liberties," the Court tells us, inhere in the Constitution and are enforceable by this Court--not just those mentioned in the text or established in the traditions of our society. Ante, at 5-6. Why even the Ninth Amendment--which says only that "[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people"--is, despite our contrary understanding for almost 200 years, a literally boundless source of additional, unnamed, unhinted at-rights," definable and enforceable by us, through "reasoned judgment." Ante, at 6-7.

What makes all this relevant to the bothersome application of "political pressure" against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here--reading text and discerning our society's traditional understanding of that text--the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U. S. ___ (1992); if, as I say, our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school--maybe better. If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. . . .

We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.

--Scalia in Casey dissent.

Sydney said...

Thanks for posting that, Bender

caseym54 said...

The Court should take every effort in the ACA case to demonstrate it is above politics. SInce the votes seem to be 5-4 in favor of striking the law down, the minority should eschew politics and vote with the majority, making the decsion unanimous.

Problem solved.

leslyn said...

Bush v Gore is a better example. Deep polarization.

leslyn said...

Roe v Wade is social policy. Bush v. Gore is politics.

Seven Machos said...

What in the fuck is the difference between social policy and politics, moron?

Thomas W said...

5-4 decisions are obviously political. Like last week's decision with Ginsberg, Kagan, Sotomayor, and Scalia dissenting.

CWJ said...

Sorry Revenant.

The Lawrence quote is "The trick, William Potter, is not minding that it hurts."

Close but no cigar.

Saint Croix said...

Bender, I liked Scalia's dissent when I was in law school. Now it annoys me. It's so focused on the judiciary. Like that's the big problem with Roe v. Wade, what it's done to the Supreme Court's reputation.

Consider this part of Scalia's dissent:

That is, quite simply, the issue in this case: not whether the power of a woman to abort her unborn child is a "liberty" in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the "concept of existence, of meaning, of the universe, and of the mystery of human life." Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected--because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.

One thing Justice Scalia is doing here is assuming that the majority is right and abortion does not concern a baby. His sole objection to Roe v. Wade is that abortion is not mentioned in the Constitution. Thus it’s like bigamy. For that matter, it’s also like dirty dancing, soccer, or building a rocket to the moon. “The Constitution says absolutely nothing about it.”

Scalia is right only if a baby in the womb is indeed a commodity. He’s talking about an alleged right to do an action. And he’s ignoring the pro-life charge that a human life is at stake. So when our Constitution says that no person shall be denied “life…without due process of law,” that has nothing to do with abortion. And when our Constitution says that no person shall be denied “the equal protection of the laws,” that has nothing to do with abortion, either.

In Scalia’s view, the Supreme Court has not denied a baby’s right to life. Nor has the Supreme Court denied a baby the equal protection of the laws. That baby doesn’t exist, and it never did. It’s not even a tough issue for Scalia, apparently. “The Constitution says absolutely nothing about it.”

Saint Croix said...

And I find this part of Scalia's argument to be particularly appalling:

Thus, whatever answer Roe came up with after conducting its "balancing" is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is of course no way to determine that as a legal matter; it is in fact a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so.

Scalia seems to be suggesting here that Oregon can send the "incompetent elderly" off to the gas chamber, and Massachusetts can start killing newborns if they want to.

All he's really doing is negating the equal protection clause and trying to get abortion off his docket. He's approaching this issue like Frankfurter or Harlan.

But in other contexts Scalia is a textualist, far closer to Hugo Black's jurisprudence. A textualist is very unhappy that the Supreme Court has defined a baby in the womb as property. It literally took me decades to figure out that is what the Court has actually done. I've been using terms like "legaL non-person" or "commodity." But of course a baby belongs to her mother. So by defining the baby as a legal non-person, a sub-human, you are only recognizing property rights.

The reason "property" is such an important word is that it makes clear the ugly arguments in the case. On one side, the people who insist that babies are people, and humanity must not be denied. On the other, people who are determined to treat these babies as property, and nothing more than property.

Scalia is literally suggesting that the judiciary cannot resolve the human status of a baby. Or the "incompetent elderly." I want to throw a book at his fucking head.

Saint Croix said...

Scalia's arguments are almost entirely designed to get abortion off the Court's docket. His primary concern is for his own institution. Does not care about the baby's life. Does not think about the baby's life. Refusing to think about the infanticides. He is not upset. He is not unhappy. His desire is to remain unemotional and above it all. He wants to seem logical, and rational, and cold.

But it is this coldness--what I think of as a symptom of sociopathy--that is responsible for the infanticides in the first place.

What the Supreme Court needs is an emotional pro-life liberal who gets really upset at the idea of baby-killing. I'm up to here with these Ivy League intellectuals who refuse to feel anything because their institutional authority is their primary concern.

You're denying humanity, Scalia, you fat fuckwit.

Consider, too, that Scalia accepts the baby's definition as property in order to keep the peace on the Supreme Court. It simply would not do for half the Supreme Court to define the baby as human and the other half to define the baby as property. They would have trouble shaking hands and eating together at lunch. No, clearly the most important thing is that the Supreme Court is collegial.

"Let us all define the baby as property and just get this little brouhaha off our docket, shall we?" That is Scalia.

James Pawlak said...

Politics = Democracy

Saint Croix said...

Calling Scalia a "fat fuckwit" is denying his humanity. That's why insults upset us. It's why insults are bad. You deny somebody's humanity and reduce them. It's why we don't like "cunt" or "dick" or "asshole" or any of our other insults. They dehumanize. And we like to think our humanity is special. Recognizing humanity is the basis of our liberal society.

Denying humanity is how wars start. The first thing we do in any war is dehumanize our enemies. We convince ourselves how evil they are and how they need killing. We become very emotional. War is an emotional time.

If you want to avoid a partisan divide (and politics is war by peaceful means), the way to do that is to recognize that we're all human beings. Brotherhood. Sisterhood. We're all part of the big human family, yes? You recognize common humanity if you want peace.

Denying humanity is the cause of our partisan divide.

You want peace? Lay down your knives and your poison and close up your death clinics. Make love with love in your hearts and understand that a baby might show up. Respect that.

You want the partisan divide to go away, Supreme Court? Respect our humanity. And if you can't do that, if you insist that you don't know what a "person" is, then fuck you, asshole. You lying, piece of shit, motherfucker...

TMink said...

"How can the Supreme Court escape from the perception that it's partisan?"

Perception is literally in the eye of the beholder. It is a fool's errand to try to casually interrupt a person's subjectivity. It is best done in the context of a caring relationship. And even then, we almost have to want to change.

But the court should just follow that constitution thingy and frack the rest.


TMink said...
This comment has been removed by the author.
jimpbucher said...

A much more reasoned—and reasonable-article on the same topic.


leslyn said...

Scalia is literally suggesting that the judiciary cannot resolve the human status of a baby. Or the "incompetent elderly." I want to throw a book at his fucking head.

Maybe Scalia thinks resolving insoluble human dilemmas has something to do with law.

In any case, your anger is hard to understand since Scalia has become more social- and less law-oriented as time has gone by, and he's on your side.

Saint Croix said...

Maybe Scalia thinks resolving insoluble human dilemmas has something to do with law.

Yeah, that sounds like something Anthony Kennedy would say. Scalia would mock that.

In any case, your anger is hard to understand since Scalia has become more social- and less law-oriented as time has gone by, and he's on your side.

I am on the baby's side.

Scalia defines babies as sub-human, as property. Even in the Carhart case, when the baby is outside the womb, it does not occur to Scalia that maybe the equal protection clause has something to say about these homicides sanctioned by his institution.

Scalia seeks cruel neutrality. To recognize the baby's life is partisan. To define the baby as property is partisan. Scalia is like Switzerland. Scalia votes "present".

He is not a hero, and history will not remember him as a hero.

Saint Croix said...
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wayne said...

What if it's 6-3 or 7-2? Is that political?