March 14, 2015

A proposed Women-of-the-Supreme-Court Lego set is rejected as a violation of Lego's policy against "politics and political symbols, campaigns, or movements"...

Legal Justice League - Women of SCOTUS by pixbymaia


... which prompts NPR to delve into whether what the Supreme Court does is (or looks like) politics:
"I honestly understand having a policy in place like that," said [science journalist Maia Weinstock, who designed the set]. But Weinstock said she looked at the policy before submitting and didn't think that her project was political.

"The U.S. Supreme Court is supposed to be separate from political considerations," she said. "People are appointed for life specifically so that they don't answer to the changing whims of politics."
Of course, that's especially silly when you are celebrating the presence of women on the Court. They are there because Presidents appointed them, and it's obvious that the final selection from the pool of qualified candidates is political. Ronald Reagan had made it a campaign promise that he would appoint the first woman to the Supreme Court. And when has any President simply nominated the person with the best judicial mind or some such entirely neutral concept?

Whether the Supreme Court is removed from politics is a point of great debate, and many — on both sides — disagree with Weinstock's view.
Once Justices are on the Court, the question whether they are or should be removed from politics remains continually in play, so in that sense, the Court can never escape politics. Quite apart from that, constitutional decisions — even if they could be made according to some strictly neutral form of analysis — determine whether things will be removed from or left to majoritarian politics and, in that sense, the work is inescapably political.

In constitutional law much is made of the special role of the courts in saying what the law is, but in Lego law, it is emphatically the province and duty of Lego to say how the policy applies. And in NPR world, it is the province of NPR to interpret the interpretation:
Lego seems to side with the growing American sentiment that the court is becoming increasingly political.

The company did not return a request for comment, but it did tell The Daily Beast: "It's true, as a children's toy brand, we refrain from any associations with active or current politics. Cases in which the LEGO brand are used in this manner have historical context. Any contemporary political association of the LEGO brand is unofficial content that is generated by enthusiasts and not endorsed by the LEGO Group."

But Weinstock maintains that her creation was intended to transcend politics.

"The other major consideration for me is that I thought it would be a wonderful opportunity to highlight the history of women in the United States, and especially in law," she said. "I later learned after I submitted that a relatively small number of women are actually lawyers in this country. And as you go up the ranks higher and higher through our judicial system, the percentages get even fewer and fewer."

"And frankly," Weinstock added, "I thought it would be awesome to have a Latina justice. There are very few Latin American role models in toys that I know of."

Of course, even that notion, could be seen as political for some.
Count me in the "some." And, by the way, I think NPR's use of the word "some" is political. And I'd also say that "intend[ing] to transcend politics" is political.

38 comments:

Chris N said...

Nice writing, Althouse. Thank you.

clint said...

" And I'd also say that "intend[ing] to transcend politics" is political."

I'm so above politics, unlike the partisan hacks on the other side.

Gahrie said...

Bullshit. If she truly did not want to be political, she would have done a "Supreme Court " set, and not a "Women of the Supreme Court" set. How would she have reacted to a "Men of the the Supreme Court " set that excluded the women?

traditionalguy said...

Hair seems to be the only visible difference on the chubby Leggos , except one has glasses. Could you name them left to right?

They should try making Hummell figurines of the delicate ladies.

Gahrie said...

Sotomeyer, Ginsburg , O'Connor and Kagan.

James Pawlak said...

A mountain built out of molehill sized Legos.

Michael K said...

The "Latina" Justice is politics reduced to identity politics which is even worse.

Clyde said...

Where's the Kra'gl when you need it? (If you didn't see The LEGO Movie, never mind.)

Clyde said...

I guess that should have been spelled Kragle.

Ann Althouse said...

My gender critique of Lego: The way the head wides at the bottom — giving a big jaw look — is inherently masculinizing. It makes the Ginsburg character in particular unrecognizable.

Ann Althouse said...

The hands are too grasp-y for a judge.

And why are Kagan and Sotomayor so much happier than Ginsburg and O'Connor?

Are O'Connor's eyebrows in the "angry" position because she's sort of conservative and therefore mean?

So many questions!

Ann Althouse said...

And the questions are political!

RecChief said...

hahahaha.

Laughing at the idea that the Supreme Court isn't political.

Even Scalia said they torture the language to find in favor of laws, to give the Legislative Branch (more than) the benefit of the doubt. This tells me that the Supreme Court is NOT in the business of reading the plain text of the Constitution and applying it as a standard to measure current legislation.

Simon said...

What the court does isn't political, but Lego isn't an American company, it's European, and if law is politics in Europe, a European country is likely to presume that the courts with which they are familiar are representative of courts as a platonic notion, just as we tend to project American assumptions abroad, and just as, for example, mediocre, poorly-traveled South American prelates tend to assume that the corrupt crony-capitalism with which they are familiar is representative of capitalism as a platonic notion.

William said...

I thought the Ginsburg figure was the most recognizable. Maybe it was the collar or the tight hair bun. Anyway, Ginsburg has a look.

traditionalguy said...

NPR is on to something. Lifetime tenure is not enough to isolate the imminent Nine from political pressures. We need to blindfold them and lead them to a special Island without communication with the outside. Eureka! We use the surplus Guantanamo Bay Federal Camp.

That will teach them a lesson.

Sebastian said...

"And when has any President simply nominated the person with the best judicial mind or some such entirely neutral concept?"

Bush came pretty close with Roberts, didn't he? Of course, Barry was opposed anyway.

khematite@aol.com said...

"And when has any President simply nominated the person with the best judicial mind or some such entirely neutral concept?"

I'd say when Hoover nominated the highly-regarded Benjamin Cardozo, despite the fact that he would thereby become the third New Yorker and the second Jew on the Court at that time.

jimbino said...

It's also fitting to celebrate the absence on the Supreme Court of:

Protestants, Mormons, Muslims, Buddhists, Hindus, Scientologists, and atheists.

and of:

persons well-schooled in STEM or economics.

Lem said...

Somebody should put out the voting politics of the Supremes ie how many times they vote across party line versus that of the congress voting across party lines.

I bet they rate about the same.

khematite@aol.com said...

Lem said...
"Somebody should put out the voting politics of the Supremes ie how many times they vote across party line versus that of the congress voting across party lines.

"I bet they rate about the same."


Well, in 2014 about two-thirds of the Supreme Court's cases were decided unanimously (i.e., with no "party lines" at all). I'm pretty sure that votes in Congress (except on some very minor issues) are rarely unanimous.

http://www.nytimes.com/2014/07/02/us/supreme-court-term-marked-by-unanimous-decisions.html

Static Ping said...

Considering the Supreme Court is the head of the judicial branch, which is co-equal with the executive and legislative branches which are obviously and intentionally political, it is very difficult to say the justices are not politicians. They are not politicians in the same way that, say, a senator is a politician but they are politicians nonetheless. Frankly, since they do not face re-election and essentially are impossible to eliminate, they are pretty close to aristocracy. I sense if the founders saw what the Supreme Court would become they would have spent more time defining its role instead of the "we'll figure it out later" approach that was taken. Of the three branches, the Supreme Court most closely relies on the good behavior of its members, completely forgetting the "if men were angels, no government would be necessary" truth.

There is also the matter that the other branches have been using the judicial branch as a punt to get the results that they want without having to actually take a possibly unpopular stand on the issue in question. It is essentially a law making body. The fact that it gets involved with things that the Constitution appears to be silent about, at least to the common man who wouldn't know a penumbra if it bit him on the arse, makes it all the more obvious.

As to the Legos themselves, is there really a market for this? I suspect it would be small.

Simon said...

Lem said...
"Somebody should put out the voting politics of the Supremes ie how many times they vote across party line versus that of the congress voting across party lines. I bet they rate about the same."

Well, let's take the last three cases they decided.

Did Nebraska “knowingly fail[]” to comply with its obligations under the 2002 Settlement to Kansas' 1998 suit charging violations of the 1943 Republican River Compact, and if so, is disgorgement an appropriate remedy?

Is Amtrak a "governmental entity," notwithstanding 49 U.S.C. §24301(a)(3)'s statement that it is not a "department, agency, or instrumentality" of the federal government?

Is the doctrine of Paralyzed Veterans of America v. DC Arena L.P., 117 F. 3d 579 (D.C. Cir., 1997), which requires agencies to notice-and-comment before adopting a reinterpretion of a regulation that significantly differs from the previous interpretation, sustainable under the APA?

If you want to tell me the Republican party line and the Democrat party line on those questions—which I know are certainly hot-button topics on cable news and primary elections right now—I'll tell you how the Justices lined up.

Simon said...

William said...
"I thought the Ginsburg figure was the most recognizable. Maybe it was the collar or the tight hair bun. Anyway, Ginsburg has a look."

Gaunt, coiled, and bitter.

Hammond X. Gritzkofe said...

Sexist pigs.

(I'll leave the interpretation of that comment to the reader.)

Lem said...

"And when has any President simply nominated the person with the best judicial mind or some such entirely neutral concept?"

Robert Bork's qualifications were nearly unanimously high regarded.

Bill Peschel said...

Sometimes, nominees can surprise you. If I remember my Con Law right, Earl Warren surprised Ike by being far more liberal than he suspected.

And if you want an example of tortured reasoning to reach an end you want, just read Rowe vs. Wade. No matter how you feel about abortion, you have to admit that it took a lot of imaginative thinking to find a right to privacy in the constitution.

Anonymous said...

When Clinton appointed Ginsburg I bet he never expected she'd wear an Elizabethan ruff on the bench.

Simon said...

Lem said...
"'And when has any President simply nominated the person with the best judicial mind or some such entirely neutral concept?' Robert Bork's qualifications were nearly unanimously high regarded."

Bork's credentials were impeccable to people like me. But here's the thing: The fundamental fault with the "merit" selection of judges, and reason why one can't talk about nominating someone with the "best" judicial mind, or think that a "neutral" concept, is because it presupposes that we all agree on what a judge ought to be doing. Robert Bork was supremely qualified to be on the court if you take for granted that judges ought to be doing what I believe judges ought to be doing. But Edward Kennedy and Joe Biden, odious partisan hacks though they were, sincerely believed that judges ought to be doing something quite different, and measured by their yardsticks ("will advance the progressive cause as far as possible as fast as possible"), Bork certainly didn't have "best judicial mind." Indeed, if he had, Reagan wouldn't have nominated him, because he would not then have had the "best judicial mind" by Reagan's standards.

You only have to compare the liberal Richard Posner with the textualist Frank Easterbrook. Which one is the "better" judicial mind? They're both smart, accomplished, and lauded by their peers (including one another). One can't answer that question independent of one's assumptions about what the judges are supposed to be doing. My answer is Easterbrook, of course, because I think he does what judges are supposed to do and I think that Posner is the quintessential activist, who figures out what the smart result is and goes in search of things that justify that result. But a person who thinks that a judge ought to figure out what the smart result is would probably dismiss Easterbrook's approach as "wooden."

So there's no such thing as neutral "merit" where choosing judges is concerned. Doesn't exist. Merit is a necessary but not sufficient qualification.

Simon said...

Bill Peschel said...
"And if you want an example of tortured reasoning to reach an end you want, just read Rowe vs. Wade. No matter how you feel about abortion, you have to admit that it took a lot of imaginative thinking to find a right to privacy in the constitution."

There really isn't any reasoning, tortured or otherwise, in Roe. It regurgitates page after page of tendentious medical and historical claims, and then, with no attempt to connect it to the case, announces that regardless of the fons et locus of the right in the Constitutional text (that old thing!) it must be there. And that's it. Roe isn't an example of torturous reasoning to justify a counterintuitive result, it's an example of the court hiding an exercise of what Justice White's dissent called "raw judicial power" in an obscuring cloud of fog.

In some senses, one almost has to admire the contrasting moxie of Justice Douglas, whose brazen opinion in Griswold invented the "right to privacy." Douglas believed that it ought to exist, so he declared its existence, and moved on. The whole thing is over and done with in six pages. At least that was honest.

Browndog said...

Speaking openly about the openly political Supreme Court is taboo...

...depending upon the ruling.

Richard Dolan said...

Asking whether the courts are "political" is mostly to play with the concept of politics, and that's a game that can be endlessly entertaining. Everyone who's awake and paying attention to the world around them develops a perspective and point of view on ideas like equality, freedom, justice, and on and on. The class of lawyers from whom judges are selected consists of successful practitioners, typically quite good at legal craft who bring with them the views formed over a lifetime. It's also true that most lawyers who become judges were involved, in one way or another, with electoral politics -- the governor, senator or president appointing them usually knows how a potential nominee is likely to think about the key issues of the day. There are always surprises, of course -- Frankfurter for FDR, Brennan for Ike, Souter for Bush I are examples. But they stand out because most appointees aren't a surprise in that sense.

That's the kind of "politics" anyone would necessarily bring to a judgeship. It's not partisan although it often aligns that way in the really controversial cases. But most cases are not controversial. What divides the justices on the majority of cases are issues like whether legislative history is significant, how much significance to give to original meaning vs later understandings of a particular text, and where to strike the balance between competing values. Resolving issues like those turns on first principles. But it's a politics of a very different sort from the partisan blood sport that goes by the same name.

Richard Dolan said...
This comment has been removed by the author.
Browndog said...

“The court can put its stamp of approval on the side of change and let that change develop in the political process,” she said.

She, being Ruth Bader Ginsburg

The Godfather said...

Two points.

1. There are only three women on the Supreme Court now, so either the designers of these Legos decided that one of the male justices is actually trans -- in which case WHICH ONE? a much more interesting question -- or they've returned Ms. O'Connor to the high bench. Would you favor having her replace one of the male justices, and if so, which one?

2. "Political" means related to the government of the polis, that is, of the state. Courts are, in that sense, obviously political, in that they are part of the government of the state. So are Al Sharpton, Josiah Goldberg, David Brooks, Rachel Maddow, Megyn Kelly, George Will, and Paul Krugman, in that they write or speak about the government of the state. If Lego opens the "political" door they could have a pretty big market to exploit.

chickelit said...

The feminine touches -- bibs, Elizabethan collars, etc., look ridiculous. Why must female justices have those feminine flair accessories at all? Why can't they just dress like the men? Aren't distinguishing hairstyles enough?

Simon said...

chickelit said...
"The feminine touches -- bibs, Elizabethan collars, etc., look ridiculous. Why must female justices have those feminine flair accessories at all? Why can't they just dress like the men?"

Two of them, and most female judges, do.

Anonymous said...

I like the little feminina touches that O'Connor and Ginsburg adopted. Judicial robes aren't unisex; they're masculine attire,like academic and clerical robes. I don't blame women judges for trying to feminize them. Judge Judy, for example, looks very cute in her little lace collar with her robe.