Supreme Court

The Court Swims in Political Seas

Constitutional law is made by a politically constructed institution

|The Volokh Conspiracy |

As the justices announce their opinions in the big cases of the year, and as presidential candidates announce their plans to reform the Court so that it will be less political, a taste from the conclusion of my new book, Repugnant Laws, which can be found wherever fine books are sold.

Americans sometimes tell themselves a story about the Supreme Court. In this story the justices stand removed from politics, like priests working in a marble temple. Constitutional law imposes fixed limits on the arena of political choice, and the elected members of Congress operate within boundaries marked out and defended by unelected justices who lean against the prevailing democratic winds. This story is sometimes told in a fearful tone, with the people and their representatives subjugated to the will of distant philosopher-kings. It is sometimes told in a more hopeful tone, with the benighted masses and feckless politicians defanged by wise jurists. But in both versions, the justices occupy an Archimedean point outside the world of politics and from there can reshape the course of events.

For better or for worse, we should doubt that the Court is as independent of politics as that story would suggest. The individuals who become justices are socialized into a political world that they share with their contemporaries. The justices are elevated to the bench through a political appointments process that filters out those who are likely to be dramatically at odds with the political leaders who assemble victorious electoral coalitions. The justices live in the world and are buffeted by the same maelstroms of opinion and emotion that affect those around them. Their work sometimes involves matters of arcane knowledge and obscure significance, but it often involves matters of fundamental values and partisan contestation. The justices are not disinterested observers of the political world; they are powerful actors within it. . . .

In exercising the power of judicial review of federal statutes across American history, the Court has operated from a political perspective and in alliance with coalition partners elsewhere in the government. The Court has not generally operated as an antidemocratic force obstructing the plans and policies of legislative majorities.  It has, on occasion, vetoed important federal policies, but it has more often operated within dominant political coalitions than against them. It has exploited fissures within democratic majorities rather than setting itself against those majorities. It has primarily advanced the values and policies that have won electoral support rather than those that have met electoral defeat.

The justices are best understood as political partners. They are not minions, simply doing the bidding of party leaders. They are allies of coalition leaders, not their agents. As such, they exercise some modicum of independence and discretion. They are able to articulate their own understandings of constitutional values and commitments. Those commitments may well be shared by others, be debated and advanced through party platforms and legislative debates, but the justices give them shape and effectiveness. The justices set their own priorities, and in many cases have their own distinctive set of concerns. . . .

. . . The Court often defies Congress in the name of values to which party leaders are putatively committed. Those decisions might well be persistently controversial, in either the sense that the general public might not overwhelmingly endorse them or in the sense that legislators might be incapable of constructing a majority willing to cast the same vote themselves. The insulation and independence of the Court allows the justices to do things that the elected members of Congress might not be willing and able to do, even if the members of Congress are not implacably opposed either. The Court has rarely stood for universally embraced and historically enduring political principles, in part because there are not very many such principles – or at least not very many such principles that must be deployed to invalidate an action of Congress. Congress rarely violates universally embraced and historically enduring principles. Congress does, however, routinely violate principles that are more contested and less enduring but that nonetheless command substantial political support within a given historical era. When the Court intervenes to vindicate those principles against an errant national legislature, it is often doing the political work that political leaders would like it to do. It is acting as a player within democratic politics, but not simply as a constitutional guardian standing outside of democratic politics.

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  1. “The Court often defies Congress in the name of values to which party leaders are putatively committed. Those decisions might well be persistently controversial, in either the sense that the general public might not overwhelmingly endorse them or in the sense that legislators might be incapable of constructing a majority willing to cast the same vote themselves. The insulation and independence of the Court allows the justices to do things that the elected members of Congress might not be willing and able to do, even if the members of Congress are not implacably opposed either. ”

    I think “putatively” is the wrong word here, “covertly” might be more to the point. The Court will ‘defy’ Congress by imposing policy choices a faction in Congress privately support, but have to lie about to avoid democratic consequences. That faction then publicly acts to oppose the Court, but takes care to do so ineffectually.

    Thus Congress’ actual intent is accomplished, without suffering the consequences of the voters knowing it.

  2. “filters out those who are likely to be dramatically at odds with the political leaders who assemble victorious electoral coalitions.”

    Somehow the filter doesn’t work for half of GOP picks.

    The Supreme Court generally represents the value of the modern Eastern Establishment, which is hostile to conservative values. Insular and tribal, all coming from the same metropolitan areas, attending the same schools and following the same career paths.

    1. “Somehow the filter doesn’t work for half of GOP picks.”

      Ever considered that about half the GOP political leaders are lying to us about what they really want?

      1. Dang RINOs.

        Or are we talking about CINOs now?

        1. Lying != RINO

          RINO implies they’d be a better fit with Democrats. Lying implies they’d do whatever for personal gain.

          1. Elected RINO often equals lying, though.

    2. So you want . . . diversity!

      You good with a transgender Muslim who follows Sharia law?

      Or does your definition of diversity mean not so many elitist Ivory Tower types and instead more Bubba types?

      1. Well, transgendered means an extremely delusional person so no to that.

        “not so many elitist Ivory Tower types and instead more Bubba types?”

        “Ivory Tower” or “Bubba’. Um, I think there might be some middle ground despite your prejudices.

        Except for Ginsburg’s final year at Columbia, every justice [including her] went to Harvard or Yale. I think we can find at least one or two qualified lawyers who attended a [gasp] state school.

        1. Backwater Bob embraces the Hruska approach to merit and mediocrity.

          (Note for victims of parochial education: former Sen. Roman Hruska.)

      2. To be precise, transgender does not fit into sharia law. Nor does homosexuality, if you want to go there.

        1. To be even more precise, Iran is a center for transgender surgery. What isn’t clear looking in from outside is how many of those “transgender” people are gays who got caught and are facing execution.

  3. Are you implying, Gaea-forbid, that the Chief Justice was dissimulating when he said that judges rise above politics and their personal biases?

    1. There’s a lot of space between robotic umpires and full-on legal realism.

      1. Yes, the space is about the width necessary for policy making by judges and backwashing the legal reasoning later. An inch or a mile, it doesn’t matter.

  4. Maybe we – both within the legal profession and in the political sphere – need to stop treating the Court as a super-legislature that is authorized to override the policy decisions of the legislative and executive branches.

    Maybe we should start treating the court as a co-equal branch of government and not a group of philosopher kings.

    1. Co-equal or not, someone has got to have the final say. If it’s not the Court, you’re throwing the interpretation of Constitution to the political branches. How do you think that would go for the Bill of Rights?

      1. If someone “has got to have the final say” then the branches are not co-equal.

        The court overruling the President and a majority of both houses of Congress should be just as absurd as the President ignoring the Court and Congress, assuming the branches are co-equal.

        The biggest consequence of treating the Court as the final arbiter of the Constitution is the abrogation of that responsibility by both the Executive and Legislative branches. See, e.g., Speaker Pelosi’s “comments” regarding Congress’ authority to pass the Affordable Care Act.

        Maybe if the Court were a bit more circumspect when it comes to defining what the Constitution requires then there would be less of a battle over control of the Court.

        1. The alternative to finality is that there is never a final validated policy, as the branches go back and forth forever. Unless you can think of some other indicia of finality that is not institutionally based.

          Of the three branches, only one is chosen from practitioners with their views about the Constitution as a primary metric of vetting. And only that one is insulated from the demos, as the Bill of Rights insulates certain policy areas.

          Your threat that ‘maybe if the Court were a bit more circumspect…’ doesn’t say anything nice about your stand being principled versus sour grapes.

          1. “The alternative to finality is that there is never a final validated policy, as the branches go back and forth forever.”

            Yes, nothing wrong with that. I note that the courts can change their minds too.

            You like judicial supremacy because since FDR, your side has vastly bennefited with few losses.

            1. Takes a lot for a Court to change it’s mind. Just as designed.

              I like the Supreme Court being final for the reasons I outlined above. Reasons that are outcome-neutral. Unlike your counterargument.

              That your arguments against are based on partisan outcomes tells more about your motives for your position than it does about mine.

              1. “Reasons that are outcome-neutral. ”

                Sure, sure. Easy to say you are high minded when you are on a long winning streak.

                Let’s see how you react if Trump replaces Ginsburg.

                1. I hope Trump/McConnell replace Ginsburg next year, during the election cycle, just for that extra bit of sauce on top.

                2. You think I’m thrilled with our current state of jurisprudence?

                  Just because I don’t constantly whine like you doesn’t mean I agree that your side is ever the loser.
                  Death penalty. Abortion squishiness. 4th Amendment shenanigans. Voting rights. Union rights. Antitrust anemia. Lotsa stuff could be better.

                  But just because not every Justice is Brennan, I’m not going to insist that the Court is bad and should be neutered for standing in my way.

                  1. I get some of those points (death, abortion, 4th amendment), but what do you mean about voting rights, union rights, and antitrust?

                    1. A portion of the Civil Rights act that required states to check in, for lack of a better way to put it, with the Feds was struck down, pretty much on the justification that “it’s not 50 years ago” (never mind most of the law itself was a mistake). Further, the court decided that you have a first amendment right to not participate in a union (weaponized free speech as the leftists would say).

                      As for antitrust, some case or another where women had to file more timely suits against employers for supposed pay discrimination. Or was there another one Sarc?

                    2. *Voting rights Act, not Civil Rights Act.

                    3. More or less, m_k. I was trying not to specify specific cases and keep it issue-based, but I think you’ve found what I was hiding.

          2. only one is chosen from practitioners by the political branches with their views about the Constitution as a primary metric of vetting

            This is a way for the political branches to entrench their political views for the life of the chosen candidate.

            This is not necessarily a positive thing. I’m not in favor of a technocracy, especially a political technocracy. I doubt most Americans, if given the choice, would be either.

            Your threat that ‘maybe if the Court were a bit more circumspect…’ doesn’t say anything nice about your stand being principled versus sour grapes.

            I say this as someone who recognizes that there are Supreme Court decisions that are made on both sides of the political aisle. I don’t think either side deserves to have their political views enshrined as permanent law untouchable by the political branches, whether that represents gun rights, free speech, abortion, or quartering of soldiers in my home.

            I’d also note that (currently) only one side of the political aisle believes that there’s value in advocating for packing the court with ideological purists. That may change in the future.

            1. First, you are assuming the only thing Justices do is make policy out of whole cloth. Which is a pretty extreme view to take. And even if it is correct, it’s not a perfect way of entrenchment, as Justices have been proven time and time again to contain multitudes. That’s what the system of advise and consent relies on in fact.

              You seem to be advocating against the Court by going against policy consistency, because that allows too much dead-hand policymaking. Which is a fair point – except when it comes to the Constitution. I’m no originalist, but the Constitution’s steady consistency is definitely more feature than bug.

              I don’t think either side deserves to have their political views enshrined as permanent law untouchable by the political branches, whether that represents gun rights, free speech, abortion, or quartering of soldiers in my home.
              Sounds like you don’t want a Bill of Rights at all then…?

              1. First, you are assuming the only thing Justices do is make policy out of whole cloth

                I’m not sure where you read that, but it wasn’t in any of the comments I posted on this post. There are plenty of legitimate areas where the court is necessary. I just don’t think enshrining political policy is one of them.

                Sounds like you don’t want a Bill of Rights at all then

                Someone might have said that, but it wasn’t me.

                I think the court can get things wrong sometimes, and therefore shouldn’t be the “final authority” on policy decisions. That includes things like the Bill of Rights.

                Maybe “hate speech” laws should be allowed under the 1st Amendment. Maybe Citizens United was wrongly decided, or Employment Division v. Smith. In my opinion leaving it to the court to decide whether, or when, to correct these “mistakes” is a bad idea.

                1. So your discussion of how policies about quartering soldiers not being enshrined away from the political branches wasn’t about the Bill of Rights?

                  Then in your next comment, you put up some rights that you think are good, and argue that the Court is bad because it could go back and change it’s mind.
                  As if getting rid of the Court that recognized those rights would somehow protect them better?

                  You’re all over the map about what the evil you’re purporting to combat even is. The existence of areas that the legislature can’t touch? The obliteration of areas that the legislature can’t touch? Maybe that’s why you are failing to indicate how your purported cure addresses your concerns.

                  1. So your discussion of how policies about quartering soldiers not being enshrined away from the political branches wasn’t about the Bill of Rights?

                    Of course it is. My objection is to you putting words in my mouth. I never said I don’t like the Bill of Rights. In fact, I think all three branches of the government need to have respect for the Bill of Rights, and not pass off that responsibility to the court to decide the issue at its convenience, requiring a litigant with sufficient wealth to take the issue to the Court.

                    Then in your next comment, you put up some rights that you think are good, and argue that the Court is bad because it could go back and change it’s mind.

                    Once again, I object to you putting words in my mouth. I didn’t say I thought the rights listed were good or bad. I said that people might disagree on whether those rights are good or bad and maybe we should have a political debate on those issues. Because instead of a political debate on the scope of the 1st Amendment we’re having a political debate on the make up of the Supreme Court.

                    If we’re having policy debates then the pro-abortion pro-gun rights voter can support the pro-abortion position and the pro-gun rights position. But with the politicization of the court the voter has to choose: do I value federal protection of abortion over federal protection of guns?

                    1. You continue to be muddy. You object that I put words in your mouth even as you say that you agree with the connection I was drawing about the Bill of Rights. Okay, then. And then you contradict said connection in the next sentence. As I said, all over the map.

                      Do you think the political branches are up to the responsibility of defending the bill of rights? Do you think that would make the Bill of Rights somehow more muscular? Because I don’t see how. Indeed, a political debate on the issues is exactly what the Bill of Rights is meant to short circuit when it comes to certain issues. You like it, but also want to take away it’s purpose.

                      The one step remove from direct debate over certain issues to debate over the constituents of an institution is not some bug – it’s a feature. It creates the semi-independence I discussed above. You advocate that we get rid of this layer of protection and throw rights to the political wolves, but don’t really explain why that’s a better option.

                      Indeed, you continue to be hazy as to how your ‘everyone defends the Constitution co-equally’ plan would operate. Above I’ve contrasted the histories and structural and institutional incentives of the three branches. Only one lines up with the charge you want to give all three. The others are not made to be stewards of anything except the public will. Which ignores the many counter-majoritarian things in our Constitution. Including, once again, the Bill of Rights.

                    2. You object that I put words in your mouth even as you say that you agree with the connection I was drawing about the Bill of Rights.

                      My objection is to your comment “Sounds like you don’t want a Bill of Rights at all then”.

                      Do you think the political branches are up to the responsibility of defending the bill of rights?

                      We already have a political branch that has assumed responsibility for defending the bill of rights. Do you think they’ve done a good job?

                      Do you think that would make the Bill of Rights somehow more muscular?

                      I interpret your question to be whether the protections afforded under the Bill of Rights would be more restrictive on government power. I think it would be a mixed bag. On the whole, probably not significantly worse than the protections we have now (and lack thereof).

                      Indeed, a political debate on the issues is exactly what the Bill of Rights is meant to short circuit when it comes to certain issues.

                      Do you think the Bill of Rights was intended to short circuit the political debate over campaign finance? The President’s ability to block someone on Twitter? Gun rights? Abortion? Same sex marriage?

                      You’re sounding like an originalist. Maybe we need more of those on the court.

                      You like it, but also want to take away it’s purpose.

                      Yes, I like it when political positions I support become permanent law and are removed from the political landscape. I also dislike it when political positions I don’t support become permanent law and are removed from the political landscape.

                      Maybe making political positions permanent law is not the right approach. Or maybe we should limit the political positions that get etched in stone by the court.

                      You advocate that we get rid of this layer of protection and throw rights to the political wolves, but don’t really explain why that’s a better option.

                      Because leaving political issues to the political wolves (1) allows people to support issues rather than politicians; (2) allows for the debate and change of political issues as the opinions of the populace change; (3) affords individuals more input on the direction of the country; (4) prevents short-term political interests from becoming a long-term political consequences.

                      you continue to be hazy as to how your ‘everyone defends the Constitution co-equally’ plan would operate

                      Do you think President Trump should be able to enshrine his political positions for the next 50 years? That’s the situation we have today.

                      I don’t. Nor do I want the political upheaval that comes if the next President decides to pack the court (although I think that is very unlikely, since even Democrats can see the consequence of that step).

                    3. It’s telling that every time I ask how your idea would work you come back with a hypothetical parade of horribles about the current system.

                      Bottom line:
                      The way legal rights operate is Congress shall make no law.
                      That’s not originalism, it’s just bog-standard jurisprudence.

                      You want Congress to be the judge of when they shall make no law. Good luck with that.

                    4. “It’s telling that every time I ask how your idea would work…”

                      The same way it works in every country that doesn’t have judicial review over the legislature. But there’s a simpler way, too. jubulent has complained (quite persuasively, in my view) that too many policy questions are decided by the court. The Court could still decide those matters that were obviously off limits (like Corruption of Blood, for instance) but not close questions that have no obvious constitutional answer. Justices on the court have been doing that for centuries. You could have Holmes/Thayer reasonable doubt test to guide justices. Or Brandeis’s use of standing to narrow SCOTUS review. Broaden the political question doctrine (like Frankfurter). Judicial restraint has a longer legacy on SCOTUS than the alternative. Or we could require SCOTUS to have super-majorities to overturn legislatures. This isn’t some unimaginable utopian world. We lived it.

                      “The way legal rights operate is Congress shall make no law.”

                      (1) That wasn’t the compromise. That’s what the BOR says but it isn’t what it meant in 1791, it isn’t what it meant in the 19th century, and it isn’t what it means today. (2) That isn’t even the way SCOTUS has ever interpreted the BOR. So the idea that you need SCOTUS to enforce “Congress shall make no law” is off-base. Congress shall make laws, so long as they pass [judicially invented test that has nothing to do with the BOR]. (3)

                    5. NToJ – you’re arguing by degrees where jubulent is arguing by extremes. Though I think you’re filling in some gaps because I really find his arguments internally contradictory and hazy in their connection to his purported reform.

                      Always hard to forecast my workday, but probably won’t have time to go around about this with you tomorrow. But the subject will come up again, I’m sure. Always happy to argue optimal political structures in defense of the status quo!

                    6. Sarcastr0,

                      I think jubilent introduced the nuance. See:

                      “Do you think the Bill of Rights was intended to short circuit the political debate over campaign finance? The President’s ability to block someone on Twitter? Gun rights? Abortion? Same sex marriage?”

                      If the answers to these questions are “no” then SCOTUS is acting with no more authority than Congress was if the answer was “yes”. Our strange system simply substitutes the political debate over the substantive issues in favor of a political debate over judicial appointments. None of those issues is off limits, but the political process becomes pointlessly attenuated.

                      We can all agree that the Constitution places clear limits on the President and Congress (and SCOTUS). There are plenty of 9-0 SCOTUS decisions.

            2. I’d also note that (currently) only one side of the political aisle believes that there’s value in advocating for packing the court with ideological purists.

              I see Republicans working awfully hard to pack the courts – all of them – with ideological purists.

              So criticizing Democrats for it is ridiculous.

              Wait, I know, all those right-wing nutballs are principled jurists.

              Give me a break.

              1. I’m criticizing Democrats for wanting to expand the number of court seats in order to obtain a political advantage.

                “Packing” is a reference to FDR’s plan to add more justices to the Supreme Court to ensure a favorable majority. This was widely known as the “court packing plan.”

                I’m actually quite surprised that someone who follows a legal blog would be so ignorant of such an important historical event. Are you unfamiliar with the term “Gerrymander” as well?

                1. I know all about it, jubulent.

                  But there are lots of ways to pack courts with ideologues to obtain an advantage, which is exactly what the right is doing. One method is no better or worse than another.

                  1. But isn’t that the normal way? Every party “packs” in judges when they hold both the Senate and Presidency, and then are forced to be more moderate when they’re split.

                    You’d have a useful point of the Republicans are expanding the number of Circuit Court judges (and if they are, then I’m ignorant about it so please enlighten me). Only one party (now) is talking about doing that explicitly so that they can lock in control on an institution.

        2. I rather doubt that the president or Congress would give a shit about keeping within the limits of the Constitution if we removed judicial review, given that the SC has given virtually free reins to both in certain areas (identical to no judicial review) and the two branches have not changed their behavior.

    2. Make the judiciary the “least branch again”! I want a red hat that says MJLBA in white lettering. If asked, I will start quoting Federalist 78 and Bickell.

      1. *least dangerous branch

        heh.

  5. “as presidential candidates lie through their fucking teeth about plans to reform the Court so that it will be less political”

    FTFY. The idea that it is about making the court less political is farcical on its face.

  6. I have the solution: constitutional amendment to change Art III, Sect 1, first sentence, the word “supreme” to “federal.”

    Seems like a lot of people see “Supreme Court” and get either googly-eyed or wobbly-kneed.

    But seriously, government is always imperfect (and I really should say people are imperfect).

    We’ll tweak our government sometimes and things will swing left↔right and that’s all right.

    But all-in-all, I don’t see how things can get substantially better.

    Aren’t we the greatest nation in the known Universe?

    1. “But all-in-all, I don’t see how things can get substantially better.”

      Trump could get enough picks to pack the Federal Bench for two, or better still three decades.

      1. Huh…and I thought that’s exactly what we’re all against here.

        1. Might want to take another look at the comments . . . the court has been way left for decades, seems to me at least some here are looking for balance.

  7. Appoint more Clarence Thomases, that is, judges who keep their personal policy preferences out of their opinions.

    1. Is that what you think he’s doing? He’s an Originalist, and that itself is a personal policy preference.

      1. It is the opposite, unless yuh ou mean choosing not to be guided by one’s personal policy preferences is a personal policy preference.

    2. This is the man who argued that Tinker should be tossed wholesale because it “has undermined the traditional authority of teachers to maintain order in public schools” and not because there’s actually a procedural reason to do so. He argues that there’s no Constitutional backing for Tinker because courts declined to support earlier students’ 1A claims. It’s not a great claim, if only because such a standard applied to war-making would give modern presidents unlimited power in that field.

      1. He’s also wrong on the facts. He pretends that there was some golden age of public schooling before Tinker where “teachers taught, and students listened”, but, speaking about my city’s first public school in the late 19th century, it was just a daycare. Kids ate tallow candles in a big building while their parents were working because people were worried coyotes would steal the kids.

        1. The purpose of mandatory 19th century public indoctrination (ahem, I mean schooling) in America was to get those Catholics to behave like Anglo-Saxon Prods and become good factory workers.

          1. Out east yes, but here in what was almost a frontier we had only 2500 people total, buffalo around, and Sioux scaring people off. The outside world was scarier than Catholics, of which I imagine we had only a few.

            1. You may be correct about schooling in the frontier, but the model that was explicitly adopted from the Prussians and implemented, starting in the northeast (you’re correct, but I can’t remember the state) and moving west with “civilization”, was still based on the aforementioned indoctrination.

              I have to say, though, that indoctrination of the young into the American Ideal, as it were, isn’t necessarily a bad thing. We could benefit from more of it now. I just wanted to agree with you about Justice Thomas.

            2. Only because the outside world was infested with Catholics.

              1. I’ll take the bait, and ask, what do you mean by that? If it’s satire or comedy, it went over my head.

        2. “He pretends that there was some golden age of public schooling before Tinker where “teachers taught, and students listened”

          Its not “pretend”. There was such an age.

          The last compulsory attendance law was not passed until 1918 and for some time afterwards enforcement was spotty, especially in rural areas. Kids dropped out because they could work without a HS diploma.

          After WW2, it became more universal. Teachers then did teach and students listened.

          Now, because of the point of view that inspired Tinker, activist kids walk out of school for gun control and climate change, education be darned.

          1. Do you think school is like constant walkouts and hecklers vetoes nowadays?

            Your unsourced paean to the 1950s as the good old days is not surprising, but not very convincing either.

          2. My 73 year old father-in-law who actually went to a one room schoolhouse doesn’t paint such a wonderful picture in his remembrances. I won’t disagree that in the past there was more respect for authority though.

            That said, American education is very low bar these days, and is running as fast as it can to stay in one place, just like Alice in Wonderland. For all the millions, if not billions put into it and program after program from Common Core to No Student Left Behind to Teach For America…we get the same middling results that are predictably broken down by demographics and socio-economic characteristics.

          3. “He pretends that there was some golden age of public schooling before Tinker where “teachers taught, and students listened”

            Its not “pretend”. There was such an age.

            No there wasn’t. There might have been an age where teachers taught and students quietly ignored them without making a fuss about it.

          4. Sure dude. Students totally listened, all the time. Everything was perfect: we wrote equations directly into the clouds themselves because there were too many kids clamoring to sit quietly in a classroom so we moved class outside into the wonderful, commie-free, outdoors. Nobody worried at all about those darn kids until those scummy greasers came about, empowered by the Tinker decision.

            It’s quite telling that you assume Thomas was talking about after WWII. In his opinion, the golden age was pre-WWI and before the bans on corporal punishment. You could always read what he wrote instead of assuming he thinks exactly as you do.

  8. I was going to get this book, because the peer review process keeps Whittington from being a douche (which seems to happen on this blog) and the process of writing a full book prevents him from dashing off not fully thought out ideas, but it’s still $30 for a used one.

    1. “You could get overpriced coffee for a week…or you could study the foundations of our government! The choice is yours…operators are standing by…”

      1. I will give it a semester, then all the used student copies will come in at $15 or so.

  9. “[The Court] has primarily advanced the values and policies that have won electoral support rather than those that have met electoral defeat.”

    I don’t see how this sentence can be reconciled with the Court’s record in the areas of abortion, racial quotas, and same-sex marriage.

    1. Yeah “primarily” is putting in Stakhanovite service in that sentence.

      And I think you’ve put your finger on the essential confusion in Whittington’s piece. Is he trying to describe what SCOTUS Justices do, or what they should do ? Which is the usual confusion about legal realism.

      If it’s just a cynical, if realistic, view of what Justices do, and there’s not much that can be done about it, so well, whatever, then, up to a point, it’s not an unreasonable description. But if it’s an argument that that is what Justices should be doing, then for those in favor of the balls and strikes approach, it’s a very bad idea.

      One can recognise that all humans are flawed creatures and will bring their prejudices to the party witting or not, then yeah. But as soon as we glide over into the territory that “and so they should” we get a Third and Supreme House of Congress, not a court.

      And I think that’s why the Whittingtons of the world like to elide the difference between world weary recognition of human failing, and it’s OK for the Court to make stuff up for political reasons. Because there’s an actual difference between how flawed and imperfect humans behave in a world where making stuff to suit your politics is a major sin, albeit a sin that you may fail to avoid, and how they behave in a world where it’s OK.

      I hope (and believe) that Roberts was internally tortured at betraying his balls and strikes philosophy to arrive at an Obamacare result that would avoid the Court getting into a political firestorm – a quintessentially political judgement. But there are plenty of Justices who would not be tortured at all – because they live in the world where “it’s OK.”

      1. Lee,

        There are those of us who think that, if Roberts was tortured he shouldn’t have been, because the argument against the mandate was silly.

        No need to rehash it now, of course, but IMO only a strong case of ODS, or an irresistible urge to show how clever one is, could lead one to make the claim that was made.

        1. There are those of us who think that, if Roberts was tortured he shouldn’t have been, because the argument against the mandate was silly.

          No doubt, but Roberts was plainly not one of those people in your crowd, since he clearly accepted the argument against the mandate that the other four conservatives accepted. Hence the tax “saving construction” emerging from his hat.

          1. “emerging from his hat.”

            Not from his hat.

  10. A common feature of tyrants is narcissism. And a common feature of political narcissists is to imagine that their political opponents act out of hatred and animosity, that disagreement with them represents evil treason to the country.

    Calhoun considered abolitionists to be hate-filled people opposed to Southerners way of live for no reason but sheer pique. The fact that advocates of slavery were genuinely incapable of imagining any rational reason why anyone might legitimately oppose it is probably the best example of the phenomenon I can muster, but far from the only one. History is full of them. Zealous advocates of causes, like personal narcissists, simply cannot be objective about their political opponents’ motives.

    Thus the courts’ animosity jurisprudence, combined with its expansive interpretation of a compelling state interest, is inherently dangerous. It is one thing to say that the Constitution protects its pet causes and its friends. But it is quite another to say that the Constitution is dead set against its enemies.

    When the Court says that the constitution itself has a compelling interest in getting rid of the scourge of this or that from interstate commerce, for example, when said alleged scourge was never even mentioned in the textual Constitution, it is not behaving all that differently from the way President Trump behaves when he says the the New York Times, Joe Biden, or whoever it is today is a traitor.

    In both cases, political leaders have an inherent ability to align their causes with the country’s, to not only use their office to help their friends, but to make their personal enemies the country’s enemies.

    The court’s animosity jurisprudence is destabilizing. Legitimizing declaring one’s political enemies to be haters and enemies of the country represents political narcissism. It legitimizes tyrrany. It is only a small step from the Court’s jurisprudence, done no doubt for the best of intentions, to President Trump’s politics.

    The Court might have made the Igbo political call, as we now realize they didn’t do on slavery. But the Constitution is no more about making the right political call then it is about putting the right people in jail. It is about protecting against the collateral consequences of acting with subjective certainty about matters where one inherently cannot be certain, and where the Constitution requires a deliberative process rather than someone simply declaring that something is so.

  11. Didn’t Mr. Dooley tell us that “the Supreme Court follows the election returns?”

    Does the OP add anything to that?

    1. The Supreme court following the election returns would actually be something of an improvement, in some cases. It’s more like they’re following polls of “the 2000 faculty members of Harvard University.”

      It’s one thing to be anti-majoritarian when the text of the law commands it, quite another to be anti-majoritarian when you’re just making shit up.

    2. He does it more systematically?

      We are all just telling stories, some of us with better data.

  12. In 2019 the Supreme Court is the most political branch. Stevens and Souter are to blame for becoming a knee jerk liberals.

    1. It’s not a binary choice, Sebastian. Failure to be a knee-jerk conservative is not what defines a knee-jerk liberal. Knee-jerk means reflexive, heedless, automatic. Neither Stevens nor Souter were any of those things. I take it you didn’t like them?

  13. The justices are best understood as political partners. They are not minions, simply doing the bidding of party leaders. They are allies of coalition leaders, not their agents.

    I suggest that almost every justice would agree with that, and that it would be true for some of them. The distinguishing mark of the minions is that they not only come down consistently on the side of their political allies, but they also do it for ideological reasons the allies hope to advance.

    Thus, Thomas, Sotomayor, and Alito, at least, are minions. Kavanaugh, in his confirmation hearing, looked built for minionhood.

    The Trump appointment process, and the McConnell confirmation process, have been structured by politicians as minion-finding processes—short on consideration of judicial qualities, long on consideration of ideological identity.

    Roberts has been consistent in voting pro-Republican in every political process case which has come before him. But otherwise, he mostly supports opinions Republicans like, but not necessarily for their preferred ideological reasons. So Roberts seems like a mixed bag—a subtle (and under-appreciated) Republican ally on most cases with mere political valence, but a Republican minion on the political process cases, which are the ones which count the most.

    I suggest the upcoming political gerrymandering case decisions may finish the job of defining Roberts, whether partner, or minion, or (long shot), independent-minded judicial standout.

    1. The census case is, IMO, a clear test of the integrity of the court. No one other than a committed Republican could allow the question to be added. Doing so would be disgraceful – a decision to let the census be corrupted for political purposes, a process defended by liars, in violation of the APA and the Census Act.

      1. On the contrary, only a committed Democrat could deny the question being restored, given that it was uncontroversially part of the Census for most of the nation’s history.

        The arguments being used to claim it shouldn’t be asked are over-inclusive: If accepted they lead to the conclusion that ALL questions in excess of “How many people reside here?” are unconstitutional.

        Could it be more obvious that Democrats don’t want the question asked because they’re afraid of the public finding out just how many illegal aliens there really are in the country?

        1. On the Democrats’ reasoning, (and on the recently-disclosed reasoning of the Republican operative who dreamed up this scam) the question of how many illegal aliens won’t be answered by the proposed question. So not so obvious.

        2. Don’t say stupid stuff, Brett.

          The fact that it asked up to 1950 has zero relevance as to whether it ought to be added now. That’s an utterly unimportant point.

          The point is that adding it will significantly corrupt the results, will produce no information not readily available elsewhere, and that its addition is in violation of the law.

          Besides that, both Commerce, especially Ross before Congress and the DOJ in court, have consistently lied about its purpose and origin. They want to enforce the VRA. What a joke.

          As to the Democrats’ objectives, that’s just your usual mind-reading of evil intent on the part of those you disagree with. It’s a terrible habit.

          Besides, the data is already available from other sources, and that data is more accurate than the census data would be, so stop.

          1. Brett’s point is perfectly logical and we shall soon find out, (I hope) perfectly constitutional according to the Supreme Court. That it has the perhaps intended side effect of scaring illegal aliens away from answering it, thus letting some of the air out of the demographic replacement balloon the left is huffing and puffing into, that doesn’t make it unconstitutional. You could argue immoral, but so is legal representation in Congress for illegal aliens.

            1. The day of your replacement will be a glorious one. For your betters, anyway.

          2. Its prior use has relevance because it’s evidence it’s the sort of question countries tend to ask on censuses. More fundamentally, Congress chose to give the Secretary near-absolute discretion about what to put on the census. If congress wants to cabin that discretion with standards or priorities, it can pass a law doing so.

            Again and again Congress has passed the buck, refused to make decisions, told the Administration it could do more or less whenever it wants, and then when it does something controversial people run to the courts expecting them to step in.

            That’s not how democracy works. Democracy means Congress accepts responsibility when it writes a law that permits an outcome it doesn’t want.

            1. You mean like the ABA?

              Hiding behind the pretext of legal formalities and then saying ‘that’s how democracy works’ is not actually how democracy works.

              We have the policymakers saying this question is meant to help Republican numbers and scare off minorities. Don’t pretend that going through the motions is anything like justice or proper.

            2. Its prior use has relevance because it’s evidence it’s the sort of question countries tend to ask on censuses.

              So? Why does that make it relevant to the current situation in the United States?

              we shall soon find out, (I hope) perfectly constitutional according to the Supreme Court.

              Constitutional does not mean in accord with the APA or the Census Act.

              (c) To the maximum extent possible and consistent with the kind, timeliness, quality and
              scope of the statistics required, the Secretary
              shall acquire and use information available from
              any source referred to in subsection (a) or (b) of
              this section instead of conducting direct inquiries.

              Seems pretty clear, and various “experts can be wrong” objections, the data is better obtained from other sources.

              And the APA was violated more ways than can be counted.

              demographic replacement balloon the left is huffing and puffing into, that doesn’t make it unconstitutional. You could argue immoral, but so is legal representation in Congress for illegal aliens.

              Oh stop the Fox News “demographic replacement” BS.

              And since the Constitution clearly says that

              “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.”

              I fail to see how representation of illegal aliens is “immoral.”

              I do happen, by the way to think the question is unconstitutional, on the grounds that it reduces the accuracy of the census significantly, and in a non-random way, hence violates the requirement for an “actual enumeration,” but I recognize that this is very much a minority opinion.

              1. Fox News mention demographic replacement? Nay my friend, Fox is to polite for that. But just ask yourself, if Hispanics all voted like trad Catholics, all pro-life and such, and states like California (one purple now blue) had gone the other direction due to their import, would you think the same way?

                Of course you fail to see how *legal* representation of illegal aliens is immoral. I notice how in your reply, you left out the word “legal” before representation.

                1. Ah. The great “if things were different” you wouldn’t think that way argument. Counterfactual conjecture, involves mind-reading, and an implicit admission that your own logic is just based on partisanship.

                  Of course you fail to see how *legal* representation of illegal aliens is immoral. I notice how in your reply, you left out the word “legal” before representation.

                  I don’t get your point here. The Constitution makes it plain that representation in Congress is based on the “whole number of persons in each state.” It does not distinguish between citizens and non-citizens (except for the bit about Indians) present legally or not.

                  Now, I understand that there was no such thing as an illegal immigrant at the time the 14th was adopted, but so what? You want to change it, amend the constitution. Good luck with that.

                  1. Nice pettifogging. Counterfactual arguments are often only way to get some who is debating with you (in good faith) to think through why they take a position. Since you can’t explain how you would feel about the large influx of Hispanics if they voted GOP, then that is an explicit admission that your partisanship is your own motivation. Not to be overly dramatic about it, but I diagnose you with a classic case of projection here.

                    Of course you don’t get the point, which is why your answer is silly, even if you don’t see it. You advocate for using the number and distribution of those here illegally for deciding the representation of citizens here legally. That’s like asking the opinion of a burglar as to the best layout for your living room furniture.

                    Further, the phrase “subject to the jurisdiction thereof” as part of the 14th Amendment was put there for just this reason, to exclude illegal aliens. I get that the phrase is subject to some debate, but that you conveniently think we should ask burglars where to put the couch and TV, again, shows some motivated reasoning on your part.

                    That’s some convenient textualism from your part as well, to assume that since it says “person” it mean what I want it to mean, bereft of all historical realism.

                    1. The problem, mad_kalak, is that a counterfactual argument is also an analogy. Analogies are never self-evidently on point. They have to be tested. The best test is to get rid of the analogy, and remake the point it asserts using the same argument that was used to support whatever is being analogized. If you can’t make your point without the analogy, that means the analogy is no good.

                      Illustration: A case was made in Loving v. Virginia that denying a right to interracial marriage is unconstitutional. Decades later, the Massachusetts Supreme Court decided—by saying gay marriage is just like interracial marriage—that denying gay marriage is therefore unconstitutional. I suggest that if that isn’t sleight of hand, you ought to be able to say, “Okay, now lets throw out the analogy, and remake the case from scratch, using the arguments from Loving. If the result doesn’t make sense, then it’s a bad analogy.”

                      My point isn’t about gay marriage, however, it’s about arguing with analogies. For all I know, what I just suggested did happen in Massachusetts, and everything held up. My point is that you should never be allowed to prove anything important or consequential, merely on the basis of a plausible-looking analogy. But it seems like it is an accepted legal custom to do that, and to do it a lot.

                      Which is a long explanation for why I think your counterfactual above is baloney. It collapses right at the end, with your baseless assertion about “historical realism.”

            3. Democracy means Congress accepts responsibility when it writes a law that permits an outcome it doesn’t want.

              How would any law prevent any outcome, if the President decided the law could mean anything, but especially whatever he had in mind?

          3. “The fact that it asked up to 1950 has zero relevance as to whether it ought to be added now. That’s an utterly unimportant point.”

            It has no relevance to the policy wisdom of adding it back now. It is most certainly relevant to the question of whether or not adding it back is constitutional.

      2. “a clear test of the integrity of the court. ”

        If they rule my way they have integrity, if they rule the opposite they don’t.

        That is not how you normally judge integrity.

  14. The modern, hyper-political nature of the Supreme Court stems from the 17th Amendment more than any founding-era structure.

    1. The hate fro the 17th Amendment is one of the more absurd features of many on the right.

      1. It was not the straw the broke the camel’s back, but it was a mistake that should, but won’t be, repealed.

  15. “The Court Swims in Political Seas”

    GET OUT OF THE WATER! GET OUT OF THE WATER NOW!

  16. “The Court Swims in Political Seas”

    Ah, for the days when the law was no respecter of poissons.

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