It was crime at the time, but the laws, we changed them

by John Holbo on June 26, 2013

My Things To Come post got a modest response. Let’s try for more, considering ‘How Things Have Changed Dramatically’.

Kevin Drum’s nickel summary works for me, comparing and contrasting the new decision, in Shelby County v. Holder with Crawford v. Marion County Election Board (PDF).

So here’s your nickel summary. If a law is passed on a party-line vote, has no justification in the historical record, and is highly likely to harm black voting, that’s OK as long as the legislature in question can whomp up some kind of neutral-sounding justification. Judicial restraint is the order of the day. But if a law is passed by unanimous vote, is based on a power given to Congress with no strings attached, and is likely to protect black voting, that’s prohibited unless the Supreme Court can be persuaded that Congress’s approach is one they approve of. Judicial restraint is out the window. Welcome to the 21st century.

I will be curious to see whether this decision gets cited as precedent in future. The implications, potentially, seem so enormous I wonder whether they will simply be overlooked. (I realize this often happens when philosophers read legal decisions: we see all manner of absurdity that is papered over in practice by a lot of stuff we don’t understand – some of it other nonsense, put in place so the nonsense we see doesn’t cause trouble; some of it good sense we, who didn’t go to law school, don’t happen to be in the know about.) It seems to be the case that the Supremes have over-ruled Congress exclusively on the grounds that the South has changed more than Congress gives it credit for. “Section 4’s formula is unconstitutional in light of current conditions” (3) [emphasis mine]. “Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to pre-clearance” (3)” [emphasis mine]. That second one is more ambiguous. That might be taken to mean: after today. But, in light of the rest of the decision, this statement seems intended as a descriptive account of a development in the recent past, post-1965 but pre-decision. Section 4 wasn’t born un-Constitutional, but grew into something un-Constitutional as society changed around it. Congress finds itself standing in a place it could only get to by overstepping, without having overstepped, due to political-societal-cultural ground itself having shifted. That’s not an incomprehensible or paradoxical claim. But it’s hard to imagine a more fertile basis for a ‘living Constitution’ approach than the blanket proposition that any time the Supremes think “things have changed dramatically” (p. 3), they get to tell Congress what new thing to do – or not do – that is ‘fair’, by the judges’ lights.

Now that’s living!

They are going on about the equal dignity of the states, which sounds like a fine thing – although I think it isn’t a phrase that occurs in the Constitution? (Am I wrong?) But in this context it also sounds like a whole lot of not nearly enough, what with separation of powers. Any time something ‘unfair’ happens the equal dignity of someone or something is getting trodden, in some sense. (It very rare that everyone suffers equally from a lousy law, probably) That doesn’t mean any time the Supremes think Congress has made a bad law, the Supremes get to step in and call foul. That’s kind of rule one. It seems like the Supremes are applying a very high, rational-basis-with-extra-bite standard. It’s not enough that Congress be exercising powers it is acknowledged to have in a way that might make possible sense. It has to be a ‘good’ law – effective and ‘right’? But they can’t possibly apply that standard of judicial review to everything Congress does. So what is the elevated standard they are holding Congress to, in this case, and what class of cases need to meet this elevated standard, not just the usual ‘pass an ineffective or counter-productive law if you want’ bog-standard rational-basis test?

I’m reasonably sure the Supremes cannot have given themselves total dominion over the legislative branch. (Scalia is not laughing, mirthlessly, and congratulating himself on having finally acquired ‘the Shelby gem’ for his Infinity Gauntlet. ‘Now I have infinite power to crush judicial activism anywhere in the universe, including Congress!’) But I’m at a loss to see why, as precedent, this isn’t a major power grab.

{ 122 comments }

1

Jeff Martin 06.26.13 at 3:31 pm

Entirely unprofound, banal observations to follow… As precedent, ie., in the abstract and theoretically, this is a major power grab, inasmuch as the basis for the invalidation seems genuinely new, goes beyond the old rational-basis test, and carries open-ended implications (if the Court may adjudge laws unconstitutional whenever “society changes”, then what does “society changed” really mean, how is this quantified or characterized, who decides, etc.). The meager, silver-lining bonus in the ruling is that originalism is revealed, more blatantly than in normal circumstances, to be a fraud, a vast, pseudo-intellectual dissimulation veiling the real, underlying claim: that right-wing political preferences should be read into the Constitution, not because they’re really there, but because right-wingers like them. This was always knowable, but it’s nice to get it out in the open.

In practice, though, both because of the increasingly right-ward tilt of the Court (and much of the Federal bench) and a lot of that other stuff we don’t understand (much of which is the product of the right-ward tilt of the Court, construing precedents and procedures to reach substantive ends), the radicalism of the ruling will probably function, not as a blanket check on Congress, but as the old right-wing ratchet. There Is No Alternative (Because we deprived you of the alternatives via the law, or “law”.).

2

Bloix 06.26.13 at 4:33 pm

“the equal dignity of the states, which sounds like a fine thing – although I think it isn’t a phrase that occurs in the Constitution? (Am I wrong?)”

No, you’re not wrong. There is nothing at all in the Constitution that requires the federal government to treat states equally.

You’ll note that the only constitutional provision cited by the majority is the Tenth Amendment, which reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This prevents federal overreach: If an act of Congress or the executive can’t be grounded expressly or by implication in a specific provision of the Constitution, then it’s unconstitutional because it intrudes on the authority of the states.

But the Tenth Amendment says nothing about a requirement that powers that clearly are delegated to the federal government must be applied “equally” to the states. The majority just made that up.

Judge Richard Posner, a law professor and appeals court judge with a long history of conservative decisions behind him, was appointed by Ronald Reagan and has become one of the best-respected jurists in the country for the brilliance and persuasive power of his opinions. Here’s what he wrote this morning:

Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act … as violating the “fundamental principle of equal sovereignty” of the states. This is a principle of constitutional law of which I had never heard—for the excellent reason that … there is no such principle.

http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/the_supreme_court_and_the_voting_rights_act_striking_down_the_law_is_all.html

It’s an extraordinary thing for a sitting lower court judge to say about the Supreme Court. I recommend his entire article to you.

3

scott 06.26.13 at 4:33 pm

The part that boggles me is that the 15th Amendment explictly gave Congress the power to legislate to protect African-American voting rights, and yet they’ve found an exercise of that power to be unconstitutional. I suppose you could reason that the exercise of power has to be consistent with the rest of the Constitution as well, but some vague principle of equal sovereignty of the states is an advertising slogan rather than a legally recognized principle. It’s especially hard to take when you consider the historical background. The country fought a civil war in which it put down a rebellion provoked by states’ rights advocates, and then enacted a 15th Amendment which essentially said, to hell with all that, we think Congress can protect the voting rights of African Americans regardless of what the states want. This decision just seems to stand reason, logic, history, and constitutional text on its head, with craptastic reasoning on a par with Bush v. Gore. If you’d told me and my law school classmates 20 years ago that THIS decision was possible, we would have laughed at you, and rightly so.

4

Bloix 06.26.13 at 4:43 pm

Scott, Paul Campos agrees with you:

“So what we have here is a situation in which a war was fought in which 600,000 soldiers died, in large part so that the Constitution could be amended in such a way as to give Congress the power to force the slave states to treat black people like human beings. A century later, Congress gets around to actually using this power, and the law it passes is a remarkable success.

“But according to the Roberts Five, it’s unconstitutional for Congress to enforce legislation specifically mandated by the Constitution, because it has carried out its legislative responsibilities too well.”

http://www.salon.com/2013/06/26/this_supreme_court_is_a_disgrace/

5

Anderson 06.26.13 at 5:18 pm

To a lawyer, this decision is *worse* than what Roberts did to the Necessary & Proper Clause last term in Sebelius. This is a neo-Confederate decision.

6

Rich Puchalsky 06.26.13 at 5:23 pm

Supreme Court Justices are best modeled as politicians who can’t run for office again — like second-term U.S. Presidents. They start to want to do things for their personal and ideological legacy. Treating them as if they have any respect for law as such is a mistake.

7

Nachasz 06.26.13 at 5:52 pm

Is it about time to rewrite the Constitution?

8

Anderson 06.26.13 at 5:57 pm

“Is it about time to rewrite the Constitution?”

In *this* political climate? Please, god, no.

9

Ben Alpers 06.26.13 at 6:35 pm

The better question is: how can we stop this Supreme Court from rewriting the Constitution?

10

Devil, Esq. 06.26.13 at 6:48 pm

I’m writing to explain, from a legal standpoint, how the two decisions are in accord (not to endorse the VRA decision). I’ve tried to simplify things into a thumbnail sketch…

As background, the starting off point is that under the traditional legal interpretation of our constitutional framework states have a lot of leeway to determine the conditions of voting (districting, methods, etc…) This is where the 10th Amendment becomes relevant as it provides constitution support for this power. However – nothing is absolute. So this ability is checked and balanced by various other constitutional provisions (the civil war amendments; art.I, sec4,cl.1; etc…).

When a court finds, as in Crawford, that the change a change voting procedure/requirements doesn’t affect any other relevant constitutional provision then no balancing is needed. Instead, as the state is exercising its power under the 10th amendment, the court should be extremely differential.

However, in Shelby, there is a conflict between the states’ power under the 1Oth and Congressional power under the 15th. Because there is direct conflict between the two constitutional provisions, Courts will scrutinize Congressional legislation that affects the states’ power to determine their various voting laws more closely. The existence of a competing constitutional consideration (the 10th amendment) forecloses the kind of hyper lenient review that the state enjoyed in Crawford. Now the court has to balance.

The real problem in Shelby is the balancing part; this “equal sovereignty” business really is mostly pulled from thin air. It might as well be a “penumbra” – even weaker really. What the Court did was create a weight by way of imagination in Northwest Austin (the “we warned you” case) to tip the scales here. It’s clever in some sense, but mostly sophistry.

11

Nachasz 06.26.13 at 7:29 pm

@9

The better question is: how can we stop this Supreme Court from rewriting the Constitution?

Bruce Ackerman would answer, that:

Compared to this, the self-conscious embrace of elitist methods of selection looks positively attractive, especially if ways could be found to inject some political responsiveness into the selection process. Consider the way the Germans handle an analogous problem. Their constitutional court is a more powerful institution than either the new Lords or the new Supreme Court: in the final analysis, the Commons has the authority to impose its legislation despite their dissent, but the Bundestag often faces an absolute veto from the court on constitutional grounds. As a consequence, the Germans have taken careful steps to assure that the justices don’t stray too far from public opinion as it evolves over time. Not only are they limited to a 12-year term, but the government must gain the support of a two-thirds majority for their initial appointment. The supermajority rule allows the minority party to veto extremists, and insist on thoughtful mainstream types; and since two vacancies generally occur at once, the minority can also assure one of the positions for a mainstream type from their own ranks. Over the last half century, the system has worked to generate a flow of distinguished jurists, from many parts of the profession, and has greatly contributed to the court’s high standing.

12

Anderson 06.26.13 at 7:38 pm

10: I appreciate that you’re just advocating for your client (ahem), but this won’t work:

Because there is direct conflict between the two constitutional provisions, Courts will scrutinize Congressional legislation that affects the states’ power to determine their various voting laws more closely.

There is no direct conflict b/t 10A and 15A. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

That’s a default clause. It *can’t* conflict with the 15A “delegation of powers” to the United States. Any time a later amendment gives more power to the feds, the 10A shrinks a little bit: it’s like what Eliot says a new poem does to all the previous poems.

13

Devil, Esq. 06.26.13 at 8:11 pm

My esteemed colleague ( Mr. Anderson), there is a fair amount of case law that holds that a state’s right to to control the previously outlined voting powers are the powers reserved to the states under the 10th. Shelby cites some of the authorities for this proposition in its boiler plate (this is the law) preamble before it goes on to create some new law. I don’t particularly have an opinion regarding whether those authorities are well reasoned; but at least this part of the Shelby decision rests on decent precedent.

I just want reemphasize that the real scandal is that when the court did its balancing it was faced with two main competing interests. Voter protection explicitly authorized by the 15th amendment that (it explicitly admitted) has been working incredibly well. So well, that that was broad bipartisan agreement that it should be continued. And – “equal state sovereignty” – a concept created by Mr. Roberts a few years back. And, you know…it’s a joke.

I’m going to humbly bow out now, discussing such things always threatens to take us into arcane rabbit holes that seem ridiculous, and either bore or shock decent people. I’ll just end on a broad statement, a lot of these controversial con law cases basically do involve a balancing of competing constitutionally protected interests – there really isn’t an objective way of deciding which interests matter or weigh more. It’s pure politics and personal belief. The backbone for the justification for precedent in these types of cases (why else do we care why some long dead white men said), and a requirement that precedent be read in good faith, is that it brings a somewhat objective quality to these decisions. This is what is supposed to raise law above mere politics. Mr. Roberts is a very clever man, but his gambit with Northwest Austin and Shelby isn’t nearly clever enough to mask that he spit on all of that. Damage to the jurisprudence be damned.
P

14

Anderson 06.26.13 at 9:23 pm

13: concur in general. I continue to doubt that the Tenth can plausibly be read as affording any positive rights to the states, but alas, the test isn’t plausibility, it’s “five votes.”

15

Peter K. 06.27.13 at 12:13 am

“It was crime at the time, but the laws, we changed them”

Are you referencing the New Pornographers???

Great song and video:

http://youtu.be/Sn-LDCRL8Js

16

John Holbo 06.27.13 at 1:00 am

Of course. It’s a great song, indeed! I was playing it over and over yesterday, after I thought of it as a title for the post.

Then Belle and I were talking about how we misheard the lyrics at first. They are really hard to understand. Belle said that she thought the “Pharaoh on the microphone!” bit was “There are no marmosets!” Which I think is a totally awesome, anthemic cry from the heart.

17

John Holbo 06.27.13 at 1:24 am

“I just want reemphasize that the real scandal is that when the court did its balancing it was faced with two main competing interests. Voter protection explicitly authorized by the 15th amendment that (it explicitly admitted) has been working incredibly well. So well, that that was broad bipartisan agreement that it should be continued. And – “equal state sovereignty” – a concept created by Mr. Roberts a few years back. And, you know…it’s a joke.”

I think we can agree to agree about this, the Devil. Equal state sovereignty is a strong moral intuition, not a legal basis. (‘Are you telling the South it’s still racist? That’s rude!’ That’s what equal state sovereignty is.) So now we have this legal function from moral intuitions [‘this seems unfair’] and empirical judgments [‘things look like they’ve changed’] to legal conclusions. The function doesn’t really operate on the black letter of Constitution, or what its framers may have intended; or – this last bit really pretty important – the black letter of precedent. The thing that is supposed to keep ‘living constitutionalism’ restrained is really the cold, dead hand of precedent. This is why it’s nonsense when Scalia denounces it as ‘anything goes’. But now Scalia himself has signed off on a decision that encodes the anything goes, precedent be damned! version into precedent. There is now precedent that precedent doesn’t matter and you can do whatever you think is ‘fair’ if ‘things have changed’. That’s obviously too absurd ever to become an explicit principle. It’s positively self-exploding, insofar as it basically blows up the notion that this is a legal decision, rather than a moral/sociological one.

Today’s gay marriage decision is a perfectly illustration. I think most of us here are applauding the decision, and it works, structurally, the way the majority in Shelby says things work. If the ground has shifted so much that Congress has, in effect, overstepped retroactively by doing something that was ok at the time but no longer, so much so that 5 out of 9 justices say ‘man, that is stone cold unfair’, then it’s out. But if the gay marriage decision were only as long as a fortune cookie fortune, merely citing the time-honored Shelby decision in brutal ‘this just seems really unfair, given how everyone has a gay friend or cousin, so we’re throwing it out’ fashion, it would rip back the polite fiction that there is anything distinctively legal going on here.

As the Devil says:

“a requirement that precedent be read in good faith, is that it brings a somewhat objective quality to these decisions. This is what is supposed to raise law above mere politics. Mr. Roberts is a very clever man, but his gambit with Northwest Austin and Shelby isn’t nearly clever enough to mask that he spit on all of that. Damage to the jurisprudence be damned.”

Shelby really tears back the mask, so I wonder how it will be cited as precedent. It just can’t be. But perhaps it will be cited around the edges. When a bit of lift is needed to get some ‘living constitution’-style revision over the hump of precedent, in a way that looks like it nominally respects precedent, a light touch of Shelby-as-precedent may be applied. (Not too much! We don’t want to dwell on it.)

18

LFC 06.27.13 at 2:03 am

@J Holbo
Are you suggesting that the Sup Ct’s DOMA decision is as weak, from a strictly legal standpoint, as its Voting Rights Act decision? Or do I misunderstand you?

I haven’t read either case (I mean the actual decisions). I’m still reeling from having read Thomas, J’s concurrence in the Texas affirmative action case, where the entire first part is given over to “explaining” why AA is just as bad and indefensible as separate-but-equal. That was my Sup Ct ration for the week.

19

John Holbo 06.27.13 at 2:13 am

“Are you suggesting that the Sup Ct’s DOMA decision is as weak, from a strictly legal standpoint, as its Voting Rights Act decision? Or do I misunderstand you?”

No, I’m not suggesting that. I’m just suggesting that, if Shelby were a good decision, there ought to be a really short shortcut in the DOMA case. Obviously they didn’t write a 1-sentence ‘it’s unfair, things have changed, Shelby, peace out!’ decision in the new case, because that would look – and be – bad. But, by the logic of Shelby, it would make perfect sense, and would save paper. So where does that leave the logic of the Shelby case?

One thing that makes the DOMA decision stronger, legally, is that the equal dignity of persons has a stronger Constitutional basis than the equal dignity of the states. There are other things, too. I haven’t actually read the DOMA decision yet. But I’m guessing they cite precedent and do all the usual stuff. The thing I’m pointing out about Shelby is that Shelby should, logically, obviate the need to cite precedent to the traditional degree.

20

LFC 06.27.13 at 2:31 am

@JH
Ok, I get it, thks for clarifying.

The business about the equal dignity/sovereignty of the states is interesting. I don’t doubt that its Constitutional basis is rather weak and that it can’t justify the Shelby decision. But as a general principle, it probably does have some historical basis (esp. perhaps from the debates during and just after the Constitution’s drafting); one cd probably pluck some quotes from The Federalist. But I don’t know if Roberts even bothered to do that.

21

Anderson 06.27.13 at 3:19 am

LFC, see this on “equal dignity.” Not a long essay. Hits the nail on the head.

22

John Holbo 06.27.13 at 3:33 am

Thanks, good link. Modifying what I said above: I see now that in my comment, above, I imply that the DOMA case – and most cases – are really political decisions, wearing a polite mask of legal procedure. I didn’t mean to put it quite that baldly, but my slip into that sort of exemplifies the problem I’m bringing out. Even if the law is politics, at its root, it can’t be naked politics. At any rate, politics swathed in heavy wraps of procedure and precedent and wearing black robes and chains of black letter is genuinely a different beast than naked politics. Forcing people to wear boxing gloves makes boxing a different thing than just fighting in the street. What I’m noting about Shelby is that it takes the gloves off, explicitly, in precisely the way that Scalia has been warning that ‘living constitutionalism’ does, even though the actual living constitutionalists are always very concerned to swathe ‘life’ – read: politics – in the aforementioned wraps of procedure and precedent and so forth. It’s very ironic all around. Everything always is. But especially conservatism.

23

Anderson 06.27.13 at 4:17 am

22: agreed. I thought the Title VII ops on Monday were incorrectly decided, but they were at least legal arguments. The Shelby County decision was a ruse; it was like Yoo’s torture memos. Treating the Tenth Amendment as limiting the Fifteenth is about on par with discussing Presidential war powers yet omitting Youngstown Sheet & Tube.

24

shah8 06.27.13 at 6:57 am

I have been thinking about the broader political ramifications of these judgments. Still haven’t really gotten my mind around it. Gays vs blacks, democratic party GOTV efforts, how the female vote would interplay…

I’m not sure how it all works, but ultimately, I gauge that the Roberts Court will be sorry, because it would have radicalized sentiment in some direction or other. I also think that alienation of other elite factions that the Supreme Court ultimately couldn’t alienate profitably is also a probability. This has internal security ramifications.

25

bad Jim 06.27.13 at 7:01 am

To repeat what others have said, there is no point in trying to understand the logic of the decision because it wasn’t the result of logic. A majority of the Court decided it didn’t like that law. It’s like Bush v. Gore or the consensus of opinion on the invasion of Iraq: not only was the conclusion not the inevitable product of a process of deliberation, but they barely bothered to pretend it was.

26

Barry 06.27.13 at 12:24 pm

In addition to Anderson’s first comment, the Crawford case did indeed involve a balancing act, despite what Counselor Devil doe not say. The whole question was whether or not Indiana state law was inviolation of the 15th amendment (is not, what grounds did the plaintiffs have)?

27

Seth Gordon 06.27.13 at 1:46 pm

I agree with the commenters above who have compared this to Bush v. Gore. Bush had weasel words about how “[o]ur consideration is limited to the present circumstances”, and Shelby has weasel words about “current conditions”. They might as well have told lower courts “if you cite this as precedent in a decision whose outcome we don’t like, we will overrule you without breaking a sweat”.

It’s Calvinball jurisprudence.

28

LFC 06.27.13 at 2:04 pm

Anderson: Thks for the ‘equal dignity’ link; will read.

29

William Timberman 06.27.13 at 2:10 pm

I wonder how the conservative justices on the court assess not just the Zeitgeist as she is, but the overall flow of history. In a recent post on Dave Weigel’s comments concerning the DOMA decision, Brad Delong speaks of Nino Scalia’s Frantic Cry for Help, which is more or less to the point.

Of course, winning or losing, Nino is inevitably frantic, but I wonder if the two ice maidens on the right, Alito and Roberts, are really as confident that the future belongs to them as they pretend. Roberts, in particular, does seem to have blinked on Obamacare. If they’re nervous about the political trends continuing to confirm their law, it might explain, at least in part, why their reasoning seems rushed as well as specious. (Please forgive me for grubbing about so shamelessly in the judicial rubbish for a little good news.)

30

Anderson 06.27.13 at 2:16 pm

I wonder if the two ice maidens on the right, Alito and Roberts, are really as confident that the future belongs to them as they pretend

Encouraging states to hinder the right of blacks and Hispanics to vote is a positive step, for them, towards *securing* the future.

31

William Timberman 06.27.13 at 2:22 pm

I should also add, that I agree with Joseph Fishkin’s evaluation of the equal dignity of the states linked by Anderson above, and with Ta-Nehisi Coates, who, some time back, made the point on his blog that what we’re being asked to call patriotism by conservatives these days is, in large part, a heritage of the treason of 1860. From my point of view, the five conservative justices who decided the Shelby case belong on a vanished Confederate Supreme Court, not on ours.

32

Anderson 06.27.13 at 2:28 pm

From my point of view, the five conservative justices who decided the Shelby case belong on a vanished Confederate Supreme Court, not on ours.

Word.

33

Rich Puchalsky 06.27.13 at 3:19 pm

“From my point of view, the five conservative justices who decided the Shelby case belong on a vanished Confederate Supreme Court, not on ours.”

Fine rhetoric, but they’re actually on our Supreme Court. It’s a statement like John Holbo’s “Even if the law is politics, at its root, it can’t be naked politics.” Well, it is naked politics. Normative statements that don’t lead to some way of correcting the reality can just end up concealing it, because every time something happens that goes against the norm it’s treated as an exception instead of a rule.

The Supreme Court is hopelessly corrupt and can not be fixed. We’d be better off without the entire Constitution. As Anderson says above, the problem with that if it could happen is that in this political climate we might well end up with something worse. But as long as we’re stuck with what we have, we might as well have the proper scorn for the law that it deserves, not only around special occasions when the court does something bad, but all the time. And the people who have to convince the court of something should start thinking less about law and more about flattery, political contacts, and bribes.

34

William Timberman 06.27.13 at 3:51 pm

Rich Puchalsky @ 33

Granting that what you say is true, or at least partially true, I’m not sure that going ugly gets us any farther along the path toward E.O. Wright’s Real Utopias than does reasoning about the application of the law to our discontents. My own experience tells me — or misleads me to think, if you prefer — that without ideals, in the sense of how things might work better, the mud-wrestling made necessary by the politics of the real has little purpose except to gain for individuals or tribes a necessarily temporary advantage. Italians, for example, have made do in Italy for centuries by shrugging at corruption while mastering your recommended arts of flattery, political contacts and bribes, but the attrition rate hasn’t been notably less disastrous than our own.

To the extent that your exhaustion with rhetoric is intended ironically, I’ll happily agree with you. To the extent that it expresses a real despair, however, I’ll have to part company with you, except, perhaps, in spirit. We may be able to see beyond our own lives, but we can’t live there. That may be a tragedy, but it isn’t an excuse to run away, or to trash the principles that make it worth getting up in the morning for however long we’re able to hear the alarm clock, or feel the sun on our faces.

The short version: arguments matter, and so do examples….

35

Random Lurker 06.27.13 at 4:14 pm

“Italians, for example, have made do in Italy for centuries by shrugging at corruption while mastering your recommended arts of flattery, political contacts and bribes, but the attrition rate hasn’t been notably less disastrous than our own.”

On the other hand, we have great pizza and, every 20 years or so, an anti-politic movement that tries to “kick the bums out”, sometimes with success, apparently without long lasting consequences.

36

William Timberman 06.27.13 at 4:25 pm

I remember the Fascist wall-stencil I saw years ago — a heroic silhouette of il Duce in a helmet, with an upraised chin, and the slogan underneath: Credere, Obbedire, Combattere! Very un-Italian, I thought, especially if you took it seriously, which I suspect most Italians at the time didn’t. More like Kant than Machiavelli, although the overall impression it left, so long after the war, was more like Kant dressed as Pantalone.

37

Mao Cheng Ji 06.27.13 at 4:33 pm

In a half-way decent political system you could try applying your ideals, sure. But some are (or seem to be) beyond salvation; in that case, why would you discourage cynicism? Any attempt to “work within the system” would just amount to prolonging the agony.

38

William Timberman 06.27.13 at 4:41 pm

Who said within the system? Criticizing the application of the law isn’t the same thing as fighting your way into law school, buying a pair of white shoes, and hoping and changing your way through the maze of influence with an idea someday of…. Outside the system is fine, but as Mr. Dylan said, when you live outside the law, you must be honest, which to me means that you have to have at least some idea where you’re going….

39

Random Lurker 06.27.13 at 5:32 pm

@William Timberman

“Credere, Obbedire, Combattere! [for non italian-speakers: Believe, Obey, Fight!] Very un-Italian,”
In Italy also many people believe that this kind of stoic idealism invoked by fascism is quite unitalian, but I believe that this is just the other side of the coin of italian cynicism:
When people lose trust in “democratic institutions”, they will believe in something else, since everyone has to believe in something.

My grandmother, who was a self-described “Mussolinian” until her death a few years ago, was a very idealistic woman and, since she was a very open minded, absolutely not racist woman for her generation, I believe that she really liked this kind of idealism in fascism. Recently the speaker of the m5s party had the bad idea of saying that fascism, at least at the beginning, had a “strong sense of the state” (as opposed to corrupt politicians of today).

I suppose this also applies to the erosion of trust in the judiciary that is (partially) the subject of this thread.

40

Bruce Wilder 06.27.13 at 6:00 pm

I’ve met Italians, who took il Duce quite seriously. He had, and has, a lot of support, especially in southern Italy, where cynicism lies like a thick, but ancient and moth-eaten carpet over the whole landscape.

Most people, in any time or place, are frustrated in their life’s ambitions, and disappointed in themselves. We can hope for a christian utopia of universal love, compassion and acceptance, but we live in a hard reality of limited resources and individual powerlessness and conflict. The hard reality of conflict and individual powerlessness has a corrosive effect on the human spirit. Much of political ideology is propaganda trying to hide from or disguise the reality of individual powerlessness and the inevitability of conflict, which politics exposes.

The richer and more materially successful you are, the easier it is to hide, the easier it is to disguise individual powerlessness, the easier to hope to escape aging and death and insignificance, in narcissism. You may be individually powerless, but you are in a place in society, where you exercise considerable power as manager in your firm, a leader in your community. In conflict with others, you often win, and if you compromise, it is only after negotiation.

For the common people, for the poor or merely middle class, it is easy to see that things are not as they “should” be, but it is very hard to see that there is anything to be done about it, any point in trust. The rich do as they will; the poor suffer what they must. Cynicism is not a monopoly of the poor; for the rich, it is an excuse for bad behavior, but for the poor, it is a consolation prize, a cheap trinket you get for eating thru the awful Cracker Jacks, which is to say, for paying enough attention to politics to know that things are not as they should be. And, you may be wrong; you may be misinformed about the nature of the conflict, the compromise, the reconciliation with reality, that policy represents. But, still, you have no basis for trust, so what is left is, cynicism.

il Duce lets people feel they are part of something greater, that someone cares enough to see that the trains run on time, which is a way of saying that at least some things are “right”. He claims to cut thru the endless arguments of politics, which material conflict engenders, and which only tire most of us out, and seem to result, more often than not, in defective compromises or endless and wasteful delay.

The cartoonish nature of il Duce is a puzzlement to some. But, resentment competes pretty heavily with admiration in the psyche of most people. Resentment loves a fake. Real heroes can be an affront, a reminder of how far short most of us fall. The fakes — Ronald Reagan or John Wayne — are easier, sometimes, to tolerate, even when we need heroes, than the more genuine article, who will wear shortcomings along with the medals. Prophets are much more trouble than preachers. Saints are not a realistic prescription; saints are dead, but being dead may be their one redeeming quality — you can trust the dead without fear.

41

Bruce Wilder 06.27.13 at 6:11 pm

Right now, American society seems, from the perspective of the elite, maybe even most of the top 10%, (or even 30% — I don’t know, fuzzy lines), to work reasonably well. Lots of smart people can see that this is an illusion. Even lots of people, who pay little attention, sense that the reality is tenuous. But, if you are economically comfortable, it is an abstract sense, maybe experienced as an affront to your idealism, your disappointment in Obama. And, I am convinced that that abstract sense of society working or not-working, as the case may be, is, for many people, remarkably weak in the details. Not just for the masses, whose passivity may be forgiven, but among the elites, who have no idea of how the institutional apparatus could be designed and managed.

I sometimes wonder if it is all a game of Jenga, pulling out one stick at a time from the bottom of the pile, waiting to see if the tower topples. It hasn’t fallen yet, though it shook scarily enough in 2008. The tower isn’t toppling now; now it is sinking, slowly crushing the base.

We are at a low point in our sense of social affiliation, of social connectedness, and there’s little in the way of mass membership social or political organization, to press the case against kleptocracy. The sense of solidarity that makes elites feel their responsibility to the whole society is missing, just as much as the sense of solidarity, which allows masses of people to find leaders and act in concert.

Rich is right. There’s no apparent check on the system’s political entropy. The leadership doesn’t know that the society cannot “work” well without some basic, enforceable sense of fairness, or they don’t care. Slave plantations work well enough to satisfy the Planter and his hangers-on, even if they make a plantation society poor, overall, and its ruling elite anxious about the risk of murderous rebellion. Part of the elite are taking us to ugly, because they like ugly, they want ugly, and they think they can make ugly work for them and theirs; and another, probably much larger but less effective part of the elite just doesn’t get it, doesn’t want to acknowledge the stakes, and thinks it is enough to simply put off the ugly, kick the ugly down the road a bit, go along to get along, somehow, it will all magically work out. They think the machine runs itself, spontaneously, and they, themselves, are mere passengers — the idea that someone must drive, or tend to the mechanical or fueling, is alien.

I don’t see a way out to anything, that doesn’t involve some large degree of system collapse and rebellion from below. That will be ugly. The structure will come down. It may come down on top of most of us.

42

Bruce Wilder 06.27.13 at 6:41 pm

A last note to bring my comments back to constitutional law.

When Alito was in the process of being confirmed, I read some of his salient opinions and the commentary on who he is, (and even followed comment threads at Volokh Conspiracy . . . oh the humanity!)

Alito has a distinctive legal theory in his record. He wants to extend judicial review — the capacity of the Federal courts to declare legislation null and void by reason of being unconstitutional — into a kind of Lord’s Veto. The House of Lords in the British Parliamentary system, for many decades, could not quite block the will of the Commons, but could delay enactment of law, by refusing to concur in legislation the Commons passed. Alito’s idea, which he had already put forth in dissents as a lower court judge before his appointment to the high court, provides exactly the path the Court has taken in the Voting Rights cases. The Court doesn’t have to find that Congress did not have the power, under the Constitution, to enact this or that provision of law; the Court can take a middle ground, of disapproving of the sufficiency of justification, which the Congress evidenced. Where, before, the Court might look to the record of hearings or debate for evidence of constitutional intent, now the Court can look to that record for a sufficiency of justification or method. And, the Court doesn’t have to rule that Congress lacked the Constitutional power to do what it did; it can send the law or provision in question back to Congress for a re-do. In effect, judicial review becomes a potential delaying veto, which the Court may wield as a third legislative house.

It is a remarkable innovation, with which Alito ought to be credited.

43

Jacob McM 06.27.13 at 6:44 pm

Much of political ideology is propaganda trying to hide from or disguise the reality of individual powerlessness and the inevitability of conflict, which politics exposes.

You’re sounding very much like Carl Schmitt here.

44

Bruce Wilder 06.27.13 at 6:50 pm

I do love a well-functioning bureaucracy.

45

Anderson 06.27.13 at 7:11 pm

“But as long as we’re stuck with what we have, we might as well have the proper scorn for the law that it deserves”

I think a more useful effort might be working to prevent a Republican president’s taking the White House in 2016, and to support a Democratic majority in the Senate. There are four Democratic appointees on the Court. Replace even just one of the Republicans, keep the Democratic seats, and we could be looking at a generation of 5-4 opinions supporting liberty and justice, not squelching them. Which, I must grant, would take me some getting used to.

46

William Timberman 06.27.13 at 7:15 pm

Gawd, I hope I don’t get typecast here as the left’s Rebecca of Sunnybrook Farm. We’re talking about different types of ugly, I think. Maybe the confusion’s mine, but all I was trying to get at was that what we called the Enlightenment did take place, and that despite everything else we know about human motivation, both individual and collective, it was of some significance as a guide to how we should conceptualize human relations. As an antidote to tribalism, it deserves to be defended, despite things like the Soviet collectivism of agriculture, or Auschwitz-Birkenau, which in a sense were rationalism’s pride-goeth-before-a-fall moment for all time.

If Rich was seriously saying that all we need to do is learn to bribe our congresscritters, or perhaps forget about our justice system and sign up with our neighborhood warlord — which of course he wasn’t — then I just wanted to go on record that maybe we oughtn’t to throw the baby out with the bathwater. As for the likely course the future will take, my own view is as close to yours as to make differentiating one from the other an exercise in semantics. You say system collapse and rebellion, I say maybe events will give us a hand. It’s certainly true that men on horseback, with as keen an eye on our discontents as any psychoanalyst, can do an awful lot of damage, but in the end, when the pieces need to be put back together again, they won’t be much help. Maybe we won’t either, but the testimony of history on that score isn’t as one-sided as you make out.

47

William Timberman 06.27.13 at 7:19 pm

I should have addressed the previous comment (46) to Bruce Wilder @ 40-41, although the context probably makes it clear enough.

48

William Timberman 06.27.13 at 7:22 pm

And lest I wind up sounding like Glenn Beck, please make that the Soviet collectivization of agriculture, rather than collectivism.

49

Bruce Wilder 06.27.13 at 7:30 pm

Anderson @ 45

The triumph of hope over experience?

A Democratic majority in the Senate — sure, but not these Democrats.

How about a Democratic President? Haven’t had one of those is a while.

50

Barry 06.27.13 at 7:34 pm

Bruce Wilder: “It is a remarkable innovation, with which Alito ought to be credited.”

In other words, Alito is the biggest judicial activist to be confirmed to the court since …….. well, in a long time. Makes sense – the right never accuses the left of anything that the right isn’t already doing, and usually doing 10x as much.

51

Anderson 06.27.13 at 7:44 pm

“How about a Democratic President? Haven’t had one of those is a while.”

Enjoy your ideological purity. Meanwhile, Obama appointed Sotomayor and Kagan, who are doing pretty well — more consistently liberal, I would say, than Breyer, a Clinton appointee.

“The best is the enemy of the good.” Some of y’all should print out that phrase & tape it to your computer monitors.

52

Bruce Wilder 06.27.13 at 7:46 pm

I’m still trying to scrape off the lesser evil bumpersticker.

53

Rich Puchalsky 06.27.13 at 7:47 pm

Anderson: “I think a more useful effort might be working to prevent a Republican president’s taking the White House in 2016, and to support a Democratic majority in the Senate. There are four Democratic appointees on the Court. Replace even just one of the Republicans, keep the Democratic seats, and we could be looking at a generation of 5-4 opinions supporting liberty and justice, not squelching them. Which, I must grant, would take me some getting used to.”

But that is already a position of contempt for the law, and an admission that it’s just naked politics. What you’re saying is that there isn’t really any law, not at the highest levels, and that instead what we have are appointed political functionaries who will more or less carry out the political positions that they advertised in order to get the job. And that the only way to trust that there will be legal predictability, much less justice, is if the right people win elections.

I’m not interested for this thread in pursuing the “what next” question of whether this requires a radical response or not, what is likely to happen, etc. When I thought about it, I decided to become an anarchist, and doing that in one’s late 40s is a vaguely comical gesture. I don’t think that any of us are movers and shakers for whom “what next” is a really important question — it will come no matter what we decide to do. But I do want to point out that in practice, the mainstream narrative about the Supreme Court in the U.S. is already one which implicitly holds to lawlessness and raw politics. Otherwise we would not be told, around every election, that so much depends on who the President gets to appoint.

54

LFC 06.27.13 at 7:50 pm

W Timberman @36
More like Kant than Machiavelli

Not like either of ’em, imo

55

LFC 06.27.13 at 7:58 pm

@Rich

No, I don’t think so. What the Sup Ct does, most of the time, is politically inflected or influenced but it’s not ‘naked’ politics, b/c of what Holbo said @22. You have to bear in mind that of the small fraction of possible cases the Sup Ct chooses to take and decide, many if not most are ‘close’ cases where there are decent, precedent-based arguments on both sides. That is, to a significant extent, why they end up being taken by the Sup Ct to begin with. In that context, a justice’s general ideology or political leanings matter, but it’s not ‘raw’ politics.

56

LFC 06.27.13 at 7:59 pm

By ‘decent’ I mean plausible or not laughable.

57

Rich Puchalsky 06.27.13 at 8:07 pm

“Many if not most” of the business crossing any branch of the government is routine. But when it counts, the SC can discard the routine and rawly decide to choose a President on a 5-4 vote, or make up what’s effectively new law. If there were lettres de cachet through which 100 people who have displeased the powers that be could be sent to jail every year for no reason, you don’t get to say that that isn’t a lawless society because 99.9% of the time the proper procedures were followed. In the important cases, they aren’t followed. And the public doesn’t get to decide which the important cases are.

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Jerry Vinokurov 06.27.13 at 8:16 pm

But that is already a position of contempt for the law, and an admission that it’s just naked politics. What you’re saying is that there isn’t really any law, not at the highest levels, and that instead what we have are appointed political functionaries who will more or less carry out the political positions that they advertised in order to get the job. And that the only way to trust that there will be legal predictability, much less justice, is if the right people win elections.

Of course it’s just naked politics. Everything is naked politics. What else could it possibly be?

59

William Timberman 06.27.13 at 8:24 pm

LFC @ 54

Literalist! ;-)

60

Nachasz 06.27.13 at 8:48 pm

Bruce Wilder @42

Alito has a distinctive legal theory in his record. He wants to extend judicial review — the capacity of the Federal courts to declare legislation null and void by reason of being unconstitutional — into a kind of Lord’s Veto(…)It is a remarkable innovation, with which Alito ought to be credited.

Not so much. Constitutional Tribunal of Poland has power like that since 1997 (so called preventive review). Bill that passed through Sejm and Senat goes to the President who, in addition to signing or vetoing it, may refer it to the Tribunal to find if it conforms to the Constitution.

61

Anderson 06.27.13 at 8:54 pm

“What you’re saying is that there isn’t really any law, not at the highest levels”

Sounds to me, Rich, like you’re defining “law” as something too exalted to actually exist. If it’s not some kind of transcendental signified, then it’s down here with us in all our grimy imperfections.

I was thinking earlier today what it says about our system that judges write dissents and even announce them from the bench. A dissenting opinion is a reminder that any Court opinion is provisional, and that the majority is accountable for its reasoning or lack thereof, to the public at least. *

We don’t have a system where the Court just announces “the D.C. Circuit is reversed” … precisely *because* law, at its highest levels, is imperfect.

_______________________
*Seriatim opinions, however, are just wacky.

62

Mao Cheng Ji 06.27.13 at 9:11 pm

“Of course it’s just naked politics. Everything is naked politics. What else could it possibly be?”

I agree. It’s always naked politics, to the extent permitted by the rules and circumstances. The boundaries tend to loosen up, gradually, and are nearly impossible to tighten up again. Only as a result of some serious shock, a big scare.

63

Rich Puchalsky 06.27.13 at 9:26 pm

Things are not just naked politics to the extent that powerful people can’t get their way because of rules built into the system. There’s nothing transcendental about it. Nor does cynicism about how it always was that way, always will be, offer anything useful. The whole American Revolution had a tremendous amount of political theory about how to restrain powerful people from getting their way, and it underlies almost all of our governmental setup. That no longer works in the way that it was intended to work. Perhaps it never did, but if there really was no difference then people wouldn’t be going on about how this is an exceptionally bad case and how we need the right people to win elections.

“A dissenting opinion is a reminder that any Court opinion is provisional, and that the majority is accountable for its reasoning or lack thereof, to the public at least. “

No they aren’t. They can make up whatever justification they like. When Roberts changed his mind at the last minute about Obamacare, his staff didn’t even have time to search-and-replace his opinion. And the public can’t do anything about it, so what does it matter that they have to provide some justification? That’s just you talking as a lawyer, I think — every profession likes to hold on to the little privileges it gets that mean nothing but that make them special. In this case, the privilege of explaining the justification to the rest of us.

64

John Quiggin 06.27.13 at 10:37 pm

@LFC Most legislatures do lots of stuff that isn’t raw politics – committee work on routine bills and so on. The SC seems pretty similar to the Senate in this respect – fairly sharply divided on partisan lines, but with enough swing voters to keep things working.

65

Anderson 06.27.13 at 11:07 pm

No they aren’t. They can make up whatever justification they like.

Sorry, I wasn’t clear. Sure, they can do that, but if it’s a lousy one, then the decision risks becoming notorious. And I should have added that the most important audience for a SCOTUS opinion is, future sittings of the same Court. Stare decisis didn’t save Bowers v. Hardwick, and there is no reason to believe that a Court with one more Democrat on it would feel obliged to defer to the shoddy reasoning of Shelby County. It may (and should) find the dissent more persuasive.

So much for optimism. I’ll give the last word to Raymond Chandler (or rather, to a cynical lawyer weary of Marlowe’s idealism):

The law isn’t justice. It’s a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law ever was ever intended to be.

66

Rich Puchalsky 06.28.13 at 12:29 am

“Stare decisis didn’t save Bowers v. Hardwick, and there is no reason to believe that a Court with one more Democrat on it would feel obliged to defer to the shoddy reasoning of Shelby County.”

Which is another way of saying that past interpretations of the law don’t matter unless some future court decides that they should: raw politics. If what it takes is one more Democrat, then who cares what the justification or the dissent is — the future court could say “We’re Democrats now and so we’re reversing the decision because UFOs.”

I’m not even calling for justice at this point. There’s something more basic that law as a mechanism needs: predictability. We’ve now reached a state at which the foremost justice arguing in favor of originalism is making up new law. No one can be sure, at the most basic level, that the Bill of Rights really means anything. I’ll certainly attempt to call on the 1st or 4th Amendments whenever I can, just because of their residual cultural value and because we have nothing else, but no one familiar with the system really believes any more that they protect anything.

67

Jerry Vinokurov 06.28.13 at 12:35 am

Things are not just naked politics to the extent that powerful people can’t get their way because of rules built into the system.

But that’s naked politics too; a system in which powerful people can’t just get their way because of the rules, is still a political system, and it relies on its operations on the same naked politics as everything else. The very act of convincing people to build facially neutral rules which can’t be subverted by arbitrary decisions into the system is political. The problem is that we’re in a situation where there is no longer any penalty for political figures to subvert that system, and quite openly too; if we had more “naked politics” on our side we could change that, presumably, but I don’t see how else we could.

68

Bruce Wilder 06.28.13 at 12:58 am

Nachasz @ 60

You don’t understand the distinction. Quite a few countries allow a great officer of state to put questions to a court of constitutional review. That’s not the case in the U.S., though, and it is not what Alito is pressing forward.

Alito is pressing a doctrine of judicial review, where the Court holds that Congress has the constitutional authority to enact measures of the sort under consideration, but they must do over this particular measure, because of what amount to certain deficiencies of legislative procedure or style. The Court is not ruling a law unconstitutional, by the usual reason of not being authorized categorically or substantively under the Constitution, but, instead, only ruling that Congress must enact it again, because the Court did not like some aspect of the style of the first enactment.

69

LFC 06.28.13 at 1:01 am

JQ @64

@LFC Most legislatures do lots of stuff that isn’t raw politics – committee work on routine bills and so on. The SC seems pretty similar to the Senate in this respect – fairly sharply divided on partisan lines, but with enough swing voters to keep things working.

What I was trying to say is that while, sure, there are some similarities betw the Sup Ct and the Senate, there are also important differences. Holbo got at some of this, imo, when he referred @22 to “politics swathed in heavy wraps of procedure and precedent….” That makes what the SC does a somewhat different kind of activity. Senators don’t have to announce their reasons for voting (though they often do); they can just vote. Justices, by contrast, have to either write an opinion or sign on to someone else’s: the reasoning, however bad, is always explicit, making it, as Anderson notes, always susceptible to later revision, stare decisis notwithstanding.

Even the Roberts Court found that depriving Guantanamo Bay inmates of the right to challenge their detentions through habeas corpus actions was unconstitutional (Boumedienne v. Bush); and that occurred in a case where lots of political pressures might have pointed toward its going the other way. Unfortunately the SC arguably then fell down on requiring the lower cts to implement it in a serious way, but that’s a somewhat separate point. Fairly recent cases such as Boumedienne show that the SC can sometimes (*sometimes*, not always) act as a brake on the legislature and the executive when they seek to trample on constitutional or other civil rights.

70

LFC 06.28.13 at 1:13 am

No one can be sure, at the most basic level, that the Bill of Rights really means anything. I’ll certainly attempt to call on the 1st or 4th Amendments whenever I can, just because of their residual cultural value and because we have nothing else, but no one familiar with the system really believes any more that they protect anything.

This is considerably overstated, I think. I don’t think we’re going to reach agreement on this. I would suggest, however, that you might want to look at some of the 4th Am cases from this SC term just ended, such as the drug-sniffing-dog case (Florida v. Jardine (?), or something like that), where Scalia [sic] wrote a majority op. saying that a policeman’s use of a drug-sniffing dog on someone’s porch was a warrantless search barred by the 4th Am.

71

LFC 06.28.13 at 1:27 am

the future court could say “We’re Democrats now and so we’re reversing the decision because UFOs.”

No. A future Court can’t say that. It has to say something that looks like a legal opinion; it has to wrap “because UFOs” in the swaddling clothes of legalese and precedent. And the very act of wrapping conditions and constrains what the Court can do.

72

Bruce Wilder 06.28.13 at 2:42 am

LFC @ 71

Tell that to Scalia and see if it gets you a discount at Starbucks — ’cause the discount you get is just about what your insight is worth.

A key aspect of rhetorical exchange in a representative democracy is the characterization of the goals and methods of the opposing coalition (and, usually politics is dominated by dichotomous coalitions, even in nominally multi-party systems). Legitimacy is usually prized, as an insurance policy that your side’s achievements will be tolerated and preserved. And, a certain ambiguity in the interpretation of the constitution and laws has to be tolerated to keep both sides in the
game, just as much as a certain reliability in acquiescence to successful enactments is necessary.

Raw politics reveals itself on the Right, but whatever acknowledgement of the rawness that might squeak out of the Center or Center-Left passes quickly into obscurity. The vast majority of Democrats in office, and in the business of what passes for liberal media opinion, never act as if they believe in the substance of their nominal criticisms of the Right. And, very often, I think the criticisms (from the Center or the Center-Left) of the Right are unaccountably oblique — they don’t take into account the full ambition of the Right, nor do they entail doing anything to reverse these steps.

So, the Right doesn’t feel it needs the insurance policy of legitimacy. The Center and Center-Left won’t challenge them by telling the truth about their goals, nor seek to undo anything they accomplish. At most, the Democrats might use some residual outrage in a comic-villain P.R. campaign, as part of a fund-raising of get-out-the-vote campaign. But, the gloves never come off. A P.R. blast, carefully modulated, about, say, “the Republican war on women”, might go out to influence a general election result, but nothing is ever done about the filibuster or union rights (what can we do? the Supremes won’t even let us require employers to put up posters about rights we cannot and will not protect anyway! Oh, the humanity! Work your heart out for the Democrat in the next election, or else! Except “else” is just a different flavor of the same zero calorie ice cream) or secret wars and surveillance, or usury and epidemic fraud in the financial system, etc.

I dare say that Scalia, Roberts, Alito and Thomas — no more or less than the other Justices — value the rule of law, and the convenience afforded certain parties to use the power of the state, either to oppress or to arbitrate disputes, as deemed appropriate to particular circumstances. The Court can be relied on to act to preserve the utility of arbitration, when needed in disputes between giant corporate businesses or among the mega-rich, just as they can be relied on to close the court house door on the fingers of the poor and merely middle class, who must suffer what they must, to serve their betters, or else.

In changing course, making the world safe for billionaire plutocrats and CEOs, and no one else, the Supremes are aware that the dissatisfied will question the legitimacy of individual decisions, but they wouldn’t be taking the risk if they hadn’t calculated on the powerlessness and/or fundamental disinterest of critics.

73

John Holbo 06.28.13 at 2:55 am

I don’t think you can say the court is nakedly political unless they are actually writing opinions that say ‘5 of us are Republicans so we’re voting the party line on this one.’ I don’t say this because I’m naive about what is really going on under the legal surface. I say this because that’s what ‘naked’ mean. Namely, there’s nothing covering it up. If you see a woman wearing clothes you don’t say she’s naked because there’s obviously (who are we kidding?) a woman under there. You say she’s naked if she’s not wearing clothes.

In fact, currently, the court feels bound not to write nakedly political opinions, even if they are strongly partisan, in effect. (You could make a joke that they are nakedly political under their concealing robes. I would be good with that.) Shelby is not a nakedly political opinion. That’s not the odd thing about it. The odd thing about it is that it implies, logically, that writing much more nakedly political opinions than any court has ever written should be alright, even though Shelby itself doesn’t actually do that. I’m just wondering whether any future court will try to help itself to this implication, around the edges.

74

LFC 06.28.13 at 3:07 am

@B. Wilder
Well, I should have made clear that by “constrains” I meant “constrains to some, but often small, degree.” I was more or less just repeating what Holbo said @22, but perhaps I shd let him defend his position himself.

75

LFC 06.28.13 at 3:08 am

I posted 74 before seeing Holbo’s 73.

76

Rich Puchalsky 06.28.13 at 4:02 am

“I don’t think you can say the court is nakedly political unless they are actually writing opinions that say ’5 of us are Republicans so we’re voting the party line on this one.’ “

There’s a lot of argument via definition going on — like Jerry V’s attempt to collapse the distinction between law and naked politics by saying that everything comes down to naked politics in the end. If people don’t like “nakedly political”, find some other phrase that describes the distinction in question and use that. Don’t say that there’s no distinction, or if you do, then threads like this one become meaningless. How could we possibly say that things are worse if they’ve always been uniformly bad?

If someone doesn’t want to say that Bush v Gore was not naked politics because the SC didn’t write “We’re electing a Republican on a 5-4 party line vote” then fine. I have no idea why nakedness only applies when people virtuously renounce propaganda about what they’re doing, as opposed to being “the emperor has no clothes” nakedness which is a classic political trope in itself. But naked, hidden, or whatever, the existence of Bush v Gore style legal opinions / propaganda does not limit their action in any way. Their decision still held; they lost nothing by having to write “We have legal reasons for doing this, which will not hold as precedent” rather than “Because UFOs” or “Because we’re conservatives.”

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Bruce Wilder 06.28.13 at 4:17 am

I would take Bush v Gore as the gold standard for naked politics from the bench. If that isn’t naked politics, SCOTUS-style, nothing is.

The question would be, is there some notched stick we can lay down, which puts Shelby at a measurable degree of clothed-ness, relative to Bush v Gore?

I don’t think anyone says there isn’t a precedent in Shelby. I think there’s a potentially pretty significant extension of judicial review, showing itself.

78

Rich Puchalsky 06.28.13 at 4:25 am

I would say that Bush v Gore is reactive, while Shelby is proactive. In Bush v Gore they could only say that they were choosing the President for reasons which would never be repeatable, because they were reacting to events. In Shelby they were justifying something they wanted to do. Disenfranchising black people is not really any less nakedly political than choosing a President directly.

As for the precedent, yes, people can say that this is part of 11th dimensional chess on Roberts’ part. But they themselves will ignore the precedent whenever they want to, as will future courts. Does “a new, convenient line of BS” really equal precedent, if no one treats it seriously?

79

John Holbo 06.28.13 at 5:18 am

Rich, suppose that tomorrow the court literally started writing 1-sentence decisions that read, in toto: 5-4, Republicans win! Do you seriously propose that wouldn’t be a significant departure from what we’ve got?

80

John Holbo 06.28.13 at 5:40 am

“I would take Bush v Gore as the gold standard for naked politics from the bench. If that isn’t naked politics, SCOTUS-style, nothing is.”

I will agree that this is the closest to naked that we have gotten. Telling people not to use it as precedent amounts to admitting that, legally, it is bad.

81

Martin Bento 06.28.13 at 7:09 am

What’s interesting is that the Court cases that have most done this in recent memory – this one and Bush v Gore – were not cases where there was a strong conservative principle at stake. The closest thing to a principle one could find in B v G is “Dear God, let it be finished already, or the result will be less and less accepted”, but that would not credibly have been a principle had Gore been the winner apparent. Rather what was at stake was a serious threat to the power of the Republican party, and O’Connor, the swing vote, more or less admitted this, unless you think she had personal animus towards Al Gore, of which there is no evidence otherwise that I know. Likewise, “equal sovereignty of the states” is nothing the Right has been screaming about, and lord knows they scream about everything they care about. This is a response to election 2012 and the demographic pit facing the GOP. Some have reacted by trying to broaden the appeal of the party, but this is unlikely to work. When the Dems switched, they became *stronger* on civil rights than the Repubs. The Repubs are not going to do that. So they are going back to plan A: suppress the votes of the other side. They tried it already; this, not some incompetence or self-deception, was why they thought they would win in 2012; it backfired. Nonetheless, if you have no other alternatives, this is your best alternative. And it still could work. Push it harder and you may exhaust the emotional backlash of the other side.

This has been a deliberate political decision, and the Supreme Court is part of it. This is the most dangerous part. If the court were following conservative ideology, it would not have gone against Bush on some aspects of rule or law, nor have upheld Obama Care or gay marriage. It is not operating as a far right-wing court. It is operating as a wing of the Republican party, activated in extremis to overcome grave threats. Not even grave threats to the ideology (which Obama care arguably is to a degree), but to the party as an institution (had Gore won and “peace and prosperity” continued; it might have been a long time before a Repub could take the office again, and by that time, the demography would be against them).

82

Trader Joe 06.28.13 at 3:09 pm

Congress passes the Voting Rights Act in 1965, as per their mandate under the 15th Amendment. This is the law of the land except for this incorrigible lot over here (section 4 states) – these guys are so pig headed and we can’t trust them not to circumvent a perfectly good law we have this bunch of special hoops for them to jump through.

So the law of the land prevails, we (society) says this was a pretty darn good law and we’re glad the incorrigibles are getting their due and predictably, some do try on some occassions to circumvent the law.

40 years go by and the pig headed incorrigible lot says – we’ve changed, we get it, give us another chance to show you we’ve learned our lesson, take us out of the penalty box.

Who other than the SCOTUS can really decide whether Section 4 was meant to be enforced in perpetuity or whether, as the pig headed incorrigible lot suggested – they can demonstrate that they learned their lesson, be released from the penalty box and simply have the balance of the law enforced upon them like all of the other states?

It’s entirely reasonable to disagree with the decision and even Roberts imaginary ‘state equality’ rationale, but I’m struggling with some of the suggestions that the SCOTUS didn’t have standing to decide. If not them, who? Allowing Congress to permanently legislate differences between states isn’t usually a preferred solution to any sort of problem, particularly a civil rights one.

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Anderson 06.28.13 at 5:29 pm

“My Things To Come post got a modest response.”

Hey, Paul Krugman liked it!

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Anderson 06.28.13 at 5:36 pm

71: It has to say something that looks like a legal opinion; it has to wrap “because UFOs” in the swaddling clothes of legalese and precedent. And the very act of wrapping conditions and constrains what the Court can do.

Well, a little bit. The shocking thing about Shelby County is that it was such a thinly-veiled power-grab vs. Congress. It wasn’t nakedly political, perhaps, but it was topless in a G-string.

It “looks like a legal opinion” to the lay reader, perhaps, but it’s missing essential logical steps that any serious opinion wouldn’t omit. Ginsburg calls out the majority for not discussing the standard of review, and that is huge — the standard of review sets how much deference the Court owes to the decision or statute in question.

So apart from the bad result, the disturbing thing here is that we may be seeing a Roberts Court that is going to write more decisions like this, thumbing their noses at the legal proprieties. Like Bush v. Gore, this is an attempt to influence who’s going to be appointing Supreme Court justices, because the effect of the decision will be to hinder racial minorities from voting, in the interests of the Democratic Party. It’s that dirty.

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bexley 06.28.13 at 6:28 pm

It’s entirely reasonable to disagree with the decision and even Roberts imaginary ‘state equality’ rationale, but I’m struggling with some of the suggestions that the SCOTUS didn’t have standing to decide. If not them, who? Allowing Congress to permanently legislate differences between states isn’t usually a preferred solution to any sort of problem, particularly a civil rights one.

If not them then Congress – who are at least elected. The idea is supposed to be that if a law doesn’t violate the constitution then the SCOTUS leaves it alone. Otherwise (as already pointed out by others) you just have a 3rd, unelected, house of Congress with 9 members who have veto power over all legislation.

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LFC 06.28.13 at 6:46 pm

Anderson @84

(1) I’m sure I would entirely agree w you re Shelby were I to read the decision which, as I made very clear upthread, I haven’t. Therefore the comment of mine that you quote was a general comment about SCOTUS not a specific comment about Shelby.

(2) Note that I am not, strictly speaking, a “lay reader”; although I am most definitely not a practicing lawyer, I do have a (rather old and rather undistinguished) law degree. There was a time when I was required to pay more attention to the Sup Ct than I do now; now I don’t have to unless I want to, and for reasons that will not surprise you, I increasingly don’t want to.

(3) Finally, given this discussion, Tushnet has a forthcoming bk, ‘In the Balance,’ on the Roberts Ct that might be of interest. (I’m not giving the Amazon link b/c I think Amazon is now doing picture-links of the front covers and it f*** everything up.)

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LFC 06.28.13 at 6:49 pm

yes, that shd be f****
4 asterisks

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Anderson 06.28.13 at 7:40 pm

although I am most definitely not a practicing lawyer, I do have a (rather old and rather undistinguished) law degree

But you sound so reasonable most of the time – no one would guess!

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Trader Joe 06.28.13 at 8:15 pm

@85
That’s the thing though – how does say, the state of Georgia petition to congress to have its pre-clearance requirement under VRA cancelled. There’s little incentive for the other 39 non-pre clearance states to ever open the can of worms or put their own political capital at risk to revoke section 4 even if they were dead certain that none of the incorrigible states would ever try something sneaky again. Only SCOTUS really has standing to say – ok, right idea then, wrong idea now.

The concern among many posters seems to be that, now freed of the pre-clearance requirements most or all of these states will now proceed to pass disenfranchising laws, which is a legitimate concern given some of the track records.

That concern however really argues for extending Section 4 to all 50 states more than removing it from the 11. Prior to Shelby if, say, the Republican dominated government of Virginia and the Republican dominated goverment of Michigan each wanted to pass an identical law requiring 3 forms of ID and Amex Gold card before letting someone vote – Michigan could enact it and wait for the lawsuits, whereas Virginia had to get it cleared – which then wouldn’t happen.

The SCOTUS decision, as I understand it, now allows both Michigan and Virginia to both enact such a law (if they wanted to) without preclearance. If the concern is the damage the “evil” Republican states might do to protect their majorities, isn’t the exposure just as likely to come from the non-section 4 states as not?

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LFC 06.28.13 at 8:24 pm

Anderson @88
LOL

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bexley 06.28.13 at 9:14 pm

@89
In your hypothetical Georgia could seek out exemption from section 5 coverage from the district court of the District of Columbia. Its almost as if Congress already thought of this!

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bexley 06.28.13 at 9:14 pm

@89
In your hypothetical Georgia could seek out exemption from section 5 coverage from the district court of the District of Columbia. Its almost as if Congress already thought of this!

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Anderson 06.28.13 at 9:29 pm

how does say, the state of Georgia petition to congress to have its pre-clearance requirement under VRA cancelled

As Bexley points out, VRA already provided for that. See Wikipedia:

On September 22, 2010, the first two jurisdictions outside the state of Virginia—Kings Mountain, North Carolina, and Sandy Springs, Georgia—successfully “bailed out” from Section 5 Preclearance requirements.[26] On November 15, 2012, New Hampshire sued to “bail out” from the requirements, which were originally imposed on ten towns that used a literacy test and had voting disparities when the Act was passed,[27] and prevailed on March 1, 2013.

So the answer to Trader Joe is, “like that, that’s how.” Of course, here’s the real problem for Georgia, et al.:

The post-1984 bailout standard requires that a covered jurisdiction demonstrate nondiscriminatory behavior during the 10 years prior to filing and while the action is pending and that it has taken affirmative steps to improve minority voting opportunities.

THAT is what makes garbage of all the “b-b-b-but Congress relied on old data!!!” arguments. The states could present new data any time they wanted & bail out from preclearance. Why they did not do so, I leave as an exercise for the reader.

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Rich Puchalsky 06.28.13 at 11:07 pm

“Rich, suppose that tomorrow the court literally started writing 1-sentence decisions that read, in toto: 5-4, Republicans win! Do you seriously propose that wouldn’t be a significant departure from what we’ve got?”

It’s an impossible standard. I suggest that rather than wait for the Supreme Court to openly and mockingly thumb their noses at everyone, instead you decide that your metaphor is leading you astray. This is as political as the court can be without being taken over by James Bond villains, so this is as political as the court can be. If you think that them wearing robes and writing legal justifications makes it by definition not naked politics, pick another phrase.

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bexley 06.28.13 at 11:14 pm

Also worth noting that Trader Joe hasn’t made any legal arguments in his posts about why section 5 should be struck down. He is making arguments about whether section 5 is good policy not whether it violates the constitution.

He wants the Supremes to enact his preferred policy without any legal rationale – he is totally on board with the SCOTUS as a nakedly political entity.

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Anderson 06.28.13 at 11:26 pm

94: Rich, I’m sympathetic to you – democracy got hosed this week – but the problem is not “the Supreme Court,” which can’t be reified any more than there is such a thing as “Congress.” Like Congress, the Court is made up of individuals, some of whom are assholes.

This I guess is another way for me to try to say that the problem is not the Court, it’s the lawless GOP appointees who have the majority. From, what, 1969 to present, there have been *four* justices appointed by Democrats? (Carter had none.) Versus 12 by Republicans. Wow.

If the Democrats hold the White House in 2016, it is very likely that at least a couple of the current Republicans will be replaced. (Scalia & Kennedy were both born in 1936.) That would change the Court for a generation.

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Anderson 06.28.13 at 11:29 pm

Sorry to double up, but: the prospect of becoming a bitter, angry 3-justice minority (Roberts, Thomas, Alito) was no doubt in the majority’s minds when they struck the VRA and thus directly tampered with the election of the next president. It’s more subtle than Bush v. Gore, but only just.

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John Quiggin 06.28.13 at 11:35 pm

As I said before, to an outsider, the Supreme Court looks a lot like the Senate (except that party control is reversed). Plenty of odd procedures, and flowery speeches, and occasional shifts by swing voters, but still a political chamber with a Republican majority.

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John Quiggin 06.28.13 at 11:37 pm

I’m not sure the VRA decision will be that much help in the next Presidential election. It only matters in states that are under firm Repub control but nationally winnable for the Dems.

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Rich Puchalsky 06.28.13 at 11:52 pm

Anderson: “the problem is not “the Supreme Court,” which can’t be reified any more than there is such a thing as “Congress.” Like Congress, the Court is made up of individuals, some of whom are assholes.”

The Supreme Court is an entity: an entity with a particular role in the U.S. Constitutional order, and one which it is signally failing to do. The idea that governmental roles will only work if you get the right people in them, and you’re helpless to do anything otherwise, is foreign to the political philosophy that underlies the Constitution in the first place. Whether we get the right people in the Supreme Court or not, the structure has failed, and there is no longer any justification for the Constitutional order or the U.S. state other than that what might replace it might be worse.

We still have to deal with that in a practical sense. But in an intellectual sense, the argument is over, the case file stamped “failure”. That’s what I mean by contempt for the law. It’s now only a lesser evil in a Hobbesian sense, and no more deserving of respect than if we had a President For Life to rule us.

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Rich Puchalsky 06.29.13 at 12:35 am

Sorry to double comment, but I saw this also, from Jeff R as comment #40 on the unintended consequences of Shelby thread:

“This will probably be accelerated by most of the evangelical/social right giving up on politics entirely once the Supreme Court has 7 young(ish) liberals on it and the GOP is unable to even sell the hope of shiting it on their issues.”

If Jeff R were right (which I think he isn’t) this would be just as much a travesty as what’s happening now. I don’t agree with the evangelical/social right in any way. But the idea that they could be shut out entirely, based on domination of the Supreme Court? That’s broken politics.

102

John Holbo 06.29.13 at 1:39 am

Rich, you seem to be insisting on an odd point of terminology, which is ok but risks confusion. You seem to be saying that if I want a word that means bare or unconcealed politics, I need to find a different one than ‘naked politics’, because you want ‘naked’ for what the Supremes are doing. Well, ok. The world is full of words, so if you want ‘naked’ to refer to a signature style of heavy yet diaphanous (in the right light) swaddling, fine, I can find another. The Supremes are obviously very concerned to maintain a reputation for not being naked – excuse me, en deshabille – about their politics. At the same time, they are strongly partisan. This creates a tension. That’s the situation we are in. In a sense that’s always the situation the court is in. That’s what we need to understand. The question is: how hard can you push your politics before it becomes too obvious, and people lose respect, hence you lose the capacity to push your politics. I don’t really have a problem with saying this is a matter of fooling people, but also fooling oneself: the Supremes take their jobs seriously. I’m sure the Supremes don’t think they are as political as we take them to be. This is interesting.

Also, fighting out a political fight in the courts, where it will get heavily clothed in legalities, is not just a matter of fooling yourself. It’s also a matter of choosing to change the character of the fight. If you and I want to fight and agree to a boxing match, we aren’t fooling ourselves that big padded gloves are the best way to loosen an opponent’s tooth. If you inferred that padded gloves must not actually pad, from the fact that, at bottom, this is the same as if we were brawling in the alley, you would be wrong. Boxing gloves are not the Fight Club equivalent of the Emperor’s New Clothes. They actually work. Sort of.

My question, in the post, was basically: how will Shelby affect this overall tension between politics and the concealment or softening of politics that court imposes.

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Anderson 06.29.13 at 1:52 am

102: I think they know how political they are; they just think their politics are right, and they are postponing the terrible victory of the 47%. I have the fortune to live in Mississippi and hear intelligent-tho-benighted conservatives who really believe civilization is falling (and aren’t lucky enough to be fundies who can look on the Rapture side).

Eric Posner, no liberal, had the scales fall from his eyes this week:

“The conservative justices really are very, very conservative. I had up until now pooh-poohed liberal constitutional law professors and journalists who argued that the court had gone off the rails. Mea culpa.”

104

Anderson 06.29.13 at 1:56 am

” But the idea that they could be shut out entirely, based on domination of the Supreme Court? That’s broken politics.”

Not getting you here, Rich. If 27% of the US were Nazi, would you be upset they were frozen out? That’s more procedural-liberal than I expected from you.

105

Rich Puchalsky 06.29.13 at 2:36 am

If they’re frozen out of certain things because people have a right to control their own bodies — as enforced by government somehow — fine. Then they’re frozen out by a principle that we’re living under, not by the fact that we’ve managed to stack a board of lifetime political appointees. Of course, if they were actual Nazis, then it’s the height of procedural liberalism to think that they could be frozen out of politics by controlling the court; you’d have to fight them. Controlling the court is broken politics in part because it only stops people who aren’t actual fascists.

JH: ” The question is: how hard can you push your politics before it becomes too obvious, and people lose respect, hence you lose the capacity to push your politics.”

I think that this is an actually wrong analysis. Them losing respect does not lose them the capacity to push their politics. Sure, they’ll follow the forms to the extent of half-heartedly spouting some legalese, but they’ve taken the boxing gloves off. Whenever it really matters to them, they will make nakedly political decisions, or whatever you want to call it.

I don’t think that they fool themselves that they’re still following the law. I think they’re probably fully conscious of what they’re doing, and they care more about political advantage than they do about any nonsense about originalism or legality or whatever.

106

Rich Puchalsky 06.29.13 at 3:14 am

Or, to put it another way, doing Bush v Gore in no way prevents them from doing it again. What’s going to happen? So someone like Posner no longer pooh-poohs people who say that the system has gone off the rails. Big deal. They don’t need Posner’s approval, or anyone’s, as long as the system does not entirely collapse.

If you go into a boxing match in which you’ve agreed to wear gloves, and your opponent takes them off and no one stops them from doing so, it’s not actually a boxing match.

107

LFC 06.29.13 at 3:51 am

I’ve now glanced, albeit rather briefly, at Shelby. But I want to comment on something that’s bothering me about Rich’s comments. Put Shelby aside and consider the Sup Ct more generally. It has always been an institution that mixes politics and law in uneasy ways, as Holbo suggests. One needn’t be an expert on the history of the Court to realize that. Is the current Ct more overtly “political”? Quite possibly, but it’s still a matter of degree.

Rich seems to think there was a time when the Justices “followed the law” and now they are not “following the law.” This is not right, imo. The formula “following the law” is quite empty in this context, b/c most — not all, but most — cases that reach the Sup Ct are ones where there exist respectable legal arguments on both sides (Shelby isn’t such a case, istm, but most of them are). Consequently, the Justices, whether they acknowledge this to themselves or anyone else or not, are usually forced to bring their overall philosophies of constitutional adjudication, as well as their moral and political views, into play when they make decisions. That has always been the case and it will always be the case. Holbo understands this perfectly well (otherwise he wouldn’t have written a very long post some months ago on “the nut, the tree, and the living Constitution” or whatever the heck it was called; “living constitutionalism” is only interesting b/c philosophies influence the Justices’ decisionmaking, and if they didn’t there wd be little pt in discussing them).

When Justice Sotomayor said at her confirmation hearings that her philosophy was “fidelity to the law” she had to know this was a meaningless answer; she was saying it, as (the late) Ronald Dworkin pointed out, b.c the confirmation process has become an empty ritual that forces nominees to utter these platitudes. “Fidelity to the law,” like “following the law,” doesn’t get you anywhere in this context b.c there is no unambiguously, obviously correct legal answer to most cases that end up being heard and decided by the SupCt. If there were such an obvious answer in most cases, if deciding constitutional cases were simply a matter of “following the law,” then arguably there would be no need for a Sup Ct in the first place. All you would need is a clerk with a large compendium of correct legal answers who would proceed to look up the right answer. It doesn’t work that way and it never has.

Bush v. Gore, Citizens United, and Shelby are bad, overtly political decisions, but I would suggest that they prob. remain outliers — not because they are bad (the Sup Ct makes tons of bad decisions, i.e. decisions which most of us wd think are wrongly decided) but precisely b/c they are overtly (nakedly, whatever term you want) political.

JHolbo is right that respect and legitimacy are v important to the Ct. If they lose that they (1) can’t push their political/philosophical preferences as easily, and (2) they will have to start worrying about whether lower cts and parties actually comply with their directives. As is quite obvious, the Sup Ct has v little capacity to enforce its decisions directly — it has to rely on its legitimacy, on the lower cts which can sometimes use their contempt powers, or ultimately on some other branch (i.e. the executive) which has coercive force at its disposal. That’s also why the Justices worry about getting ahead of public opinion too drastically or foreclosing public debate on an issue prematurely (cf Ginsburg’s recent widely publicized remarks on Roe v. Wade; also there is a recent post at the Monkey Cage about this, arguing that such a concern is misplaced w/r/t same-sex marriage; but the pt is, the Justices are sometimes concerned about this general issue b/c it connects to legitimacy).

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John Holbo 06.29.13 at 3:56 am

“If you go into a boxing match in which you’ve agreed to wear gloves, and your opponent takes them off and no one stops them from doing so, it’s not actually a boxing match.”

Well, that’s sort of the point of the post (see above). Shelby implies that it’s alright to do that – take the gloves off and go naked in deshabille political – but the court hasn’t explicitly embraced that implication yet. That is, no one has yet written an opinion that literally says, in so many words, that it’s ok for judges just to be partisan. I doubt we will see that. It’s too much a departure from prior interpretive theories, even though it’s not really a departure from prior practices. But I’ll stop here. I think my dispute with you is more terminological than substantive: whether it makes sense to say someone is ‘naked’ while they are wearing clothes, just a lot less than you might have expected, or than you think is decent and appropriate in this setting.

109

Mao Cheng Ji 06.29.13 at 9:06 am

I don’t think ‘naked politics’ is an expression all that similar to ‘naked body’. Anyhow, ‘blind justice’ would probably be a better idiom to apply here. To what extent have they been impartial, now and ever?

110

vasvas 06.29.13 at 9:21 am

“Well, that’s sort of the point of the post (see above). Shelby implies that it’s alright to do that – take the gloves off and go naked in deshabille political – but the court hasn’t explicitly embraced that implication yet. That is, no one has yet written an opinion that literally says, in so many words, that it’s ok for judges just to be partisan. I doubt we will see that.”

Why is that important to you? If the Justices act this way without codifying it, isn’t that “bad enough”? Haven’t you gone far enough into “naked politics” territory by act alone?

The terminological difference seems to arise because you seem to be putting the emphasis on making the announcement “we’re now just messing with you” rather than on the Courts decisions. I understand that’s what you want to emphasize, but the question is, why focus on that and not on the naked politics of the Justices actual decisions? The effect of your emphasis is to move the goalposts: instead of focusing on the decisions, and what they imply, they somehow declare that the next step in politicization, an even more extreme step, is the important one. I’m all for silver linings, but that goes too far for me.

111

John Holbo 06.29.13 at 9:23 am

“Why is that important to you?”

Narrowly, because I’m curious whether Shelby will become precedent. I’m not trying to excuse the justices for having only gone as far as they have, no further. I’m interested in how far they’ll go.

112

Collin Street 06.29.13 at 9:34 am

How much further can they go? There’s a hard physical limit to lawlessness, how little attention you pay to laws: if you’re paying no attention to a law there’s no further left to go. And pragmatically “we strike down this law because of something that isn’t actually in the US constitution because we just invented it” isn’t really any different from “we strike down this law because fuck you”.

The only “further” left is doing this more often.

113

vasvas 06.29.13 at 10:27 am

What Collin Street said. And also:
“Narrowly, because I’m curious whether Shelby will become precedent. ” Since that’s indeed a very narrow and particular academic-law kind of interest, I sure am happy the discussion here went also in other directions. :)

114

Barry 06.29.13 at 12:36 pm

John Holbo: “That is, no one has yet written an opinion that literally says, in so many words, that it’s ok for judges just to be partisan. I doubt we will see that.”

There are and have been a lot of nasty governments where a public face of procedure and law were kept on, long after it was clear that the government with no more contstraints than that practical limits of its physical power. And I’m sure that in many nooks and. Corners, things remained 90% sorta, superficially non-political. For example, I wouldn’t be surprised to see what looks to me like an ordinary traffic court, even in some countries where the government regularly dumped the tortured corpses of opponents in the streets as a warning.

115

Barry 06.29.13 at 12:46 pm

Continuing – so, by John’s atandard, there might never have been a truely naked system in several decades. And even the Nazis used lots of regular law-and procedure BS to paint over their actions (note the ‘The Night of the Long Knives’ was an exception). As did the USSR under Stalin, and many other nasty examples.

If you’re standard is some sort of 100% pure and openly admitted nakedness, then your standard would not be achieved, even in times and places which were horrors.

116

Rich Puchalsky 06.29.13 at 12:51 pm

LFC: “Rich seems to think there was a time when the Justices “followed the law” and now they are not “following the law.” This is not right, imo. The formula “following the law” is quite empty in this context”

I no longer trust that e.g. the 1st Amendment means anything. Whenever it conflicts with something important to plutocracy, it will fail. Nor do rights written into the body of the Constitution itself mean anything — habeas corpus, for instance, is a dead letter. At-will executions and imprisonments by the executive are happening. There’s only so much BS about how the Constitution has always been interpreted that someone can accept before they compare it against reality and say that it has no protective value for anyone outside a privileged few. If you want to say that that is how the Constitution has always been, then fine, it should have been discarded a long time ago.

“JHolbo is right that respect and legitimacy are v important to the Ct. If they lose that they (1) can’t push their political/philosophical preferences as easily, and (2) they will have to start worrying about whether lower cts and parties actually comply with their directives. “

They have an entire police state to enforce their directives. Decisions in favor of the plutocracy get the full force of the plutocracy backing them up.

117

Barry 06.29.13 at 12:57 pm

John Holbo: “Narrowly, because I’m curious whether Shelby will become precedent. I’m not trying to excuse the justices for having only gone as far as they have, no further. I’m interested in how far they’ll go.”

Adding onto Collin’s remarks – John, even a lowly failure in life who commits a truly stupid, drunken crime can cough up an excuse to cover their actions; ask anybody dealing with domestic violence how many of the victims ‘desrerved it’, from the POV of their assailant. What I’ve seen admitted about SCOTUS now is that some of their decisions could be ripped apart by a 1L. They’ve got pious legalese, but they will always have that. Simply saying ‘we’re Republicans, so FU Democrats’ will never be necessary, and the covering talk is cheaper than cheap.

118

William Timberman 06.29.13 at 1:45 pm

Rich Puchalsky @ 116

I wonder what you say about the Constitution isn’t true of any document which attempts to codify best practices, and to state our reasons for the codification. Even if in practice such documents aren’t worth the paper they’re printed on, they do serve as a kind of standard measurement of what, at some point, we were aiming at. And then there’s the whole eternal struggle/eternal recurrence phenomenon. What do you think it means when, for example, a makeshift statue of liberty shows up in Tiananmen Square? Are such things just symbols of a common delusion, or are they more than that?

119

Anderson 06.29.13 at 1:51 pm

“Since that’s indeed a very narrow and particular academic-law kind of interest”

If only. “States rights” is a doctrine with all sorts of practical real-world effects. For the Court majority to be embracing it, 150 years after Gettysburg, is obscene.

120

Rich Puchalsky 06.29.13 at 2:11 pm

“I wonder what you say about the Constitution isn’t true of any document which attempts to codify best practices, and to state our reasons for the codification. Even if in practice such documents aren’t worth the paper they’re printed on”

Wait, stop there. That’s not the purpose of the Constitution at all. The whole point of American political theory was: given that powerful people are often horrible, how can we arrange a system in which these things are enforceable even against them? The document isn’t a list of best practices. There’s a whole lot of structure that’s supposed to enforce the rules via separation of powers, checks and balances, limits to personal power, limits to democratic power of the majority, etc. If the structure doesn’t work, the list is meaningless, and the people who wrote the document in the first place knew that.

The list itself is in notably plain language. (With occasional failures like “well regulated militia”.) It’s supposed to be understood by everyone, not only understood through the interpretation of legal priests. That’s one of the limits to power built into it.

More about the statue in some future point, possibly, but so much of that is from the same era that e.g. Bruce Wilder seems to be often writing out of: the post-WW-II liberal order, which was one of the two competing systems that beat fascism and seemed/seems quite preferable in many ways. It was highly racist, but the racism was always marked out as a problem within it, one which MLK Jr. could attack through nonviolent means because it really had no ideas defending it within the system.

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William Timberman 06.29.13 at 3:32 pm

Rich Puchalsky @ 120

Re your second paragraph: Since it seems that your understanding of the origins of the Constitution and mine are essentially the same, our differences are probably semantic. By best practices, I meant only something like: How do we, as flawed human beings, whose political actions are most often driven by narrowly defined personal interests, somehow build our ideals into our governing structures in such a way that it makes establishing and defending them in the real world easier?

As for the Zwiespalt in American society that the Constitution did such a haphazard job of waving away, I can only point to the Republican immigration compromise that’s presently set to make the U.S./Mexico border only slightly less militarized than the North/South border in Korea. It’s true enough that the malady lingers on, but it isn’t strictly speaking a neoliberal one. It’s far more ancient than that….

122

Rich Puchalsky 06.29.13 at 5:18 pm

“It’s true enough that the malady lingers on, but it isn’t strictly speaking a neoliberal one. It’s far more ancient than that….”

I certainly didn’t mean to imply that American racism was a new feature of the post-WW II order. Only that it was still there, but that the liberal order really had no ideological support for it. On the contrary, as a self-consciously universalist order that had the ambition of covering the entire globe, postwar liberalism was pretty much bound to treat it as a relic that should be done away with.

That’s where the makeshift statue of liberty comes from, pretty much. But from the moment of Reagan’s successful reaction, white racism became all-important again as a source of American values. There’s no attractiveness or global appeal to a system based on that. And white racism can now not ever be renounced, it can only gradually lose salience for demographic reasons. At least they can congratulate themselves that they successfully took down the American system with them.

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