Saturday, October 01, 2005

Reynolds on the Supremes

Paul Reynolds did an interesting piece on the Supreme Court the other day, making the point that the Supreme Court has tremendous power, and that it is difficult to predict how judges will behave once on the Court. He is right on both counts, the latter being a point I made myself just yesterday. However, in the course of his article he makes some claims which are difficult to defend.

For example, when discussing the difficulty in nominating a philosophical ally in the hopes that he will move the court in a desired political direction, he points, also as I did yesterday, to Justice David Souter:
In 1990, President George Bush senior appointed New Hampshire Judge David Souter to the US Supreme Court in the expectation that he would strengthen the conservatives.
Justice Souter in fact joined a centrist faction, which has ensured that the Rehnquist Supreme Court has not been predictable.

It is certainly true that Souter has failed to be a reliable conservative, but it is difficult to understand the characterization of him as a “centrist”. He has turned out to be, in fact, one of the most reliable liberals on the bench. In the last Supreme Court term, he voted with Justice Ruth Bader Ginsburg, a Clinton appointee and unquestionably a liberal, 88% of the time. This happens to be precisely the same percentage of cases on which the Court’s notoriously conservative pair, Antonin Scalia and Clarence Thomas, have agreed, and is higher than any other pairing. The next highest percentage, 86% is between none other than Clinton’s other liberal appointee, Stephen Breyer, and…you guessed it, David Souter.

The notion that Souter is a “centrist” whose decisions make the court “unpredictable” is ridiculous. Souter is very predictable. It’s been Anthony Kennedy and Sandra Day O’Connor, the so-called swing votes, who are the true centrists on the Court, and the ones whose votes make the Court unpredictable.

Reynolds also discusses how decisions sometimes have “little to do with law and a lot to do with politics.” This is certainly true, but one of the examples he cites is the infamous Dred Scott ruling from 1857, in which the Court ruled (among other things) that a slave, not being a citizen, did not have standing to sue in court for his freedom. Reynolds says that “No such ruling would ever be made today.” Well of course not, but it has everything to do with law, namely the 13th and 14th amendments which abolished slavery and assured citizenship to all persons born in the US regardless of race. In fact the decision could not have been made a mere 15 years after it had been made, precisely because of these amendments.

Reynolds goes on to quote Professor of American Studies at De Montfort University Philip John Davies, as suggesting that the Supreme Court is used to rule on “problems avoided by Congress”. Says Davies:
In the American system where power is divided, members of Congress have sometimes found it hard to address difficult issues and have found it easier to leave them to the court to resolve - segregation, abortion, capital punishment for example.
This is absurd. Congress found each of the “problems” Davies lists difficult to address for the simple reason that it was not their job to address them. In the cases of abortion and capital punishment, each state was free to legislate (or not) as it saw fit. Quite simply, there was no role for Congress, and indeed no “problem” to “resolve”…except, that is, for certain constituencies who, unable to enact their agendas through the democratic process of legislation, sought instead to do so through judicial fiat. And, having found some justices amenable to their agenda, they were able to do so.

Indeed, with regards to abortion, far from “resolving” anything, Roe v Wade has in fact prevented the issue from being resolved, by removing it from the only environment in which political compromise between two passionate positions can be achieved, and granting victory thru fiat to one side, ie the so-called pro-choice side. This has thus insured the increasing politicization of the Supreme Court, as abortion proponents seek to maintain the makeup of the court and thus their victory, while the only recourse left to abortion foes is to seek to alter the makeup of the court. The only reason that everyone remains so concerned about how a justice might rule on abortion cases is that the issue has never been resolved. There is no widespread political consensus on whether and how abortion should be legislated, and Roe v Wade, more than anything else, is responsible for not allowing that consensus to be established.

In the case of segregation, again, the court has “resolved” little. It is true that its decision in Brown v Board of Education was a landmark decision which ended segregation. But it is also true, as Reynolds rightly notes, that in doing so the court needed to undo one of its own previous rulings, Plessy v Ferguson, which was the source of the infamous concept (although not, interestingly, the words) “separate but equal”. So, again, far from “resolving” an issue that Congress couldn’t or wouldn’t touch, the court was simply changing its own mind on an issue it had co-opted (incorrectly, I think) years before.

It is odd, then, that Reynolds uses Davies to help make his point, because Davies in fact explicitly contradicts one of Reynolds’ main contentions. As already noted, Reynolds claims that often times a court ruling will have “little to do with law, and a lot to do with politics.” With regard to Roe v Wade, Reynolds points out that:
This ruling really just reflected current thinking in society, not anything that the 18th Century text had to say, since it said nothing on the subject.
Given that Roe overruled legislation enacted by popularly elected lawmakers, the idea that it reflected “current thinking in society” is dubious. But Reynolds is certainly correct that the Constitution itself says nothing at all about either abortion or the right to privacy upon which the Roe decision was founded. It was a decision based on politics (or, perhaps more accurately, personal preference), not on any reasonable interpretation of the law. Yet he goes on to quote Davies saying:
“And [judges now] tend to be loyal to the law itself and not be swayed by the politics.”
That is the precise opposite of what Reynolds had been saying all along in his article, and indeed is contrary to the very examples that he had cited.

Reynolds had the right idea, I think, with this article, but he was ultimately ill-served by the analysis of his academic source.


Blogger joetz said...

Wow, Souter....a centrist? Honestly, I don't know how you can even bring yourself to even try to combat this BS. It's so absurd, you don't know if you should laugh or cry. I have no idea how you find the time to refute all of this propaganda, but I admire the effort you're putting in. I've been reading the blog for quite some time and it's my favorite website.

8:52 AM  
Blogger Paul Reynolds said...

If I had written solely about Souter I would have gone into greater detail. I was not. I was writing about the court in general and in particular about the way in which justices appointed in the belief that they would act in one way, sometimes act in another.

Nor I am the only one to have called Souter a centrist.

"David H. Souter: Nominated by George Bush in 1990, Souter replaced William Brennan. In the decade since he joined the bench, Souter has emerged as the Court's most influential moderate, often working with Sandra Day O'Connor to establish a centrist opinion."


"He has settled into the moderate camp of the Court as evidenced by his unprecedented 24 similar votes with the centrist Justice Sandra Day O'Connor. Together with O'Connor and Kennedy, Souter has formed a moderate bloc in the Court that prevents domination from the conservative wing."


As for Professor Davies, I quote him for what he says not what he says in support of me.

The key conclusion however and one with which Scott I think does not basically disagree is that US Supreme Court is much more of a political court than anything seen here. It declares segregated education legal in one century and illegal in another. It finds a right to abortion in the right to privacy. These are not judgments based on the law but on the social values of the day.

I am not saying this is a worse way of making decisions than having a parliament do it, but I am saying that it is a different way.

Paul Reynolds
BBC ONline

6:19 PM  
Blogger Scott Callahan said...


The fact that others - including the liberal Time magazine, for goodness sake! - have called Souter a "centrist" hardly justifies the characterization. Rather than point to what others say, I'd rather point to objectively verifiable information. I think we can agree that Thomas is a conservative and Ginsburg is a liberal. (If we can't then those terms have no meaning.) If he were a "centrist" one would expect him to join in judgement with each in a roughly similar percentage of cases.

In the last term, Souter agreed with Thomas 61% of the time (The lowest of any pair of judges, Rhenquist/Stevens, was 55%). He agreed with Ginsburg 88% of the time. That is not very close, especially considering that Ginsburg herself agreed with Thomas 60% of the time. The only two judges that Souter agreed with less than Thomas was Rhenquist (59%), another indisputable conservative.

How often did Souter agree with that other centrist cited by Oyez, Justice O'Connor? A mere 73%. So let's see. Souter votes between 86% and 88% of the time with the liberal wing (Ginsburg/Breyer/Stevens) and votes with the conservative wing(Rhenquist/Scalia/Thomas) between 59% and 66% of the time. He agrees with the "centrists" O'connor and Kennedy 73%. Given this, Paul, do you really want to defend your characterization of him as a centrist?

Like Ginsburg, if we cannot agree that Souter is a liberal, then the term has no meaning, nor does the term conservative. Which makes the term "centrist" entirely incoherent.

With regard to Profesor Davies, do you agree that what he said contradicted the point of your article?

As you suspect, I agree that the court makes political decisions. But I would take issue with your contention that it makes judgements based on the "social values" of the day. (This, by the way, is precisely what liberals would have you believe, with their "living constitution" theory.) Instead, when they ignore the law to make judgements not founded in the Constitution, they do so based not on "social values" of the day (which are more accurately divined through popular elections than through the pontifications of 5 lawyers in robes), but instead on their very own personal preferences. This is precisely what is wrong with liberal jurisprudence as represented by the likes of Ginsburg and Souter.

You say you are not saying this is a worse way of making decisions than having a parlaiment do it. Well, if you won't say it, I will. We don't need judges to make decisions based on prevailing "social values". That is exactly why we have elections, and elected representatives. What we need is judges who will follow the law as written, and leave the "social values" questions to elected representatives.

In other words, what we need is more Scalias and Thomases, and fewer Souters and Ginsburgs.


7:44 PM  
Anonymous paul reynolds said...

You say: "What we need is judges who will follow the law as written, and leave the "social values" questions to elected representatives."

You cannot have that Scott. Take abrtion. The 18th century constitution naturally had nothing to say on this. There is therefore no "law." The justices had to make one up. This happens in each generation on different issues, as was see over segregated eduation.
This applies as much to conservative justices to liberal or "centrist" ones. The idea that only libeal justices follow their "social values" is quiter wrong.

9:01 AM  
Blogger Scott Callahan said...


You are simply wrong, and you seem to misunderstand the legal nature of the abortion issue.

Prior to Roe v Wade, abortion absolutely was subject to law, as determined by the "social values" of various states. In some states it was legal, and in others it was not.

The question faced by the Court in Roe was not whether the constitution said anything about abortion, but rather whether it restricted the states from legislating on the issue. Plainly, it did not in any explicit terms, nor is there anything in it that even implies that the states ought not be allowed to legislate on the issue. Hence, the proper course for the court to have taken was to aknowledge that the issue of whether and how abortion was to be legislated belonged to state legislatures, not itself.

Unfortunately the court instead decided to impose its own values on the rest of the country through judicial fiat.

It is extremely odd that you say that I "cannot have" a situation in which questions of social values are left to legislatures rather than courts. Why do you say that? Why do you think that, say, the issue of abortion can only be resolved by courts, not legislatures? It was resolved by state legislatures long before the court coopted the issue.

You are, of course, correct that conservative justices are just as capable of imposing their own values as are liberal justices. That is the power of being a Supreme Court justice. But the fact of the matter is that conservative jurisprudence is defined by a disinclination to "interpret" law as meaning anything other than what it actually says, while liberal jurisprudence is defined by its belief in a "living constitution" the meaning of which changes with the times. Hence liberal justices are much more inclined to "interpret" (read legislate) according to what they believe "society's values" are at any given time, while conservative justices are not. That is precisely why the most contentious issues in the court - abortion, gay marriage, capital punishment - revolve around the court imposing liberal, not conservative, politics on the rest of the country.

If Roe was overturned tomorrow, legal abortion would not disappear. States legislatures would remain free to retain precisely the same legal access to abortion that now prevails, and many of them would. So a "conservative" result in the courts would not result in the imposition of a conservative politics on the country. However, as Roe itself demonstrates, a "liberal" result in the courts would indeed impose liberal politics on the rest of the country, whether it likes it or not.

Which, again, is precisely why we need more Scalias and Thomases, and fewer Souters and Ginsburgs.


10:43 AM  
Anonymous paul reynolds said...


You rather make my point for me by saying (re the aboriton decision) "Unfortunately the court instead decided to impose its own values on the rest of the country through judicial fiat."

Precisely. Yes, there were scattered laws about abortion in the states but there was nothing in the constitution. The court therefore invented its own law.

1:34 PM  
Blogger Scott Callahan said...

Well, happily we agree that, on abortion, the court invented its own law. This is a good starting point.

So the relevant question becomes, should it have invented its own law? I say absolutely not. What it should have done was follow the constitution by staying out of it and allowing elected representatives to continue to regulate abortion according to the values of their constituents. And undoubtedly if a conservative jurisprudence had prevailed, this is precisely what the court would have done.

I'm not sure, but I get the impression that you think that if the constitution does not touch on an issue, the Supremes must necessarily apply their own values to the issue. That is mistaken. If the constitution does not touch on an issue, then it is the job of the Supremes to simply stay out of it, thus refusing to apply their own values, rather than imposing their own values on everyone it did in Roe.


2:16 PM  
Anonymous DC10 said...

I don't really understand BBC Online's excessive coverage of the entire Supreme Court saga in the first place. In a country where hardly anyone is interested in their own Parliament, I can't imagine Britons clicking in their droves on any stories involving Rehnquist or the rest of this uninspiring cast of characters. To be brutally honest, I don't give a flying fig about Roe V Wade or Harriet Mier's views on abortion. Recently the BBC seems absolutely obsessed with American news. I hope I'm not alone in finding it all a little tedious. Yes, America is an important nation and yes, we are inextricably linked with America in a foreign policy sense but do we really need such blanket coverage of American home affairs? I think not.

9:27 PM  

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