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.

A change of pace

Unbeknownst to me until today, it appears that The New York Times has a correspondent, Sarah Lyall, whose job seems to be to exclusively cover Britian. Today's article is bit of a human interest puff piece on "chavs" in general and "lotto lout" Michael Carroll in particular. But she does seem to do some more serious stories. Given that I spend most of my time highlighting the failures of the British press to accurately cover the US, I thought it would be interesting and make a nice change of pace to occassionally look at how the US press covers Britain. I'll keep an eye on Lyall and report back with anything interesting.

New BBC website?

For those of you who have not already seen this hilarious parody, please do check it out.

(From Biased BBC)

Roberts confirmation

The BBC’s Clive Myrie today has a report on the confirmation of John Roberts to the seat of Chief Justice on the Supreme Court. The article is mostly reasonable enough, with no particularly overt slant. But I think it shows a certain degree of naivete towards, if not ignorance of, the goings-on in Washington. Myrie writes:

But Mr Roberts is not an ideologue, as he stressed convincingly in his confirmation hearings.

Yes, he is conservative enough to please Mr Bush's political base, but not so right-wing that he offends most Senate Democrats.

That is why his confirmation was so convincing by 78 votes to 22.

This is naive. First of all, precisely how “right-wing” Roberts actually is remains to be seen. The confirmation hearings will have done nothing to shed any light at all on how he will rule on any significant matter that might come before the courts. Indeed, given the politicization of the Court and nomination process over the last 20 years, one of the primary strategies of any nominee is to be as obscure and evasive about potential decisions as humanly possible. Even better if the nominee can do so without appearing to do so. At this Roberts was particularly good, suckering those who would want him to rule one way into believing he said one thing, and those who would want him to rule another into thinking he said the opposite. And if there is any doubt about the trouble with predicting how a nominee might turn out, simply look to David Souter, who was nominated by Republican George H.W. Bush and is now the foundation on which the Court’s liberal voting block is built.

Second, the idea that it takes an especially “right-wing” nominee to offend Democrats gives the Dems far too much credit as moderates. Roberts benefited not from actually being moderately conservative (although he might be), but rather from the Dems inability to paint him as something else, regardless of what he actually is. This, combined with the fact that the Senate Dems from red states do not want to go the way of their voter-retired former leader, did much more, I suspect, to earn Roberts a healthy win than anything else.

Myrie also simply gets facts wrong.

A hard-right nominee would see a messy and bitter confirmation battle and possibly the use of the infamous "nuclear option", where Democrats filibuster debate on the nominee to the point where the nomination has to be thrown out.

Wrong. The “nuclear option” does not refer to Democratic filibusters. It refers to the potential Republican response to a filibuster, which would entail changing Senate rules to make a minority-led filibuster on judicial nominations procedurally impossible.

This is a small point, I know. But it is a pretty basic fact with which anyone who has been following the judicial battles in Washington over the last year ought to be familiar. That Myrie is not suggests to me that he is perhaps not the best person for the BBC to have providing analysis on the import of on-going Supreme Court nominations.

Bush scandal?

The big news out of Washington yesterday was the Texas grand jury indictment of Tom Delay, Republican majority leader in the House of Representatives. What was interesting about most of the coverage here was the uniformity of media attempts to associate the scandal with Bush. Nearly every headline I saw identified Delay not by name, not by position, and not by title, but instead as someone associated with Bush.

The BBC: Bush ally faces criminal charge

The Independent: Bush ally indicted over campaign fraud charge

The Times: Bush's right-hand man resigns over illegal fundraising charge

The Guardian: House leader and Bush ally indicted on fundraising conspiracy charge

Only The Telegraph avoided framing the story as a Bush scandal: Congress leader quits over campaign fund charges.

Anyway, I've got no special interest in defending Delay, of whom I've never been a particular fan. But something you will probably not see in the UK - certainly there has been no indication of it yet - is any scrutiny of the the person who sought the indictment, which is unfortunate because he seems to have some interesting ideas about how to do his job.

Sheehan rediscovered

With the political fallout from Katrina on the wane, and the hopes of additional political fallout from Rita dashed, the BBC has rediscovered its pre-hurricane obsession: Cindy Sheehan. In the news this time for breaking the law, Sheehan is making her first appearance on the Beeb's website since August 27, and her 12th overall. And still the BBC refuses to inform its audience of what Sheehan really thinks.

Evans on education

I've taken the BBC's Harold Evans to task in the past, but his most recent piece, on innovation in education in the US, is a worthy read.

One nitpick: in the US, it's math, not maths.

The new American Revolution?

Justin Webb graced the BBC again this weekend with some more of his pithy observations on America. This time, not surprisingly, his comments centered on the aftereffects of hurricane Katrina and the “social and economic inequalities” it highlighted. In doing so, Webb shows how steeped in leftist ideology his thinking is.

Pondering on the political and psychological implications of Katrina, Webb says:

The real question - putting it baldly - is whether there is going to be a revolution.

Will the American social and economic system - which creates the wealth that pays for billionaires' private jets, and the poverty which does not allow for a bus fare out of New Orleans - be addressed?

The American social and economic system in fact creates the wealth that pays for all manner of things – schools, food, museums, even left-wing think-tanks - for all kinds of people, rich, poor and (perhaps more than any) otherwise. It also creates the wealth that pays for things like 57% of the UN’s World Food Program budget, and 22% of the UN’s operating budget. But at least as bad as Webb’s obvious resort to socialist demagoguery is his equally obvious economic ignorance. He may not be happy with the way the American economic system deals with poverty, but only a fool can think that it actually creates poverty where none would otherwise exist.

He doesn’t even seem to have a clue as to what it would mean to “address” the social and economic system in America.

[The social and economic system] has been tinkered with before of course, sometimes as a result of natural disasters. There were for instance plenty of buses on hand for this week's Rita evacuation.

Let’s ignore for the moment the fact that, contrary to Webb's implication, even in New Orleans there were plenty of buses on hand for Katrina’s evacuation too (they just weren’t used). Just how does utilizing buses for an evacuation represent “tinkering” with the economic system of the US? I am at a loss. But that’s OK because, as Webb assures us, such tinkering hasn’t really changed much:

But the system's fundamentals - no limit on how far you can fly and little limit on how low you can fall - remain as intact as they were in the San Francisco gold rush.

Well, let’s see. The San Francisco gold rush began in 1849. At the time the top federal income tax rate was a robust 0%, and in fact was unconstitutional. Annual federal outlays for unemployment insurance and other poverty prevention/reduction measures were exactly $0. Indeed, terms such as Social Security, Medicaid, Federal Deposit Insurance, the minimum wage, Aid to Families with Dependent Children, and food stamps – not exactly unknown concepts to 21st century America - would in fact not even be invented for nearly another 100 years.

Now, I’m not entirely opposed to a touch of hyperbole now and then, but the notion that little has changed in the US government’s posture towards wealth and poverty in the last 150 years, and that there remains “little limit” on how low one’s economic prospects can go in the US is so utterly and completely absurd it is only fair to question just how much contempt Webb has for the intelligence of his audience that he tries to pass this off as a reasonable observation.

Demonstrating that the ideology of the BBC’s correspondents hasn’t changed much over the years, Webb favorably quotes one of his predecessors, who apparently referred to the failure of the European style welfare state to gain a foothold in the US in the wake of the Vietnam War as a “tragedy”. And Webb doubts that it ever will, lamenting that America will not be, in 50 years, the “workers paradise” that, one can only presume, he thinks the welfare states of Europe are.

Webb also has a tendency to portray universal traits as distinctly American characteristics. “Inequality,” he says, “is a part of American life…” Well, yes, just as it is a part of life the world over. Certainly he doesn't think that things like the NHS and the dole has rendered inequality extinct in the UK, does he? He says that “American government is a mess. American bureaucracy and red tape is a national shame.” Compared to what, those paragons of bureaucratic efficiency and sources of national pride in Westminster and Brussels? Surely he jests.

Webb does note, with apparently some degree of admiration, American self reliance along with the can-do attitude and charitable spirit of individual Americans. But even this seems to come with a black cloud.

This is unquestionably a source of strength and spine in troubled times, but boy does it put a dampener on revolution.

Charity ameliorates it, softens blows, pours oil on troubled waters. It does not lead to social change.

What a bummer, huh? Webb does at least leave us with something about which I sincerely hope he is correct. He says:

Americans are cross with the government and disappointed with the response from Washington, but they have not sat on their hands and waited for the government to sort itself out. Much the opposite.

Americans have given with unbridled enthusiasm and generosity.

Is that not something governments do?

Americans do not think so and never will.

Perhaps, unlike Webb, Americans are aware that the government's ability to "give" with enthusiasm must, of necessity, be matched by a similarly unbridled enthusiasm for taking, and that "generosity" is not exactly an accurate characterization for such action. Perhaps Americans recognize that "generosity" requires a bit more than just spending other people's money.