Welcome Mark Tushnet (Georgetown Law) and Host Daniel Walters (Penn Law)

In The Balance: Law and Politics In The Roberts Court

Alexis de Tocqueville once observed that “[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” The blurred line between law and politics has always existed in America, but de Tocqueville’s observation rings especially loud and clear and true today. For instance, the Supreme Court recently decided for itself and for the country whether certain parts of the country still had to comply with the preclearance procedure required by the Voting Rights Act, and just days later decided to strike the Defense of Marriage Act. It stands poised this term to overturn major precedents on the constitutionality of President’s power to appoint officers, state bans of affirmative action, individual campaign contribution limits, and abortion rights. On virtually every important policy front, the Supreme Court has injected itself as a major political player.

It is easy to become disillusioned by this politicized picture of the Supreme Court. To see Justice Scalia lambaste the majority in the DOMA case for its hubris in striking a duly passed statute just days after he himself joined an opinion striking one of the most important parts of a landmark civil rights statute doesn’t exactly inspire confidence in the institution or its commitment to law. Maybe the Justices really are just politicians in robes, and if that is true, one might reasonably wonder why we continue to entrust the unelected and unaccountable Supreme Court with such a political task.

In his recent book In the Balance: Law and Politics on the Roberts Court, Mark Tushnet does not disagree that politics and the Supreme Court go hand in hand. There is no denying that the Justices have political views and that those political views often influence how they decide cases. Professor Tushnet carefully dissects and criticizes the now infamous “umpire” analogy that Chief Justice John Roberts used in his confirmation hearing, replacing it with what he takes as the much more realistic and intellectually honest portraits of judging offered by Elena Kagan and Sonia Sotomayor.

But where In the Balance makes its greatest contribution is in tempering the urge to dismiss the Court’s behavior as purely political. Professor Tushnet does not settle for crude caricatures of the Justices as partisan hacks doing the bidding of the current political parties. Instead, he walks through case after case where a variety of intellectual commitments, societal pressures, institutional concerns, and even the law led to counter-political votes. For Tushnet, the Roberts Court’s purported business bias turns out to be a product of the law of preemption, and many of the Court’s maligned First Amendment cases (such as Citizens United) turn out to be driven by a preference for simple rules. Nowhere is the limited influence of politics more apparent than in the Affordable Care Act case—as Tushnet points out, ideological purists on both the left and the right could not feel like they got an unqualified win, and the motivation for Chief Justice Roberts’s opinion in the case will probably be debated for generations, but may have been a purely legal motivation. The question for Tushnet is not whether politics matters in Supreme Court decision-making, but how and when it matters. On this point, Professor Tushnet reminds us not to go making “large bets” on the outcomes based on the political ideology of the Justices. If In the Balance establishes anything, it is that the Court’s decision-making is difficult to predict.

In the Balance reminds us that the Justices are human beings, and in doing so, turns our attention to developments that might not be apparent in the vote counts. He predicts the rise of a Roberts-Kagan rivalry, and perhaps even a rebranding of the current era as the “Kagan Court.” The intellectual and political battle between these two has yet to be won, leaving the Court still very much “in the balance.” But as Professor Tushnet reminds us, we’re always one appointment away from altering the balance.

 

[As a courtesy to our guests, please keep comments to the book and be respectful of dissenting opinions.  Please take other conversations to a previous thread. - bev]

103 Responses to “FDL Book Salon Welcomes, Mark Tushnet, In The Balance: Law and Politics In The Roberts Court”

BevW October 12th, 2013 at 1:45 pm

Mark, Dan, Welcome to the Lake.

Dan, Thank you for Hosting today’s Book Salon.

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Daniel Walters October 12th, 2013 at 1:47 pm

Thanks, Bev. Happy to be here discussing Mark’s great new book!

Daniel Walters October 12th, 2013 at 2:00 pm

Here’s a first question for you to get us started, and it concerns the upcoming Supreme Court term. Adam Liptak had a piece in the New York Times the other day in which he argued that this term had the possibility of being more of a blockbuster than the last two, with several cases poised to overturn key precedents. Do you believe this term will be as political as the last two, and are there any cases in particular that you’re following closely?

Mark Tushnet October 12th, 2013 at 2:00 pm
In response to Daniel Walters @ 2

I look forward to talking with all of you!

dakine01 October 12th, 2013 at 2:01 pm

Good afternoon Mark and Dan and welcome to Firedoglake this afternoon.

Mark, I have not had an opportunity to read your book so forgive me if you address this in there. I know courts have always been political animals, no matter how much they try to claim being above the fray.

Is the perception of the Robert’ court as being so very political almost the mirror of the Warren and early Burger courts when so many of the court decisions seemed to open US life beyond the narrow confines of the first 180 to 200 years of life in the US?

I know those courts were political, and the right often pushed to impeach Warren, Douglas and others. It just seems that the Roberts’ court is the reactionary political court but just as activist if not more so than the perception of the Warren and Burger courts.

Mark Tushnet October 12th, 2013 at 2:04 pm
In response to Daniel Walters @ 3

One of the problems with writing a book about the Supreme Court in real time is that the book has to go to press, but theCourt keeps on sitting and deciding cases. And, every year at the beginning of the Term, there’s some effort to say how “important” the Term is going to be. But it’s important to remember that the Court’s docket is only about half full at this point, so we don’t know what other cases are going to get to the Court this Term.

In some ways, every Term is “important” in that decisions shape and reshape constitutional law. For the current Term, I’m interested in seeing what the Court does in the McCutcheon campaign finance case — where the Court turns from the spending side that it dealt with in Citizens United to the contributions side, in a case called Bond v. United States, which involves the scope of Congress’s power to enact statutes to enforce treaties, and a case dealing with the so-called contraceptive mandate in the Affordable Care Act, which will get to the Court later this year. All of them — and others, of course — will tell us precisely what kind of Court we have now– or, more precisely, how conservative the Roberts Court is.

BevW October 12th, 2013 at 2:06 pm
In response to Daniel Walters @ 3

Background for our readers – Adam Liptak – NYTimes article

Supreme Court Has Deep Docket in Its New Term

Daniel Walters October 12th, 2013 at 2:07 pm
In response to Mark Tushnet @ 6

It’s interesting that you mention the Bond case because, if I’m not mistaken, the Court has heard this case before but didn’t reach the merits of the treaty question. One of the things that we get a sense for in reading the book is that the Roberts style seems to be to take a case (such as the NAMUDNO case or the Wisconsin Right to Life case) that hints at where the Court wants to go. Why do you think the Roberts Court does this, and how do you think it should affect how lawyers and activists go about trying to influence the Court? Was the Fisher case (Texas affirmative action case) just such a “test balloon,” and what, if anything, can you read in the tea leaves left by the Court as to what it will do in the future on affirmative action?

Mark Tushnet October 12th, 2013 at 2:07 pm
In response to dakine01 @ 5

The Supreme Court is always both political and “legal,” something I try to capture in the subtitle of my book. That’s a result of the Constitution’s design, which connects the Court to politics through the nomination and confirmation process. I wouldn’t say that the current Court is “more” political than any recent one. It’s just that its politics are different from those of theBurger and Rehnquist Courts — even though both of those men were appointed by Republican presidents. The reason for the difference, I think, is that today’s Republican Party is different from Richard Nixon’s and even Ronald Reagan’s.

Jane Hamsher October 12th, 2013 at 2:09 pm

Thanks so much for being here today Dr Walters, and thanks Dr Tushnet for writing such a fantastic intro.

Speaking of Citizens United, do you see any judicial inclination to revisit or refine the law? Have any of the judges evolves on the issue?

Daniel Walters October 12th, 2013 at 2:11 pm
In response to Mark Tushnet @ 9

Just to add to this, I think one of the things you get a feel for if you’ve read many cases from both the Rehnquist Court and the Roberts Court is that the Rehnquist Court was far more concerned with questions of federalism, perhaps because this was an important issue for Rehnquist and O’Connor. That seems to have faded in favor of a different brand of conservative thinking about constitutional problems. So I think Mark is right that each Court has its own flavor, and the differences in flavor are easy to mistake as one Court being “more activist” than others.

Mark Tushnet October 12th, 2013 at 2:12 pm
In response to Daniel Walters @ 8

I know that the idea that the Chief Justice is a long-term strategist has gotten around, but I’m not sure that it’s accurate. The problem is that no one — even the Chief Justice — can know what the Court’s composition is going to be the next time around. So, the most sensible strategic thing to do is to go as far as you can every time. Sometimes, your colleagues won’t be ready to go as far as you’d like, so you trim your sails, waiting for them to come around — if they ever will. The Fisher case is a good example. It’s pretty clear — from external evidence — that the Court’s anti-affirmative action justices wanted the Court to hear the case so that they could cut back on affirmative action, and maybe even hold it generally unconstitutional. But, it turned out, they just couldn’t put together a majority for that position. (The case was argued very early in last Term,and decided near the end — a sure indication that the justices were struggling to settle on an opinion that would get five votes.) So, in the end, they issued a pretty watered down opinion. And, that’s likely to remain true on this issue until the Court’s composition changes.

Daniel Walters October 12th, 2013 at 2:12 pm
In response to Jane Hamsher @ 10

Just to be clear, Mark is the author of the book. I wouldn’t want to steal any of the credit he deserves!

Mark Tushnet October 12th, 2013 at 2:15 pm
In response to Jane Hamsher @ 10

It’s clear that the four dissenters think that the decision was wrong, and would like to revisit it. But that’s not going to happen until a Democratic appointee replaces a Republican one. In my chapter on Citizens United I sort of defend the decision as a reasonable product of the doctrine the Court inherited, which says that legislatures can regulate capaign finance only to avoid corruption and — specifically — that they can’t use regulations to try to achieve some sort of equality or to “level the playing field.” But, really, that’s why people support campaign finance regulation, and, I think, the Court really would have to start over were it to have a majority that thought that campaign finance regulation was a good idea.

Daniel Walters October 12th, 2013 at 2:19 pm
In response to Mark Tushnet @ 12

In some sense, then, the critical vote is going to usually be the swing voter, who on the current Court is Justice Kennedy. This points to a question I had about the book in general. In some sense, the book downplays the role that Justice Kennedy plays as the presumptive swing vote. He is featured in a few discussions of cases, but your picture is largely centered on Chief Justice Roberts and Justice Kagan. What makes you think that Kennedy is less important than many popular media accounts (and even the vast majority of the literature in political science studies of judicial behavior) would have him? Is there something special about the current Court that makes the median Justice less important than he or she has been in the past? Even if the role of the Chief as a strategist is overplayed, is Roberts a good strategist, and has he succeeded in stealing some of the thunder of Justice Kennedy?

RevBev October 12th, 2013 at 2:19 pm

I enjoyed so much you descriptions of the Court members. The portraits seemed candid, even if a bit restrained. Were you tempted to be any more candid/personal in the portrayals?

Mark Tushnet October 12th, 2013 at 2:20 pm
In response to Daniel Walters @ 11

A slight disagreement: The Rehnquist Court was interested in federalism, but its “Federalism Revolution” actually petered out without accomplishing anything much. In contrast, the conservative majority’s position on the scope of the Commerce Power in the Affordable Care Act decision has real potential for undermining the reach of the modern post-New Deal government — even if, because of Chief Justice Roberts’ “defection” on the issue of the power to tax, they weren’t able to stop the ACA from going into effect. The Bond case comes to the Court on what observers describe as terrible facts for the government. It involves the statute implementing the Chemical Weapons Treaty (recently in the news because of Syria), but the facts involve a woman who used her training as a chemist to try to kill a romantic rival — not anywhere near the core of what the Treaty is about. And, conservatives have been looking for a case to use to cut back on the scope of the power to implement treaties. The Bond case seems like a promising vehicle to do that.

Mark Tushnet October 12th, 2013 at 2:22 pm
In response to Daniel Walters @ 15

I do downplay Justice Kennedy’s importance, because I want to emphasize a long term time perspective on the Roberts Court. Of course Justice Kennedy is the “swing” vote on the Court today, though it’s important to say as well that his inclinations are generally to go with the other conservatives (with the exception of gay rights cases, where his libertarian streak takes over). But he’s not going to be on the Court forever. In contrast, the Chief Justice and Justice Kagan are going to be on the Court for twenty or more years, so figuring out how they think and act as justices is more important for understanding the Roberts Court in the long run.

ThingsComeUndone October 12th, 2013 at 2:24 pm

Scalia is puffed up as a Catholic Scholar of the law does was he ever a Catholic scholar I guess what I am asking is his view the church’s, or Opus Dei’s right wing view of how the church should be.

Mark Tushnet October 12th, 2013 at 2:25 pm
In response to RevBev @ 16

I don’t think I was consciously restrained in writing about the justices. I know Justice Kagan the best, because she was Dean at Harvard when I was hired there (and I’d run across her periodically at professional events), so I do have some “feel” for her as a person. Justice Ginsburg’s late husband was a colleague of mine at Georgetown, and I got to know her slightly through him. Otherwise, though, my sense of the justices comes from seeing them in the official capacitors, both as they write opinions and sometimes when they attend events that I happen to be attending.

Daniel Walters October 12th, 2013 at 2:25 pm
In response to Mark Tushnet @ 17

Very fair point re: the success of the federalism revolution on the Rehnquist Court. There are a lot of people, I think, who would point at that case and say it’s just another example of how ineffective the Court is at changing society. People like Gerald Rosenberg, who wrote a great book on the Court called “The Hollow Hope” have argued that, no matter how activist the Court might want to be, it is just not going to be able to induce social change. Perhaps that should also temper our early evaluations of the Roberts Court as well. Your book does a good job of that, I think.

ThingsComeUndone October 12th, 2013 at 2:27 pm

Why is the constitution so important when it comes to denying people rights but ignored when it comes to corporations?

Mark Tushnet October 12th, 2013 at 2:29 pm

I don’t doubt that Justice Scalia’s religious commitments affect the way he thinks about constitutional law, though I also don’t think that he “takes instruction” from the Church about his position. Shortly after he was appointed to the Court someone in the legal academy wrote a pretty insightful article that suggested, I think correctly, that Justice Scalia’s way of thinking — his strong preference for rules against more flexible standards — was shaped by the way he learned the precepts of Roman Catholicism in the pre-Vatican II era. (It’s probably worth noting here that I taught at Georgetown University for 25 years, and loved the place in part because of the way its Jesuit affiliation infused the institution. So, I’m not as skeptical about the role of religion in political life as many people on “my” side of the political spectrum are.)

Mark Tushnet October 12th, 2013 at 2:32 pm
In response to Daniel Walters @ 21

This is a really important point that I don’t deal with in the book, largely because you really can’t write a book about the Court whose point is to downplay its importance — it won’t sell many copies! But, it’s worth observing that over the past few months we’ve seen two really important events, as to which no one thinks the Supreme Court should have anything to say: the decision to threaten military force in Syria and, of course, the current shutdown. People like me have a professional interest in thinking about the Supreme Court, but people without that commitment should be careful not to over-emphasize the Court’s importance.

Daniel Walters October 12th, 2013 at 2:33 pm
In response to Mark Tushnet @ 23

This does raise the question of balance, though. As you mention in the book, I think, the Court is hardly representative of American society on the religion or race spectrum. If there is a discernible “catholic” perspective on law, it is surely going to be well considered on the Court, and it is worth considering what impacts that might have, just as it is worth considering what kind of impacts it might have that all of the Supreme Court Justices attended ivy league law schools (and all but one graduated from one of two schools–Harvard or Yale).

ThingsComeUndone October 12th, 2013 at 2:36 pm
In response to Mark Tushnet @ 23

The Media claims Scalia’s religion justifies his views. I think that is a smear on the Catholic church.
Also what about Justice Thomas what area of the law does he specialize in if any does he socialize with the other Justices or is he at best the Black friend like the Black tv characters who are the first to die on a tv episode never get the girl, and never take leadership positions except as villains.

ThingsComeUndone October 12th, 2013 at 2:38 pm

What kind of issues do you think the court wants to deal with the most and why?

Daniel Walters October 12th, 2013 at 2:39 pm

I’d like to hear Mark’s response to this, but I suppose the answer might be that it is because the Constitution is fairly–entirely–silent on its face about corporations. In fact, you could say the Court has really stretched to give corporations more constitutional attention than they deserve. Ultimately, the question of corporations is one that the democratic branches need to take responsibility for. The problem is making it too much of a constitutional issue.

Mark Tushnet October 12th, 2013 at 2:40 pm
In response to Daniel Walters @ 25

The (lack of) religious diversity on the Court is peculiar and sort of amusing — six Catholics, three Jews,no WASPS. (People positioning themselves to be considered as potential nominees ought to check their religious affiliations — I think the odds are really high that the next nominee will be a Protestant!) I say a bit about the “elite law school” point in the book. On the one hand, it might be seen as the triumph of meritocracy: People who in the past would have been excluded from the elite schools because of discrimination now attend them. But, on the other, there’s no doubt that schools all over the country produce lawyers eminently qualified intellectually for the Supreme Court. And, maybe getting some sort of geographic diversity on the Court — it used to be an important consideration — would be a good idea. The Court deals with a fair number of water rights cases coming from the West, and a fair number of cases involving Native Americans, which have something of a regional flavor as well, but the current court has people from the East and West Costs and nowhere else.

Daniel Walters October 12th, 2013 at 2:42 pm

At the risk of taking the conversation away from the law and toward sociology, I have a question for Mark about the role of social movements in influencing law. Those who do think the Court matters are often willing to pour a lot of resources into these movements. The book makes frequent reference to the conservative legal movement, focusing on the influence of the Federalist Society as a sort of farm system and legal think tank for conservative law students, lawyers, and judges. The broccoli argument, for instance, came up through these networks and channels of influence. This raises two questions: 1) Why haven’t liberal and progressive groups harnessed similar mobilization strategies, at least not with the same degree of success?; 2) Given the evidence that you present that the broccoli argument gave conservative lawyers a bit of tunnel vision (and allowed them to be blindsided by the taxing power holding in the health care case) and that Republican presidents are increasingly picking nominees from a very limited pool of people without much intellectual diversity, is it maybe a good thing that progressive groups haven’t been quite as successful in mobilizing?

Mark Tushnet October 12th, 2013 at 2:43 pm

Justice Thomas is, I think, undervalued in the public eye because of his decision not to ask questions during oral argument. He’s said that he likes technical and complicated statutory cases — like the one the Court decided last Term dealing with patenting human genes — and his opinions in those cases are quite solid, to the point where I think he’s something like the “go to” justice when the Court has a complicated statutory case (at least if it doesn’t have strong political overtones). And, he’s genuinely well-liked within the Court — friendly to everyone in the building, from the building staff to the law clerks to the other justices.

ThingsComeUndone October 12th, 2013 at 2:45 pm
In response to Daniel Walters @ 28

In fact, you could say the Court has really stretched to give corporations more constitutional attention than they deserve.

That was my thoughts on the subject. I wonder how they justify and rationalize giving corporations so much power at our expense.
I wonder how much Supreme Court Justices get paid to give speeches and I’m betting the biggest corporate whores get the most cash and offers to give speeches.

RevBev October 12th, 2013 at 2:45 pm

In the book, you refer a few times to Bush v. Gore & some of its influence. What did you think about that decision/how it came down?

Daniel Walters October 12th, 2013 at 2:45 pm
In response to Mark Tushnet @ 29

Do you worry at all about there being certain ways of thinking about the law that the top few law schools emphasize (to the detriment of other legitimate ways of thinking about the law)? Schools have reputations for certain kinds of approaches–at the University of Chicago it at least used to be law and economics. You’ve obviously taught at very elite institutions, and people obviously get excellent educations there, but are there gaps in the coverage provided by the most elite institutions? Just curious to hear your thoughts on this.

Mark Tushnet October 12th, 2013 at 2:48 pm
In response to Daniel Walters @ 30

The general view in the legal academy is that social movements enable constitutional change, though they don’t guarantee it. The point about contrast between the conservative strategy and the liberal one with respect to building a structure of thinking about the Constitution over a long period is an interesting one. A couple of points: The people who fund liberal activities have tended to be more interested in immediate payoffs and, importantly, delivery of services to those immediately in need. That tilt in interest is sort of built into the liberal side (who would conservative funders want to deliver services to?). And, it’s not clear to me that the conservative legal movement succeeded to the extent that it has because of the development of their intellectual agenda. It might be that it succeeded because it provided a helpful tool for social-movement conservatives to use, especially of course in their criticism of Roe v.Wade — criticism that would have existed even if the Federalist Society never existed.

ThingsComeUndone October 12th, 2013 at 2:48 pm
In response to Mark Tushnet @ 31

Justice Thomas is, I think, undervalued in the public eye because of his decision not to ask questions during oral argument.

Why?

Thomas is the go to guy on complicated statutory cases interesting, Scalia is a big mouth who likes attention, do the other Justices specialize in anything or are they all generalists?

ThingsComeUndone October 12th, 2013 at 2:50 pm
In response to RevBev @ 33

Seconded

Mark Tushnet October 12th, 2013 at 2:53 pm
In response to RevBev @ 33

Bush v. Gore stands out like a sore thumb in the kind of argument I make. Throughout the book I stress that the politics on the Supreme Court is not narrow partisan politics but rather is a form of political thinking about larger visions of the Constitution, the kind of government we should have, and the role of the courts in that government. So, for example, although it was quite predictable that the Court’s conservatives would think that the Affordable Care Act was outside the scope of Congress’ power to regulate interstate commerce, that prediction didn’t rest on the fact that Republican politicians in theHouse and Senate opposed the Act; it rested on thinking about federalism that the conservatives had been doing for years, well before there was any prospect of a national health care law. Bush v. Gore is different. There really is no way to explain it except as the reflection of raw partisan politics on the Supreme Court. Some conservative defenders of the decision have tried to come up with “principled” justifications for it, but none of them really work. But, again, I stress that partisan politics of that sort are really unusual on the Court.

Daniel Walters October 12th, 2013 at 2:55 pm

Actually, the Court is something of an outlier in how many administrative law experts it has. Scalia, Breyer, and Kagan are all former administrative law professors. Being an administrative law person myself, this is something like heaven for me. I think we oftentimes forget that all of the Justices had lives and careers before, and it takes an incredible amount of work for them to get all of the expertise they need to decide often completely unrelated and novel questions of law. Some of the credit is due to the clerks, but it is really quite impressive that they are so successful at this. Of course, who is going to tell them they are wrong?!

ThingsComeUndone October 12th, 2013 at 2:55 pm
In response to Mark Tushnet @ 35

And, it’s not clear to me that the conservative legal movement succeeded to the extent that it has because of the development of their intellectual agenda.

The conservative movement does has a pseudo intellectual agenda Charles Murray for example fakes racial studies ( read “The Bell Curve Wars” ) to prove racial inferiority and conservatives use that to deny equal jobs, education to minorities.
Several anti Gay groups have similar studies bad mouthing Gays. Global Warming has a whole industry denying reality etc etc I wonder how much GOP pseudo intellectual agenda ideas influence the court?

ThingsComeUndone October 12th, 2013 at 2:57 pm
In response to Daniel Walters @ 39

Please describe more what administrative law is.

Mark Tushnet October 12th, 2013 at 2:58 pm
In response to Daniel Walters @ 34

I don’t think that there are “gaps” in legal education that exist at elite law schools but are filled in elsewhere. The gaps arise after law school. The current justices have a strikingly narrow range of experiences in the law, particularly in contrast with the historical norms. The most obvious one is that we used to have justices on the Court who had held reasonably high positions in national politics, including electoral politics (former Senators and Governors, former Attorneys General and cabinet Secretaries). It is strange, and probably not good for the development of constitutional law, that none of the justices who are making constitutional law about campaign finance regulations has ever faced a voter in an election campaign. But, this particular observation should be tempered — as I do in the book — by noting that the kind of politicians we have now (highly ideological, quite polarized, and not all that interested in compromise) probably wouldn’t make good justices.

Daniel Walters October 12th, 2013 at 3:01 pm

Administrative law is the law governing how administrative agencies like the EPA, FDA, or SEC make and enforce regulations and statutory programs, and it generally ensures that agencies use fair and open procedures to afford interested parties and groups an opportunity to comment and try to influence public policy implementation. This is really government in action, and you can occasionally see some very high-level academic type debates about it in some of the most important cases you may never have heard of, such as Chevron v. NRDC.

RevBev October 12th, 2013 at 3:02 pm
In response to Mark Tushnet @ 42

I know you cannot predict the future….but do you have an opinion for that polarization being reduced? (even as we are seeing the current extreme)

Mark Tushnet October 12th, 2013 at 3:02 pm

Administrative law deals with things like the reach of theEnvironmental Protection Agency under federal environmental law, and with the procedures agencies like the National Labor Relations Board has to use when it decides whether an employer has committed an unfair labor practice.

Daniel Walters October 12th, 2013 at 3:02 pm
In response to Mark Tushnet @ 42

I’m interested in talking a little bit about this point that political types wouldn’t make good Justices. You say on pg. 100 that “[p]utting people on the Court with political experience in today’s environment would mean putting hyperpartisans uninterested in compromise on the Court, which would pretty clearly be a bad thing.” This seems reasonable, but isn’t there something lost when Justices have no political experience? I’m thinking of Earl Warren, whose political experience might have contributed to his legacy as Chief Justice. There are others as well. Perhaps their political experience made them more cognizant of the irreducible element of politics in their task. Why is political experience such a bad thing on the Court? Are there any politicians that you could see as a Supreme Court Justice?

masaccio October 12th, 2013 at 3:03 pm
In response to Mark Tushnet @ 14

You say that Citizens United can be defended as saying that political contributions can only be regulated to prevent corruption or the appearance of corruption.

There are a number of studies showing that political contributions result in favorable outcomes to corporations and their officers. Here is a list of 12 that I found using SSRN: http://my.firedoglake.com/masaccio/2012/08/14/its-much-more-than-the-appearance-of-corruption/

In Citizens United, Anthony Kennedy flatly denied this reality.

Now, based on this flawed reasoning, the Supreme Court threatens to cut control over politics by the billionaire class. I flatly disagree that this opinion is not overtly political. It doesn’t matter whether they believe what they are saying or whether they are following the dictates of the rich people who put them in power. The outcome is the same. We get no real choice in candidates, because the rich give so much money to candidates they like that the 99% rarely gets a candidate who speaks for them or their needs.

The exceptions, like Elizabeth Warren, have so much star power that they can raise millions from around the country on their own names. That isn’t possible in most congressional districts or senatorial campaigns.

ThingsComeUndone October 12th, 2013 at 3:04 pm

, the kind of government we should have, and the role of the courts in that government.

Their view seems Straussian

Drury argues that Strauss teaches that “perpetual deception of the citizens by those in power is critical because they need to be led, and they need strong rulers to tell them what’s good for them.”


http://en.wikipedia.org/wiki/Leo_Strauss#Strauss.27s_Interpretation_of_Plato.27s_Republic

Some conservative defenders of the decision have tried to come up with “principled” justifications for it, but none of them really work

Do you have a link to their justifications I could use something humorous to read right now.

Daniel Walters October 12th, 2013 at 3:05 pm
In response to Mark Tushnet @ 42

A perennial point of concern–and one that does not come up too directly in the book–is the role of clerks in this regard. I believe you were a clerk. Do you have any thoughts about the role and importance of clerks in the process? Are they in any way shape or form pulling the strings? Do you think there are any drawbacks to relying on clerks who are one or two years out of law school?

Mark Tushnet October 12th, 2013 at 3:06 pm
In response to RevBev @ 44

For the Supreme Court, it’s entirely dependent on what happens in the rest of Washington. If a Republican president is elected in 2016, there’s a good chance that conservatives will further consolidate their control of the Court (because the most likely departures between 2017 and 2021 are Justices Ginsburg and Breyer). The would be continued polarization, but the liberals would regularly lose — even more regularly than they do now. The picture is more cloudy on the assumption that a Democrat wins the presidency in 2016. For things to change on the Court, there would have to be what I call a “relevant” change — not the retirement of Justice Ginsburg or Breyer, but rather the retirement of Justices Scalia or Kennedy. Then the Court would shift from a conservative majority to a liberal one. I don’t think we’d see dramatic changes right away, but the overall direction of the Court would certainly change.

ThingsComeUndone October 12th, 2013 at 3:07 pm
In response to masaccio @ 47

Great comment

Daniel Walters October 12th, 2013 at 3:10 pm
In response to masaccio @ 47

It’s an interesting question what is an “overtly political question.” My reaction to reading what you described as an overtly political question was quite a bit less certain. The line between politics and law is often very blurry–the tests that the Court typically uses to weigh the constitutionality of statutes like campaign finance regulation is basically designed to consider policy analysis. The determination of whether the statute is based on a legitimate public purpose and is reasonably related to that purpose (this is the kind of language you see in the actual legal test!) is completely infused with policy judgments, but is that political? Tough question.

Mark Tushnet October 12th, 2013 at 3:10 pm
In response to Daniel Walters @ 46

There’s no question in my mind that the Court was better off — and we were better off –when it had people with real political experience on it. My concern is that it’s not clear to me that the current crop of politicians includes people who could make the kind of contribution that Warren or Hugo Black (or Tom Clark or Sherman Minton, to name lesser lights) made. I drafted most of the book before the 2008 election, so I had alternate endings. I speculated about who a President Romney might nominate, and included Mike Lee, Ted Cruz, and Greg Abbott. But all three are, as I wrote, hyper partisan and probably wouldn’t bring to the Court the cast of mind that Warren andBlack did.

Ironcomments October 12th, 2013 at 3:13 pm

The the very concept of the law is to maintain the status quo. Laws are made so that change doesn’t happen. Stare decisis is the central tenet of adjudication. Therefore a bunch of out of touch robed fools will not bring about meaningful change.

Revolution is literally a mass of humans breaking the law.

Mark Tushnet October 12th, 2013 at 3:14 pm
In response to masaccio @ 47

The problem with these studies — though maybe not with all of them — is that it’s really hard to figure out the causal direction. That is, big donors might choose to give their money to people who are already inclined to vote the way the donors like, precisely because giving money to someone opposed to your position has the feel of bribery and corruption. But, having said that, I also think that there’s an interaction between our system of campaign finance and the rather narrow range of policies that are “taken seriously” in our government. Campaign finance regulations aimed as “equalization” or leveling the playing field might expand that range somewhat, but I doubt that the effect in the short run would be dramatic.

Daniel Walters October 12th, 2013 at 3:15 pm
In response to Mark Tushnet @ 50

This mostly addresses a shift in the deciding vote and whether that is a reliably conservative or liberal vote. What about polarization on the Court? Are you worried at all that, particularly on the “right” side of the Court, the baseline ideology is becoming more extreme? Justice Scalia, in particular, has even been attacked by fellow conservative Judge Posner for being too extreme (and transparently so) in his bench demeanor and opinions.

ThingsComeUndone October 12th, 2013 at 3:16 pm

Given computers, cloning, stem cells, global warming all issues that might soon end up before the court might we not need a few Supreme Court members with serious science back grounds I am not sure the law clerks who help do research for the justices would even know where to look for good information on these issues.
The last thing I want is Supreme Court Justices making rulings on global warming with information researched by law clerks reading a Fox News website.

Mark Tushnet October 12th, 2013 at 3:18 pm
In response to Daniel Walters @ 49

As you note, I was a law clerk (to Thurgood Marshall, forty years ago), so maybe my perspective is skewed. (My daughter was also a law clerk to a Supreme Court justice more recently.) I really doubt that law clerks have much independent influence — the justices are mature people who pretty much know what they think. Justices tend to do more of their writing themselves in their first years on the Court, and then gradually begin to delegate drafting to law clerks over time. Mostly, the clerks are sounding boards — people who the justices use to make sure that their arguments are in as good a shape as they can be.

Daniel Walters October 12th, 2013 at 3:18 pm

At the risk of overloading you with questions, I’d like to ask you to elaborate more on what I take to be a very central thesis of the book, and that is that Justice Kagan is going to rise up to be an intellectual counter balance to Chief Justice Roberts. You clearly have a high opinion of Justice Kagan, both because of her work at Harvard and because of her challenge to Chief Justice Roberts. But isn’t Justice Kagan’s frank manner more like Scalia’s style than the Chief Justice’s, and couldn’t that threaten her bid for leadership of the Court? As popular as Scalia is among conservative observers, his style has prevented any bid for leadership of the conservative side of the Court, as you mention on pg. 171. You know a lot more than any of us about Justice Kagan–what makes you so convinced that she will be a successful leader?

Mark Tushnet October 12th, 2013 at 3:20 pm

A relatively conservative colleague at Harvard, Adrian Vermeule, has indeed suggested that the Court’s performance could be improved if some of its members had training in fields in addition to law. (There are enough technical statutory cases that we probably want all the justices to have some legal training.)

ThingsComeUndone October 12th, 2013 at 3:21 pm

Science, economics are two areas of knowledge I think the court needs what if any other areas of knowledge could the court use.

masaccio October 12th, 2013 at 3:21 pm
In response to Mark Tushnet @ 42

Based on my experience with young lawyers, I’d say there are substantial gaps in legal education. I knew quite a few young corporate and business lawyers. A large number of them had never had any significant contact with anyone outside their upper middle class socio-economic class.

As a result, they were unable to comprehend the problems faced by the people whose misery was their bread and butter, whether in foreclosure cases, financial fraud cases, broker-dealer fraud, bankruptcy or any other business area. In other words, they were just as entrenched in the bubble of self-righteousness as the conservatives on the Supreme Court.

That wasn’t true in my legal education. Every professor I remember at all talked about legal issues in terms of the actual lives of the people affected, except the guy who taught Federal Jurisdiction.

Daniel Walters October 12th, 2013 at 3:21 pm

Very good question. The Court is really dependent on amicus briefs filed by interested parties for information in complex cases. If you want the Court to make decisions based on good scientific knowledge, it might be worth investing in a legal team to help draft amicus briefs.

Mark Tushnet October 12th, 2013 at 3:24 pm
In response to Daniel Walters @ 59

A couple of points: First, the Court’s a really small institution — nine people interacting with each other over a long period. That means that idiosyncrasies and quirks can have a larger effect than would be true in a larger institution. That, I think, may be true of Justice Scalia (as it was, I think, of Justice Douglas in his last couple of decades on the Court). Second, political scientists who have looked at polarization in Congress seem to think that, while it’s occurred on both sides of the aisle, it’s happened more rapidly and substantially on the Republican side. So, new Democratic appointees might not be quite as polarizing as new Republican ones — if they mirror, as they probably would, developments in Congress.

masaccio October 12th, 2013 at 3:24 pm
In response to Daniel Walters @ 52

See, there is the problem. You argue as the courts do, from records made in light of the way courts think, instead of from real life. In real life, facts matter and so does context. In court, judges decide what is relevant, and what the proper context is. That decision is itself political, not in the sense of political parties, but in the more real sense of exercise of power.

ThingsComeUndone October 12th, 2013 at 3:24 pm

his style has prevented any bid for leadership of the conservative side of the Court, as you mention on pg. 171.

What I thought they wanted someone younger who could stay at the job forever. Who how was Scalia kept from being Chief Justice?

Mark Tushnet October 12th, 2013 at 3:26 pm
In response to Daniel Walters @ 59

Justice Kagan has said that she’s a bit concerned that her tone has sometimes been too sharp, so we’ll have to wait and see. But, she has the extroverted personality that makes someone a potential leader. One of my favorite lines is from Justice Ginsburg, I think — that if you ask any of the current Justices who is Justice Kagan’s best friend on the Court, each one will say, “I am.” Obviously she won’t turn into the Court’s leader as long as it has a conservative majority. But, as I noted earlier, she’s relatively young and is going to be around for a long time.

Daniel Walters October 12th, 2013 at 3:27 pm
In response to Mark Tushnet @ 64

If that is true, it could be very interesting to see what reigns on the Court–the heated rhetoric of an increasingly extreme ideological faction or the cool and pragmatic realism of the less ideological Democratic appointees on the Court. Assuming the lineup on the Court stays exactly the same, who will the swing Justice be more inclined to follow? Small group studies often indicate that bullies and loudmouths win….

ThingsComeUndone October 12th, 2013 at 3:28 pm
In response to Daniel Walters @ 63

Interested parties have every reason to lie without expertise to catch lies how would they ever catch the lies. I would love to read a brief from the tobacco institute, global warming deniers etc.

Mark Tushnet October 12th, 2013 at 3:28 pm
In response to masaccio @ 62

I’m not sure that we disagree. My point was that whatever lack of contact people had with the lives of “ordinary” people, it didn’t result from their attending elite law schools — it would affect nearly every graduate of nearly every law school.

masaccio October 12th, 2013 at 3:29 pm
In response to Mark Tushnet @ 55

I’ve read all the studies and others, and the direction is quite clear. Even so, it doesn’t really matter if only candidates who support businesses and their greedy demands can win the money primary, and achieve a line on the ballot, while those whose views consider the interest of the broader public are excluded.

Also note that the administrative studies aren’t confusing about direction. And for anecdotal evidence, see Barack Obama. He raised hundreds of millions on Wall Street, and headed up an administration that poured money into banks, salvaged the bad bets of investors, and didn’t prosecute a single exec from any major bank.

Daniel Walters October 12th, 2013 at 3:30 pm

Oh, they certainly exist, and that is why it is so important, I think, for people with the legitimate arguments and information to not see the Court through purely cynical eyes. We need these people to provide the Court with better information and to drown out those who are manipulating science. We need them to not disengage.

ThingsComeUndone October 12th, 2013 at 3:30 pm

Will Justice Roberts be Chief Justice until he dies or if we get a new majority in the court can he be voted out by a new majority. Also what does the chief justice really do is he that important?

Mark Tushnet October 12th, 2013 at 3:33 pm

That’s a neat question! The justices have taken the position, since around 1801, that they are appointed to specific positions, as Chief Justice or Associate Justice, so the Chief Justice cant’ be displaced (of course, because of life tenure, he’d keep his seat on the Court anyway). But, that position was controversial in 1801 and it was never formally resolved. Still, the tradition is so well-established that Chief Justice Roberts will be Chief Justice until he decides to step down.

Ironcomments October 12th, 2013 at 3:34 pm

“In his recent book In the Balance: Law and Politics on the Roberts Court, Mark Tushnet does not disagree that politics and the Supreme Court go hand in hand. There is no denying that the Justices have political views and that those political views often influence how they decide cases. Professor Tushnet carefully dissects and criticizes the now infamous “umpire” analogy that Chief Justice John Roberts used in his confirmation hearing, replacing it with what he takes as the much more realistic and intellectually honest portraits of judging offered by Elena Kagan and Sonia Sotomayor.”

This book seems more like an act of academic mental masturbation.

RevBev October 12th, 2013 at 3:35 pm

Would you say a bit about your clerk experience with Justice Marshall? What he was like/interested in, etc. Sounds like a remarkable opportunity.

ThingsComeUndone October 12th, 2013 at 3:36 pm
In response to Mark Tushnet @ 74

So if we get a new majority Roberts could be Chief Justice but not have any real power has that ever happened before and how did the court work as a group when that happened?

Daniel Walters October 12th, 2013 at 3:37 pm

Just to add to what Mark said, the Chief Justice can be very important. He generally makes opinion assignments after conference, which means that he can subtly influence the direction an opinion will go, simply because he knows the quirks of his fellow Justices and what they think is important. It’s also interesting because, as Mark discusses extensively in his book, Roberts came in at least talking a big talk about what he could accomplish as Chief. He wanted to promote unanimity in decision making. Mark, you argue he had some success early on, but that it faded greatly in subsequent terms, right?

Daniel Walters October 12th, 2013 at 3:39 pm

I should correct myself and say that he doesn’t usually make opinion assignments unless he is in the majority, which, on this Court, he usually is.

ThingsComeUndone October 12th, 2013 at 3:39 pm
In response to Daniel Walters @ 78

He wanted to promote unanimity in decision making. Mark, you argue he had some success early on, but that it faded greatly in subsequent terms, right?

Why did he fail?

bmaz October 12th, 2013 at 3:39 pm
In response to Mark Tushnet @ 70

Baloney. It is the effect of cloistered holier than thou academic focus of SCOTUS judges. None of them particularly spent any significant time as actual trial attorneys in common state and local courts where the “ordinary people” are at daily in droves. It may not matter what law school you come from, although I think the Ivies are the absolute worst in this regard, but there is plenty of law to be practiced where “ordinary people” are. You should try it some time, you might actually encounter a few “ordinary people”. I do every day.

masaccio October 12th, 2013 at 3:40 pm
In response to Mark Tushnet @ 70

Law school curriculum, as my young friends told me, doesn’t have an interest in teaching about the lives of ordinary people, and the few younger law professors I know didn’t either. That was not the case in the early 70s at Indiana University School of Law. This is a change, and it is directly the result of the Federalist Society and the increasing emphasis on law and economics and other neoliberal ideas.

For a different perspective, see the discussion of Judge Rakoff in this week’s Sunday NYT Magazine. His brand of understanding the whole person is a welcome change from the Rational Agent pushed by the Chicago School.

Mark Tushnet October 12th, 2013 at 3:42 pm
In response to RevBev @ 76

I always say that I was far too young to appreciate the experience with the judge (as we called him). Every afternoon he would come into the clerks’ little office and sit down in a big leather chair he had there. He’d then start telling stories about his life and career. Unfortunately (for me), i didn’t pay close enough attention — my co-clerks tell me that, though they had the social grace to stop working while the judge was in our office, I kept working! Other people have recounted enough of the stories, though, that I know what I missed. (And I did have some contact with the judge after my clerkship ended and heard some of his stories then.) My favorite story, I think is this one: John Kennedy appointed him to the court of appeals, but the Senate didn’t confirm him for elven months. So, he was working without a permanent office in the federal courthouse. He was assigned to offices where the other judge was on vacation, or ill. One day he was looking over the office he was going to move into next week, and returned to the one he had, and told his law clerks,”There’s a crazy lady in Judge X’s chambers!” When they asked what he meant, the judge said, “When I went down there to look at the office, this lady sitting at the desk said, ‘Oh good, you must be the plumber to fix the faucet.’ She must be crazy — to think that a Negro could be a member of the plumbers’ union in New York!”

bmaz October 12th, 2013 at 3:44 pm
In response to Mark Tushnet @ 70

And, I might follow that up with noting that Elena Kagan was magically annoited to the highest court in the land without apparently ever finding an actual courtroom in her entire “career”. Perhaps somebody should have given her a GPS unit for graduation.

probably somewhere in the vicinity of 90% or more of the actual “justice” and “law” that is meted out in today’s society occurs in state, county and local courts and administrative agencies, and a little in federal District Courts. What kind of message does it send when justices sitting on the Supreme Court are making decisions that affect the “ordinary people” and they courts the “ordinary people” actually go to, without having any clue what really goes on in them?

Daniel Walters October 12th, 2013 at 3:44 pm

A lot of the participants tonight seem to think that the Court is somewhat “cloistered.” Maybe we can quickly address another facet of this trend toward insulation and “cloistering.” You make much of the fact that there is a Supreme Court bar—a very new trend—and that many of the recent nominees have been members of that Supreme Court bar. You mention that they are all part of something like a “fraternity” and that they are all “friendly rivals.” And, of course, recently, many of the Justices have been pulled from this Supreme Court bar. How important is it that much of Supreme Court politics is conducted in this sort of old-boys network where, despite political disagreement, people have to be friendly and respectful? In other words, but for the rise of the Supreme Court bar, where would the Court be today, in your opinion?

Mark Tushnet October 12th, 2013 at 3:44 pm

It has happened before, most with ineffective Chief Justices like Fred Vinson. Political scientists distinguish between what they call social leadership on the Court and task leadership, and between formal leadership and real leadership. It’s not uncommon for social leadership and task leadership to be separated — in the Warren Court, Earl Warren was the social leader and the formal leader, but William Brennan was the task leader. The Chief Justice’s only formal power is that he can decide who gets to write majority opinions when he is a member of the majority. But, when he’s outvoted, he’s just an ordinary member of the dissenting minority.

RevBev October 12th, 2013 at 3:45 pm
In response to Mark Tushnet @ 83

Thanks….I really enjoyed your book in a can’t put it down sort of way; the characters and interactions, along with your observations, make a great book.

bmaz October 12th, 2013 at 3:46 pm
In response to Daniel Walters @ 85

A lot better off without the inbreeding, that is for sure. And the law produced would be healthier too.

ThingsComeUndone October 12th, 2013 at 3:46 pm
In response to bmaz @ 81

Baloney. It is the effect of cloistered holier than thou academic focus of SCOTUS judges. None of them particularly spent any significant time as actual trial attorneys in common state and local courts where the “ordinary people” are at daily in droves.

You could easily say the same about our political class and our media. Heck inbreeding I suspect is a problem for that class because they are so kept from ordinary people.

Mark Tushnet October 12th, 2013 at 3:48 pm

Basically, he failed to hold the Court together because he was committed to rather strongly conservative results. He was able to paper things over during his first Term on the Court, mostly because everyone was trying to get a sense of what this new Court — with two new members (Justice Alito arrived at almost the same time) — was going to be like. After that, though, his core commitments became clear and his interest in achieving unanimity faded. As one justice said (quoted in the book),Roberts “talked the talk [of seeking unanimity], but dind’t walk the walk.”

ThingsComeUndone October 12th, 2013 at 3:48 pm
In response to Mark Tushnet @ 86

Informative answer thanks.

bmaz October 12th, 2013 at 3:51 pm

I not only could say that, I would and have said that.

Mark Tushnet October 12th, 2013 at 3:51 pm
In response to Daniel Walters @ 85

The Supreme Court bar is a really interesting development. Its growth has reinforced an already existing “inside the Beltway” kind of mentality around the Court. My guess is that if Presidents somehow had to look outside the Beltway for nominees we’d probably get justices with a wider range of experience than we now have. (And, just in case my earlier comments didn’t make this clear, I think that would be a good thing.)

BevW October 12th, 2013 at 3:52 pm

As we come to the last minutes of this great Book Salon discussion,

Mark, Thank you for stopping by the Lake and spending the afternoon with us discussing your new book, and your insights into the Roberts Court.

Dan, Thank you very much for Hosting this great Book Salon.

Everyone, if you would like more information:

Mark’s website and book

Dan’s website

Thanks all, Have a great weekend.
Tomorrow – Allen M. Hornblum, Judith Lynn Newman, Gregory J. Dober / Against Their Will: The Secret History of Medical Experimentation on Children in Cold War America; Hosted by Jeff Kaye

If you would like to contact the FDL Book Salon: FiredoglakeBookSalon@gmail.com

ThingsComeUndone October 12th, 2013 at 3:52 pm
In response to Mark Tushnet @ 90

What conservative causes is he most interested in Social, Corporate? He seems intent on giving the GOP elections, giving them unlimited corporate cash and denying people the vote he seems to be a Straussian.

RevBev October 12th, 2013 at 3:53 pm
In response to BevW @ 94

Bev, Thanks to you as always; another very good book selection. You do such a good job here.

Mark Tushnet October 12th, 2013 at 3:53 pm

Thanks for an interesting session.

Tammany Tiger October 12th, 2013 at 3:53 pm

The Federalist Society is now more than 30 years old, and has become the farm system for conservative lawyers with political ambitions. John Roberts is a classic example of how the farm system worked, starting with his stint in the Reagan Justice Department.

What amazes me is that the progressive side of the profession has done little to nothing to build a counter-establishment to fight the Federalists. Any thoughts on why it hasn’t?

ThingsComeUndone October 12th, 2013 at 3:53 pm
In response to bmaz @ 92

I know I’ve read your stuff. I wonder if anyone can suggest a good read about inbreeding and our upper class.

Daniel Walters October 12th, 2013 at 3:55 pm
In response to Mark Tushnet @ 93

Thank you Mark, Bev, and all the participants. This was a lot of fun, and if you haven’t read the book yet, it is certainly worth it. Best to all.

Daniel Walters October 12th, 2013 at 3:57 pm
In response to Tammany Tiger @ 98

There was a little bit of discussion on this point up around post 30, in case you are interested.

ThingsComeUndone October 12th, 2013 at 3:58 pm
In response to Tammany Tiger @ 98

Why do we need pseudo intellectuals after Bush vs Gore conservative legal thought is a joke. I do admit we need a system to get lefty lawyers good jobs in positions of power.
To do that we need corporations and big money Dem donors to provide those jobs. We need Obama to nominate some for those jobs not only the Supreme Court but lower court judges.
We can’t have Obama surrender to the GOP minority in the Senate any more and pick judges acceptable to them.

Tammany Tiger October 12th, 2013 at 4:03 pm

Thanks. I just got in about 15 minutes ago and did a wretched job of speed-reading the discussion so far.

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