Thursday, September 13, 2007

Sunstein on SCOTUS

This is an excellent analysis by Cass Sunstein in the American Prospect showing how the ideological makeup of the Supreme Court, and public perception of that makeup, have shifted dramatically in the past several decades (read: the rise of the right wing in America). Here are a few paragraphs to give you an indication of the gist of the piece:
The upshot of all these shifts is that what was once on the extreme right is now merely conservative. What was once conservative is now centrist. What was centrist is now left wing. What was once on the left no longer exists.

The political right has had a strong interest in downplaying these changes. One way to move the center of gravity is to make the (preposterous) claim that moderate Republican appointees such as Stevens, Souter, and Sandra Day O'Connor are "liberals" who have "betrayed" the presidents who have nominated them. Remarkably, the conservative effort to redescribe the center has succeeded.

I originally had thought that Ronald Dworkin's piece in the NYRB describing the Roberts court as an "unbreakable phalanx" was a tad extreme, but now I see that if you've been watching these SCOTUS developments for the past thirty or so years, the discrepancy between the actual state of things and the way we perceive it becomes glaringly, frighteningly (for most people on this blog) pronounced.

4 Comments:

Blogger Austin 5-000 said...

Meh. I agree with commenter on the American Prospect page who says, "It depends of course from what point you want to measure." The court now is more conservative than the Warren Court, yes, but that was the peak of the liberal court. Sunstein himself argues that the court is not the best way to get liberal things done; I agree. The liberal courts of 50s through 70s got us abortion and racial integration, but they also created the modern right. The Roberts court can do alot, but it's not going to scale back abortion rights in any meaningful way, and it's not going to fuck up any liberal projects that actually have support from voters. It will, on the other hand, fire up a lot of liberal activists in the next election, and for that you should be thankful.

7:33 PM  
Blogger Scantron said...

"It depends of course from whose point you want to measure."

No it doesn't. There has been a shift to the right in the Court. What "depends" is what one thinks of this undeniable shift; if you are more to the right, then it is a welcome change because the Court has become more moderate. If you are on the left, then the Court is much more conservative. But everyone should (hypothetically) be able to recognize the change.

But the whole point of the article is that people don't recognize this change. It's not just that people think the current court is too liberal, they think it's *more liberal* than previous courts. Sunstein's point (and mine) is about political discourse in America.

"The liberal courts of the 50s through the 70s got us abortion and racial integration, but they also created the modern right."

This is truly bizarre reasoning. So, although the Court struck down restrictions on a woman's right to an abortion and racial apartheid in the school system, we should censure them because militant pro-lifers and racists didn't like those decisions? What is your proposed alternative course of action? States' rights?

"The Roberts court can do alot, but it's not going to scale back abortion rights in any meaningful way, and it's not going to fuck up any liberal projects that actually have support from voters."

Where exactly is your evidence that it won't scale back abortion rights? Didn't it already reverse the Court's 2000 Stenberg vs. Carhart decision about partial birth abortion? In my opinion, Sunstein is too optimistic on this point in the article. He says:

"The Court has not overruled Roe v. Wade; it has rejected the view that the Ten Commandments can be posted on courthouse walls; and it did extend the right of privacy in 2003 so as to forbid criminalization of same-sex relations."

As I said, the abortion question is still up in the air. Thomas and Scalia took the opportunity in the recent Carhart decision to express their opinion that neither Roe nor Casey has any basis in the Constitution, and when another abortion case comes up, Roberts, Alito, and Kennedy just might join them. Furthermore, the same-sex case Sunstein refers to, Lawrence v. Texas, was heard, as he notes, in 2003, before Alito and Roberts joined the Court.

As for "liberal projects that actually have support from voters," you seem to be treating the Supreme Court as if poorly reasoned or unpopular decisions will be corrected by popular majorities, or as if the Justices are accountable to the public in any way. Perhaps I've misread you. But there's obviously nothing, technically, stopping a conservative majority in the Court from dismantling liberal projects.

As I said, my original post was about changing perceptions about the Court, not about Court decision-making. However, if you want to talk Court philosophy, one can be against liberal judicial activism, as you say you are, but equally against conservative judicial activism, in the sense of constantly overturning precedent. Again, if we want to talk predictions for the future, I'm not convinced that this Court won't be extremely conservatively activist, much more than before.

"It will, on the other hand, fire up a lot of liberal activists in the next election, and for that you should be thankful."

Whether or not it fires up liberal activists is moot, qua future court decisions, because, as I said, Justices are lifelong appointees and we have to deal with these people and their decisions until they retire or die. Winning elections is nice, but they don't matter all that much for these issues if the unaccountable Supreme Court has decided that women don't have a right to an abortion. There are bigger (or at least different) battles at stake.

Forgive me if I'm not automatically "thankful" wherever you happen to gesture.

11:13 PM  
Blogger John Liberty said...

This is a really interesting right now because many hedge funds have been pulling political science professors from their towers for their quantitative modeling skills. The few routinely spoken of are a bunch of guys who collaboratively worked out a model that predicted with 96% accuracy every decision of the supreme court.

Their models differential success was the result of using more than just one dimensional personal attitudenal behavior of the justices and adding two assumptions which turned out to be key: that the decisions respond to such external forces as 1)public opinion and the 2)political composition of the elected branches of the federal government.

I would also like to point out that Rehfeld repeatedly talked about poly sci models showing a political component to the SC. That politics also plays a role in some sort of way.

12:22 AM  
Blogger Austin 5-000 said...

After thinking about it, you're right about pretty much everything, except the abortion stuff. I'll bet you $100 that abortion stays fairly intact--they don't have the balls, and they don't have Kennedy. You're also right that I believe a less "activist" court would be better for the left. Should have put more thought into it before I commented, though.

8:07 AM  

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