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Greenhouse on the Court and Political Climate

Posted in Law and Politics by Mike Sacks on February 5, 2010

Here’s Linda Greenhouse, the former NYT Supreme Court reporter, interviewed about themes very important here at F1@1F:

JD: In an article you wrote for The New York Times, you say that “the court lives in constant dialogue with other institutions, formal and informal, and that when it strays too far outside the existing political or social consensus, the result is a palpable tension both inside and outside the court.” In what instances have you observed the court straying too far from present social or political consensus?

There was a series of Supreme Court decisions in the 1990s that overturned acts of Congress on the ground that Congress didn’t have the constitutional authority to have passed those laws in the first place. I made a big deal about it because I just thought it was really fascinating. There was a pushback against that. Congress pushed back, and the political system pushed back. The court stopped doing it. They tended to be very technical decisions, but subgroups of the population were very interested. That maybe was an instance of the court overreaching, that you could call a Federalist revolution. Then, a lot of people cite Roe v. Wade as the court overreaching. That’s not my view in that instance. There was a huge debate going on about abortion at the time, and the court actually had plausible reasons to think that it was following public opinion in Roe.

JD: What was the difference in the political environment surrounding Roe v. Wade and that surrounding a case like Brown. v. Board of Education? What made people think that the court could have been overreaching in Roe, but not in Brown?

Well, of course there can be many reasons. One reason could be that equal protection, which is what Brown is based on, is hard wired into the Constitution, and it’s just a question of, did equal protection mean “separate but equal”? One could have disagreed with Brown, and of course many areas in the South took decades to come around to it, but you couldn’t appropriately argue that it wasn’t the business of the Supreme Court to decide the issue of the rights of black citizens. Of course, the Constitution doesn’t contain the word abortion. So, there’s always the argument that the court was out of line in doing anything about abortion, yay or nay. The Constitution doesn’t say anything about giving the court the right to step into that area. That’s not my personal view, but it certainly distinguishes the Roe controversy from Brown v. Board. [...]

JD: To what extent do you believe that the court has become politicized? How much does public opinion affect the way judges vote?

Well, Barry Friedman wrote a book that’s 682 pages on the subject, called The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. But Barry Friedman’s thesis, which I agree with, is not that the court wakes up in the morning, puts its finger in the wind and says, you know, “what’s blowing today?” but that over time, the court tends to situate itself in the mainstream of public opinion and it reflects public opinion, which makes sense, because the justices get on the court through the political process of the president nominating them and the Senate confirming them. And as a part of the government, the court is really limited to its power to persuade, its power to command the respect of the public, which it has succeeded in doing to a remarkable degree over the years. In social science polling, the court is always the most respected arm of government. The court really has been pretty successful in reflecting not necessarily the opinion of the moment, but the tenor of the time, and I think that’s not surprising.

JD: Do you agree with people who say that sometimes the court’s decisions are influenced by liberal media bias?

Well, no, the whole “Greenhouse Effect?” Properly understood, they are referring to me not as an individual but as sort of an embodiment of Eastern liberal media, namely The New York Times. No, I don’t think that’s the case, but it’s certainly true that over time, the court certainly cannot be completely at odds with the American public. I mean, that’s what happened in the Roosevelt court-packing crisis. I hear people speculate that if we were ever to pass a health care bill with a mandate that the court would declare it unconstitutional, but I would be completely shocked if that ever happened, because that would really be a return to the 1930s, where the court was standing in the way of major social legislation that the public had called for. So, I would be extremely surprised if that ever happened again. [F1@1F NOTE: My thoughts exactly.]

JD: In writing of the Supreme Court’s relationship with society, you say, the Supreme Court is often a follower: it ratifies or consolidates change, rather than propelling it, although in the midst of a heated debate about a big case, it can appear otherwise. What do you mean by this?

Well, I think I probably had Roe v. Wade in mind. Abortion reform had been going on for 15 years by the time the court decided Roe, so when people say that historically, the court started it, no, they didn’t. The court doesn’t start much. It can’t, really. Cases reach the court after years of debate. Just look at Proposition 8. It’s coming up ten years after Lawrence v. Texas and five years after the start of same sex marriages in San Francisco City Hall. So, things get to the court only because they have been working their way up through the rest of society, and it’s worth keeping that in mind.


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Why I’m Talking to You

Posted in Anticipation by Mike Sacks on January 15, 2010

NYU Professor Barry Friedman compares the Prop. 8 trial to the 1925 Scopes Monkey Trial, both more “morality plays” than legal cases.  Of cases of major political salience, Friedman writes:

The thing about social change through the courts is that it invariably rests on what the broader public thinks. Consider the famous social change cases: Brown vs. Board of Education on segregation in public schools; almost any abortion case; Lawrence vs. Texas on gay rights and anti-sodomy laws. In these cases the court did not buck or define social views so much as confirm them. More and more, for better or for worse, Supreme Court decisions on social issues reflect opinion polls. [...]

The high court, perversely, felt broadcasting should be banned precisely because “this case . . . involves issues subject to intense debate in our society.” The majority stressed that studies had not shown “the effect of broadcasting in high-profile, divisive cases.” What, imaginably, could that bad effect be? That the American people might have views on the subject and debate them? [...]

It’s wrong, of course, to think the Supreme Court will “resolve” this issue, any more than it managed to resolve the issues of segregation, abortion, the death penalty or gay rights, for that matter. But what the court ultimately decides (if it decides), and on what basis, will profoundly affect the terms of the debate. If matters of social change are going to be debated in the courts, we all should get to view the process — and, through our reactions, to participate in it.

Friedman just came out with a book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, which comprehensively examines the Court’s responsiveness to public opinion up through the early part of this century.

Despite Friedman’s–and others‘–disappointment that the Prop. 8 case will not be televised, the people who camp out to see Perry v. Schwarzenegger at the district court and, ultimately, the Ninth Circuit Court of Appeals and the Supreme Court, are the ones whose reactions to the process are so strong as to compel them to participate through viewing the arguments in the flesh.  And here, Perry is not unique: the same lines form for the cases of great public interest that never had Perry‘s prospect of live broadcast.

For this reason, by waiting out in line, I seek to test the Roberts’ Court’s sensitivity to its surrounding political climate as represented by the sample of citizens who care enough about the case and/or the Court to get to One First Street before the sun rises.  It’s still too early to tell what I’ll find, but I’m sure I’ll find something.  Perhaps I’ll put my interviews on video.  That would be the next best thing, wouldn’t it?

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