Is law merely politics by another name?

Adam Liptak is one of my favorite writers on law and the courts. I urge you to read Mr. Liptak’s piece in the New York Times entitled The Polarized Court (May 10, 2014).*

For those like me who desperately cling to the ideal that law should be and can be neutral and politics is not and never will be, Liptak’s hard-headed and well-researched realism is both revealing and depressing.


*Thanks to Howard Bashman and How Appealing for the tip.

15 responses

  1. I agree with your ideal, but all of my legal history studies leads me to believe that we are not grounded in reality in regard to the current situation. When I was a freshman in law school in 1952, Julius Cohen, who taught legislation, and who had been a lawyer for the Food and Drug administration, told us that the reason people fought so hard for the Presidency was that they could appoint the court and the Attorney General, and thus shape the law. I think Warren’s court fooled him, but look at Burger, Rehnquist and now Roberts. I think Liptak makes the case. Jim Hewitt

  2. The most dangerous branch for sure, especially with lifetime appointments, pervasive racism and a desire for order and not justice. Stare decis my ass. When they want to screw you, despite prior rulings to the contrary, they say this case is different. When they lack courage, they say, I have no choice but to follow the law. And the interviewing process is patently bogus. But what do I know. They killed me, before I had a chance to do good.

  3. Interesting that Liptak fails to comment on how often Breyer leans to the right on criminal cases. You might be interested in a paper on party realignment in the Republican party, by Reva Siegel and Linda Greenhouse, Before (and After) Roe v. Wade: New Questions About Backlash, 120 YALE L.J.2028 (2011). “Republicans for Choice” for example, was a significant group, but alas no more…

  4. Duck: “When they lack courage, they say, I have no choice but to follow the law.

    Especially, when they aren’t following the law … and know it. They don’t even have to change the law to disregard it; they simply bury the case in the legal toxic waste dump we call “unpublished opinions.” Richard Arnold’s signature failure has precipitated this state of affairs.

  5. I would suggest that politics is not law, but what we have in the toxic sewer of the federal courts is no longer “law.” We are not picking judges; we are appointing Platonic Guardians. From Bork to Scalia to Kagan, everyone admits this in the abstract.

    When you can’t even meet the standards of Putin’s Russia, you know that your legal system is a failure.

  6. We’ve been shown the door of the tent by the crazies. The Republican Party in Colorado is as much of a cult as Jim Jones’s People’s Temple.

  7. Judge:
    Of course, you can’t have a perfect world of 9-0 decisions but what’s wrong with partisanship in this judicial context, i.e., judges deciding cases in good faith based on the law & the facts as per their own philosophies? I would no more expect Justice Sotomayor to decide a case with an originalist judicial philosophy than expect Justice Scalia to do so with an “evolving” notion of the Constitution. Neutrality or objectivity is impossible in the judicial context, as in any other endeavor touched by human hands. The most we can hope for from judges–and the least we should expect–is intellectual honesty.

  8. This “recent phenomenon” is not new.

    This is about the Supreme Court, which is tasked with interpreting the Constitution of the United States. I have noticed an increased trend towards what I will politely call Originalism, because it calls itself that. Among its many supporters are Scalia, the Cato Institute, and the Federalist Society.

    I have come to the conclusion that Originalism as presented is poppycock. Now, before people get their nickers in a twist, let me explain: I don’t think that we shouldn’t look at the history of the statute. I just think that Originalists take a left turn and run off the tracks.

    Early in our history, we made what I believe to be a judicial mistake. I have a ton of respect for Jon Marshall, but I believe that he overly relied on the Federalist papers. I know, I know, I’m speaking sacrilege. But hear me out again. The Federalist essays were written by Alexander Hamilton, James Madison, and John Jay. Essay no. 78, written by Hamilton, is cited in the Madison opinion. Marbury v. Madison cites it in his opinion.

    If anyone has read the Notes on the Federal Convention of 1787, it pretty quickly becomes clear that Madison is a well-read, careful advocate of the Federalist side. Hamilton, on the other hand, tends to go running off at the mouth into crazy big governmentsville, sending the antifederalists running away in the other direction. He only speaks a few times, and one gets the impression that was probably for the best, given the sensitive nature of the debates.

    Hamilton was extremely pro-big government, writing a persuasive piece of literature attempting to convince the educated elite of the necessity of the Constitution. It’s understandable why he did so. It is also understandable why Marshall cited to it. Marshall did not have access to the notes of the great debate that Madison owned, that would only become available after his death in 1836.

    What’s less understandable to me is why the academics (and, more worryingly, the judiciary) has now treated this source as gospel truth on the intent of the founding fathers. How exactly did we arrive at this conclusion? Hamilton, an artillery commander under Washington, was no unbiased observer. The simple answer is a misplaced stare decisis. I mean, Marbury relied on it, right? And we like Marbury!

    It is this sort of anachronism that I take objection to, but it proves a greater point. We don’t know what the Constitution means because it does not mean one thing only. Different people have different interpretations that may be equally valid, even if they might come to opposite conclusions. This naturally means that two reasonably intelligent people with different backgrounds will come to differing conclusions, and spend the rest of their careers bitching at each other over perceived faults in the other’s logic. See, e.g.,

    Does anyone remember the Four Horsemen? Hammer v. Dagenhart? How about Brown v. Board of Education and the 1960s? No, what’s changed isn’t that somehow we are magically finding disagreement where we never did before.

    What’s changed is that the two big parties are not talking to each other about it right now. Like two gigantic teenagers, conservatives and republicans are sulking in their private corners and stirring up their friends to agree with them on facebook.

    That is likely going to change as soon as enough people wrap their heads around the fact that compromise is the only way to get things done under our Constitution. Or we’re going to have some good old fashioned violence, but I don’t think it’s going to come to that.

  9. In the second to last paragraph, i obviously mean conservatives and liberals.

  10. In shorter terms, I’m coming to the conclusion that we really don’t know what it says, because it’s ambiguous. We are not going to know what was said based on our incomplete documentation of history. Such things are guideposts, not bibles. We are putting an impossible burden on the shoulders of the Founding Fathers by expecting them to understand what a reasonable expectation of privacy would be when applied to wireless internet routers and FBI taps of what goes through Time Warner Cable’s mainframe.

    Instead of being intellectually dishonest and claiming that the Founding Fathers intended that the world must have privacy from the government within our internet mainframes, we should admit that we don’t have much guidance, move on, and get on with the business at hand of deciding the case based on the language of the amendment and what little we do know.

    Because if we can’t be honest with ourselves about our reasoning, how can we make reasoned decisions?

  11. Dear Southern Law Student:
    But I think that we CAN know what the Constitution says. By that I mean, that the Framers specifically intended to enshrine therein certain core principles. Further, we can know, based on the text of the Constitution itself, or–in more complicated cases, where the language is ambiguous–the text of the Constitution combined with the applicable constitutional documents at the time of debate and subsequent ratification, the core principles intended for application in modern day adjudication. Otherwise, it seems that judicial review is an impossibility, and the concept of a “living” Constitution allows judges to make the document what they want it to be an any given moment. On the contrary, the Constitution’s very appeal lay in making certain core principles nearly permanent irrespective of the will of the majority as expressed through the democratic process (and, should a supermajority believe it appropriate, the Constitution’s amendatory process under Article V allows for the text to be changed and permanency moderated).

  12. Robert,
    Oh sure, we can identify principles. That’s not what I’m arguing is ambiguous. I mean, the founding father said that unreasonable searches should not be permitted. No problem, right? We just don’t allow any unreasonable searches.

    But then what’s an unreasonable search?

    That’s what I mean. Principles are great, and important. But they are, by definition, vague and sometimes ambiguous. It is the great task of the federal judiciary to apply the frustratingly vague principles to real life.

  13. SLS: “I have come to the conclusion that Originalism as presented is poppycock. … I just think that Originalists take a left turn and run off the tracks.

    That may be because you have been presented a caricature of originalism by your ConLaw prof. And let’s be honest: The FedSoc uses originalism as a foil. It should really be called the “I Hate Roe Society,” as it is hard for rabid states’ rights advocates to be bona fide federalists. Scalia is less faithful to his brand of originalism than Tiger was to ex-wife Elin.

    First, if Judge Duckman and Judge Gertner haven’t already disabused you of the notion, understand that modern judges have no principled basis by which they decide cases.[1] That is not my personal opinion, so much as it is that of the judges themselves (almost always in dissent), and the objective evidence is overwhelming. As Justice Eismann of the Idaho Supreme Court recently complained,

    Courts decide cases in one of two ways: (a) they apply the law to the facts and thereby arrive at the result or (b) they determine the desired result and then twist the law and/or the facts to justify it.

    Nield v. Pocatello Health Svcs., Inc, Opinion No. 20 (Ida. 2014) (Eismann, J., dissenting) (slip op. on Google Scholar). Concurrences would read like a Brandeis brief (my personal list of quotes numbers in the hundreds). Judges will “play by the rules” when it serves their purposes, and shatter them in the very next breath. I’ve been on the business end of this, as has “the Duck.”[2]

    The problem you must address in abandoning originalism is in proposing a viable substitute. You can’t beat something with nothing. As Madison observes, there is one and only one proper way to interpret the Constitution:

    I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone is it the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.

    James Madison, Writings of James Madison: 1819-1836 191 (G. Hunt ed. 1910); accord, e.g., Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2.

    Rhetorical flourish aside, the Constitution is a simple contract. This is what the people, in their infinite wisdom, agreed to. Why should we deviate from its terms? Or, if you are a public official like Judge Kopf, by what right do you deviate from its terms? (If you have the time, scare up his Standing Bear law review essay; it will be instructive.) When you sign a contract, you agree to its terms, and no other. For this reason, SCOTUS has

    …stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. . When the words of a statute are unambiguous, then, this first canon is also the last: “judicial inquiry is complete.”

    Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992) (citations omitted).

    This is originalism, at its essence. The terms aren’t particularly vague, even for a constitution. Phrases like “good Behaviour,” “pardon,” “judicial Power,” and “due process of law” are defined with reasonable precision in antecedent law, and were well-known to the Framers. You can quibble at the corners, but I agree with Ronald Dworkin that in just about every dispute, there really is one and only one “right” constitutional answer.

    The Federalist is given weight on account of its competence, and that these were the arguments which persuaded the people of New York to ratify it in the first place. it’s kind-of-like a Swiss Army Knife, but it is not the only tool in the toolbox. Justice James Wilson wrote Article III, and his lectures on the judiciary constitute a comprehensive explanation of what the judicial Power contained therein was intended to be. You have to read Elliot’s and the Annals to get a grasp of how to properly interpret the Ninth and Tenth Amendments, and we quote Jefferson because he was so obscenely fucking brilliant. The guy was never wrong on constitutional issues, and light-years ahead of his time. He predicted our modern judocracy, lamented our modern plutocracy, and was actively fighting slavery decades before Wilberforce.

    Marbury (and Callender before it) was a power-grab. Jurists like St. George Tucker would have recoiled in horror. The Seventh Amendment was intended to preserve the prerogative of the people, chosen at random in civil juries, to be the final arbiter of the Constitution (see Brailsford v. GA). You find this in the debates in state conventions in Elliot’s and in particular, the arguments of Elbridge Gerry (a Framer who walked out of the proceedings). The works of Hobbes, Locke, and Montesquieu, along with Blackstone, are essential to an understanding of what the otherwise vague and abstruse phrases you lament actually meant. If you see the big picture, there is nothing in the Constitution that is so vague as to be impossible to equably apply.

    If you actually understand originalism and know your source materials, there are very few gaps that can’t be filled in with confidence. With all respect, I am at a loss as to find where your “left turn” is.

    Many putative originalists–and I’m calling out the FedSoc types–don’t really understand their own originalism. What you are left with is the abominations known as Footnote Four and penumbras; there are much more elegant ways of getting to the right answer. To a disciplined originalist, same-sex marriage (freedom to contract) and abortion (the State doesn’t have a dog in the hunt) are actually correct answers; the Scalia/Michael McConnell crowd alter their originalism to precipitate the outcome they want.

    As I am often–and in many cases, justifiably–accused of verbosity, I will stop here.


    [1] Judge Kopf has an interest in persuading you otherwise, which is why he can’t even say that it is wrong for a judge to sit in judgment of his own cause–something you will find in the Federalist and Calder v. Bull.

    [2] If it isn’t clear, that is a term of endearment. I’ve studied up on his battles with NY and VT authorities, and think of him as the Hunter S. Thompson of judges. If there is anyone here who can understand what I’ve been through, it is him.

  14. Pingback: More on Law and Politics through the lens of my friend Jim Hewitt plus a “top ten” list to fix the problem « Hercules and the umpire.

  15. Ken,
    Respectfully, how do you explain that the Fourteenth Amendment, taken in historical context, may justify the result reached in Brown v. Board of Education. I further defy you to reach MIranda, including the twists and turns of incorporation.

    These are cases enshrined in the hearts and minds of the people, but are clearly not of an originalist bend.

    I don’t merely “quibble at corners.” A sizable body of the framers were not lawyers, and neither were the legislators who approved the Constitution, nor their people. Your approach takes an extremely complex and vibrant historical era, distills it down into the few writings we have that happen through sheer dumb luck to survive the centuries, and attribute the entire meaning to these people.

    Let me turn Judge Eisemann’s quote on its head. What he is saying is that facts + law should equal result. Fine, fair enough in the abstract. But it’s not that simple, and never will be. But what law, and why? Why is a car different from a house for fourth amendment purposes? Why is a search incident to arrest separate from the plain view doctrine?

    This is why we have lawyers in the first place. Oftentimes, we have multiple laws that do not fit into nice, simple categories. I offer no substitutes for originalism because I see it used as an easy way out of a hard question. I would much rather see the reasoning hidden behind a lazy historical analysis be laid bare for the world to see. I have seen judges accept historical reasoning merely because it happens to agree with their ultimate outcome, even if the historical reasoning is faulty.

    Now, yes, I assume that other reasons underlie decisions. Practical ones, and issues of fairness.

    I am fine with these issues. A law cut adrift from the people it serves won’t survive long. We need to consider those issues.

    It’s fascinating that you claim that Marbury v. Madison is a vast judicial overreach. Hamilton disagrees with you in Federalist 78. How do you square the two?

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