“The Supreme Court and the Politics of Fear” by Linda Greenhouse

Linda_Greenhouse_ACS_logoIn The Supreme Court and the Politics of Fear, New York Times (July 4, 2015)* Ms. Linda Greenhouse explains that Nixon used the Supreme Court and the antipathy for the Court to boost his political standing and that of his party:

WHEN he ran for president the second time almost half a century ago, Richard M. Nixon made Earl Warren’s Supreme Court a target of his campaign. It was a brilliant move. His accusation that the court had tilted “too far in weakening the peace forces against the criminal forces,” as he put it in a widely noticed 1967 Reader’s Digest article, resonated with a public that had seen the crime rate double since 1960.

This time around Ms. Greenhouse sees a different dynamic:

In any event, a majority of the public favors the outcome of both the health care and the marriage decisions, a CNN poll found in midweek. The majority comprised both Democrats and, significantly, independents, 63 percent of whom approved both rulings. By smaller margins, Republicans disapproved of both. For Republican politicians handcuffed to their base, which is to say all of them, there is a danger sign, surely, in their increasing distance from independent voters who will control the outcome of the next election. So too is there danger in a recent Gallup poll indicating that for the first time in seven years, more Americans identify themselves as “pro-choice” than “pro-life.”

A week after the end of a remarkable court term, the message may be this: It’s not the voters, but the Republican presidential candidates, who should be afraid.

Is she correct? Or will the likes of Ted Cruz crucify the Supreme Court such that the Peoples’ trust in the Court will be even further eroded?

Perhaps readers of this blog have an answer. I look forward to their thoughts.

The foregoing said, the battering of the Supreme Court is not as Ms. Greenhouse implies a strictly partisan affair. The Democrats twice frustrated President Nixon when he tried to fill the seat eventually filled by Harry Blackmun, see eg., here, and they did so for strictly partisan reasons.

Clement Furman Haynsworth, Jr. nominated by Nixon was rejected by Senate. Democratic U.S. Senator Philip Hart of Michigan said that Haynsworth’s decisions on civil rights and labor management were “unacceptable,” while Republican Senator Marlow Cook of Kentucky argued that Haynsworth was being “subjected to a character assassination that is unjustified.” Cook argued that Haynsworth was “a man of honesty and a man of integrity.” Ironically, in 1989, David A. Kaplan, a senior writer for The National Law Journal, wrote in the New York Time that Haynsworth was a moderate, “who’s no liberal but is close in outlook to John Paul Stevens.” David A. Kaplan, The Reagan Court – Child of Lyndon Johnson?, New York Times (1989).

President Nixon then nominated G. Harrold Carswell, a former United States Attorney, Federal District Judge, and U.S. Court of Appeals Judge. That nomination flamed out on the floor of Senate with a vote was 51 to 45. Senator Roman L. Hruska from Nebraska did not help things by stating “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.”**

Finally, Nixon got Harry Blackmun through the Senate and onto the Supreme Court. At least in my memory of him, Blackmun always wore blue blazers. He also proved to be a liberal at heart. Ironically, I owe Nixon and Blackmun a lot. My judge–Donald. R. Ross–replaced the prissy little Blackmun on the Eighth Circuit and I got a clerkship soon thereafter.

Ms. Greenhouse also seems to forget the disgraceful treatment of Robert Bork at the hands of Ted Kennedy and Joe Biden. There was absolutely no doubt about the brilliant Bork’s qualifications. Rather:

To pro-choice rights legal groups, Bork’s originalist views and his belief that the Constitution does not contain a general “right to privacy” were viewed as a clear signal that, should he become a Justice on the Supreme Court, he would vote to reverse the Court’s 1973 decision in Roe v. Wade. Accordingly, a large number of groups mobilized to press for Bork’s rejection, and the resulting 1987 Senate confirmation hearings became an intensely partisan battle. Bork was faulted for his bluntness before the committee, including his criticism of the reasoning underlying Roe v. Wade.

Robert Bork, Wikipedia (last accessed June 5, 2015).

To illustrate the treatment of Bork, in 1992 the Oxford English Dictionary added an entry for the verb “bork,” with this definition: “To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.” The Democrats had a trophy to hang on their wall after their vicious attack dogs ran their prey to ground.

In summary, Ms. Greenhouse’s article is intriguing. Her selective memory is irritating but not unexpected.


* H/t Jonathan Bell.

** Ironically, Carswell was probably the first gay or bisexual judge nominated to the Supreme Court, although he was certainly not out of the closet then. See here.

50 responses

  1. 1. I don’t believe that CNN poll for one second. The numbers are out of sight.

    2. The borking of Bork brought us Tony Kennedy so Senator Kennedy’s stunt worked.

  2. If mentioning the history of judicial nominations, it is hard to pass over the Thurgood Marshall nomination where the tit for tat attacking of nominees of the other party started.

  3. Pingback: Just Legal News / “The Supreme Court and the Politics of Fear” by Linda Greenhouse

  4. So, two wrongs make a right? Nope. Doesn’t matter who “started it”. Wrong is wrong. Quit making excuses for Kennedy and Biden . . . . . There is no moral high ground in this crap.

  5. You are right on Haynsworth, though as noted partisan politics had started in Warren era youngster, . You are wrong on Bork who in the Indiana L.R. article on free speech and a couple of opinions deliberately ran for the job by appealing to the far right and then had to back away from them in the hearings. I doubt the integrity of any one who could turn Senator Sherman into a neoclassical economist. He did on going to an NU football game in Lincoln comment that it was the first time he understood the phrase civil religion. Blackman never became a liberal, right moved further right.

  6. “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they…” Clarence Thomas, anyone?

  7. MarcosD I do not think you are being fair to Thomas, though Alito might come closer to filling the bill.

  8. MarcosD:
    Just because you disagree with him, it doesn’t make him mediocre. But that is typical of the Left. During the confirmation hearings – which morphed into a high tech lynching – there was plenty of talk that Clarence wasn’t smart enough to sit on the Supreme Court. Yeah, the black guy. And this was in reference to a guy who earned Alpha Sigma Nu honors at Holy Cross, then went to Yale Law and was a sitting Federal Circuit Court judge.

    I disagree with the decisions of the four Liberals on SCOTUS but they ain’t dopes.

  9. Anonymous, Fights over nominees reflect divisions in our society rather than moral failing. We have lost the ability, if we ever had it, to pretend that appointments do not have profound political impact. John Johnson Parker was a great judge but he followed the SCOTUS rule on Yellow Dog Contracts and stayed on the4th Cir. It is not likely in today’s atmosphere that politicians will join the cult of the robe and pretend there is a politically neutral standard of competence
    for SCOTUS.

  10. I think you are right about Clarence’s abilities Anon. Not sure about lynching though the Justice believes it. Which Jesuit school did you attend, nobody else knows what Alpha Sigma Nu is? The Federal Circuit is not the court he sat on. Mark Tushnet to name only one Liberal has high praise for Thomas in his work on the Court, though he disagrees with his views.
    I do think you demonstrate why the age of innocence about SCOTUS will not come back. The Court is right only when you agree with it as witness your comment on Kennedy. Suspect most of us feel that way.

  11. No one has done more lasting damage to the legitimacy of our courts than Chief Justice Roberts and Justice Scalia in Obergefell. Eroding popular confidence in our courts any further would take a concerted effort.

    Fundamental rights jurisprudence has always been a dishonest way for judges to define what your rights are. The Constitution does not distinguish between fundamental rights and non-fundamental ones, which ends up meaning that in creating this artificial distinction, our judges have illegitimately arrogated the raw power to define what “rights” you have. Simply put, if they don’t like a right, you don’t have it. And when they lost the vote, Scalia and Roberts chose to admit this bluntly, sinking the Court in their orgy of petulance.

    Scalia and Roberts unzipped their flies on this one, admitting that that is what the Court has always done. They counsel that we defer to the wisdom of the legislature, except when the five judges in their majority don’t like the outcome. Remember Shelby County? Never mind that Congress found that there was still a need for Section 5, and their re-authorization was nearly unanimous. “Racism is a thing of the past,” because King John and his four barons decreed it to be so. And now, they want people to wait for the normally-glacial pace of the legislative process? Mississippi still hasn’t quite joined the 20th century, to say nothing of the 21st.

    The question has never been one of substantive due process, except to the extent that the judges invented it to draw illusory distinctions. Either you have the right to enter into a contract, or you do not. You don’t have the right to enter into a contract to partake in prostitution, because the States can regulate commerce as they see fit. Ditto, the purchase of marijuana. But what is the argument for why the States must limit contracts of marriage to those involving opposite-sex couples? As we have seen, not one you can make without a bag over your head. Judges Batallion and Posner had made that clear.

    Justice Scalia is the Beethoven of judicial hypocrisy, and he didn’t disappoint. What are “liberties,” anyway? Jiggery-pokery? Pure applesauce? You either have a right, or you don’t. All government can do is impair your rights. Courts cannot create rights, or even “liberties.” The two most ardent advocates of natural law jurisprudence (Scalia and Thomas) don’t know this?

    Sure, they did. They just change their positions about as often as they change their underwear.

    The Court should show restraint … unless, of course, it doesn’t precipitate the outcome the majority wants. Alden v. Maine? Twombley? Iqbal? Good-bye, Seventh Amendment. There wasn’t much “restraint” in Bush v. Gore, either. And after doing this on an assembly-line basis for more than a decade, it is suddenly illegitimate when the other side does it?

    If Obamacare is now SCOTUScare, the Constitution is now the SCOTUStitution. Any resemblance to the original is strictly accidental, and will be corrected at their Eminences’ earliest convenience.

    Our judiciary has abandoned first principles, plunging us into anarchy. And the men in a position to stop that were the ones holding the plunger.

    The people get it. The only power Ted Cruz has is the hammer of the truth.

  12. Creighton.

    The Circuit Court for the District of Columbia was where he worked. I was just referring to the fact that he was a sitting federal Circuit Court judge and he could have stayed there for life once the Left started to first blackmail him to withdraw and then lynch him.
    The whole Clarence Thomas episode flipped me to being a neoconservative. It was shameful when I realized how the Left really operates.

  13. I was being a smart ass. Me also on Creighton. Have you met Thomas at Law School. In person he is a person of enormous charm and much humor and a great story teller. He would have fitted in nicely at Seymour Smith’s table at the old Nortrup Jones.

  14. Is there any evidence that Thomas ISN’T mediocre? He graduated in the middle of his class at Yale then practiced law for four years. He then became a career bureaucrat. His career as a federal judge (all of one year) was undistinguished. He hasn’t said a word in oral arguments in almost ten years. We have no way of knowing if he is intellectually persuasive behind the scenes, but it seems doubtful (Jeff Toobin — The Nine — says, “Someone asked Scalia, `What’s the difference between your judicial philosophy and Justice Thomas?’ And Scalia said, `Look, I’m a conservative. I’m a texturalist. I’m an originalist. But I’m not a nut.’) Thomas’ rambling, sometimes incoherent 9-1 dissent in Safford School District v. Redding trashing the 4th Amendment is bizarre and embarrassing. He judicial temperament is disengaged to the point of being rude. He refuses to acknowledge the advocates before him or even his fellow judges — he just sits on the bench in his reclining chair and stares at the ceiling with heavy lids. His “less than well qualified” ranking by the ABA is still appropriate.

    Frankly, I’d characterize Thomas as an affirmative action baby. Where else but government would he have been elevated so far and fast based on minimal talents? Is there any doubt that he does not represent the best and brightest wing of the high Court and that he has not served with distinction?

    And we gave up Thurgood Marshall for this?

  15. You make me want to puke. He is a black man who doesn’t think or see the world as he is “supposed to”, due to someone’s stereotype. Puke, retch, upchuck.

  16. 1. The ABA is a wing of the Dems.

    2. Jeff Toobin is your authority? Please.

    3. The fact that he doesn’t ask questions proves to me that he is way smart. The questions now dominate the arguments to the point of parody.

    4. If I was a liberal I would accuse you of being a racist for the “an affirmative baby” comment. Thank your lucky stars.

  17. MarcosD,the very talkative law profs from the right, Scalia, and from the left RBG and Kagan, he may not be able to get a word in edge wise. Anyone using his law grades against him is being silly. You graduate and get over it. The affirmative action remark is obscene. He had a patron in John Danforth, a man who assisted with sick calls while in the Senate. I do not know if you are a racist but you are acting like a pompous prig.While I think Scalia’s model of textualism is nonsense, Thomas is more consistent in not letting case law intervene between text and interpretation.
    I would like to know more of you accomplishments, being mediocre myself I am loathed to mock those of others. Even Alito’s are impressive.

  18. Cardozo, you might reread your great book on the judicial process. It was you who taught me law is not like logarithems.

  19. It’s all relative.

    Well, the masses are not pronouncing or using suprême like the French yet.

    I am not sure if this is a good thing or bad thing but the sauce is in fact getting pretty rich.

    I wonder what will happen if, perhaps when, the simple cheese and cracker tray becomes obsolete or worse yet unacceptable.

  20. Dear repentinglawyer: I may in fact be a pompous prig, and I am certainly mediocre, at least on the good days when my meds are working. However, I do believe I have introduced some salient facts into the discussion of mediocrity on the USSC. I have yet to hear anything but emotional bluster and ad hominems from those various “anony-mouses” who would defend Judge Thomas’ exceptional mind. To your point, not having spoken a word in orals in almost ten years (except to make a joke about Yale Law graduates) isn’t, in my now humbled opinion, representative of a brilliance. His opinions, at least the few I’ve read in addition to to Safford, lack cogency at best. His writing in Connick v. Thompson makes me want to puke.

  21. Thomas has noted that questions in oral argument do little more that reveal already predictable positions. It is a game of intellectual tennis between the Justices. While fun to watch, his silence proves nothing, though it gives Dahlia a great Slate routine. Law school rank at his age is a silly criticism. I have offered Tushnet as witness on his opinions since he is first rate, liberal and not anonymous. I do not know enough about you to know what credit to give your criticism of his opinions. Basically what you offer is an almost anonymous blast at a Justice you disagree with. Not that different from a lot of standard law prof criticism of Marshall.

  22. MarcosD I am old enough to remember Vincent, Burton, Minton, andTom Clark, let alone Whittaker, and what did Justice Washington have going for him except Uncle George and Vandeventer had writer’s block, while Douglas was very smart, he was sloppy,lazy and bored.

  23. There is no question that Bork was a very intelligent legal scholar. But I must say when I first heard the verb, to bork, I thought that it had to do with his firing of Watergate Special Prosecutor Cox under orders of Nixon, who had appointed Cox to be independent, since he was to investigate Nixon and others in the administration. Both the attorney general and deputy attorney general had refused to follow Nixon’s illegal orders. The Nuremberg defense is not good enough for a Supreme Court justice, IMO.

  24. I watched part of Thomas’s confirmation hearings. I did not find Anita Hill convincing. But Thomas made me believe her with his “high tech lynching” defense. Like all those lynchings of black men by black women is a stain on American history. Commentators at the time called it a brilliant defense, and I guess it was, given the result, but I don’t trust the guy.

  25. Billikin,

    I disagree. Bork did what was legally required. I admire him for firing Cox. But reasonable people can disagree about that episode in our history. That said, it was no basis to deny Bork a seat on the Supreme Court.

    All the best.


  26. MarcosD,

    I have had the occassion to meet Justice Thomas several times, and spend time with him. I can tell you that from these personal exchanges he is witty, very nice and fun to be around. He also struck me as very bright.

    I agree that Thomas is way out in right field. His refusual to follow precedent is wrong but intellectually defensible. I don’t much pay attention to his jurisprudence since it is so extreme that he is not likely to get the votes from the others who are far less extreme.

    As for Marshall, he was an affirmative action hire too. He deserved the appointment, and I am glad he got it. The symbolic act of appointing him was very good for the Court and our nation.

    However, had it not been for Brennan, and had Marshall not be a hero in the civil rights movement, my guess is that objective legal scholars would label him as a very poor Justice. They still may.

    If you had an intellectual duel between Thomas and Marshall, there is no question in my mind that Thomas would beat Marshall by a mile. Unfortunately, Marshall was not much of a worker (to be frank, he was lazy), while Thomas seems to have worked diligently to immerse himself in the intricate (but goofy) jurisprudence of the far right. Marshall would utter platitudes, and Thomas was take them apart in any fair fight. The left would be saddened as Marshall was savaged.

    All the best.


  27. At the time I thought that Bork’s firing of Cox was legal but scurrilous. My source for calling it illegal is Wikipedia. I stand corrected.

    Live long and prosper, Judge. 🙂

  28. You need to read it more carefully. While there is some art involved at the margins (e.g., where a case is at the intersection of competing principles), as Llewellyn put it, judges generally play “the game of matching cases.”

    To wit, it “will not do to decide the same question one way between one set of litigants and the opposite way between another. … ‘It would be a gross injustice to decide alternate cases on opposite principles.'” “Adherence to precedent should be the rule and not the exception.” Nothing that I have said above does violence to the Lectures.

    You are posing a false dilemma, contrasting the judge as machine with the judge as Platonic Guardian, dispensing his own personal brand of justice. Judicial discretion should be at an absolute minimum, but no system of law is so comprehensive that it can be excised entirely.

  29. That the judge’s office is jus dare, not jus dicere — to interpret the law, as opposed to writing it. [Bacon, On Judicature.]

    ‘Scalian jurisprudence” is the process by which the judge decides who s/he wants to win, and then fashions rules of law and fractures the facts to make the argument sound coherent. That is why you have irrational doctrines like “fundamental rights.” It is the product of a means to an end.

    The proper way to proceed is to start by identifying the facts (CJ Hughes), and applying the law to those facts. When an opinion “won’t write,” it is a consistent function of how unfaithful a judge has been to this process.

  30. Seriously??? If Thomas is bright, I can find no credible evidence of it in his public statements. Those that I have seen make him look like a blithering idiot. What about that Bill of Responsibilities, CT?

    Marshall’s incisive dissents are a cut above those of anyone on today’s Court, with the exception of Scalia when he is on his meds.

  31. Billikin, The current reading is that Bork would have preferred to refuse but the AG and DAG persuaded him that a Nixon discharge of Cox which was otherwise both legal and inevitable would do near irreparable damage to the Country. Who knows.

  32. Judge, The fashion of criticising Marshall is a product of a snotty law profs fashion in part because he did not attend the law schools they tend to go to. Imagine what they would think of us if they gave us a though. I have meet Thomas several times and agree with you. Had lunch with Marshall at the Federal Bar while rather young, I remember him as larger than life and lighting up the room. When RBG went from Rutgers to Columbia a lot of the profs saw that as affirmative action.

  33. I thought Justice Thomas’ concurrence in McDonald v. City of Chicago was both well written and thought provoking.

    Likewise his dissent in the cross burning case several years back.

    I thought both were passionate and well reasoned, even if I don’t necessarily agree with them ( not that my disagreement means anything as it seems unlikely I’ll be on the Court anytime soon).

    Justice Thomas seems pretty smart to me.

  34. I don’t necessarily or always disagree with Thomas. In fact, his finding in Gonzales v. Raich makes for an interesting read. If he’s so smart, maybe we should blame his clerks for some of the confused writing in other opinions.

  35. Well, Marshall had a long pedigree as a lawyer and was winning cases before the Court as early as age 32. He was also several years on the second circ. As the SG he argued 18 cases and won 14. Not bad for an intellectual slouch.

  36. “Marshall won 29 out of the 32 cases he argued before the Supreme Court.” –Wikipedia

  37. Judge:
    Ms. Greenhouse’s article cites a CNN poll (!) which supposedly shows that “a majority of the public” favored the outcomes in the recent decisions of the U.S. Supreme Court, thereby suggesting the outcomes were correct. But law is not politics by other means. The adjudication of cases and controversies before the High Court–or any court, for that matter–is different than the making of social policy via the political branches of the government. Justice Scalia had it right in Obergefell: are you content to be ruled by five lawyers in Washington, D.C.? Ms. Greenhouse elides over this issue because, I sense, that she would prefer rule by judge(s) to the messy business of social engineering through the democratic process.

  38. Robert, As to the meaning and application of the Constitution we have been ruled by a majority of SCOTUS since Mabury v. Madison and Scalia has done his share of ruling. Beyond that I will not go, no more badges for you.

  39. Obviously, I am late to the party. (Unlike the rest of you, I was doing something useful–working underneath my old (well, 1983) wood sailboat, still trying to get her in the water this season. And then there was the World Cup final. More important stuff!)

    But a couple of observations:

    1) In times of partisanship, nominations to the Supreme Court will be vehicles for displays of, yes, partisanship. Always were. Always will be. We can lament that or accept it, but it is there.

    2) Robert Bork and Clarence Thomas were (are) unsuited to be justices on the nation’s highest court. They are not the only ones, of course; many of those who have served (I’m thinking McReynolds) were/are unsuited. Bork lacked the temperament for the job, and Thomas’s self-hate and evident anger that leads to his crabbed view of the world and the Constitution made him a bad choice.

    I can remember seeing Thomas talking about the “high-tech lynching” that he said he had undergone during the confirmation hearings, and I remember hoping, just hoping that someone (Ted Kennedy) had leaned into the mike and said something like, “Judge, it is your burden to prove your fitness for this high office, not the burden of the Senate or the witnesses to prove that you are unfit.”

    (I’m someone with a long memory–I still have not forgiven John Danforth and Arlen Specter for what they did to Anita Hill. Now THAT was a lynching.)

  40. MarcosD Goes back to Antioch vs Alexandria and early arguments about reading Scripture. Cardozo the search for neutral principal was a standard issue in early Warren Court era. Evil Justice I I’ll Do It May Way, maybe Douglas, has haunted debate, but problem is no one has done more than offer rules that constrain debate without forcing results, and current Justice seem honest in their divergent theories of reading.

  41. That should read “jus dicere, not jus dare; to interpret law, and not make law, or give law.” Mea culpa.

  42. Search for neutral principles is at the heart of originalist jurisprudence. As Thomas argues, the structure of the Constitution is evidence of the Framers’ intent. The Bill of Rights was not a raw list of rights because the Framers intended that we retain all of our natural rights, which the government only invaded at need. Ergo, there is no proper distinction between “enumerated” and “unenumerated” rights, and no distinction between “fundamental” and “non-fundamental” rights.

    Substantive due process and fundamental rights jurisprudence cannot survive even modest scrutiny, and should be relegated to the ash heap of history.

    If Thomas had the wit to work through his arguments, he would have figured out that the State can’t stop you from entering into a marriage contract unless it can show that it needs to in order to do the tasks we assigned to it. This is where the anti-SSM forces lost, and why Judge Joe’s analysis was so spot-on. Thomas was going to find a way to be on the side of his tribe, which is why his dissent was so comical.

  43. Scalia had it right. Problem is, he likes his hypocrisy even more than cannoli.

    If you presume that the Constitution is a libertarian document, severely limiting Big Gub’mint’s raw ability to infringe on the rights of its citizens, then the SSM decision was a no-brainer. Unless the State can show why SS couples should not marry, the only constitutionally sound answer is that the State can’t prevent them from doing so. See Judge Joe’s opinion. It was written with uncommon clarity, making this case to a reasonable tolerance.

    This one wasn’t social engineering by SCOTUS. Shelby County was, and we all know who the architects were. If you analyze the problem objectively, that is not tomato sauce on Scalia’s hands; it is the blood of the Constitution he strangled.

  44. Why don’t we all just admit that our feelings on this issue are entirely driven by our ideology? The liberals think the liberal justices are noble geniuses. The conservatives think the conservative justices are noble geniuses. Objectivity is completely absent.

    And, wouldn’t it be nice if we still lived in a society where we didn’t have to attack the integrity or intelligence of those with whom we disagree? There are a lot of people with whom I disagree. That doesn’t make them dumb, and it doesn’t even necessarily make them wrong. Indeed, I might be the one who is wrong.

  45. TrialAtty,

    In general, I agree with you.

    However, and pardon me for slicing things thinly, my “ideology” had nothing to do with the post. It was driven entirely by my concern for the federal courts. That is, I would have said exactly the same thing if Mrs. Clinton had written the words that Mr. Cruz wrote. Incidentally, that is one of the reasons why I believe that I did not engage in “political activity” within the meaning of the Code.

    All the best.


%d bloggers like this: