“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.

I am tempted to scream “STFU” once again to the Supreme Court, but Linda Greenhouse has said it in a much more refined and powerful way

Despite a poorly drafted statute, the Fourth Circuit in King v. Burwell held that the Affordable Care Act (ACA), as interpreted by the Internal Revenue Service, allowed for subsidies to participants if they purchased the insurance on a federal, rather than, a state exchange. Then, the Supreme Court decided to review that case. There was no split in the Circuits. There is no urgency to grapple with a simple question of statutory interpretation.

While it is true that a panel of the D.C. Circuit had gone the other way, that decision was vacated pending an en banc hearing. Why then did the Supreme Court take King v. Burwell for review now? Professor Bickel, the law professor who gave us the elegant theory of “passive virtues,” would have shaken is head in stunned disbelief. Indeed, it is almost like the members of the Court are looking for a fight.

Linda Greenhouse, with whom I seldom agree, has written a long article on this subject in the New York Times.  I urge you to read it. She concludes her powerful piece this way:

So this case is rich in almost every possible dimension. Its arrival on the Supreme Court’s docket is also profoundly depressing. In decades of court-watching, I have struggled — sometimes it has seemed against all odds — to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender.

Like Ms. Greenhouse, I, too, am about to surrender. At the Supreme Court, currently dominated by Justices nominated by Republican Presidents, five of the Justices speak and write glowingly about judicial modesty and restraint. There is increasing evidence that this is empty rhetoric. At the Court, law has seemingly become politics by another name.

Like Ms. Greenhouse, the Court’s “activist” behavior depresses me no end. I hate admitting that I am and have been a naive dumb ass.


PS For what it is worth, I honestly don’t care whether the ACA lives or dies.



Once more unto the breach but briefly

There is a race to get to the Supreme Court again on the ACA. This time the question is whether covered individuals get a subsidy if they bought the insurance on an exchange created by the federal government for a state because the state elected not to do so. The issue is purely one of statutory construction. Linda Greenhouse, who is generally not my favorite commentator, has a good explanation of this race here.

Remember my post on the Hobby Lobby case?  In that post, I suggested that the Supreme Court should be more attentive to Alexander Bickel’s “passive virtues.” This most recent ACA argument–fought out now in the D.C. and Fourth Circuits–gives the Supreme Court an opportunity to live up to Bickel’s advice. Here’s how:

  • Every time a Circuit court changes the status quo–rules for the ACA opponents–the Supreme Court should stay the case.  Remember, as Bickel would, that a ruling against the ACA frustrates the will of the people as expressed by Congress, even though Congress passed the law with the narrowest of margins.
  • The Supreme Court should not take any ACA case on the federal vs state exchange issue until every Circuit court has ruled. There is no harm in waiting since a stay and the status quo would mean simply that insurance buyers would continue to get the intended subsidy and the opponents suffer nothing but the opportunity to make their statutory construction argument as quickly as they would like. There is even the possibility that the Court could avoid the question entirely if Congress, in the interim, cleared up the alleged statutory ambiguity.

Delay, delay, delay should be the mantra of the Court. Since both conservative and liberals, to their shame, now endorse the idea that law is merely politics by another name, the Court should do everything in its power to push back hard against such bilge. The world will not fall apart if the Supreme Court takes a “wait and see” attitude that lasts several years. More time to nap is almost always a good thing.


%d bloggers like this: