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July 09, 2007

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jimbino

After the fall of communism,the entire world has moved further to the right. There used to be lots of commies in the USSA who favored the heavy hand of government and all those 'liberal' views. It is no surprise that, with their disappearance and growing acknowledgment of the obvious burdens of the social welfare system left us by the last great 'liberals' FDR and LBJ, the country is moving to the right. I gladly await the drawing of the new battle line between the conservatives and the libertarians, who favor getting the government off our phone lines and out of our bedrooms.

bcowan

Sunstein's post reminds me very much of an address Geoff Stone gave to alumni in the Bay Area as he was schlepping around the country for the Law School's centennial year.

It was a relentless recital of maybe twenty or so serious constitutional issues that would very probably have come out differently if the Court had not gone radically to the right in its general doctrinal makeup. And that was before Roberts and Alito.

Geoff and I (probably) agree that all of those issues should have come out the other way. Accordingly, I e-mailed him afterwards urging that he publish it somewhere prominent, because it was so shocking to me, an unreconstructed liberal, to see how much the official (i.e., SCOTUS) consitutional jurisprudence has changed in a short time.

I think it remarkable that in a time when there is so much public bloviation about "the Law" this could happen almost without being noticed. My assessment is that there is a broad appetite for entertainment involving "legal" themes, but much less interest in (or ability for) connecting actual legal developments with their probable consequences for our common life as a nation.

In reply to my urging, Geoff said he might put it in Green Bag or something. I don't know if he did.

If anything, this radical record vindicates the tactic of loudly accusing others of activism while performing activistically, unnoticed in the hue and cry.

golddog

Yes, Professor Sunstein is absolutely correct. More people need to be talking about this so that it permeates the national discussion. The typical lay person still thinks that the Court is a bastion of "liberal activism." No one mentions that seven of the nine justices are Republican appointees (yes, this is a crude method of gauging judicial philosophy). Ginsburg and Breyer are also moderate liberals who Clinton vetted with Senator Hatch. If they were more liberal than moderate, Hatch would never have let them make it through the confirmation process.

It would be great to have some real liberals back on the court.

I don't think that jimbino makes a valid point. I consider myself pretty liberal and even I accept the efficiency of market economies. One can accept market economies and still believe that someone has a right to welfare. Yes, there's a moral hazard problem, but it's simply a question of prioritizing fairness over efficiency. Besides, the left knew about the benefits of markets in the 70's and 80s and were still able to carve out good liberal positions. We should be able to do that now.

dod

Prof. Sunstein's observation on the shift in the court over the last twenty or so years is interesting as a historical matter. Otherwise, though, what should we take away from his observation?

The closest to an answer I can find in his post is his statement, "public discussion has been badly distorted by a failure to see exactly how much has happened in the last decades." I don't understand this. How has public discussion been "distorted"? Surely Prof. Sunstein is not saying today's so-called "liberal" justices are not truly liberal justices because they would not have been "liberal" justices twenty or so years ago.

bcowan

Dod,

I believe he is saying is that a range of ideas that formerly were prominent ingredients in public discourse as carried on in the Supreme Court have been relegated, with surprising suddenness, to a low or negative status with regard to relevance.

This is very interesting historically. But it is also perplexing, since there have not been, as far as I can see, the sort of revolutionary secular or social changes that would make the now-abandoned issues irrelevant in fact. There has not been, for example, a profound economic depression or a world war that called into question the principles of social organization that accompanied or permitted or exacerbated disaster.

It seems these issues have simply been moved offstage. I don't have time or space to go through them here. Maybe Geoff will do it because he had already worked them up at one time.

Sunstein doesn't allude to any of the potential reasons that he might privately entertain for why this development occurred.

But I am not under the same constraints. Accordingly, it seems to me that what has occurred is the ascendancy among elite social actors of a set of political dogmas that is profoundly unconcerned with the communitarian aspects of social life. These dogmas ignore the efficacy of any broad modes of social connection (other than the procrustean "markets" to which unshakeable devotion is professed) as fundamentally irrational, in the Weberian sense of that term.

This turning away from other modes of connectedness, many of them formerly involving government as an actor, implies that nothing sensible can be said or done about them. Accordingly, the former struggles to think about and experiment with efforts to expand the efficacious scope of community beyond the economically well-placed have slipped out of the discourse.

And to what do I attribute the remarkable success of this historic narrowing of political focus? Why do I think so many persons and groups seem to have voted against their interest in being considered welcome participants in the adventure of the United States of America?

It is due to a malign rhetorical strategy by "conservative" political actors, exemplified in countless tactical exploitations of emotional issues, for which no serious (in the sense of enactable) policy alternative is actually proffered. This strategy intentionally prevents, rather than encouraging, the balanced intensity of feeling upon which political discourse at its best depends.

Fortunately, I think the avowedly political wing of this movement has overplayed its hand and more people are beginning to see what these guys are up to: consolidating power in an unaccountable elite economic and political cadre. Unfortunately, the damage they have done to our legal institutions, for which, by the way, they have no abiding respect, will take a while to restore.

LAK

I think Sunstein is onto a very serious flaw in human reasoning, and one you find many economists guilty of all the time.

It is the phenomenon of local equilibria, especially if they are stable ones, being viewed as neutral, natural and ideal, no matter what the competing forces that create the equilibrium point, or how dynamic those forces are defining that equilibrium.

Economists are the worst. They see a system in a state of equilibrium and call it ideal for noting that policy deicisons that take you in one direction or another form that equilibrium point result in costs, and therefore, that equilbrium point is ideal.

The advantage of a physicis education is seeing how in the natural world there are many alternative equlibrium points in a system, and just becasue it takes energy (or involves costs) to get from one equilibrium to another one (i.e. activation energy to get an electron from one orbital to another) even a much better one, doesn't mean that other equilibrium is not more ideal than the last.

Economists see a system in equlibrium and note the costs of departing from the equilibrium but often have very little to say about other potential equilibriums that could result, rather they focus on the costs of shifting equlibriums instead of the gains made over time from being in a new more ideal equilbrium.

It seems that the local or current equlibrium has a magical effect on human reasoning wherby all departures from it are viewed as upsetting an ideal. It is certainly the case where Souter is now viewed as some kind of liberal and Kennedy is now somehow the moderate voice on the Court.

We are inertial beings. We tend to want to keep things the way they are and fear change, even if the way things are are changing on their own.


John Doe

So Cass's argument here is that because the Supreme Court today is only modestly to the left of the American public, rather than wildly to the left of the American public, it's wrong to say that today's Court has a "liberal" wing? Come again?

[And what's with equating a Roe-dissenter -- Byron White -- with any of the four Justices who have voted twice to allow partial birth abortion?]

Bob Loblaw

LAK: You ought to rephrase that to BAD economists are the worst (but I would agree with you that there are a lot of bad economists). Too many fail to realize that choosing between equilibrium (Pareto-optimal) points is strictly a normative decision (or maybe they do realize it and are just ideologues and so don't really want to admit such).

On a different note: does anyone have any ideas as to how we could move the Court away from the political institution it is toward the Supreme Court we all learned about in grade-school civics? As in, theoretically, what would be an appropriate choosing mechanism for the Justices such that skill is the main factor and not politics? Or any other remedies you feel might create the same effect.

Arjun

The most glaringly obvious problem with its article is to look at "conservative" and "liberal" in teleological terms rather than methodological ones. Whether they vote in favour of the death penalty or not is irrelevant : the so-called liberals on the court are liberal because they appeal to (1) international law, (2) values beyond the law, and / or (3) social goals on a level far exceeding that of the so-called conservatives.

The so-called conservatives on the Court are much more reliant upon settled American precedent and implicit assumptions in the legal system and American attitudes / pragmatic factors.

To point at their voting behavior rather than their judgments is to presuppose a liberal position.

bcowan

Arjun is right to say that there is a teleological factor in "liberal" jurisprudence that is resisted by (though not completely absent from)"conservative" jurisprudence.

Linguistic formulas composed centuries ago to express then-current intuitions about how best to realize a just arrangement of government powers cannot be applied simply and directly to cases arising out of vastly changed circumstances without considerable re-shaping. The argument is about how the re-shaping is to be conducted.

Liberal jurisprudence is more likely to take its cues from contemporary circumstances and try to formulate a way to realize the purposes implicit in the Consitution without too much concern for the old formulations. Wickard and Griswold, two of the conservatives' favorite betes noirs, are examples of how that can look from a methodological purity standpoint: Not very tidy, to say the least.

Liberal jurisprudence's greater interest in tussling with the contrasts between the old formulations and the concrete circumstances of the day testifies, I think, to its greater sensitivity to teleological factors in the experience of the nation.

Viewed this way, it is hard to see what justification there can be, given the fundamental priority of change over stasis in the world, for the conservative jurisprudential claim to be able to "apply" the old formulas "literally" or in accordance withtheir "original intent" to profoundly different circumstances that could not have been foreseen, since they truly did not yet exist, from the Founders' or their earlier successors' standpoints.

My point is that some fudging of the old linguistic formulas has got to occur. There is no choice. If the "conservative" dogmas about purity in respect to interpretation of precedent were to be taken at face value (which nobody should really do) the Law would be fated to become a repository of elegant phraseologies invoked in empty rituals in Classical-styled buildings all over the Country.

In my view, it is the messy, sometimes risible (Mr. Justice Douglas' invocation of Gnostic cosmologies in reference to the "penumbras" of the Ninth Amendment comes to mind) but vital effort to find our way towards the realization of the purposes for which there is a Constitution (here insert the Preamble) that is by far the more intersting and important function of the Law.

I sometimes wonder what the brilliant "conservative" intellects who espouse so passionately what they must see as an incoherent and inadequate legal doctrine actually have in mind. Could it be that a decadent, disconnected law, gassing away outside the purview of actual economic and political practices, suits them very well?

PG

"The so-called conservatives on the Court are much more reliant upon settled American precedent"

If by "reliant upon" you mean that Roberts and Alito pretend not to be destroying precedent while the other two happily admit to destroying precedent (as in Thomas's Morse concurrence), that's true. This is the first full term we've had with Roberts and Scalia, and we've gotten reversals of precedent by the conservatives + Kennedy over and over (Leegin and Carhart for starters).

Anonymous

"This court has shown the same respect for precedent that a wrecking ball shows for a plate-glass window."

http://www.nytimes.com/2007/07/01/washington/01scotus.html?ex=1341028800&en=43ad643ff11e471e&ei=5124&partner=permalink&exprod=permalink

TJ

Professor,

I think your overall point (that the definition of "moderate" has shifted substantially to the right) is very true. But the case is somewhat biased by downplaying the Court's liberal wing. I would disagree with both the equation of Justice Ginsburg with Justice Stewart and the equation of Justice Souter with Justice Powell. Both Ginsburg and Souter are more liberal. And while Justice Breyer is proving to be something of a moderate on criminal justice issues, he is notably more liberal than Justice White on other issues, for example, abortion. As for Justice Stevens, though he has not quite yet undergone the Blackmun transformation, it would certainly appear that he has moved to the left over the years.

So while it is certainly true to say that Justice Kennedy, the new "moderate" is more conservative than Justice Powell, the old "moderate," it is hard to characterize the liberal wing of the Court as a mirror image of the old moderates. To be sure, we have no Brennans or Marshalls on the Court, but it there was a great deal of distance from Brennan and Marshall to Stewart and Powell. Within that probably sit today's liberal wing. This conclusion brings us back to the conventional wisdom, which is that the Court is sharply divided with Justice Kennedy in the middle.

Eric Rasmusen

The Court shifted quite dramatically to the right between 1972 and 2000, indeed between 1980 and 2000, ...

I know law professors say this, but it seems wildly wrong to me. The Warren Court's precedents are still with us. The illegality of state abortion laws has been extended, not limited. Homosexuality cannot now be made illegal. Miranda is now a constitutional right, not statutory. The court has not engaged in rollback-- we are not closer to 1950 than we are to 1970.

Prof. Sunstein makes the good observation that the Burger Court was thought to be conservative too, by liberals. Liberals have thought the Supreme Court was too conservative at least since 1970, and perhaps before.

John Lopresti

Since at least 1790 would be a significant increment of accuracy, ER. Cowan basically covers the history. Sunstein remains cognizant of the wide horizons of political spectra. There are two MaxErnstian paradigms which occurred to me viewing the above dialogs. Hidden in the social evolution history of the retrograde epoch of the 1980s is the modern necessity for functioning households to contain two income earners. Much of the personal ethics polemicized as appropriate or inappropriate accretions surrounding the advent of the two working adults configuration of the home is ancillary, while the central economic reality the populace immediately recognizes, throughout the middle class and incrementally even permeating upper class consciousness, is this new verity. The Reagan era coalescence of thoughtful people planning to incubate genius to effect an affirmative rollback of the social order helped nudge the two-income home into more rapid existence as a mainsteam configuration of the core family composition; and, complementarily, the infrastructural liberalizations requisite for sustaining and nurturing a two-income household became politics of the day, and remain so, even when muted in social discourse, in our day.

The other germane item only partly apparent in the thread and article, above, as my review progressed, similarly may be considered a 'societal' insight; namely, there is a new silence factor. To me, it is a given that the Scotus bench will temper the most savage of raw judicial spirits once nominated and installed. But public speaking advocacy as practiced by current justices in their talks in many non-court venues emphasizes their conservatism, and the quintessential fact that many aspects of life in c.XXI are derivatives with roots in the 1980s and two preceding decades; and, insofar as justiceability is a statement regarding the overall fabric of contemporary political values, the quietly unspoken verity is social values are broadly more 'liberal', yet 'liberals' themselves have been pushed centerward, except for those truly visionary or experimental individuals to whom any of the most commonly invoked set names are applied: liberal, conservative, libertarian, independent; granted: there are other nomenclatures, some helpful, some merely based on epithets. Nevertheless, there is a silent trope there, I believe; and many people to whom 'liberal' is a worn in largely irrelevant moniker, are performing integral service for development of institutional values in a spectrum beyond mere left-right. In this newSpeak world, "conservatives", after all, represent values far different from 'saving' our treasures; rather modern "conservatism", for example, when regarding natural resources, equates with exploitation, development, "Healthy Forests", politicizing the Endangered Species Act by redacting underlying bioscience; such is the sorry state of the political wing of modern conservatism. Fortunately, there are far seeing eyes on the right, Sunstein's salient among those. Beyond any attempt to reflect solemnly upon the thinkers' work on the right of the center, I would proffer solely the following timely contemplation of the significance of vectoring when evaluating the prospects for the course of the 'next' Scotus, spoken in the dry prose of an academic at Yale of worthy repute, JB, at http://balkin.blogspot.com/2007/07/democrats-list-of-potential-supreme.html *
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That address is typed long form, as I believe the current UChiLS site filters the usual web link format.
JL

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