Just to elaborate on an unstated element of Matt's thesis: isn't it a bad thing that law is expected to require great intellect? We understand why science requires great intellect: it's because the natural world wasn't designed to be humanly comprehensible. But the law is a human creation and if only super-smart people can be really good at operating the law, then it isn't well designed.
When Ruth Bader Ginsburg died and the tributes came pouring in I couldn't help thinking that women in the UK have roughly the same rights as their counterparts in the US. Plenty of British feminists as gifted as RBG fought for those rights but for the most part they didn't do it by filing lawsuits and issuing judicial opinions, because that's not how Britain's political system works. The perception that constitutional rulings protect our rights might be largely an illusion, and if it also justifies diverting a huge amount of intellectual firepower into an inherently non-productive sector then it's actively harmful to American society.
We need more people with the world view of Senator Hruska.
"So what if he is mediocre? There are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they? We can’t have all Brandeises, Cardozos, and Frankfurters and stuff like that there."
"We can’t have all (((Brandeises))), (((Cardozos))), and (((Frankfurters))) and (((stuff like that))) there," he said, about replacing (((Abe Fortas))) with Harold Carswell, that upstanding American who said:
"I am a southerner by ancestry, birth, training, inclination, belief and practice. I believe the segregation of the races is proper and the only practical and correct way of life in our states. I have always so believed, and I shall always so act."
Look, I'm a big fan of mediocrity -- my own mediocrity has stood by me through life. But I hope that I can find ways to defend mediocrity without resorting to anti-semitism. All anti-semites are mediocre, granted, but not all mediocrities are anti-semitic.
the purpose of lawyers is to provide a nonviolent way of resolving disputes and avoid blood feuds. playing difficult word games is like the cumbersome plumage birds of paradise develop to find mates— individually rational but bad for the species.
Or maybe farmers are so good at growing corn that our economy can withstand all forms of decadence. We puss away a lot more money on weaponry and overpriced healthcare than on lawyers playing word games. But none of those swamps are useful.
> But the law is a human creation and if only super-smart people can be really good at operating the law, then it isn't well designed.
But human systems are just as complex as the rest of the natural world. Any individual law might be simple, but the overlap and interaction of all of the laws is bound to be complex in any moderately-large society.
That's true, and I didn't mean to suggest that lawyers don't need to be intelligent professionals. But surely law should be less like natural science and more like engineering or medicine, where practitioners aren't expected to show creative genius? If the manmade legal system presents the same kind of deep intellectual mysteries that quantum mechanics presents, it's not really fit for its stated purpose of managing social relations--although like a lot of social institutions, it might be very effective at serving an unstated purpose of enhancing the status of lawyers.
Lawyers aren’t generally expected to show creative genius, though, they’re expected to provide solid practical advice and advocacy. The overwhelming majority of lawyers are not law profs, elite appellate practitioners, etc. Way more do like trusts and estates (which actually can be super hard) or criminal defense.
Yes, but law school attracts a large share of the smartest graduates because of the intellectual glamor attached to the work done by a very small minority of practicing attorneys. That can't be good.
I very much tend to the view that the only effective foundation for human rights is popular consent, and that the Supreme Court tends to follow popular opinion rather than legal argument.
"...the only effective foundation for human rights is popular consent..."
That may be descriptively accurate, but it entails that *minority* rights depend on *majority* consent. A minority right that the majority can abrogate whenever it feels like it is not worth much.
Well, you can hope that the majority, reflecting in a cool moment, can construct legal constraints on its own actions that will continue to bind it even during the heat of a crisis or a paroxysm of ill temper.
So the "foundation" has two levels applying at two times: the minority right is founded, currently, in an authoritative code (eg a bill of rights), even if that code was founded, at some earlier time, on the majority's consent.
Yes, I quite like the Canadian system where the legislature can override human rights but has to do so explicitly. The extra step of saying so seems to be a useful deterrent.
To add a little detail to this, I don't think you can prevent a determined majority from overriding rights, but you definitely can put some obstacles in their way so they are forced to reconsider and to face the fact that is what they are doing.
To pick a suitably extreme example, do prisoners have the right to keep and bear arms while in prison? The plain text of the second amendment seems to say yes, but there has always been a determined majority opposed to it, which has never needed a constitutional amendment to enforce its will.
I very much disagree with this. The purpose of law and lawyers is for conflict resolution without violence. That is more valuable to society than the vast majority of other fields. I think we've settled on a terrible process to accomplish with our current system, but that doesn't mean its not intensely valuable.
At the end of the day, it’s pretty easy to allocate liability when someone hit someone with a car and this doesn’t take a lot of intellectual firepower. But in highly complex commercial deals involving potentially billions of dollars, it’s much more complicated and lot more is at stake. And without some certainty of how it will pan out, people will be less willing to do these deals and economic activity takes a hit.
Most high end legal work isn’t someone beating up on the little guy, that’s just what gets in the news because it’s interesting. It’s mostly sophisticated and well-resourced players dealing with each other. Doing it with lawyers is far preferable to the alternative of, say, cartel wars that arise in the vacuum. And you need smart lawyers because at some level it’s zero sum, and you need guys smart enough to understand the deal terms.
How do you expect to "fund clean energy R&D" or "give everyone good healthcare" without the re-allocation of resources from entities that already have lots of resources?
>"Also, why in the world would I want people who bicker on behalf of the rich all day making my laws?"
Because once the rich spend billions of dollars getting their contracts _exactly_ right, you can hit Ctrl+C, Ctrl+V. Learning by doing!
Conflict is almost always between those with power while those without power get caught up to their regret. Before that was wars between clans/feudal lords. Now it's legal battles between businesses. The latter has problems, but it's significantly better than the former.
Part of this issue though is just that actual facts often conflict with conservative values.
I’d argue that a lot of the distrust Republicans have towards experts is because of things like evolution and climate change. A lot of conservatives don’t believe in evolution for religious reasons, and so when scientists keep telling them that evolution is true, they distrust scientists. And climate change poses serious challenges to right wing economic ideology, so conservatives generally think that climate scientists are full of it.
Of course technically the COVID crisis was a separate issue from evolution or climate, but once you start thinking that entire fields of science are bogus it’s not hard to see how you’d lose trust in experts and science generally.
The problem is that we have portions of our society that deeply believe things that it turns out just aren’t true. That is naturally going to end up pitting those people against experts.
Just yesterday, in comments section of this very substack, a self-identified conservative wrote of conservatives:
"We don’t resist change for the sake of resisting change, but because we suspect that the new thing has a 90% chance of being worse than the old thing. We are more concerned with breaking what works than not fixing things that don’t work."
I happen to be a chemist (the example Matt used) and I think that the attitude captured in that quote biases curiosity-driven fields away from conservatives, rather than any particular problem with facts. I think it is why my Republican colleagues tend to be socially or fiscally conservative liberals rather than movement conservatives. But since conservatives are over-represented in the Republican Party, you end up with a 5:1 ratio of Democrats to Republicans in chemistry.
"...curiosity-driven fields away from conservatives..."
Would this theory also explain why there is more conservative representation in engineering schools than in physics and chemistry departments adjacent to them? I.e. that engineers are less driven by curiosity for its own sake?
Scientific chauvinism not withstanding, science is oriented towards discovery, understanding and explanation, while engineering is oriented towards application, optimization and problem-solving. Also, I’ve never heard anyone use the phrase “curiosity-driven engineering.”
I am not sure I agree with this. In my field of engineering, IC design (semiconductors), there is still quite a lot we don't know (discovering) and a substantial amount of the work is understanding and explanation (failure analysis). It is nothing like software, where you are implementing against a fixed set of rules. There is still a lot of "R" involved in our R&D.
You can also say, "that's a trite, condescending, elitist slur against the many brilliant people working in the field of engineering, and shame on you for trafficking in such ill-founded, old-fashioned stereotypes."
I mean, your way is more measured and temperate, but either one is an acceptable reply to me and RC.
For the record, I did my PhD in both Chemistry and Materials Science and Engineering and am currently appointed in both science and engineering faculties. And I have nothing but love and respect for both.
I also work in electronics (organic semiconductors). The main difference is that what I do is literally useless; "curiosity-driven science" is a pejorative... and something I whine about sanctimoniously when my grant proposals are rejected.
An exemplary feat of engineering in pursuit of scientific goals, much like the scientific equipment my labs are filled with. Science and engineering differ philosophically, but they aren't always cleanly divided in practice.
"...they aren't always cleanly divided in practice."
Absolutely. Sometimes you can't even separate them with a centrifuge. I have known a number of excellent scientists who were cross-appointed in engineering schools and science departments. And that's pretty much how the new discipline of materials science arose. So I am not going to slag off engineers as a group -- there are doubtless many people in engineering schools who are driven by scientific curiosity. But there may also be statistical tendencies, as a group.
I'm still curious about the fact that engineers are wildly overrepresented among violent islamic terrorists:
"]A] disproportionate share of Islamist radicals come from an engineering background... Islamist and right-wing extremism have more in common than either does with left-wing extremism, in which engineers are absent while social scientists and humanities students are prominent"
On top of that, and to add to the article, of course the two political parties were not exactly split ideologically until recently. Not only the conservative southeastern Democrats, but also liberal northern Republicans (Javits until '81, Hatfield until '97, and so on) plus plenty of moderate Republicans until recently, made it so that we weren't sure what it meant if an inordinate percentage of the members of an academic discipline were Republican or Democratic. Is our problem really that we don't have a parliamentary system that seems to work better with ideologically-driven parties? Or do we just need an actual left wing, as a separate party, that is not so beholden to elites?
I’d say too many veto points (i.e. not parliamentary). Intellectual (as opposed to money/power) elites lean left everywhere, and that’s the kind of elite we’re talking about here. On the other hand, Republicans probably wouldn’t care as much about the judiciary if they could overturn most judicial decisions they disliked the next time they had a legislative majority. (Yes, there’s some constitutional cases they wouldn’t be able to touch assuming a minimal shift to a parliamentary system, but frankly these issues work better as motivators for religious conservatives as is. The place the GOP stands to lose the most in terms of judicial decisions is in business regulation and taxation.)
I think Republicans (at least elite ones) prefer for the Judiciary to be powerful and for the Legislative branch to be weak because a lot of conservative economic policies are extremely unpopular. But Republicans can get those policies without the public opinion backlash if the Supreme Court does it for them.
Maybe. But as we've seen over the last 4-5 years, the *Republican Party* is perfectly willing to jettison its most unpopular economic policies to hold on to power. Being able to make sure that the unambiguous legislative text is mostly what you want it to say is better for business than banking on the judicial process--even if that sometimes delivers better results, it takes much longer than legislation in a functioning legislature.
Well, I'm a conservative (*) chemist (**) and I think phlogiston is a perfectly viable concept (***) and we'd all be better off returning to the values of yesteryear.
Come on, grow up, the facts of algebraic geometry don’t militate in a left-wing or right-wing direction. The dominant attributes are the openness and curiosity that lead one to become a mathematician, not an enhanced ability to determine what’s true. The public health+BLM protest example should illustrate this pretty clearly.
Conservatives often believe that evolution and climate change are hoaxes and that those entire fields of study are faked.
If you believe major parts of science are fake and are attempts to support some evil agenda, then you are going to be less trusting of other expert fields.
They used to have some really wonderful stuff, but it looks like Andrew Schlafly (Phyllis's heterosexual son) cleaned up their article on set theory a couple years ago, so that it's actually basically correct (if simple), and is only characterized by a weird focus on the religious affiliations of people like Cantor, Hilbert, and Von Neumann, and has this weird line: "The approach of set theory also offers a powerful way to think about life, handle anxiety, escape addiction, and understand the miracles in the New Testament. Problems, which otherwise seem impossible to overcome, can be more easily solved or managed with a set-theory approach."
But if you looked at their math articles five or ten years ago, they had some really amazing things about the political significance of the Axiom of Choice and the like. (I don't recall seeing if they had anything about algebraic geometry in particular.)
I used to read Conservapedia's science section about 15 years ago when I needed a good laugh. Their article on Dipoles contained two sentences, both factually inaccurate.
Liberals believe things that aren't true too: on economics ("building more housing won't lower rents"), genetics (blank-slatism), distrust of GMOs and nuclear power, homeopathy, astrology, and anti-vax.
If academia was more politically balanced, I bet conservatives would find a way to integrate scientific beliefs better (e.g. "evolution is the mechanism by which God created life"; "the solution to climate change is technological innovation, not ending capitalism").
I'm wondering whether it's time to update our belief that resistance to nuclear power and vaccination, and belief in homeopathy and astrology, are associated with the left. Even a few years ago it had seemed that there was a rightward movement on these things, and I suspect that vaccination has had a sudden shift this year.
That's what I think we need updating on! It's quite plausible that the rightward move of the antivax movement over the past few years was enhanced by association with the covid vaccines.
Some of these sentiments are at home in the left. But none are nearly as commonplace as climate change denial is on the right.
The right is nearly monolithic in its insistence that everything is fine, as regards climate change.
The left has pockets of anti-development sentiment, yes, but it's also the home of YIMBY and other movements that fight that sentiment.
All attention is drawn to major cities on housing policy, and since 75% of the electorate is Democratic, these fights play out within the party rather than between it and the GOP. From experience, the working-class GOP households who "never left" my city are as rabidly anti-development as the upper class liberals who "moved back". They both view it as their due to realize significant asset appreciation on their homes.
MMT is probably mostly correct... right up until it's not, with a big freaking BANG.
Japan's gotten away with racking up utterly unpayable public debts for decades by keeping interest rates low so they can service the debt, and by using their own domestic retirees and pensions as a captive market for bonds.
The problem is, if they do one day tip over the edge, there's no escaping the fiscal onslaught, because if they default they still have to keep the elderly from starving on the street. One way or another, they need to pay out.
We don't know how that experiment will end. MMT would have us believe it can just kind of... keep rolling? I doubt it.
It is clear, however, that the US is nowhere near that point and could go some ways down that road without being unable to bail itself out, for two main reasons: our taxes are very, very low, and our demographics are still relatively dynamic and immigration policy could make them more so.
The other point worth noting is that the Federal Reserve holds a huge and growing share of US government obligations with no intent to collect.
Theoretically, they could simply print a $5 trillion note, give it to the President, who hands it back to them, and then they shred both the T-bills and the note. And that might not impact inflation at all, because it's no different from the status quo wherein they keep rolling T-bills over indefinitely, just a hair more obvious (hence why they'll just roll them over ad infinitum).
Amusingly, the Federal Reserve bankrolling deficit spending might have been the only thing staving off persistent deflation for the last several decades, as globalization and technology rapidly pushed production costs and prices for a wide variety of goods DOWN in real terms.
The real crisis of inflation in core cost of living is entirely down to 4 policy failures: regulatory capture by the healthcare lobby, widely available un-dischargeable debt for university education for teens, obscenely high barriers to housing construction, and shitty energy/environmental policy.
Is being anti-GMO, anti-vax, and pro-homeopathy or pro-astrology right wing these days? Don’t most of the people with those views skew right wing? I mean, are you really suggesting that liberals are the ones refusing the COVID vaccine?
And what do you mean by genetics?
Evolutionary creationism and a belief that innovation will solve climate change instead of ending capitalism are viewpoints a lot of people have. But most people with those views are Democrats.
Which Democratic standard bearers have these beliefs? Maybe some of them are more prevalent on the left, but they are not planks in the Democratic Party.
I maintain that the legal profession and legal academia would be better off if we treated law school like trade school and less like a quasi-academic intellectual pursuit. An intellectually demanding trade, but a trade nonetheless.
I attended a prestigious law school and I was surprised and disappointed to learn that it mostly was what you are calling for -- there is very little theory and mostly a lot of memorizing formulas for legal arguments (e.g. the elements of a crime or the requirements for a contract). I tried to take only the minimum required black letter law classes but even outside those it's just mostly reading cases (basically fact patterns) and applying pretty defined legal principles to them. That was in the 1990s. Maybe law school has taken on more intellectual heft since then, but my experience was that it was a trade school with a lot of pretentions to being something more intellectually curious.
I went to a fancy law school more recently and can confirm it hasn't changed much. But unless you became a law professor, I'm not sure why more theory would have been valuable (and obviously the vast majority of law students aren't becoming law professors). I too am interested in theoretical questions about the law, but in retrospect it wouldn't have been that beneficial to learn more legal theory or case law.
The approach you describe isn't actually bad, the issue is that the mainstream course offerings are three years of *only* black letter case law taught in a quasi-theoretical manner. Learning the case method is useful to a degree, but the educational returns diminish pretty quickly unless you plan to exclusively write appellate briefs for your entire career. You have to go out of your way and be a weirdo to find coursework that teaches you anything about many of the day-to-day tasks most lawyers encounter. Like it's really unbelievable that learning how to take a deposition isn't a standard part of legal curriculum.
I agree that there is too little emphasis on the nuts and bolts. I wanted more theory because I love being student and I did not want to practice law -- I was also in a public policy program and I always wanted to focus on policy work. I just think that there is an aura around law school that it is so hard and so intellectually rigorous and it just was not in my experience (I had way less work than as an undergrad in a history program at the same school). My own pet peeve as someone who worked on legislation is that there is no training whatsoever in statutory drafting.
This reminds me of a friend of my wife’s who won his first case and realized he wasn’t sure how to make the defendant actually cough up the money that the court said he owed. Her friend said “they never taught me that.”
"The official narrative of the American legal community and political establishment is that judging is a non-partisan, non-ideological, non-political activity that requires technical skill and technical judgment."
Most of the time, on most of the issues that come before the courts, this is true.
It's a basic premise of rule of law that you should be able to know what the rules are ahead of time. And that means the definition of a good judge is that competent lawyers, knowledgeable in the area and having researched the relevant authorities and precedents, are able to predict ahead of time with reasonable certainty how a judge will rule on the issue -- without knowing the identity of the judge.
Obviously the Supreme Court and state supreme court are a little different. The questions that reach them tend to be those where the precedent doesn't provide any reliable guide.
Yeah the problem here is the high profile courts and high profile cases tend to be political judgment calls, which gives political people the false impression that all law is like that. It’s mostly not!
To give an example, I clerked on a federal district court. 95% of my job was determining if plaintiffs had met the technical requirements to have pled a claim in their complaint or if they had found enough facts in support of their case in discovery to survive summary judgment. To do that you don’t sit down and ask yourself “am I a Republican or a democrat?” You research precedent and figure out what it requires.
I also clerked on a state Supreme Court. There, approximately 50-70% of the cases were resolving splits among lower courts regarding criminal and civil procedural questions. Political issues are not completely alien to that analysis but primarily you’re trying to come up with an approach that works, gets cases through the system, and can be understood reasonably easily. The other 30% of the docket, however, was much more populated by cases which could only be resolved by judgment calls
Civil and criminal procedure may masquerade as non-partisan, but they are hardly neutral. Take all the exhaustion, contemporaneous objection and timing requirements for appealing criminal convictions on direct appeal ir via habeas. These rules make it really hard for prisoners to get new trials or sentencing hearings, especially if they have inexperienced, over-burdened public defenders or are pro se. The procedural rules for veterans applying adverse benefits determinations are much more flexible. We could totally have a system where it is as easy to get new criminal trials as a new veterans benefits determinations. That’s a political choice.
This is not to doubt the instrumental utility of technical expertise. You totally want a lawyer who understands the rules. However, the rules are relatively straightforward for those of take the time to read them, and it’s usually pretty easy for lawyers to agree on whether someone missed a deadline or omitted a certificate of service or didn’t have the transcript sent up.
Sure, but a lot of those rules are made by legislation, not courts. For example, the Antiterrorism and Effective Death Penalty Act of 1996, or AEDPA, governing habeas. Or some are made by supreme court, but not lower courts.
There's nothing inconsistent in pushing for legislation to change bad laws and rules, and at the same time wanting judges who are smart and technically skilled enough to, as much as possible, consistently and predictably apply the rules we have.
A lot of people have the “technical skill” to follow the procedural and evidentiary rules. Certainly, the top half of litigators know the rules well enough to, at a minimum, look them up quickly. That group includes about 150,000 lawyers, many of whom went to middling law schools or did not make law review. Most of us didn’t have federal clerkships. There are roughly 1,000 federal judges. There are 300 litigators for every federal judge. Finding judges with the technical expertise to know the rules is not much of a constraint.
I'd agree with that. There are enough lawyers who can do the technical aspects of the job well that there's no reason to compromise on that and pick judges for other reasons, especially on the lower courts.
On the lower courts it's bad to have judges who are constantly bucking against rules and laws set by legislatures and higher courts, based on their personal sense of fairness or political biases - that just leads to chaos and arbitrary results between like cases.
And that gets to another definition of a good judge - having a judicious temperament, which includes having enough humility and pragmatism to know your place in the system and what your role is, and isn't, when you can bend things in a particular direction a little bit, and what's too much for the good of the system as a whole.
Of course this is simplifying things a lot. Anyone can just look up that a federal civil complaint must have a short plan statement of the claim. Does that mean it’s never difficult to find out if a complaint is well pled?
I mean, I’m pretty liberal and my experience in the court system has made me very sympathetic to the idea that infinite collateral attacks on criminal convictions and pro se suits are not necessarily a good thing. I wouldn’t call that a political issue
Like 90% of my docket was taken up by 3 pro as schizophrenics having breakdowns and filing 30 demands for criminal prosecution of their opponents - is that a valuable use of anyone’s time?
pro se schizophrenics? Why would they represent themselves, when they could just have a different self do it instead? Hell, if you're sufficiently dissociative you could have a whole legal team behind you!
I think you are straw manning. Saying a prisoner shouldn’t get 30 appeals is not the same thing as saying a prisoner shouldn’t be heard on a really important issue because his trial lawyer didn’t make an objection or forgot to make an offer of proof. The rules go well beyond what is necessary to prevent “endless” appeals.
The point is not whether those issues can be characterized as in some way political (of course they can: all of life is in some way political), but whether you can accurately predict a judge's decisions on those issues based on his/her overall political orientation. Most of the time, if it's an issue that isn't *overtly* political (one that doesn't require a "masquerade"), you can't.
"95% of my job was determining if plaintiffs had met the technical requirements to have pled a claim in their complaint or if they had found enough facts in support of their case in discovery to survive summary judgment."
Can't wait for AI to destroy the vast majority of legal jobs.
The description makes them sound mechanical but they’re not, esp summary judgment, some of the least AI-able stuff in all of law probably. They’re just not political (the vast majority of the time).
Yes. And this is true even of the US Supreme Court and the evidence is hiding right there in plain sight. All one has to do is go on supremecourt.gov and count the opinions.
The other irony is that this conservative court is actually pretty decent on criminal law issues.
I think it's a *lot* different. The Supreme Court doesn't "follow" the Constitution; in effect, it creates it. Pretty much the same with statutory law cases.
Matt, I did not like this take at all. Breyer is a great judge (who I don't always agree with) and the Republicans aren't going to be able to hold out for 3 years on a Biden nominee. I agree with you about the public health letter, but I don't remember any group of lawyers saying it was ok to break the law and loot and riot (although some lawyers did loot and riot). The desire to put ideologues in power on the bench is one of the most dangerous ideas to the institution of justice I can imagine. You may not see the judicial system as fair and impartial, but it's one of the best in the world and other countries envy it. If the entire country thinks its corrupt and only a mechanism for enforcing power, however, where does that leave us? Consider how the Trump election lies would have played out if there was no confidence in the legal system. You should take a listen to Breyer's lecture at Harvard Law this April where he talked about the importance of confidence in the Supreme Court. https://www.youtube.com/watch?v=bHxTQxDVTdU
Yes, Republicans would hold out for 3 years. They were richly rewarded for holding out for 1 year.
And I’m not sure how a 7-2 Republican Court is going to instill more confidence from the public, which is what will happen if Breyer keeps putting off retirement.
I can't believe any political observer would actually claim McConnell wouldn't hold out for three years after all we've seen. I mean you can't be 100% sure he would, but why would you risk it?
The court is not filled with R and D lackeys. The decisions they are reaching and how the majorities are shaking out with this group are all over the board. They do not simply vote on party lines.
It sounds like you are saying that Roberts and the Trump appointees are moderates, but since they were appointed by Republicans how does that make your point?
They're relatively amenable to the extension of certain rights on hot-button topics, and have a vague commitment to at least the rough forms of democracy.
That's enough to anger the Republican base, sure.
But it doesn't make them moderate in any meaningful sense; they're well to the right, economically, of where the entire Republican Party was prior to 1980.
They're reflexively hostile to Congressional power and oversight of the executive.
They're "pro-business" to an extent that hasn't been seen since the 1920's at the latest, bending over backwards to forgive or ignore the worst monopolistic behavior and regulatory capture, and hobbling the government's occasional and half-hearted efforts to modernize the legal framework on those two issues.
For those of us who see a desperate need to move on these fronts before corporate power starts really eating into the standard of living enjoyed by the man-in-the-street, these are bad things.
To say nothing of whatever they'll do to hobble our response to climate change. Actually enforcing a regulatory framework to limit emissions, rather than just subsidizing the hell out of the technologies we hope will work well enough to do the job, would almost certainly be blown up by the Court.
The Supreme Court could be best understood as 9 nerds who take their doctrines pretty seriously, chosen by partisan hacks hoping that the nerds will rule the way they like but who are frequently surprised and/or disappointed that it doesn't ever pan out fully the way they want.
AFP v Bonta was about nonprofit disclosure; it had nothing to do with campaign finance. The Biden Administration argued that the state of California violated the constitution and 6 Justices agreed. Pretty much every nonprofit in America from AFP to the ACLU to the NAACP to Planned Parenthood was very happy with the case outcome. CA was horrendously in the wrong here, demanding confidential information and then SCREWING UP AND PUBLISHING CONFIDENTIAL INFO ONLINE.
The dissent's argument was 'you don't have to disclose if you can show that you're controversial' but that's a ridiculous argument. A nonprofit proving that it is controversial is a very hard thing to prove for a lot of nonprofits - social controversy and what's considered acceptable is constantly changing.
The VRA law meanwhile was a really narrow decision about what you need to prove in order to challenge the time, place, and manner of voting procedures. The Dissent had a great point about lots and lots of historical circumstances. But the argument ultimately boiled down to both sides agreeing that the effect of the law on voting was marginal in every sense of the word and disagreeing on how much relative differences matter (majority said 'we're talking about 0.5% of whites and 1% of nonwhites having trouble voting, it's small potatoes all around' and the dissent said 1% is twice that of 0.5%.' It boiled down to 'how much do big percentage differences matter when the absolutes are really rally tiny.' You can disagree with how the case turned out (I have my issues) but the stakes seem pretty small.
As soon as FDR got a 9-0 court they immediately started bickering with each other over new and different issues. The same thing is happening now with the 6-3 court. The Supreme Court's rate of 5-4 decisions has been basically constant for a century.
>>>the Republicans aren't going to be able to hold out for 3 years on a Biden nominee.<<<
Why not? Their own base will back them to the hilt indefinitely. That's all they care about. In any event, it's a moot point because there's no vacancy. But if Breyer steps down *after* Democrats lose their Senate majority, that vacancy won't be filled until there's a Republican White House again (or until Democrats hold both the White House and the Senate again).
>>>It's one of the best in the world and other countries envy it.<<<
I don't think it's the case that other high income liberal democracies envy the American judicial system of 2021. At all. It's a system that regularly executes people. That eviscerates healthcare legislation. That interferes with the efforts of state and local government to regulate deadly weapons. And so on.
Not sure if you're serious (I'm not a regular commenter), but if you are, then all of the "stolen election" decisions should have no credibility either?
Could you tell me what you mean by '"stolen election" decisions'? Do you mean, SCOTUS decisions about stolen elections? I am not sure what you are referring to.
Included among the 80+ state and federal decisions against the Trump election team there have been several SCOTUS decisions and refusals to accept Cert. which related to the 2020 election. People are free to have any opinion they want about the credibility of SCOTUS based on an opinion from 2000. Similarly, many people lost faith in SCOTUS' credibility over an opinion from 1973. I still think people like Stephen Breyer make the court a highly credible institution for justice even though I sometimes disagree with the outcomes.
I think he's trying to argue that since the court has been exposed as obviously partisan we shouldn't be able to applaud its objectively good and right decisions like .. not overturning an election based on no evidence of fraud
Esp. by comparison to the rate in any of the countries that we consider to be our peers in liberal democracy. Okay, maybe we're not out-doing Iran, Saudi Arabia, or NoKo in our government-sanctioned killings, but is that really the NCAA division we want to compete in?
Why is it that Western Europe always seems to be the only comparison region? Plenty of other areas of the world have democracy. I'd argue we historically have as much in common with the rest of the Western Hemisphere, and even more of a shared destiny in the future
There are at least a dozen other Democracies that also still apply the death penalty, many of them in Africa or SE Asia. India and Indonesia are two of the most notable.
What should high income, or 'Western' label have to do with it?
The first time it "upheld" Obamacare, it struck down the part of the law that helps the poorest people - the Medicaid expansion - which I'm far from convinced constitutes upholding the law.
The claim was "eviscerates healthcare legislation", which is preposterous given the court's rulings on Obamacare.
There were 7 justices - Roberts, Scalia, Kennedy, Thomas, Breyer, Alito, and Kagan - that believed the method Congress attempted to expand Medicaid was too coercive against the states. This was no partisan decision.
I have conflicting opinions on several of those topics, but I'm curious how you would square a majoritarian support of the death penalty with the court abolishing it. Your essentially saying that the court system isn't good relative to other countries because it continues to allow a popular barbaric practice. How would you distinguish this claim from conservative objections to abortion?
This would all be a lot more reasonable if being a top 10 lawyer (as opposed to a top 1000 lawyer) bore any relation to being a particularly good SC judge, or judge in general. In real life, these judges are highly fungible.
There’s actually very large variance at the trial judge level, which is a harder job than appellate. What matters is really competence and management skills more than brilliance though.
It's a very low bar, but I was very happy that so many Trump judges refused to go along with his attempts to subvert the election. I'm not sure that would have happened in Hungary.
Hungary, Poland, and Turkey put political hacks on the court. The American right puts nerds on the court who they hope will rule their way routinely and then (to their frustration) proceed to actually believe their own BS and not routinely rule the way the right wants.
I don't understand how the progressives can hold a principled objection to what PiS did to the courts in Poland but also support expansion of the SCOTUS.
The running theme in the US is that the Dems change the rules, the GOP operates in the worst-faith-way-possible under the existing rules, and then Dems proceed to change the rules some more as if the GOP is going to not do the same thing they just did even though you've just chipped at the formal guardrails a little but more.
No one in politics wants this on the left or the right. The right has more minority views right now, but the left has plenty of them as well. The left advanced almost all of its cultural issues through the courts, and even now equates the loss of judicial constitutional protection for many of them to be the loss of the rights themselves.
The number of people who want free speech rights, voting rights, abortion rights, and gun rights all decided by Congress every two years is miniscule. The vast majority of people want something off the table because it's to important to be up for grabs every election.
I listened to that podcast, and was slightly terrified. This is a point in which American liberals are just as idiosyncratic wrt to the rest of the world as conservatives. The idea that you should embrace the *full* politicization of the judicial branch and the DoJ and treat them as you would treat them just like cabinet positions or whatever is just contrary to, as far as I know, most democracies in the world, including among progressives. In Brazil, I see this discourse in exactly one group, the more populist Right (it's just less polite and not infused with academic research to give it a veneer of sophistication). And the Supreme Court there is muuuch more active in day to day public affairs.
Also, it is my understanding that that was a very incorrect description of what the AG is doing wrt to Trump. He's not exactly defending Trump, and he's basically following the law.
Garland is 'defending Trump' in that case because if he doesn't it'd screw the Biden Administration and any other administration. It'd mean the President would have to hire their own lawyer and spend their own money in any case in which somebody sues them during their presidency. It'd be an absolute train-wreck.
I know it would be almost impossible bc it requires changing the Constitution, but I would love to see a discussion on the pros and cons of making the Attorney General actually independent from the President (fixed terms, final authority on prosecutions), as is mostly the case in Latin America (maybe southern Europe too?).
I just think it's weird that progressives will appeal to the "global standard" to defend the end of the electoral college and fillibuster, and a more proportional electoral system (all correct), but when it's about defending the virtues of bicameralism, more independent judges and prosecutors, and a robust system of judicial review, "well, we do our own thing around here".
I see plenty of discussion among progressives about the desirability of deep structural changes, and very little "we do our own thing around here" complacency. BUT there are limits to how much energy anyone is going to put into such topics given their almost certain political infeasibility.
My point was not that that was a conscious argument. Rather, it's an inconsistency in which they appeal to a certain general paradigm, and they pick and choose which components to defend and which to ignore, or in this case openly oppose, without justification. I don't even think you're required to embrace everything equally, debate is good, but some justification of the choices is merited.
Interesting point. We do this with the FBI Director (at least as a custom) and bunches of agencies, so it's not clear why this would be totally out of bounds with the AG.
The Federal Reserve is a better comparison. Even though it's not exactly like that since in Latin America usually the AG's office is established in Constitutions as de facto a fourth branch of government.
Problem in the US is that the Constitution gives "prosecutorial discretion" to the President.
Matt's equating distrust of academia with a distrust of expertise. But there are many types of expertise, and self-described experts forget that just because *they* know something doesn't mean other people have reason to *believe* that the experts know what they're talking about - experts don't sufficiently explain to the public why they should be listened to; they just say 'trust me' without thinking about how fragile trust is and how important institutions have been in building trust in expertise (and often they don't think of what hard work it was to build up that trust in the first place). The dilemma of American 'elitism' is that America's elites aren't that elite. They're people who think that because they don't have to justify themselves because they have the proper credential, title, position, or stuff on their CV. Past generations built up credibility into these positions by engaging the (relatively ignorant) public, new people come along and think they should just be able to inherit the credibility built by folks in the past because (a) they're smart and know what they're talking about and (b) other people in their position were deferred to, so they should be deferred to as well. But that's not how it works.
Meanwhile the reason you get stuff like a left-slant in academia often is because of self-selection: the liberal engineers and economists and whatnot *prefer* academia; whereas the ideologically indifferent and conservative prefer the money. It's why Republicans are also more willing to pluck people from the private sector to staff administrative positions; they don't oppose expertise, they defer to *different* experts who have more credibility with them. From the Republican POV, who would you expect to know more about oil and gas - a person working in that field every day, or a tenured professor who is protected from the consequences of being wrong about stuff?
Also, no shit Garland and Breyer are institutionalists focusing on rules and whatnot. That's the gist of what the law is. They put tremendous emphasis on the idea that it took a really really long time to build any credibility in these things that they care about, and going full pit-bull partisan will only play into the hands of the people who want to tear down the institutions for their own partisan advantage. They've been around long enough to *know* how hard it is to build institutional credibility and how easy it is to blow it up.
Also, the Sotomayor quip ... remember when Jeffrey Rosen got ripped apart for pointing out that she wasn't a Marshall or Brennan? And if you really really don't care about the significance of having a 'sparkling intellect' on the court ... I point you to Antonin Scalia. He (a) said Bill Brennan was the Justice in his lifetime who had the most impact on the court and (b) had a MASSIVE impact on American jurisprudence by arguing such a strong case for textualism that he *converted his liberal opponents* into swinging his way. Elena Kagan is as much of an arch-textualist as Thomas, Gorsuch, and Barrett are and observers are generally are aware that Kagan and Breyer are doing the intellectual heft to weave majorities in a lot of these cases.
Also, the Conservative Legal movement told Trump to F off in the election challenge cases. They take their own rhetoric seriously and it's basically been in the last three years that right-wing demagogues are realizing that their own pointy-heads actually believe in their own ideas as opposed to just being stalking horses for right-wing policy. See: Hawley's freaking out post-Bostock when Roberts and *Gorsuch* delivered the 6-3 majority.
Also Garland is 'defending Trump' in that case because if he doesn't it'd screw the Biden Administration and any other administration. It'd mean the President would have to hire their own lawyer and spend their own money in any case in which somebody sues them during their presidency. It'd be an absolute train-wreck.
If that's the case, explain the right-wing hatred of the Dormant Commerce Clause, in which you can go to court and strike down state laws if they unduly burden interstate commerce.
Kennedy and Scalia ruled for federal regulatory power in Gonzales v Raich. Roberts ruled for the ACA and routinely rules against the DCC whenever he has an opportunity to cabin it. Kennedy liked the DCC but Scalia hated the DCC.
You have no idea what you're talking about. Textualism vs pragmatism, narrow rulings vs broad rulings, willingness to overturn precedent vs 'distinguishing' precedent are all a bunch of different axes.
If your definition of judicial conservatism is 'rule in ways social conservative economic populists like' then that's stupid, outcome-driven, and 100% the opposite of how any judge is supposed to rule. Gorsuch got flipped in Bostock for example because the litigators framed their arguments to target his way of viewing how the law works.
If the judges go in saying 'this is how I make decisions,' it ain't their problem if liberal litigators proceed to make arguments in a way that convinces them; like using a very literal definition of sex in the civil right act in Bostock that reportedly caused Gorsuch's face to light up in a 'oh damn that's a really smart argument' sort of way. And there are a bunch of cases where you'll see nerdy arguments between the conservative justices about whether plain meaning means 'everyday meaning' or 'dictionary meaning.'
Roberts never overturns things outright. Roberts whenever possible seeks to avoid overturning things and get as narrow and nonpartisan a majority as possible so as to avoid partisan hacks getting up in arms at the court. Roberts in June Medical Services for example basically rolled back Casey by a whole bunch, but by denying the right an own the libs moment pissed off the right even though he actually moved the abortion debate in a more conservative direction because it's his swing-vote (which if you read the opinion is more conservative than the preceding cases) that became the governing rule. In the Obamacare Case Roberts pissed off the right by not overturning the ACA ... but he also narrowed federal regulatory power by saying 'yeah if this weren't a tax there's no way it'd be constitutional' - meaning the left had to accept his narrowing federal regulatory power if they wanted the win.
Also, Gorsuch is one of the most aggressive pushers for religious freedom on the court. Read a concurrence or a dissent dude.
Grading lawyers’ work as “good” or “bad” based on outcome is silly. Johnnie Cochran wasn’t “good” or “bad” because he successfully defended OJ Simpson. What Garland has done in the E. Jean Carroll matter is follow the law. This isn’t a case of institutional capture or poor consigliere-ing or whatever you’re calling it. His legal obligations here are clear and *non-discretionary*: https://reason.com/volokh/2020/09/13/libel-lawsuits-against-federal-government-officials-e-g-senator-warren-or-president-trump/. Dragging him for this because “Trump is bad” — no matter how true that might be! — is lazy. Advocate for a change in the law, if you want, but don’t blame the lawyers who have no choice but to follow it.
Cochran was objectively good in my view in his legal work for Simpson. He was part of a team that prevailed on behalf of a client, a citizen accused of a serious crime. I personally think the jury got it wrong. But that's partly because Cochrane was, in fact, good (at his job). I realize you're not claiming otherwise, but if only people society approves of had the opportunity to be robustly defended in a court of law, the presumption of innocence would be worthless.
I thought the verdict was pre-ordained the moment they succeeded in getting the trial venue moved downtown. To the extent he had something to do with that, Cochran earned his fee.
(But, c'mon, Simpson obviously committed those acts. It's easy in hindsight to conclude he was destined to be acquitted. But I don't think for a second it was inevitable).
But Garland has the power to investigate potential criminality by the Trump administration, and is not doing it despite there being lots of evidence. And Stephen Breyer is refusing to retire when Biden can safely name his replacement under some weird theory that his principled action will help restore comity despite decades of Republican strategic retirement. And the legal establishment abets both of them. This isn’t “the law” but institutional actors making decisions that fly in the face of what is happening politically in the county. We can’t have a Democracy that functions if one party operates with one set of rules and the other operates with a different set of rules. And elite Dems need to wake up to the fact that our Democracy is not going to survive this assault from the right without some resistance. You have to prosecute law breaking when it happens and you have to see the institutions of our government for what they are and respond to the changes like McConnel holding open the Scalia seat and rushing through the Barrett nomination and threatening not to fill Breyer’s seat if Dems lose in 2022 for what they are.
Without giving a specific opinion on whether the law requires Garland to take this approach, I don’t think an attorney general and a normal lawyer like a criminal defense attorney are really comparable.
An attorney general has to take policy positions on behalf of the government. They enforce the law but there is a lot of discretion they have, and that discretion can be judged.
Most attorneys have one job: help their particular client. Whether a good outcome for the client is the “right” outcome in terms of some idea of justice is irrelevant because a normal attorney isn’t responsible for policy decisions or shaping society.
This pattern where conservatives build their own partisan alternatives to elite institutions (or least recruitment tools like FedSoc) applies generally to social/political institutions, not just to law. They have Fox News which will uncritically parrot the next GOP talking point even if it completely negates their last talking point; Democrats have the other cable news channels, which reliably lean left but aren't nearly as subject to partisan control, and so they aren't really part of a unified strategic apparatus. The same could be said of policy "experts," particularly liberal vs. conservative economists. In fact I think this is least true in the real sciences, since you can't really build a conservative alternative to chemistry or even epidemiology at this point.
Isn't this more a function of media habits by political affiliation (e.g., R TV skew vs. D web + social media skew)? I'd argue the GOP doesn't have anything similar to Vox.com or even now the WaPost in terms of reach and ideology.
I think there's something to that but also there are some pretty big R web/social media outlets. WSJ is old school but still very GOP friendly editorially speaking. The most shared FB posts are consistently from conservative personalities and they have some of the most watched podcasts. I don't know of a Vox equivalent -- maybe National Review? Which, again, is now housed in a nonprofit entity so it can receive conservative foundation dollars, which is not a setup I've heard of on the left.
Ofc most of them do some of the time. But not as reliably and not to the extent that they can really be seen as part of a unified political apparatus with the Democratic party in the same way Fox can with the Rs. And often when it seems like they are parroting Democratic Party talking points they're really just repeating _liberal_ talking points, which is very different.
You might be right if we're comparing some chunk of the daytime programming, I honestly don't know. But for the big shows like Hayes and Maddow there's no equivalence between how they relate to Democratic politics versus how Carlson/Hannity/Ingraham relate to GOP politics.
The fact that none of us can name one does not prove they don't exist, but it says something about their success in capturing viewership. There probably are some tiny ones, and they're not likely to grow.
It's a moderately popular cable network that has nowhere near the influence on Democratic voters and politicians that Fox has on Republican voters and politicians.
I hear that a lot and I'm not disagreeing exactly. Its just I don't understand how Fox News with a viewership of 2.1 million compared to MSNBC viewership of 1.4 million has so much more influence. Sure its 30% more, but its not like 700k people is that large of a number in a country of 150+ million voters.
I also don't know that there is that much difference between CNN and MSNBC and combined they have a viewership greater than FOX (2.4 million compared to 2.1).
This is simply not true. Obama was attacked on MSNBC for drone strikes, keeping health insurance companies in ACA instead of making it Medicare For All, keeping troops in Afghanistan and an incremental approach to climate change, etc. MSNBC is not a propaganda arm of the DNC. It’s a liberal news channel. Fox is a propaganda tool except for Chris Wallace.
Dunno. I'm guessing it's a cable news channel? I have never seen it (don't have cable). Or rather -- I've probably seen it in one of those hell-holes where people have TVs on, like airports and malls, but I ignored it.
This seems similar to how journalists are quite left-leaning but Fox News is arguably more effective in partisan terms (because Fox News had to be created with more explicitly partisan goals)
This post summarizes some truisms that even liberals agree are true.
1. Liberals play by the rules. Conservatives fight to win.
2. A liberal won't even defend his own side in an argument.
They just feel dealing with conservatives on their own level is beneath them. It leads to all the handwringing about how McConnell continually steals Schumer's lunch money.
It will be interesting to see how the Supreme Court decisions split and divide now that conservatives essentially can do as they please and which of the liberal justices will go along for the ride.
Wow! I knew academia was disproportionately progressive but not to this extent. No wonder conservatives hate college education. As a retired professor let me defend my profession. In over thirty years of university teaching, I meet lots of progressives. However, I met no one who was actively trying to propagandize students. That said, one of the skills university education attempts to cultivate is critical thinking. Critical thinking is the mortal enemy of sacred cows. Since conservatism centers on the worship of those beasts, it is unsurprising that academics and successful students are more progressive than the non-college educated. Anticipating comments, let me concede that progressives too have sacred cows.
You find plenty of intelligent, critical thinking conservatives outside of academia. Business provides a competitive, results oriented environment than academia and conservatives are common. Academia and peer review encourage group think or echo chambers. I'd argue the differences are value driven and self sorting, not intellectual superiority of one group. But what do I know, I'm a cow worshipper.
You write: "But the official position of virtually everyone who matters in the Democratic Party is that Trump’s misconduct and lawlessness constitute an ongoing threat to the stability of the republic."
The actions of the Democratic Party show this to be untrue. Having Trump around motivates their base, keeps the left flank inside the tent and turns off surburban women. They desperately want Trump to run in 2024 even if that means losing some Black and Hispanic votes along the way.
My hot take is that even Democrats are patriotic Americans who realize that Trump, with ~50% chance of victory in 2024, is too grave a threat to the American experiment to want him to run because of crass political calculations.
Democrats probably won’t underestimate Trump again if he’s the 2024 nominee.
The danger is that Trump doesn’t run and DeSantis is the nominee, and then Democrats underestimate him just like Florida Dems did when he ran for governor.
Just to elaborate on an unstated element of Matt's thesis: isn't it a bad thing that law is expected to require great intellect? We understand why science requires great intellect: it's because the natural world wasn't designed to be humanly comprehensible. But the law is a human creation and if only super-smart people can be really good at operating the law, then it isn't well designed.
When Ruth Bader Ginsburg died and the tributes came pouring in I couldn't help thinking that women in the UK have roughly the same rights as their counterparts in the US. Plenty of British feminists as gifted as RBG fought for those rights but for the most part they didn't do it by filing lawsuits and issuing judicial opinions, because that's not how Britain's political system works. The perception that constitutional rulings protect our rights might be largely an illusion, and if it also justifies diverting a huge amount of intellectual firepower into an inherently non-productive sector then it's actively harmful to American society.
We need more people with the world view of Senator Hruska.
"So what if he is mediocre? There are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they? We can’t have all Brandeises, Cardozos, and Frankfurters and stuff like that there."
"We can’t have all (((Brandeises))), (((Cardozos))), and (((Frankfurters))) and (((stuff like that))) there," he said, about replacing (((Abe Fortas))) with Harold Carswell, that upstanding American who said:
"I am a southerner by ancestry, birth, training, inclination, belief and practice. I believe the segregation of the races is proper and the only practical and correct way of life in our states. I have always so believed, and I shall always so act."
Look, I'm a big fan of mediocrity -- my own mediocrity has stood by me through life. But I hope that I can find ways to defend mediocrity without resorting to anti-semitism. All anti-semites are mediocre, granted, but not all mediocrities are anti-semitic.
This Carswell guy sounds a bit like Charles Blow
the purpose of lawyers is to provide a nonviolent way of resolving disputes and avoid blood feuds. playing difficult word games is like the cumbersome plumage birds of paradise develop to find mates— individually rational but bad for the species.
I think the jury is still out on the "bad for the species" point. They're still here, aren't they?
Maybe predators are so delighted by their lovely plumage that they give them a pass in the eating category.
Or maybe farmers are so good at growing corn that our economy can withstand all forms of decadence. We puss away a lot more money on weaponry and overpriced healthcare than on lawyers playing word games. But none of those swamps are useful.
> But the law is a human creation and if only super-smart people can be really good at operating the law, then it isn't well designed.
But human systems are just as complex as the rest of the natural world. Any individual law might be simple, but the overlap and interaction of all of the laws is bound to be complex in any moderately-large society.
That's true, and I didn't mean to suggest that lawyers don't need to be intelligent professionals. But surely law should be less like natural science and more like engineering or medicine, where practitioners aren't expected to show creative genius? If the manmade legal system presents the same kind of deep intellectual mysteries that quantum mechanics presents, it's not really fit for its stated purpose of managing social relations--although like a lot of social institutions, it might be very effective at serving an unstated purpose of enhancing the status of lawyers.
Lawyers aren’t generally expected to show creative genius, though, they’re expected to provide solid practical advice and advocacy. The overwhelming majority of lawyers are not law profs, elite appellate practitioners, etc. Way more do like trusts and estates (which actually can be super hard) or criminal defense.
Yes, but law school attracts a large share of the smartest graduates because of the intellectual glamor attached to the work done by a very small minority of practicing attorneys. That can't be good.
I very much tend to the view that the only effective foundation for human rights is popular consent, and that the Supreme Court tends to follow popular opinion rather than legal argument.
"...the only effective foundation for human rights is popular consent..."
That may be descriptively accurate, but it entails that *minority* rights depend on *majority* consent. A minority right that the majority can abrogate whenever it feels like it is not worth much.
I don't see how you get out of that, though.
Well, you can hope that the majority, reflecting in a cool moment, can construct legal constraints on its own actions that will continue to bind it even during the heat of a crisis or a paroxysm of ill temper.
So the "foundation" has two levels applying at two times: the minority right is founded, currently, in an authoritative code (eg a bill of rights), even if that code was founded, at some earlier time, on the majority's consent.
That's the hope, anyhow.
Yes, I quite like the Canadian system where the legislature can override human rights but has to do so explicitly. The extra step of saying so seems to be a useful deterrent.
To add a little detail to this, I don't think you can prevent a determined majority from overriding rights, but you definitely can put some obstacles in their way so they are forced to reconsider and to face the fact that is what they are doing.
To pick a suitably extreme example, do prisoners have the right to keep and bear arms while in prison? The plain text of the second amendment seems to say yes, but there has always been a determined majority opposed to it, which has never needed a constitutional amendment to enforce its will.
"the Canadian system where the legislature can override human rights but has to do so explicitly" and then apologize for having inconvenienced anyone.
I very much disagree with this. The purpose of law and lawyers is for conflict resolution without violence. That is more valuable to society than the vast majority of other fields. I think we've settled on a terrible process to accomplish with our current system, but that doesn't mean its not intensely valuable.
At the end of the day, it’s pretty easy to allocate liability when someone hit someone with a car and this doesn’t take a lot of intellectual firepower. But in highly complex commercial deals involving potentially billions of dollars, it’s much more complicated and lot more is at stake. And without some certainty of how it will pan out, people will be less willing to do these deals and economic activity takes a hit.
Most high end legal work isn’t someone beating up on the little guy, that’s just what gets in the news because it’s interesting. It’s mostly sophisticated and well-resourced players dealing with each other. Doing it with lawyers is far preferable to the alternative of, say, cartel wars that arise in the vacuum. And you need smart lawyers because at some level it’s zero sum, and you need guys smart enough to understand the deal terms.
How do you expect to "fund clean energy R&D" or "give everyone good healthcare" without the re-allocation of resources from entities that already have lots of resources?
>"Also, why in the world would I want people who bicker on behalf of the rich all day making my laws?"
Because once the rich spend billions of dollars getting their contracts _exactly_ right, you can hit Ctrl+C, Ctrl+V. Learning by doing!
Conflict is almost always between those with power while those without power get caught up to their regret. Before that was wars between clans/feudal lords. Now it's legal battles between businesses. The latter has problems, but it's significantly better than the former.
Looks to me like there's a definite over-representation of lawyers in the Slow Boring commentariat.
"The first thing we do…."
A joke told by a non-lawyer to get laughs from an audience of lawyers -- just like the first time.
Part of this issue though is just that actual facts often conflict with conservative values.
I’d argue that a lot of the distrust Republicans have towards experts is because of things like evolution and climate change. A lot of conservatives don’t believe in evolution for religious reasons, and so when scientists keep telling them that evolution is true, they distrust scientists. And climate change poses serious challenges to right wing economic ideology, so conservatives generally think that climate scientists are full of it.
Of course technically the COVID crisis was a separate issue from evolution or climate, but once you start thinking that entire fields of science are bogus it’s not hard to see how you’d lose trust in experts and science generally.
The problem is that we have portions of our society that deeply believe things that it turns out just aren’t true. That is naturally going to end up pitting those people against experts.
Just yesterday, in comments section of this very substack, a self-identified conservative wrote of conservatives:
"We don’t resist change for the sake of resisting change, but because we suspect that the new thing has a 90% chance of being worse than the old thing. We are more concerned with breaking what works than not fixing things that don’t work."
I happen to be a chemist (the example Matt used) and I think that the attitude captured in that quote biases curiosity-driven fields away from conservatives, rather than any particular problem with facts. I think it is why my Republican colleagues tend to be socially or fiscally conservative liberals rather than movement conservatives. But since conservatives are over-represented in the Republican Party, you end up with a 5:1 ratio of Democrats to Republicans in chemistry.
"...curiosity-driven fields away from conservatives..."
Would this theory also explain why there is more conservative representation in engineering schools than in physics and chemistry departments adjacent to them? I.e. that engineers are less driven by curiosity for its own sake?
Scientific chauvinism not withstanding, science is oriented towards discovery, understanding and explanation, while engineering is oriented towards application, optimization and problem-solving. Also, I’ve never heard anyone use the phrase “curiosity-driven engineering.”
I am not sure I agree with this. In my field of engineering, IC design (semiconductors), there is still quite a lot we don't know (discovering) and a substantial amount of the work is understanding and explanation (failure analysis). It is nothing like software, where you are implementing against a fixed set of rules. There is still a lot of "R" involved in our R&D.
"I am not sure I agree with this."
You can also say, "that's a trite, condescending, elitist slur against the many brilliant people working in the field of engineering, and shame on you for trafficking in such ill-founded, old-fashioned stereotypes."
I mean, your way is more measured and temperate, but either one is an acceptable reply to me and RC.
For the record, I did my PhD in both Chemistry and Materials Science and Engineering and am currently appointed in both science and engineering faculties. And I have nothing but love and respect for both.
I also work in electronics (organic semiconductors). The main difference is that what I do is literally useless; "curiosity-driven science" is a pejorative... and something I whine about sanctimoniously when my grant proposals are rejected.
except perhaps when referring to the Mars rover?
An exemplary feat of engineering in pursuit of scientific goals, much like the scientific equipment my labs are filled with. Science and engineering differ philosophically, but they aren't always cleanly divided in practice.
"...they aren't always cleanly divided in practice."
Absolutely. Sometimes you can't even separate them with a centrifuge. I have known a number of excellent scientists who were cross-appointed in engineering schools and science departments. And that's pretty much how the new discipline of materials science arose. So I am not going to slag off engineers as a group -- there are doubtless many people in engineering schools who are driven by scientific curiosity. But there may also be statistical tendencies, as a group.
I'm still curious about the fact that engineers are wildly overrepresented among violent islamic terrorists:
https://www.cambridge.org/core/journals/european-journal-of-sociology-archives-europeennes-de-sociologie/article/why-are-there-so-many-engineers-among-islamic-radicals/91ED8BEFDE3793834667750B31575422
It's not clear if you got the joke: there's a Mars rover named Curiosity.
"]A] disproportionate share of Islamist radicals come from an engineering background... Islamist and right-wing extremism have more in common than either does with left-wing extremism, in which engineers are absent while social scientists and humanities students are prominent"
https://press.princeton.edu/books/hardcover/9780691145174/engineers-of-jihad
On top of that, and to add to the article, of course the two political parties were not exactly split ideologically until recently. Not only the conservative southeastern Democrats, but also liberal northern Republicans (Javits until '81, Hatfield until '97, and so on) plus plenty of moderate Republicans until recently, made it so that we weren't sure what it meant if an inordinate percentage of the members of an academic discipline were Republican or Democratic. Is our problem really that we don't have a parliamentary system that seems to work better with ideologically-driven parties? Or do we just need an actual left wing, as a separate party, that is not so beholden to elites?
I’d say too many veto points (i.e. not parliamentary). Intellectual (as opposed to money/power) elites lean left everywhere, and that’s the kind of elite we’re talking about here. On the other hand, Republicans probably wouldn’t care as much about the judiciary if they could overturn most judicial decisions they disliked the next time they had a legislative majority. (Yes, there’s some constitutional cases they wouldn’t be able to touch assuming a minimal shift to a parliamentary system, but frankly these issues work better as motivators for religious conservatives as is. The place the GOP stands to lose the most in terms of judicial decisions is in business regulation and taxation.)
I think Republicans (at least elite ones) prefer for the Judiciary to be powerful and for the Legislative branch to be weak because a lot of conservative economic policies are extremely unpopular. But Republicans can get those policies without the public opinion backlash if the Supreme Court does it for them.
Maybe. But as we've seen over the last 4-5 years, the *Republican Party* is perfectly willing to jettison its most unpopular economic policies to hold on to power. Being able to make sure that the unambiguous legislative text is mostly what you want it to say is better for business than banking on the judicial process--even if that sometimes delivers better results, it takes much longer than legislation in a functioning legislature.
Well, I'm a conservative (*) chemist (**) and I think phlogiston is a perfectly viable concept (***) and we'd all be better off returning to the values of yesteryear.
(*) No I'm not.
(**) Still not.
(***) JK
Come on, grow up, the facts of algebraic geometry don’t militate in a left-wing or right-wing direction. The dominant attributes are the openness and curiosity that lead one to become a mathematician, not an enhanced ability to determine what’s true. The public health+BLM protest example should illustrate this pretty clearly.
Conservatives often believe that evolution and climate change are hoaxes and that those entire fields of study are faked.
If you believe major parts of science are fake and are attempts to support some evil agenda, then you are going to be less trusting of other expert fields.
“ the facts of algebraic geometry don’t militate in a left-wing or right-wing direction”
The contributors to Conservapedia don’t think that’s true.
I have no idea what you’re talking about. The entry there is just a one-liner about Fermat’s Last Theorem.
They used to have some really wonderful stuff, but it looks like Andrew Schlafly (Phyllis's heterosexual son) cleaned up their article on set theory a couple years ago, so that it's actually basically correct (if simple), and is only characterized by a weird focus on the religious affiliations of people like Cantor, Hilbert, and Von Neumann, and has this weird line: "The approach of set theory also offers a powerful way to think about life, handle anxiety, escape addiction, and understand the miracles in the New Testament. Problems, which otherwise seem impossible to overcome, can be more easily solved or managed with a set-theory approach."
But if you looked at their math articles five or ten years ago, they had some really amazing things about the political significance of the Axiom of Choice and the like. (I don't recall seeing if they had anything about algebraic geometry in particular.)
I used to read Conservapedia's science section about 15 years ago when I needed a good laugh. Their article on Dipoles contained two sentences, both factually inaccurate.
I dunno about you, man, but there are a lot of annihilating right ideals in _my_ modules.
Liberals believe things that aren't true too: on economics ("building more housing won't lower rents"), genetics (blank-slatism), distrust of GMOs and nuclear power, homeopathy, astrology, and anti-vax.
If academia was more politically balanced, I bet conservatives would find a way to integrate scientific beliefs better (e.g. "evolution is the mechanism by which God created life"; "the solution to climate change is technological innovation, not ending capitalism").
I'm wondering whether it's time to update our belief that resistance to nuclear power and vaccination, and belief in homeopathy and astrology, are associated with the left. Even a few years ago it had seemed that there was a rightward movement on these things, and I suspect that vaccination has had a sudden shift this year.
Certainly covid vaccines are more distrusted by Republicans. Not sure about the rest.
That's what I think we need updating on! It's quite plausible that the rightward move of the antivax movement over the past few years was enhanced by association with the covid vaccines.
On food issues, there is no divide. GOP and Dems both distrust GMOs by about the same margin. Same with animal cloning. Pew has a survey of some of this, but it has been observed in several studies on food preferences https://www.foodnavigator-usa.com/Article/2016/12/02/Politics-demographics-don-t-explain-GMO-attitudes-say-Pew
Yeah I think those are mostly Republican/conservative views these days.
Some of these sentiments are at home in the left. But none are nearly as commonplace as climate change denial is on the right.
The right is nearly monolithic in its insistence that everything is fine, as regards climate change.
The left has pockets of anti-development sentiment, yes, but it's also the home of YIMBY and other movements that fight that sentiment.
All attention is drawn to major cities on housing policy, and since 75% of the electorate is Democratic, these fights play out within the party rather than between it and the GOP. From experience, the working-class GOP households who "never left" my city are as rabidly anti-development as the upper class liberals who "moved back". They both view it as their due to realize significant asset appreciation on their homes.
To me, the best example of this on the left is MMT - just a belief system.
MMT is probably mostly correct... right up until it's not, with a big freaking BANG.
Japan's gotten away with racking up utterly unpayable public debts for decades by keeping interest rates low so they can service the debt, and by using their own domestic retirees and pensions as a captive market for bonds.
The problem is, if they do one day tip over the edge, there's no escaping the fiscal onslaught, because if they default they still have to keep the elderly from starving on the street. One way or another, they need to pay out.
We don't know how that experiment will end. MMT would have us believe it can just kind of... keep rolling? I doubt it.
It is clear, however, that the US is nowhere near that point and could go some ways down that road without being unable to bail itself out, for two main reasons: our taxes are very, very low, and our demographics are still relatively dynamic and immigration policy could make them more so.
The other point worth noting is that the Federal Reserve holds a huge and growing share of US government obligations with no intent to collect.
Theoretically, they could simply print a $5 trillion note, give it to the President, who hands it back to them, and then they shred both the T-bills and the note. And that might not impact inflation at all, because it's no different from the status quo wherein they keep rolling T-bills over indefinitely, just a hair more obvious (hence why they'll just roll them over ad infinitum).
Amusingly, the Federal Reserve bankrolling deficit spending might have been the only thing staving off persistent deflation for the last several decades, as globalization and technology rapidly pushed production costs and prices for a wide variety of goods DOWN in real terms.
The real crisis of inflation in core cost of living is entirely down to 4 policy failures: regulatory capture by the healthcare lobby, widely available un-dischargeable debt for university education for teens, obscenely high barriers to housing construction, and shitty energy/environmental policy.
Energy/environmental policy - haven't heard that connected to a crisis in inflation before, would you expand on that?
Hasn't exactly taken over the progressive/liberal community by storm.
I think the more applicable view is "If Republicans can run up huge deficits, then dammit so can we."
It's arguably less than a belief system haha
Is being anti-GMO, anti-vax, and pro-homeopathy or pro-astrology right wing these days? Don’t most of the people with those views skew right wing? I mean, are you really suggesting that liberals are the ones refusing the COVID vaccine?
And what do you mean by genetics?
Evolutionary creationism and a belief that innovation will solve climate change instead of ending capitalism are viewpoints a lot of people have. But most people with those views are Democrats.
Which Democratic standard bearers have these beliefs? Maybe some of them are more prevalent on the left, but they are not planks in the Democratic Party.
I maintain that the legal profession and legal academia would be better off if we treated law school like trade school and less like a quasi-academic intellectual pursuit. An intellectually demanding trade, but a trade nonetheless.
Conversely, once plumbers have finished their apprenticeship, they should get to wear robes.
Really nice ones. Possibly wigs, too, if they're working in the UK.
I second this. I've seen plumbers bending low under the sink once too often.
I attended a prestigious law school and I was surprised and disappointed to learn that it mostly was what you are calling for -- there is very little theory and mostly a lot of memorizing formulas for legal arguments (e.g. the elements of a crime or the requirements for a contract). I tried to take only the minimum required black letter law classes but even outside those it's just mostly reading cases (basically fact patterns) and applying pretty defined legal principles to them. That was in the 1990s. Maybe law school has taken on more intellectual heft since then, but my experience was that it was a trade school with a lot of pretentions to being something more intellectually curious.
Nope it’s still exactly the same. I graduated from a fancy law school in 2020.
I went to a fancy law school more recently and can confirm it hasn't changed much. But unless you became a law professor, I'm not sure why more theory would have been valuable (and obviously the vast majority of law students aren't becoming law professors). I too am interested in theoretical questions about the law, but in retrospect it wouldn't have been that beneficial to learn more legal theory or case law.
The approach you describe isn't actually bad, the issue is that the mainstream course offerings are three years of *only* black letter case law taught in a quasi-theoretical manner. Learning the case method is useful to a degree, but the educational returns diminish pretty quickly unless you plan to exclusively write appellate briefs for your entire career. You have to go out of your way and be a weirdo to find coursework that teaches you anything about many of the day-to-day tasks most lawyers encounter. Like it's really unbelievable that learning how to take a deposition isn't a standard part of legal curriculum.
I agree that there is too little emphasis on the nuts and bolts. I wanted more theory because I love being student and I did not want to practice law -- I was also in a public policy program and I always wanted to focus on policy work. I just think that there is an aura around law school that it is so hard and so intellectually rigorous and it just was not in my experience (I had way less work than as an undergrad in a history program at the same school). My own pet peeve as someone who worked on legislation is that there is no training whatsoever in statutory drafting.
I don’t know how long ago you went, but more schools are incorporating statutory interpretation into the required curriculum. This seems very good.
This reminds me of a friend of my wife’s who won his first case and realized he wasn’t sure how to make the defendant actually cough up the money that the court said he owed. Her friend said “they never taught me that.”
"The official narrative of the American legal community and political establishment is that judging is a non-partisan, non-ideological, non-political activity that requires technical skill and technical judgment."
Most of the time, on most of the issues that come before the courts, this is true.
It's a basic premise of rule of law that you should be able to know what the rules are ahead of time. And that means the definition of a good judge is that competent lawyers, knowledgeable in the area and having researched the relevant authorities and precedents, are able to predict ahead of time with reasonable certainty how a judge will rule on the issue -- without knowing the identity of the judge.
Obviously the Supreme Court and state supreme court are a little different. The questions that reach them tend to be those where the precedent doesn't provide any reliable guide.
Yeah the problem here is the high profile courts and high profile cases tend to be political judgment calls, which gives political people the false impression that all law is like that. It’s mostly not!
To give an example, I clerked on a federal district court. 95% of my job was determining if plaintiffs had met the technical requirements to have pled a claim in their complaint or if they had found enough facts in support of their case in discovery to survive summary judgment. To do that you don’t sit down and ask yourself “am I a Republican or a democrat?” You research precedent and figure out what it requires.
I also clerked on a state Supreme Court. There, approximately 50-70% of the cases were resolving splits among lower courts regarding criminal and civil procedural questions. Political issues are not completely alien to that analysis but primarily you’re trying to come up with an approach that works, gets cases through the system, and can be understood reasonably easily. The other 30% of the docket, however, was much more populated by cases which could only be resolved by judgment calls
Civil and criminal procedure may masquerade as non-partisan, but they are hardly neutral. Take all the exhaustion, contemporaneous objection and timing requirements for appealing criminal convictions on direct appeal ir via habeas. These rules make it really hard for prisoners to get new trials or sentencing hearings, especially if they have inexperienced, over-burdened public defenders or are pro se. The procedural rules for veterans applying adverse benefits determinations are much more flexible. We could totally have a system where it is as easy to get new criminal trials as a new veterans benefits determinations. That’s a political choice.
This is not to doubt the instrumental utility of technical expertise. You totally want a lawyer who understands the rules. However, the rules are relatively straightforward for those of take the time to read them, and it’s usually pretty easy for lawyers to agree on whether someone missed a deadline or omitted a certificate of service or didn’t have the transcript sent up.
Sure, but a lot of those rules are made by legislation, not courts. For example, the Antiterrorism and Effective Death Penalty Act of 1996, or AEDPA, governing habeas. Or some are made by supreme court, but not lower courts.
There's nothing inconsistent in pushing for legislation to change bad laws and rules, and at the same time wanting judges who are smart and technically skilled enough to, as much as possible, consistently and predictably apply the rules we have.
A lot of people have the “technical skill” to follow the procedural and evidentiary rules. Certainly, the top half of litigators know the rules well enough to, at a minimum, look them up quickly. That group includes about 150,000 lawyers, many of whom went to middling law schools or did not make law review. Most of us didn’t have federal clerkships. There are roughly 1,000 federal judges. There are 300 litigators for every federal judge. Finding judges with the technical expertise to know the rules is not much of a constraint.
I'd agree with that. There are enough lawyers who can do the technical aspects of the job well that there's no reason to compromise on that and pick judges for other reasons, especially on the lower courts.
On the lower courts it's bad to have judges who are constantly bucking against rules and laws set by legislatures and higher courts, based on their personal sense of fairness or political biases - that just leads to chaos and arbitrary results between like cases.
And that gets to another definition of a good judge - having a judicious temperament, which includes having enough humility and pragmatism to know your place in the system and what your role is, and isn't, when you can bend things in a particular direction a little bit, and what's too much for the good of the system as a whole.
Of course this is simplifying things a lot. Anyone can just look up that a federal civil complaint must have a short plan statement of the claim. Does that mean it’s never difficult to find out if a complaint is well pled?
I mean, I’m pretty liberal and my experience in the court system has made me very sympathetic to the idea that infinite collateral attacks on criminal convictions and pro se suits are not necessarily a good thing. I wouldn’t call that a political issue
Like 90% of my docket was taken up by 3 pro as schizophrenics having breakdowns and filing 30 demands for criminal prosecution of their opponents - is that a valuable use of anyone’s time?
pro se schizophrenics? Why would they represent themselves, when they could just have a different self do it instead? Hell, if you're sufficiently dissociative you could have a whole legal team behind you!
of course not. but are those crazy proole any reason not to hear an appeal because the defense attorney didn’t make a good offer of proof?
the elephant in the room is there are too few judges and that creates incentives to avoid trials and to conserve judicial bandwidth.
I think you are straw manning. Saying a prisoner shouldn’t get 30 appeals is not the same thing as saying a prisoner shouldn’t be heard on a really important issue because his trial lawyer didn’t make an objection or forgot to make an offer of proof. The rules go well beyond what is necessary to prevent “endless” appeals.
Depending on the jurisdiction. At my state Supreme Court we’d routinely be getting someone’s 7th or 8th post conviction relief motion
The point is not whether those issues can be characterized as in some way political (of course they can: all of life is in some way political), but whether you can accurately predict a judge's decisions on those issues based on his/her overall political orientation. Most of the time, if it's an issue that isn't *overtly* political (one that doesn't require a "masquerade"), you can't.
"95% of my job was determining if plaintiffs had met the technical requirements to have pled a claim in their complaint or if they had found enough facts in support of their case in discovery to survive summary judgment."
Can't wait for AI to destroy the vast majority of legal jobs.
The description makes them sound mechanical but they’re not, esp summary judgment, some of the least AI-able stuff in all of law probably. They’re just not political (the vast majority of the time).
Yes. And this is true even of the US Supreme Court and the evidence is hiding right there in plain sight. All one has to do is go on supremecourt.gov and count the opinions.
The other irony is that this conservative court is actually pretty decent on criminal law issues.
It is only ironic if you listen to partisan attacks on judges and nominees.
I think it's a *lot* different. The Supreme Court doesn't "follow" the Constitution; in effect, it creates it. Pretty much the same with statutory law cases.
Matt, I did not like this take at all. Breyer is a great judge (who I don't always agree with) and the Republicans aren't going to be able to hold out for 3 years on a Biden nominee. I agree with you about the public health letter, but I don't remember any group of lawyers saying it was ok to break the law and loot and riot (although some lawyers did loot and riot). The desire to put ideologues in power on the bench is one of the most dangerous ideas to the institution of justice I can imagine. You may not see the judicial system as fair and impartial, but it's one of the best in the world and other countries envy it. If the entire country thinks its corrupt and only a mechanism for enforcing power, however, where does that leave us? Consider how the Trump election lies would have played out if there was no confidence in the legal system. You should take a listen to Breyer's lecture at Harvard Law this April where he talked about the importance of confidence in the Supreme Court. https://www.youtube.com/watch?v=bHxTQxDVTdU
Yes, Republicans would hold out for 3 years. They were richly rewarded for holding out for 1 year.
And I’m not sure how a 7-2 Republican Court is going to instill more confidence from the public, which is what will happen if Breyer keeps putting off retirement.
I can't believe any political observer would actually claim McConnell wouldn't hold out for three years after all we've seen. I mean you can't be 100% sure he would, but why would you risk it?
He basically said he would on national television!
The court is not filled with R and D lackeys. The decisions they are reaching and how the majorities are shaking out with this group are all over the board. They do not simply vote on party lines.
There is a clear relationship between partisanship and judicial outcomes in politically charged cases.
I mean, if I’m wrong then point me to a political 5-4 decision where the majority is Breyer, Kagan, Sotomayor, Thomas, and Alito.
It sounds like you are saying that Roberts and the Trump appointees are moderates, but since they were appointed by Republicans how does that make your point?
They're relatively amenable to the extension of certain rights on hot-button topics, and have a vague commitment to at least the rough forms of democracy.
That's enough to anger the Republican base, sure.
But it doesn't make them moderate in any meaningful sense; they're well to the right, economically, of where the entire Republican Party was prior to 1980.
They're reflexively hostile to Congressional power and oversight of the executive.
They're "pro-business" to an extent that hasn't been seen since the 1920's at the latest, bending over backwards to forgive or ignore the worst monopolistic behavior and regulatory capture, and hobbling the government's occasional and half-hearted efforts to modernize the legal framework on those two issues.
For those of us who see a desperate need to move on these fronts before corporate power starts really eating into the standard of living enjoyed by the man-in-the-street, these are bad things.
To say nothing of whatever they'll do to hobble our response to climate change. Actually enforcing a regulatory framework to limit emissions, rather than just subsidizing the hell out of the technologies we hope will work well enough to do the job, would almost certainly be blown up by the Court.
Would you share some examples of where the Republican majority did these things?
That depends on what you mean by moderate.
The Court is currently 6-3. Some of the Republicans will be more right wing than others.
But even the “moderates” are quite right wing.
The Supreme Court could be best understood as 9 nerds who take their doctrines pretty seriously, chosen by partisan hacks hoping that the nerds will rule the way they like but who are frequently surprised and/or disappointed that it doesn't ever pan out fully the way they want.
Amazing take to have, one day after the court gutted the VRA and campaign finance disclosure laws along partisan lines.
AFP v Bonta was about nonprofit disclosure; it had nothing to do with campaign finance. The Biden Administration argued that the state of California violated the constitution and 6 Justices agreed. Pretty much every nonprofit in America from AFP to the ACLU to the NAACP to Planned Parenthood was very happy with the case outcome. CA was horrendously in the wrong here, demanding confidential information and then SCREWING UP AND PUBLISHING CONFIDENTIAL INFO ONLINE.
The dissent's argument was 'you don't have to disclose if you can show that you're controversial' but that's a ridiculous argument. A nonprofit proving that it is controversial is a very hard thing to prove for a lot of nonprofits - social controversy and what's considered acceptable is constantly changing.
The VRA law meanwhile was a really narrow decision about what you need to prove in order to challenge the time, place, and manner of voting procedures. The Dissent had a great point about lots and lots of historical circumstances. But the argument ultimately boiled down to both sides agreeing that the effect of the law on voting was marginal in every sense of the word and disagreeing on how much relative differences matter (majority said 'we're talking about 0.5% of whites and 1% of nonwhites having trouble voting, it's small potatoes all around' and the dissent said 1% is twice that of 0.5%.' It boiled down to 'how much do big percentage differences matter when the absolutes are really rally tiny.' You can disagree with how the case turned out (I have my issues) but the stakes seem pretty small.
As soon as FDR got a 9-0 court they immediately started bickering with each other over new and different issues. The same thing is happening now with the 6-3 court. The Supreme Court's rate of 5-4 decisions has been basically constant for a century.
Sure, but the terrain moves. Conservative lawyers are now pushing forward with arguments that a less-Republican Supreme Court would’ve laughed out.
There are still divisions but those divisions are from a much more right wing vantage point than the Supreme Court of 10-20 years ago.
Interested to see the abortion rulings
>>>the Republicans aren't going to be able to hold out for 3 years on a Biden nominee.<<<
Why not? Their own base will back them to the hilt indefinitely. That's all they care about. In any event, it's a moot point because there's no vacancy. But if Breyer steps down *after* Democrats lose their Senate majority, that vacancy won't be filled until there's a Republican White House again (or until Democrats hold both the White House and the Senate again).
>>>It's one of the best in the world and other countries envy it.<<<
I don't think it's the case that other high income liberal democracies envy the American judicial system of 2021. At all. It's a system that regularly executes people. That eviscerates healthcare legislation. That interferes with the efforts of state and local government to regulate deadly weapons. And so on.
Yeah, I think the SCOTUS lost its credibility with Bush v. Gore, and has never regained it since.
Not sure if you're serious (I'm not a regular commenter), but if you are, then all of the "stolen election" decisions should have no credibility either?
Could you tell me what you mean by '"stolen election" decisions'? Do you mean, SCOTUS decisions about stolen elections? I am not sure what you are referring to.
Included among the 80+ state and federal decisions against the Trump election team there have been several SCOTUS decisions and refusals to accept Cert. which related to the 2020 election. People are free to have any opinion they want about the credibility of SCOTUS based on an opinion from 2000. Similarly, many people lost faith in SCOTUS' credibility over an opinion from 1973. I still think people like Stephen Breyer make the court a highly credible institution for justice even though I sometimes disagree with the outcomes.
I think he's trying to argue that since the court has been exposed as obviously partisan we shouldn't be able to applaud its objectively good and right decisions like .. not overturning an election based on no evidence of fraud
"eviscerates healthcare legislation"? The Supreme Court has upheld Obamacare 3 separate times over the past few years.
"regularly executes people"? There have been 97 executions over the past 5 years. I don't think that is "regularly"
That's a government-sanctioned killing of a prisoner every 19 days in America. Pretty regular in my book.
Esp. by comparison to the rate in any of the countries that we consider to be our peers in liberal democracy. Okay, maybe we're not out-doing Iran, Saudi Arabia, or NoKo in our government-sanctioned killings, but is that really the NCAA division we want to compete in?
Why is it that Western Europe always seems to be the only comparison region? Plenty of other areas of the world have democracy. I'd argue we historically have as much in common with the rest of the Western Hemisphere, and even more of a shared destiny in the future
Japan's the other outlier. America kills prisoners at about double their rate in recent years.
There are at least a dozen other Democracies that also still apply the death penalty, many of them in Africa or SE Asia. India and Indonesia are two of the most notable.
What should high income, or 'Western' label have to do with it?
The first time it "upheld" Obamacare, it struck down the part of the law that helps the poorest people - the Medicaid expansion - which I'm far from convinced constitutes upholding the law.
The claim was "eviscerates healthcare legislation", which is preposterous given the court's rulings on Obamacare.
There were 7 justices - Roberts, Scalia, Kennedy, Thomas, Breyer, Alito, and Kagan - that believed the method Congress attempted to expand Medicaid was too coercive against the states. This was no partisan decision.
I forgot to mention deep hostility to voting rights (if they even think the right to vote exists).
I have conflicting opinions on several of those topics, but I'm curious how you would square a majoritarian support of the death penalty with the court abolishing it. Your essentially saying that the court system isn't good relative to other countries because it continues to allow a popular barbaric practice. How would you distinguish this claim from conservative objections to abortion?
This would all be a lot more reasonable if being a top 10 lawyer (as opposed to a top 1000 lawyer) bore any relation to being a particularly good SC judge, or judge in general. In real life, these judges are highly fungible.
There’s actually very large variance at the trial judge level, which is a harder job than appellate. What matters is really competence and management skills more than brilliance though.
It's a very low bar, but I was very happy that so many Trump judges refused to go along with his attempts to subvert the election. I'm not sure that would have happened in Hungary.
Hungary, Poland, and Turkey put political hacks on the court. The American right puts nerds on the court who they hope will rule their way routinely and then (to their frustration) proceed to actually believe their own BS and not routinely rule the way the right wants.
I don't understand how the progressives can hold a principled objection to what PiS did to the courts in Poland but also support expansion of the SCOTUS.
The running theme in the US is that the Dems change the rules, the GOP operates in the worst-faith-way-possible under the existing rules, and then Dems proceed to change the rules some more as if the GOP is going to not do the same thing they just did even though you've just chipped at the formal guardrails a little but more.
As well as a number of GOP elections officials. From what I gather, though, this second group will have been substantially purged by November of '24.
Found the lawyer!
If our judicial system is the envy of the world, why are we the outliers with judicial review?
No one in politics wants this on the left or the right. The right has more minority views right now, but the left has plenty of them as well. The left advanced almost all of its cultural issues through the courts, and even now equates the loss of judicial constitutional protection for many of them to be the loss of the rights themselves.
The number of people who want free speech rights, voting rights, abortion rights, and gun rights all decided by Congress every two years is miniscule. The vast majority of people want something off the table because it's to important to be up for grabs every election.
I listened to that podcast, and was slightly terrified. This is a point in which American liberals are just as idiosyncratic wrt to the rest of the world as conservatives. The idea that you should embrace the *full* politicization of the judicial branch and the DoJ and treat them as you would treat them just like cabinet positions or whatever is just contrary to, as far as I know, most democracies in the world, including among progressives. In Brazil, I see this discourse in exactly one group, the more populist Right (it's just less polite and not infused with academic research to give it a veneer of sophistication). And the Supreme Court there is muuuch more active in day to day public affairs.
Also, it is my understanding that that was a very incorrect description of what the AG is doing wrt to Trump. He's not exactly defending Trump, and he's basically following the law.
Garland is 'defending Trump' in that case because if he doesn't it'd screw the Biden Administration and any other administration. It'd mean the President would have to hire their own lawyer and spend their own money in any case in which somebody sues them during their presidency. It'd be an absolute train-wreck.
I know it would be almost impossible bc it requires changing the Constitution, but I would love to see a discussion on the pros and cons of making the Attorney General actually independent from the President (fixed terms, final authority on prosecutions), as is mostly the case in Latin America (maybe southern Europe too?).
I just think it's weird that progressives will appeal to the "global standard" to defend the end of the electoral college and fillibuster, and a more proportional electoral system (all correct), but when it's about defending the virtues of bicameralism, more independent judges and prosecutors, and a robust system of judicial review, "well, we do our own thing around here".
I see plenty of discussion among progressives about the desirability of deep structural changes, and very little "we do our own thing around here" complacency. BUT there are limits to how much energy anyone is going to put into such topics given their almost certain political infeasibility.
My point was not that that was a conscious argument. Rather, it's an inconsistency in which they appeal to a certain general paradigm, and they pick and choose which components to defend and which to ignore, or in this case openly oppose, without justification. I don't even think you're required to embrace everything equally, debate is good, but some justification of the choices is merited.
Interesting point. We do this with the FBI Director (at least as a custom) and bunches of agencies, so it's not clear why this would be totally out of bounds with the AG.
The Federal Reserve is a better comparison. Even though it's not exactly like that since in Latin America usually the AG's office is established in Constitutions as de facto a fourth branch of government.
Problem in the US is that the Constitution gives "prosecutorial discretion" to the President.
Democrats tend to be much clearer eyed about how experts can have agendas distinct from their technical expertise when we're talking about economists.
Matt's equating distrust of academia with a distrust of expertise. But there are many types of expertise, and self-described experts forget that just because *they* know something doesn't mean other people have reason to *believe* that the experts know what they're talking about - experts don't sufficiently explain to the public why they should be listened to; they just say 'trust me' without thinking about how fragile trust is and how important institutions have been in building trust in expertise (and often they don't think of what hard work it was to build up that trust in the first place). The dilemma of American 'elitism' is that America's elites aren't that elite. They're people who think that because they don't have to justify themselves because they have the proper credential, title, position, or stuff on their CV. Past generations built up credibility into these positions by engaging the (relatively ignorant) public, new people come along and think they should just be able to inherit the credibility built by folks in the past because (a) they're smart and know what they're talking about and (b) other people in their position were deferred to, so they should be deferred to as well. But that's not how it works.
Meanwhile the reason you get stuff like a left-slant in academia often is because of self-selection: the liberal engineers and economists and whatnot *prefer* academia; whereas the ideologically indifferent and conservative prefer the money. It's why Republicans are also more willing to pluck people from the private sector to staff administrative positions; they don't oppose expertise, they defer to *different* experts who have more credibility with them. From the Republican POV, who would you expect to know more about oil and gas - a person working in that field every day, or a tenured professor who is protected from the consequences of being wrong about stuff?
Also, no shit Garland and Breyer are institutionalists focusing on rules and whatnot. That's the gist of what the law is. They put tremendous emphasis on the idea that it took a really really long time to build any credibility in these things that they care about, and going full pit-bull partisan will only play into the hands of the people who want to tear down the institutions for their own partisan advantage. They've been around long enough to *know* how hard it is to build institutional credibility and how easy it is to blow it up.
Also, the Sotomayor quip ... remember when Jeffrey Rosen got ripped apart for pointing out that she wasn't a Marshall or Brennan? And if you really really don't care about the significance of having a 'sparkling intellect' on the court ... I point you to Antonin Scalia. He (a) said Bill Brennan was the Justice in his lifetime who had the most impact on the court and (b) had a MASSIVE impact on American jurisprudence by arguing such a strong case for textualism that he *converted his liberal opponents* into swinging his way. Elena Kagan is as much of an arch-textualist as Thomas, Gorsuch, and Barrett are and observers are generally are aware that Kagan and Breyer are doing the intellectual heft to weave majorities in a lot of these cases.
Also, the Conservative Legal movement told Trump to F off in the election challenge cases. They take their own rhetoric seriously and it's basically been in the last three years that right-wing demagogues are realizing that their own pointy-heads actually believe in their own ideas as opposed to just being stalking horses for right-wing policy. See: Hawley's freaking out post-Bostock when Roberts and *Gorsuch* delivered the 6-3 majority.
Also Garland is 'defending Trump' in that case because if he doesn't it'd screw the Biden Administration and any other administration. It'd mean the President would have to hire their own lawyer and spend their own money in any case in which somebody sues them during their presidency. It'd be an absolute train-wreck.
If that's the case, explain the right-wing hatred of the Dormant Commerce Clause, in which you can go to court and strike down state laws if they unduly burden interstate commerce.
That's my point. If they were shilling for business they'd be in favor of the DCC. But they are very opposed to the DCC. The end.
Kennedy and Scalia ruled for federal regulatory power in Gonzales v Raich. Roberts ruled for the ACA and routinely rules against the DCC whenever he has an opportunity to cabin it. Kennedy liked the DCC but Scalia hated the DCC.
You have no idea what you're talking about. Textualism vs pragmatism, narrow rulings vs broad rulings, willingness to overturn precedent vs 'distinguishing' precedent are all a bunch of different axes.
If your definition of judicial conservatism is 'rule in ways social conservative economic populists like' then that's stupid, outcome-driven, and 100% the opposite of how any judge is supposed to rule. Gorsuch got flipped in Bostock for example because the litigators framed their arguments to target his way of viewing how the law works.
If the judges go in saying 'this is how I make decisions,' it ain't their problem if liberal litigators proceed to make arguments in a way that convinces them; like using a very literal definition of sex in the civil right act in Bostock that reportedly caused Gorsuch's face to light up in a 'oh damn that's a really smart argument' sort of way. And there are a bunch of cases where you'll see nerdy arguments between the conservative justices about whether plain meaning means 'everyday meaning' or 'dictionary meaning.'
Roberts never overturns things outright. Roberts whenever possible seeks to avoid overturning things and get as narrow and nonpartisan a majority as possible so as to avoid partisan hacks getting up in arms at the court. Roberts in June Medical Services for example basically rolled back Casey by a whole bunch, but by denying the right an own the libs moment pissed off the right even though he actually moved the abortion debate in a more conservative direction because it's his swing-vote (which if you read the opinion is more conservative than the preceding cases) that became the governing rule. In the Obamacare Case Roberts pissed off the right by not overturning the ACA ... but he also narrowed federal regulatory power by saying 'yeah if this weren't a tax there's no way it'd be constitutional' - meaning the left had to accept his narrowing federal regulatory power if they wanted the win.
Also, Gorsuch is one of the most aggressive pushers for religious freedom on the court. Read a concurrence or a dissent dude.
Grading lawyers’ work as “good” or “bad” based on outcome is silly. Johnnie Cochran wasn’t “good” or “bad” because he successfully defended OJ Simpson. What Garland has done in the E. Jean Carroll matter is follow the law. This isn’t a case of institutional capture or poor consigliere-ing or whatever you’re calling it. His legal obligations here are clear and *non-discretionary*: https://reason.com/volokh/2020/09/13/libel-lawsuits-against-federal-government-officials-e-g-senator-warren-or-president-trump/. Dragging him for this because “Trump is bad” — no matter how true that might be! — is lazy. Advocate for a change in the law, if you want, but don’t blame the lawyers who have no choice but to follow it.
Cochran was objectively good in my view in his legal work for Simpson. He was part of a team that prevailed on behalf of a client, a citizen accused of a serious crime. I personally think the jury got it wrong. But that's partly because Cochrane was, in fact, good (at his job). I realize you're not claiming otherwise, but if only people society approves of had the opportunity to be robustly defended in a court of law, the presumption of innocence would be worthless.
I thought only breaking balls hang, not fastballs?
I thought the verdict was pre-ordained the moment they succeeded in getting the trial venue moved downtown. To the extent he had something to do with that, Cochran earned his fee.
(But, c'mon, Simpson obviously committed those acts. It's easy in hindsight to conclude he was destined to be acquitted. But I don't think for a second it was inevitable).
But Garland has the power to investigate potential criminality by the Trump administration, and is not doing it despite there being lots of evidence. And Stephen Breyer is refusing to retire when Biden can safely name his replacement under some weird theory that his principled action will help restore comity despite decades of Republican strategic retirement. And the legal establishment abets both of them. This isn’t “the law” but institutional actors making decisions that fly in the face of what is happening politically in the county. We can’t have a Democracy that functions if one party operates with one set of rules and the other operates with a different set of rules. And elite Dems need to wake up to the fact that our Democracy is not going to survive this assault from the right without some resistance. You have to prosecute law breaking when it happens and you have to see the institutions of our government for what they are and respond to the changes like McConnel holding open the Scalia seat and rushing through the Barrett nomination and threatening not to fill Breyer’s seat if Dems lose in 2022 for what they are.
Without giving a specific opinion on whether the law requires Garland to take this approach, I don’t think an attorney general and a normal lawyer like a criminal defense attorney are really comparable.
An attorney general has to take policy positions on behalf of the government. They enforce the law but there is a lot of discretion they have, and that discretion can be judged.
Most attorneys have one job: help their particular client. Whether a good outcome for the client is the “right” outcome in terms of some idea of justice is irrelevant because a normal attorney isn’t responsible for policy decisions or shaping society.
Sure, I generally agree. But the example I was responding to was one where Garland *doesn't* have discretion. Which is why I think it's silly.
This pattern where conservatives build their own partisan alternatives to elite institutions (or least recruitment tools like FedSoc) applies generally to social/political institutions, not just to law. They have Fox News which will uncritically parrot the next GOP talking point even if it completely negates their last talking point; Democrats have the other cable news channels, which reliably lean left but aren't nearly as subject to partisan control, and so they aren't really part of a unified strategic apparatus. The same could be said of policy "experts," particularly liberal vs. conservative economists. In fact I think this is least true in the real sciences, since you can't really build a conservative alternative to chemistry or even epidemiology at this point.
Isn't this more a function of media habits by political affiliation (e.g., R TV skew vs. D web + social media skew)? I'd argue the GOP doesn't have anything similar to Vox.com or even now the WaPost in terms of reach and ideology.
The top preforming news links on Facebook are almost always overwhelmingly from right wing sources like Fox, Ben Shapiro, and Dan Bongino.
I think there's something to that but also there are some pretty big R web/social media outlets. WSJ is old school but still very GOP friendly editorially speaking. The most shared FB posts are consistently from conservative personalities and they have some of the most watched podcasts. I don't know of a Vox equivalent -- maybe National Review? Which, again, is now housed in a nonprofit entity so it can receive conservative foundation dollars, which is not a setup I've heard of on the left.
Same with the Daily Caller too.
Ofc most of them do some of the time. But not as reliably and not to the extent that they can really be seen as part of a unified political apparatus with the Democratic party in the same way Fox can with the Rs. And often when it seems like they are parroting Democratic Party talking points they're really just repeating _liberal_ talking points, which is very different.
You might be right if we're comparing some chunk of the daytime programming, I honestly don't know. But for the big shows like Hayes and Maddow there's no equivalence between how they relate to Democratic politics versus how Carlson/Hannity/Ingraham relate to GOP politics.
Wait - what?
How exactly would you say that Hayes and Maddow differentiate themselves there?
From someone like Sean Hannity? Seriously?
MSNBC’s morning show is run by someone who was literally a Republican Congressman.
The fact that none of us can name one does not prove they don't exist, but it says something about their success in capturing viewership. There probably are some tiny ones, and they're not likely to grow.
It's a moderately popular cable network that has nowhere near the influence on Democratic voters and politicians that Fox has on Republican voters and politicians.
I hear that a lot and I'm not disagreeing exactly. Its just I don't understand how Fox News with a viewership of 2.1 million compared to MSNBC viewership of 1.4 million has so much more influence. Sure its 30% more, but its not like 700k people is that large of a number in a country of 150+ million voters.
I also don't know that there is that much difference between CNN and MSNBC and combined they have a viewership greater than FOX (2.4 million compared to 2.1).
This is simply not true. Obama was attacked on MSNBC for drone strikes, keeping health insurance companies in ACA instead of making it Medicare For All, keeping troops in Afghanistan and an incremental approach to climate change, etc. MSNBC is not a propaganda arm of the DNC. It’s a liberal news channel. Fox is a propaganda tool except for Chris Wallace.
"I mean what’s MSNBC?"
Dunno. I'm guessing it's a cable news channel? I have never seen it (don't have cable). Or rather -- I've probably seen it in one of those hell-holes where people have TVs on, like airports and malls, but I ignored it.
This seems similar to how journalists are quite left-leaning but Fox News is arguably more effective in partisan terms (because Fox News had to be created with more explicitly partisan goals)
This is too interesting and useful to be behind the paywall.
This post summarizes some truisms that even liberals agree are true.
1. Liberals play by the rules. Conservatives fight to win.
2. A liberal won't even defend his own side in an argument.
They just feel dealing with conservatives on their own level is beneath them. It leads to all the handwringing about how McConnell continually steals Schumer's lunch money.
It will be interesting to see how the Supreme Court decisions split and divide now that conservatives essentially can do as they please and which of the liberal justices will go along for the ride.
Wow! I knew academia was disproportionately progressive but not to this extent. No wonder conservatives hate college education. As a retired professor let me defend my profession. In over thirty years of university teaching, I meet lots of progressives. However, I met no one who was actively trying to propagandize students. That said, one of the skills university education attempts to cultivate is critical thinking. Critical thinking is the mortal enemy of sacred cows. Since conservatism centers on the worship of those beasts, it is unsurprising that academics and successful students are more progressive than the non-college educated. Anticipating comments, let me concede that progressives too have sacred cows.
You find plenty of intelligent, critical thinking conservatives outside of academia. Business provides a competitive, results oriented environment than academia and conservatives are common. Academia and peer review encourage group think or echo chambers. I'd argue the differences are value driven and self sorting, not intellectual superiority of one group. But what do I know, I'm a cow worshipper.
You write: "But the official position of virtually everyone who matters in the Democratic Party is that Trump’s misconduct and lawlessness constitute an ongoing threat to the stability of the republic."
The actions of the Democratic Party show this to be untrue. Having Trump around motivates their base, keeps the left flank inside the tent and turns off surburban women. They desperately want Trump to run in 2024 even if that means losing some Black and Hispanic votes along the way.
My hot take is that even Democrats are patriotic Americans who realize that Trump, with ~50% chance of victory in 2024, is too grave a threat to the American experiment to want him to run because of crass political calculations.
Democrats probably won’t underestimate Trump again if he’s the 2024 nominee.
The danger is that Trump doesn’t run and DeSantis is the nominee, and then Democrats underestimate him just like Florida Dems did when he ran for governor.