Of course I admit that there are people who are outraged at the Court’s handling of some of its abortion cases!

(Not all of the Court’s abortion cases, of course; I’m sure they’re not outraged by the abortion-funding cases — and that’s part of my point).

I think I understand — I gather your point is about recognizing complexity. Got it; I hadn’t understood that.

Now you ask me about how a reflective civil libertarian should have reacted to a single case (Korematsu).

These are very different questions, with very different answers.

1) How should a thoughtful and reflective civil libertarian have reacted to Korematsu? Well, I like to think I would have been outraged. (See Murphy’s dissent, and Eugene Rostow’s famous article.)

2) How would a thoughtful and reflective civil libertarian have described the decade that included the 1944 decision in Korematsu? I like to think that I would have had a view that was less “outraged” and more nuanced. After all, I would have been looking at *lots* of data points over *lots* of time.

Again, we have to remember that what we’re talking about here are outraged broadsides against the Court’s entire work product — over a decade, or many decades. I do think that a position of outrage about a decade or decades of the Court’s work is one that’s probably focusing on a couple of data points and selectively ignoring many others.

If you disagree with this distinction between reaction to a case and assessment of the Court’s work over decades, then suppose I’m not entirely sure of what you are arguing. I would guess that you might actually be arguing that the last decade of the Court’s jurisprudence can fairly be described as outrageous. Or that a social conservative would be right in assessing the last decade of the Court’s work as outrageous, but you don’t because you don’t consider yourself a social conservative? Am I right about one of those, or is it something else?

I think you have given a thoughtful and reflective perspective of a legal realist who accepts the institutional status quo but happens to have some policy preferences. But is that really the perspective of someone who feels deeply and passionately about the issues?

I wonder, for example, how you think a thoughtful and reflective civil libertarian in the 1940s should have reacted to Korematsu. Would this thoughtful and reflective person think, “Well, my position has not prevailied in its pure and crystalline form. But despite feeling somewhat disappointed, I think I’m in good shape over the next few decades”? Or would that person be deeply outraged?

I suppose I’m not sure of what you’re arguing: Is it that the Supreme Court shouldn’t trigger outrage, because reflective people don’t get outraged?

“Imagine yourself a social liberal who cares most passionately about issues like choice, gay rights, and the separation of church and state.”

From this perspective, looks like a loony-right court imposing its social values, doesn’t it? I think this fits in with the idea of Total Victory.

Just because you want your policy preferences enshrined in law doesn’t make them constitutional. It goes back to the legitimacy of various methods of constitutional interpretation. There were howls after Brown; was that illegitimate? Pick your constitutional decision. Plessy?

When I mentioned the death penalty, I was thinking of Roper v. Simmons. I probably should have said federalism instead (I was also in a hurry to get somewhere yesterday, although thankfully it wasn’t the dentist).

While I’m not sure I completely agree with your post, I thank you for taking the time to thoughtfully respond to my point.

Though you don’t say it, you seem to be defending the notion that a thoughtful and reflective Court watcher who cares deeply about social issues would rightly reply to the current Court not with “disappointment” but with a howl of outrage (which, incidentally, is where we started, with the absurd words of Mark W. Smith that I (and you) criticized), and there I disagree with you. A howl of outrage would come only from someone who wants Total Victory — the establishment, from foundation to ceiling, of his/her own preferred jurisprudential edifice and outcomes.

Not only do I think that we learned from Roe that Total Victory isn’t necessarily something to wish for, but I also think that thoughtful and reflective Court observers (which Mark W. Smith and his ilk decidedly aren’t) don’t tend to be Total-Victory-seeking warriors. If they do repeatedly howl when a Court appointed from the ranks of their own party doesn’t do precisely their bidding, I think they undermine the plausibility of the idea that they are pressing for a reasonable and sustainable rule of law.

Your use of the word “disappointment” is rather odd, I think. It is a very distant and detached word, the sort of unemotional reaction you get when you you wanted to order the ravioli but the kitchen was out. If you are passionate and care deeply about these ideas — that is, if the Court’s decisions cut to the bone of how you look at the world — aren’t you going to be a heck of a lot more than just “somewhat disappointed”?

Orin asked: “Imagine yourself a social conservative who cares most passionately about issues like abortion, gay rights, and the role of religion in public life. If you were in these shoes, how would you describe the Supreme Court of the last decade or so? In particular, how would you describe the votes of David Souter and Anthony Kennedy in the cases in this area?”

And Doug H. added: “What if you were a conservative who cared deeply about private property, affirmative action, and the death penalty?”

I see Orin and Doug as asking about very different areas. I’ll take Doug H.’s first. If I were a conservative who cared deeply about private property, affirmative action, and the death penalty, how would I describe the Supreme Court of the last decade or so? On property rights, if I allowed myself to think about something other than the caricature of the Kelo decision that gets bandied about on talk radio, I think I’d be pretty happy. Property rights have done fairly well — both directly, through changes in takings doctrine (Dollan, Nolan, Lucas, Loretto, and others), and indirectly, through changes in commerce clause and federalism doctrine. Affirmative action? Again, while I might be disappointed that the Court had not managed to establish total colorblindness in every nook and cranny of this area of the law (assuming, that is, that a “conservative” is necessarily against any sort of racial preference — something that strikes me as contestable), I think I would probably see Grutter as a modest, highly contextualized exception to a more general hostility to race-conscious awarding of benefits. And the death penalty? I’m not even sure what a conservative really has to be upset about here, at least in terms of the Court’s performance. Public acceptance of the death penalty may be on the wane these days, but it’s not because of doctrinal change engineered by the Supreme Court. The Court has crafted a standard for effectiveness of defense counsel that is so low that it allows people to be executed after being defended by a lawyer who was asleep at trial. (I’m not at all clear on why a conservative should wish for a posture of judicial “friendliness” to the administration of the death penalty, by the way, but I’m taking as a built-in assumption of Doug’s that a conservative wants a pro-death-penalty Court). And the Court has both crafted and enforced rules of waiver, exhaustion-of-remedies, and retroactivity that create byzantine challenges out of cases with eminently plausible claims of actual innocence. So I really don’t think that as a thoughtful and reflective conservative (the kind that Orin said I should be imagining myself to be), I’d have a strong basis for decrying the judiciary as being under the domination of a “loony left,” or any left, as Mark W. Smith would have us believe.

Now to Orin’s questions, which focus on the likely view of a thoughtful and reflective conservative who cares most deeply about social issues — abortion, gay rights, and the role of religion in public life. Here I suspect that such a conservative would have a greater entitlement to feeling a sense of disappointment, especially in the votes of Souter and Kennedy, although I don’t think it would really rises to the level of out-and-out betrayal. In the areas of abortion and gay rights, I see the center of the Court as pressing, with some studied ambiguity, for these issues to be the subject of public deliberation in the political processes chiefly of the states, and to a lesser degree of the federal government. A social conservative might wish for the Court simply to declare that the federal Constitution simply has *nothing whatsoever* to say about these matters — something Souter and Kennedy obviously have not said — but Kennedy at least has been notoriously vague about what the Constitution actually *does* have to say about these matters, and I strongly suspect that he’d be inclined to see the Constitution as tolerating quite a broad range of political resolutions of these debates, saving only those that are shot through with bare and unadorned animus or reveal overtly religious (and even denominational) straightjacketing. (On this point, I doubt that even Souter is terribly far away.)

(I’ve not been a close enough student of the religion cases Orin mentioned to feel comfortable opining about them.)

So I guess what I’m saying, at the end of it all, is that on the “social issues,” a thoughtful conservative has good reason to feel somewhat disappointed with where the Court has recently gone, and with Anthony Kennedy for helping to chart that course. But I just don’t see the basis for howls of outrage or betrayal — or for depicting Kennedy or Souter as judicial “liberals” (by which I guess I mean someone in the tradition of Thurgood Marshall) or “leftists,” let alone “loony” ones.

That’s very true.

They aren’t hard to classify. People who don’t like a decision almost always call it illegitimate because it is antidemocratic in some sense of the word democracy. Since democracy requires majoritarianism, we can easily check the speaker against the rest of the community. If I say that the decision is illegitmate because it is antidemocratic, and 55% of the nation’s population disagrees with me, then they are right and I am wrong, because the decision is democratic and thus it is legitimate.

I’m glad we are in agreement in principle. It seems to me that if the evidence is mixed, then the evidence is mixed: We can say that the Court’s decisions are hard to classify, or that they are ideologically eclectic. That in itself is a very valuable contribution, isn’t it?

Maybe they paint pictures of stark contrasts because they are VERY coarse measures that are incomplete.

Personally, I’d like to norm the Supreme Court to the typical person on earth. Then everything will be right-wing.

Because the claim is often made that the United States is an empire or at least the world’s governing body, norming the Supreme Court to the typical person on earth might be useful in telling us whether the Supreme Court is legitimate in the community of nations. Likewise, norming SCOTUS to the typical American voter is useful in telling us whether the Supreme Court is legitimate in the American electoral community because American citizens often claim the Court is antidemocratic in a way that exceeds the counter-majoritarianism necessary and sufficient to secure judicial independence. Simply to be thorough, we could also norm the Supreme Court to the typical voter in each state and to each sizeable voting demographic (i.e.,religious denominations, racial classifications, race, class) and to each political party with a membership above 5% of the total population. Then we could compare whether the claims made these partisan groups reflect what the typical American voter, the typical voter in any state, the typical voter from any sizeable political party or voting demographic views as legitimate or antidemocratic. We would probably find that the partisan activist groups you speak of are hyperbolic sophists who are misdescribing reality in accord with their ideology.

That’s surely an admirable goal, and one I’d support. Sadly, even setting aside the political realities, I don’t think it’s practicable for the reasons noted above re: the necessity of making totally subjective judgment calls.

Let me push the example I just offered to its limits. Imagine a Supreme Court universe that held just two cases: Stenberg and Lopez. Grant that Stenberg was more left-wing than the American people (arguendo) and Lopez was more right-wing than the American people. Now how do we design defend any method for generalizing from those cases and saying that the Supreme Court as a whole is more left-or-right wing than the American people?

You say that “selection of the frame of reference necessarily is a normative claim, because of the pragmatic realities of the political situation.” I couldn’t disagree more. It is true that many people pick references to score political points; they’ll pick the frame to substitute for actual analysis, and let the frame do the work. But the fact that this is common doesn’t make it necessary. Maybe I am just naive, but I see our goal as trying to get beyond this game-playing to see if we can reach a deeper understanding of the Court regardless of our ideological views. The goal is insight, not scoring political points for a side. But maybe others look at this differently.

On the first point, my claim is that there’s no principled way to make those judgments based on anything other than the political bias of the observer. If that’s the case, then the utility of calculations based on those judgments approaches zero. There’s no more reason to believe my calculation of the net effect of Supreme Court decisions than yours or Eric’s or Mark W. Smith’s, and all those calculations can be expected to be wildly divergent. It oversimplifies a complicated picture.

The only honest way to do it would be to divide it up by categories. We could say that the court is leftish on abortion and commerce clause, and rightish on the fourth amendment and government prayer. That at least would minimize subjective importance judgments about the different categories. However, it would do little good in resolving the perennial fights about whether the court as a whole is “left-wing” or “right-wing.” Moreover, the question would then become determining HOW left/right wing any given decision is. Is Stenberg v. Carhart more left-wing than U.S. v. Lopez was right wing? How many leftness points go to Stenberg, and how many rightness points go to Lopez? Again, that’s a question that will have many answers from many different people, and no obviously principled way to argue that some of those answers are wrong.

On the second point, I think selection of the frame of reference necessarily is a normative claim, because of the pragmatic realities of the political situation. The original post highlights that nicely. The right-wing commentators use the claim that the court is further left than the american people as a proxy for a claim that the court is making decisions on an illegitimate basis. Left-wingers don’t usually use the American people claim, but the left claims that the court is right-wing compared to historical courts in a similar move, with the implied claim that this represents an illegitimate change (perhaps an undermining of stare decisis).

Those who would compare the court to one or another population can sincerely disclaim such intentions, but there’s no disclaiming the fact that the political meaning of statements like “the court is further to the left than the American people” is understood as normative.

“Stupid” was an ill-chosen word. I withdraw it. I’m sticking to “pointless” though.

Incidentally, all these arguments I’m offering apply with equal force to claims that the media is either left or right-wing.

I don’t think I follow your response.

Re the first point, the fact that we need to make judgements about the net impact of different decisions doesn’t mean that such judgments are impossible. It only means that they require judgment, and we make these sorts of judgments all the time. For example, how do you know that you are (as you say) “left-wing”? Surely you have complicated views, and some of your views are hard to categorize. At the same time, you feel comfortable labeling yourself. If you can label yourself, why is it “stupid” to label the Supreme Court?

On the second point, you object to the American median voter norm because you think that “what we’re really saying is that the positions of the courts should follow the positions of the elected branches.” But no such statement is implied. It’s just a measuring stick, a frame

of reference, not a hidden normative claim. We could also use your own preferred standard of the typical person on earth; I think it’s much less helpful, as the existence of nation states makes politics more local than that, but it’s at least conceptually possible to do that on a number of issues.

I can’t agree. WRT your first point, calculation of a “net” effect would be frustrated by the differing weights given to various decisions. Ten left-wing decisions on commerce clause issues would be outweighed for me by one right-wing decision on holding prisoners without trial. I’d view that as an overall rightward trend, and quite a significant one at that. By contrast, a Cato Institute guy who was concerned about federalism and economic regulation would believe that the commerce clause decisions far outweighed the national security decision, and might even see ten national security decisions as less significant than one major commerce clause decision. It’s hard to see how me and the Cato Institute guy would ever see eye-to-eye.

WRT your second point, I’m not sure why norming our judgment of the court’s political leanings to the political preferences of the typical American voter is appropriate. You agree that generally, when we (from either side of the spectrum) say that the court is leaning “right” or “left,” that’s really a coded way of saying that the court is illegimately injecting the political views of its members into its decisions? Even if that’s not the intention when such claims are made, it’s certainly the interpretation that partisan groups will give it.

If so, then by norming our right/left claims to the political views of some typical American voter (mean, median, or mode, one wonders), what we’re really saying is that the positions of the courts should follow the positions of the elected branches. That’s a controversial claim, and not one that should be buried in the decision to compare the court’s political stances to a specified group of people.

(Personally, I’d like to norm the Supreme Court to the typical person on earth. Then everything will be right-wing. Anthony Kennedy, eat your heart out.)