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Sunday, June 26, 2011

Dangerous, Maybe, But Not Baseless

Randy Barnett has a curious post up on VC (comments, as usual, are not allowed) concerning what he calls the "dangerous effort to delegitimate Supreme Court Justices."  It's kind of a rough mirror-image to Laurence Tribe's New York Times op-ed, which Barnett has criticized (and which I didn't care for either), which sought to buck up the liberal members of the Court and encourage Kennedy to join them on the healthcare litigation.  Barnett writes to praise an article in the American Spectator by Curt Levey that charges that the left has "ganged up" on Justices Scalia, Thomas, and to a lesser extent Alito, raising questions about their ethics in a concerted effort to get them off cases like the healthcare litigation.  This, Levey charges, constitutes a "dangerous escalation in the left's politicization of the court."  Barnett adds:

There is absolutely nothing wrong with criticizing the substance of decisions of the Supreme Court, and there is much to criticize. And there is nothing wrong with bringing genuine ethical lapses and conflicts-of-interest to light. But baseless politically motivated personal attacks on sitting justices are another matter entirely. Although nothing can stop these ad hominem attacks by activists from continuing, one way of muting their influence is simply to be more aware of their sources and motives. Reading Levey’s article is a useful start.

I agree with the first two sentences of that paragraph, of course; they are sufficiently banal and uncontroversial that anyone would.  I still find a few things curious about this post.  The first is Barnett's implied praise for Levey's article, which is basically a clip job connected by a few unargued assertions and talking points.  One needn't expect more, I suppose, but it's not exactly high-order journalism -- more a skillful use of the ctrl-V function.  

Second, Levey and Barnett make much of the "baseless" nature of these attacks.  But while they may ultimately be wrong, they're not baseless.  

Levey depends for his case on drawing a rough equivalence between the attacks on Thomas, Scalia, and Alito, although even he concedes the attacks on Alito have been much milder.  But the most prominent and hotly pursued arguments have been about Thomas's conduct, and specifically the web of connections between Thomas, his wife, and the unclearly sourced and quantified money that his wife has made trading on the world of connections among wealthy and politically active conservatives.  (A phenomenon that is also present on the left, to be sure, and that some of us don't care for in either case.)  Those actions may or may not violate judicial ethics, especially in the especially unregulated area of the Supreme Court, but they do raise genuine questions and genuine bases for criticism.  Neither Levey nor Barnett supply any meaningful information or argument about this.  

The basis for criticism of Scalia -- such as that he has spoken privately to a group of conservative members of Congress -- is much weaker.  But then, the argument that those criticisms have been part of a sustained movement on the part of the legal or political left is also weaker.  Levey's own article notes that many establishment liberals defended Scalia, and doesn't make any effort to show that criticisms of Scalia on the part of some on the left resulted in any concerted or serious attempt to make the episode into an ethics complaint.  (Incidentally, there is no mention of hunting trips with the Vice President.)  Finally, Levey writes of Alito:  "Even Alito's natural reaction to Obama's State of the Union ambush -- in which the Justice shook his head and mouthed "not true" -- has been widely portrayed as evincing a lack of impartiality and professionalism."  Well, natural though the reaction may have been, it arguably did show a lack of professionalism!  And again, it does not form a basis for arguing that Alito has been the subject of a concerted conspiracy to "delegitimate" him in general, let alone to force him to recuse on anything.  So, in the final result, neither Barnett nor Levey show that there has been a concerted effort to take formal or even unusual informal measures to delegitimate these three Justices or force their recusal.  The best arguments on that score concern Thomas -- whose actions have also been the most subject to legitimate criticism.

Third, Levey and Barnett's argument seems to be that this is both peculiar to the left and unprecedented and constitute an unusual and unusually dangerous effort to intimidate the right wing of the Court.  One needn't like these kinds of actions to say they're not unusual.  Levey's own article incidentally criticizes Ruth Bader Ginsburg for similar conduct, and repeats a commonly made assertion (which is not to say it is illegitimate) that Elena Kagan faces similar needs for recusal on the healthcare litigation.  If I read that point once from Ed Whelan on the National Review's Bench Memos blog, I read it a thousand times (although, to be fair, such is Whelan's writing that to read a single post by him is to feel as if one has read it a thousand times).  Countless standard-issue speeches by conservative politicians are aimed, in part, at achieving precisely the same goal that Barnett and Levey contend is behind the left's talk: namely, to argue that the left wing of the Court is acting illegitimately and is purely political, and thus to threaten or chasten them.  Did Levey, moreover, forget delegitimating rhetoric, and sometimes legislation, within the last ten years or so on the part of members of Congress like Rick Santorum and Tom DeLay?  Or that the successful attacks on Abe Fortas's ethics were not a stand-alone action, but were deliberately followed by efforts to draw Justice Brennan into similar ethics controversies?  Or similar attacks on Judge Reinhardt (which, like those on Thomas, had some legitimate foundation, whether they are ultimately right or not) or Judge Vaughn Walker?

Finally, I am not sure of the connection between "baseless" and "politically motivated" in Barnett's argument.  If an attack on a justice's ethics is baseless, I ought to dislike it whether it is politically motivated or not.  If it is warranted, I'm not sure how much I ought to object to the shocking -- shocking! -- possibility that it is also politically motivated.  The attacks on Fortas were warranted; they were also entirely politically motivated.  If Barnett thought the attacks on Thomas were more warranted than he appears to believe they are, would he still say that it makes a difference that they are politically motivated?  Conversely, would he say that it was wrong for the Republicans, including then-Congressman Jerry Ford and Attorney General John Mitchell, to have investigated and attacked Fortas even though there was a basis in fact for those attacks, simply because they were obviously politically motivated?  If one believed that Thomas genuinely ought to recuse on the healthcare litigation (I'm not saying he should, although I doubt Thomas will be eager to supply me with the information to make that decision), would it somehow be odd that the people most likely to press that case would also be the people most likely to gain from it?  

It seems to me that Barnett's focus on motive, in the end, brings very little to the table.  The real work is done, in his case and Levey's, by first lumping together the baseless and the less baseless criticisms of the recent behavior of justices like Thomas and Alito, and then using the latter to treat the former as utterly without foundation.  But there is a difference between the two, which is why Alito and Scalia have found many liberal defenders on these issues and have been the basis of no real concerted efforts to question their ethics in any formal fashion, while Thomas has been a lightning rod for politically motivated but legitimate criticism.  Everyone has motives for action, and in politics those motives are generally political.  I may find that distasteful.  But I don't think Barnett or Levey have made anywhere near a strong enough case that what is going on here is unprecedented, limited to the left, illegitimate because politically motivated, or illegitimate because lacking in foundation.  

I will agree with Barnett in one particular: these kinds of actions bear watching, and one may certainly find them distasteful.  (Incidentally, I also find the web of favors, subsidize private plane trips, donations to spouses, and mutual back-slapping among the rich and powerful that characterizes some of the Thomases' conduct equally distasteful, and I don't much care for that kind of behavior among the left elite either.  A great many people in this world, including Justices, seem to have an undue attachment to being complimented by rich folks.)  I'm not sure whether one really can or need say more than that, rhetoric about the rule of law and the separation of powers notwithstanding. 

Posted by Paul Horwitz on June 26, 2011 at 11:56 AM in Article Spotlight, Paul Horwitz | Permalink


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As a former student of Barnett's, I get the sense that he would've closed Con Law I to comments if it was possible.

Posted by: Doctor Chim Richalds | Jun 27, 2011 12:37:51 PM

Hi Paul,
I've read this a few times, and even drafted a response for CoOp, but I figured it might be better to write here, since part of my disagreement with you may (likely) be that I don't understand exactly what you are saying.

One way to read what you wrote is that we shouldn't pay attention to motives in discussion of the ethics of powerful people - just the "facts". I understand some of the advantages of that position, but I think don't think that it can be right. Surely, motive matters -- especially when we're not all equally well-positioned to know the facts (or law) -- it's important to know what the accuser's priors are, so we can evaluate the claim more clearly. Here, for example, Barnett's own motives in defending Justice Thomas are concealed in his post, and you don't bring them up. Would a novel reader understand that the Justice is his only sure vote in the ACA case-to-come? At the same time, not so clear to me that ethical violation is about facts, exactly, but rather about public perception of facts ("would a reasonable person think that jurist influenced...") Here, trying to capture and frame allegations as either partisan/reportage obviously matters.

More charitably to Barnett, and thus in starker disagreement with you, maybe he's saying that we ought to be careful in ascribing political motives to judges, in part because they will then be more likely to act in political ways. (In the way that experiments show that supermarket tellers who believe themselves to be watched by their bosses are sometimes, not less, likely to shirk.) That is, there's a pathology in public debate where we constantly talk about justices as political pawns, and their decisions self-consciously ideological. On this view, Barnett is right that criticism of judge's politics is dangerous -- it makes the judges more political & less exemplary followers of constitutional norms.

And I'm really confused by your last sentence. Are you saying that's there's a rough equivalence to all of this, such that all we can do is shrug (at ethical conflicts, or partisanly skewed allegations of conflict)?

Anyway, figured that exposing my lack of understanding might prompt you to say s'more about what you originally meant. And since you kept comments open...well, why not!

Posted by: dave hoffman | Jun 29, 2011 5:08:46 PM

Good comments, Dave; thanks. I won't offer a full response, and I'll candidly admit that as with most of my posts, I used the occasion to think through these issues, not because I had a fully worked-out response. My short answer is not that motive is entirely and always irrelevant, but that I think Barnett ends up making motive do more work than it should, and in a way that doesn't fully reflect the degree to which people act with mixed motives, or even the degree to which motives are a standard and healthy, or at least unexceptional, part of public argument. I think he gives too little weight to some of the more serious ethics claims that have been made (in part by combining them with weaker ethical claims, eg. about Scalia and Alito, that have been made by fewer people), and then tries to cast further doubt on those claims by attacking the motives of the people who have made them. I understand the point made by your charitable reading of Barnett -- that it's important not to talk about law in terms of politics lest we make it a self-fulfilling prophecy -- but I'm not that persuaded by it. I don't think judges do pure politics, but I don't think they're hors de combat either, and I would rather we talk honestly about these matters than that we avoid talking realistically in order to uphold a particular and to my mind somewhat unrealistic ideal about how judges think and act. (I say the same thing, incidentally, about similar recommendations made by Farber and Sherry in their recent book; see my Const. Comment. review.) And the point of my last sentence, I think, is not that we should shrug at unethical conduct, but that Barnett says more than he can reasonably say in his post, and in particular gets unearned mileage out of Law Day phrases like "the rule of law."

Posted by: Paul Horwitz | Jun 30, 2011 7:53:06 AM

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