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Monday, October 04, 2010

Watch as We Make Conservative Mean "Evil"

I like both Dahlia Lithwick and Barry Friedman, but I was really disappointed in their latest article for Slate.  In "Watch as We Make This Law Disappear", Friedman and Lithwick endeavor to explain to the average Slate reader how the Supreme Court has managed to hide its conservatism.  The average Slate reader probably reads the New York Times, and (if so) would be surprised to hear that the Supreme Court is not conservative.  Nevertheless, Friedman and Lithwick maintain that the average American is confused about this.  They argue:

Under the stewardship of its boyish chief justice, John Roberts, the court has taken the law for a sharp turn to the ideological right, while at the same time masterfully concealing it. Virtually every empirical study confirms this rightward turn. Yet recent public opinion polls indicate Americans continue to see a bench that is, if anything, a wee bit too liberal.
Two notes on that Rasmussen poll data -- on which their entire article seems to hinge.  First, the article finds a big disparity between the U.S. judiciary as a whole (38% say too liberal, 18% too conservative) and the Supreme Court in particular (33% too liberal, 27% too conservative). Second, and more importantly, seeing the Roberts Court as very conservative or more conservative is quite different than seeing the Court as too conservative.  It's possible to believe that the Court is conservative, relative to other Courts in the past, but still not conservative enough.  This is not only conflating too different things -- it undercuts their entire argument.  Because if the people actually want a more conservative court, the rest of their argument kind of falls apart.

The Friedman/Lithwick conceit is that the Roberts Court, and the Chief Justice himself, are magicians concealing their conservatism from unsuspecting citizens.  There are two problems with this thesis: (1) the Roberts Court isn't really hiding anything, and (2) they present no evidence that the people would be horrified, even if the scales were to drop from their eyes.  A few examples are instructive.

One of the projects of the Roberts Court, according to F/L, is to get rid of Miranda.  They claim:

The conservative justices hate Miranda v. Arizona, a case familiar to any American who has ever watched a cop show on TV ("You have the right to remain silent," etc.). The justices' problem is they can't quite overrule the decision. Why not? Because polls show about 80 percent of the country approves of the rule.
So what is the Court doing, according to F/L?  Undercutting Miranda by stacking the deck with bad cases.  They claim that "the Roberts Court has been brilliant at stacking the deck—choosing to hear only Miranda cases in which what the police did is so sympathetic, or what the suspect did so awful, it's impossible to side with the suspect."  This is a sleight of hand, they claim, because people like Miranda but may not be sympathetic in these extreme cases.

Of course, the problem with this is that the "people" -- as well as the Court -- can have it both ways.  They can have Miranda as the general rule and still make exceptions in extreme cases.  Friedman and Lithwick, however, don't see it that way.  They cite Maryland v. Shatzer as a case in which the Court is dealing a serious blow to Miranda.  But -- as the 9-0 result makes clear -- allowing the Miranda request for an attorney to dissipate over two-and-a-half years is not eviscerating Miranda.  Even Stevens concurred in the judgment on this basis.  But F/L are alarmist:

Can the Miranda rule possibly prevent police from questioning a suspect three years later? On these crazy facts, basically the entire court—all nine justices, conservatives and liberals alike—disagree with Shatzer's claim. You might say, who cares: Shatzer deserves what he gets and worse. But that's the point: It isn't just Shatzer who gets it. All of us do. Shatzer gets more time, and the rest of us get the magic disappearing Miranda rule. Many experts who follow the court closely on this issue will tell you that Miranda is today a façade. It looks nice from the street, but there is virtually nothing behind it.

Look, if you think Scalia's majority opinion eviscerates Miranda, then explain.  But I don't see how Shatzer's loss eliminates my Miranda rights -- unless it's my right to exclude my confession two-and-a-half years after I asked for an attorney.  Is Miranda really a facade because of Shatzer?

Friedman and Lithwick sometimes seem to claim that the Court is bound by past precedent, as in this exchange: 

Here's another example: Roe v. Wade. The conservative justices don't like it, but they can't simply overrule it because … well, there's that public opinion to consider, and this pesky legal issue known as 'precedent.'

That's grossly misleading to a non-legal reader.  It implies that the Court cannot legally overrule itself.  At another point they argue:

Roberts and Justice Samuel Alito found themselves in a similar bind. Having both pledged at their confirmation hearings that they would respect precedent, and had 'no quarrel' with foundational cases and doctrine, they were locked into a legal universe that for them would quickly become airless.

Again, this implies that the Court's jurisprudence is somehow set in stone -- or at least the Warren Court's jurisprudence.  But then, the thoughtful reader might wonder, how did the Warren Court itself set all those precedents?

Friedman and Lithwick make it clear that they equate "conservative" with bad/wrong, as in this passage talking about cases where a "liberal" justice joined the majority:

Don't be fooled by the fact that the lady in the box looks like she has been split down the middle. These are all still conservative results. When the trick is over, these results—just like the lady—are going to climb down off that stage and start working their way in the world.

Friedman and Lithwick don't seem to buy the possibility, however, that these conservative results are actually within the mainstream of American political ideology.  Ultimately, to buy Friedman and Litchwick's arguments, you have to buy their parade of horribles:

The chief justice isn't really an illusionist, though, and the Supreme Court is not theater. It's real life. Today, because of the Roberts Court's decisions, state and local governments face greater obstacles to integrating their schools and getting guns off their streets. Second-term abortions are harder to get and often more expensive. Injured plaintiffs are tossed out of court without any sort of hearing. Criminal defendants? Forget about 'em (the court has).

I think some of these -- particularly the last one -- are oversimplified.  It's not clear to me, though, that the public really disagrees with any of these.  And if these results aren't so horrible after all, then perhaps that's not a magic trick -- it's just a popular approach to constitutional jurisprudence.

UPDATE: Orin Kerr discusses the direction/location distinction.

Posted by Matt Bodie on October 4, 2010 at 05:57 PM in Blogging, Constitutional thoughts, Current Affairs | Permalink


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if they did so accuse the Roberts Court, it was accompanied by an article stating their reasons (unpersuasive though they might be). Y81's charge was just mean accusations w/o argument. I suppose if that person said: I agree with Bodie's brilliant post and that seems to amount to intellectual dishonesty (or at least foolishness), and thus incorporate by reference...fine.
If that was the gist of Y81's comments, my apologies. But I would like the tone to be one where we apply some principles of interpretive charity rather than accusations of dishonesty. Call me crazy (actually, please don't... :-)

Posted by: Dan Markel | Oct 6, 2010 5:44:51 PM

That's fair -- "evil" is probably not what they were going for. It's just that there's a suggestion of fraud or concealment, which seems nefarious to me, at least.

And I probably shouldn't weigh in on stuff like this, but y81 was accusing Friedman & Lithwick of intellectual dishonesty. Isn't that what they were accusing the Roberts Court of?

Posted by: Matt Bodie | Oct 6, 2010 2:20:35 PM

I just want to say that Dahlia's a real person and indeed someone I know, so, notwithstanding that she's a public figure of sorts, the same standards I apply elsewhere apply to her and to other prawfs on this site: no anon comments that are just ad hominem/feminem. There needs to be an actual argument, preferably with a real signature and verifiable email address. Y81, you're out.

I should add: when I showed Dahlia this post, she clarified that she didn't think she was calling anyone "evil" (fwiw).

Posted by: Dan Markel | Oct 5, 2010 9:16:47 PM

Faragher certainly was a pro-plaintiff case. It overturned a lower court ruling against a plaintiff. And the plaintiff's lawyer in Faragher, Mr. Amlong, publicly admitted at the time that it overruled key aspects of the Supreme Court's decision in Meritor Savings Bank v. Vinson (1986) with regard to limits on vicarious liability.

Ledbetter is a rare exception to the pro-plaintiff trend that had only a modest effect in the real world. While Ledbetter said that employees who choose to sue under the discrimination statute with the shortest deadline (Title VII) generally have to sue within 180 or 300 days of the start of the discrimination, the Ledbetter decision left unaffected and unimpaired the much longer statutory deadlines for suing contained in other laws that also ban pay discrimination, like the Equal Pay Act, where the deadline is generally 3 years for suing (or 2 years for unintentional violations).

Ledbetter's lawyer goofed in not preserving Ledbetter's Equal Pay Act claim on appeal, but that's not the Supreme Court's fault. The Court noted at the very beginning of its opinion in Ledbetterthat Ledbetter had inexplicably failed to press her claim under the Equal Pay Act:

"Petitioner, having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII."

Ledbetter is actually a textbook case of biased reporting of the Supreme Court among liberal journalists. They claimed that the Supreme Court had created a rigid 180 day deadline, when the court went out of its way in footnote 10 of its decision to note that the result might have different had the plaintiff alleged that she had not discovered the discrimination in time to sue. (If Ledbetter really had lacked knowledge of the pay disparity she later sued over due to deceit by the employer, Ledbetter could have relied on the well-established doctrines of equitable tolling or estoppel, as the Supreme Court's Zipes opinion illustrates).

Ledbetter admitted in her own deposition that she had known for 5 years of the pay disparity she alleged before filing her EEOC complaint, as the National Journal's Stuart Taylor has noted (as have Ed Whelan of National Review, Robert Alt of the Heritage Foundation, and former EEOC lawyer David Copus. Alt has a copy of her deposition).

Thus, Ledbetter did not, as Linda Greenhouse claimed, learn of the pay disparity only around the time she retired, after it was too late to sue.

Instead, Ledbetter knew of the pay disparity for at least five years before she sued. Whether or not the Supreme Court was correct to dismiss her lawsuit (which her own lawyer undermined by choosing to press her case on appeal only under the law with the shortest deadline for suing, Title VII), it was certainly not biased in favor of employers in doing so.

Posted by: Hans | Oct 5, 2010 12:21:38 PM

I'm not defending the piece Matt critiques, but somebody has to point out that Hans is seriously misrepresenting a chunk 'o cases above, especially in the Title VII context. Faragher as a pro-plaintiff case? Seriously? Indeed, Congress has had to amend Title VII a couple of times to restore its intent and meaning after the Supreme Court read it in an pro-employer manner. Or are we forgetting Wards Cove (and subsequent legislative fix) and Ledbetter (and subsequent legislative fix)?

Posted by: Joseph Slater | Oct 5, 2010 10:40:54 AM

One should always take Rasmussen polling with at least a few grains of salt. Rasmussen's likely-voter screen is known to by biased towards Republicans, so naturally his published numbers will appear to show a more conservative electorate than is actually the case.

Posted by: Garrett Wollman | Oct 5, 2010 12:57:54 AM

Slate’s Dahlia Lithwick falsely claimed on Sept. 26, 2009 that in the Supreme Court, “big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death row inmates get the needle, and criminal defendants are shown the door.”

That false claim is utterly inconsistent with reality. Over the last dozen years, the death penalty has been dramatically cut back in cases like Roper v. Simmons (2005), as the Supreme Court has invalidated the death penalty when imposed on the “retarded” (even the mildly retarded) or juveniles (even 16 to 18 year-olds), or when imposed by judges rather than juries (as state laws long provided).

The Supreme Court overturned thousands of sentences given to criminal defendants in cases like U.S. v. Booker (2005) and Blakely v. Washington, regardless of defendants’ guilt, based merely on the fact that judges, rather than juries, had made findings related to those sentences. The supposedly “right-wing” justices Roberts, Scalia, and Thomas joined in these decisions.

Environmentalists won many cases, including one of the most economically-significant decisions ever — Massachusetts v. EPA (2007) — which potentially opened the door to EPA regulation of virtually every human activity, on the grounds that virtually all activity (from industrial production to farming to cars) emits carbon dioxide. That decision also created a special rule of standing to allow state attorneys general to bring lawsuits that would otherwise be thrown out as meritless for lack of standing.

The Supreme Court recently allowed businesses to be sued even for products the FDA deems to be safe and effective, in Wyeth v. Levine (2009), in a ruling that Ted Frank called the most anti-business decision in 43 years.

The Supreme Court has steadily broadened businesses’ liability for discrimination against female and elderly workers. It continuously expanded the definition of sexual harassment, overturning earlier limits on vicarious liability (in Faragher v. Boca Raton (1998)), allowing institutions to be sued based on the acts of non-employees (in Davis v. Monroe County (1999)), and rejecting longstanding lower-court limits on lawsuits where there is no economic or psychological harm (in Harris v. Forklift Systems (1993)). It also allowed businesses to be sued for discrimination against elderly workers even absent any showing of discriminatory intent or differential treatment (in Smith v. Jackson (2005)). All of these decisions reversed lower court rulings in favor of businesses. The Supreme Court often rules against business in discrimination cases.

In short, Dahlia Lithwick’s perception of the Supreme Court bears no relation to reality.

I also discuss and debunk the false meme that the Supreme Court is pro-business in my recent publication in the Cato Supreme Court Review, Free Enterprise Fund v. PCAOB: Narrow Separation-of-Powers Ruling Illustrates That the Supreme Court Is Not ‘Pro-Business,’ 2009–2010 Cato Supreme Court Review 269, 283–84 (2010).

Posted by: Hans | Oct 4, 2010 10:42:25 PM

It's kind of funny to me that you're taking this seriously enough for a lengthy response. The direction/location distinction is so obvious, and so obviously ignored in the authors' first paragraph, that it had to be conscious hackery. Lithwick's certainly smart enough to recognize the distinction.

Posted by: JAB | Oct 4, 2010 6:56:56 PM

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