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Saturday, November 19, 2022

Please Be Interesting!

Today's New York times story in which, to quote the lede, "a former anti-abortion leader has come forward claiming that another breach occurred in a 2014 landmark case involving contraception and religious rights," can fairly be described as scandalous, and as such will give rise to all sorts of uninteresting commentary. Although I think that "novelty," as it is treated, is an immensely silly standard in legal scholarship, I acknowledge that no such standard applies to public commentary or should. Although public commentary often favors "fresh" takes, mostly they only need be hot, no matter whether they are stale and rewarmed or not. And a "take" doesn't need to be "novel" to be true or make a useful contribution. (The same can be said of legal scholarship, which is one reason the novelty fixation is so silly.) Nevertheless, given the amount that will be said about this, it would be nice if people--especially people who know better--tried to ask slightly more interesting questions about the latest news. I don't think most of the questions below are terribly interesting and they are certainly not novel, but they might do for a start:

1) One is more a comment than a question and is decidedly not novel: In politics, or law-and-politics, the scandal almost always is not what is illegal but what is legal. One might add, the scandal is not just what's legal, but what's legal and accepted the vast majority of the time. To put it in question form: How many of the actions discussed in this story are not only legal but generally taken for granted? When do we bother noticing them and when are they treated as just part of the way the world works? 

2) What is the right balance between isolation and non-isolation for judges and justices? One possible result of a story like this is that the justices will retreat ever further into monkish existences. Perhaps they should; perhaps they can't be trusted to do otherwise, or can't trust others not to abuse their access. Certainly there will be calls for the justices to change their behavior as a result of this story. And it is certainly a common observation that judges and justices should in all sorts of ways retreat from many aspects of their former lives. But it is also common to hear complaints that the justices, especially, are too insulated from real life, too disconnected from the currents of the times. What's the right mix? In thinking about that, we should not take the current default, or some imagined current default, as a given. 

3) Is it the current degree of insulation that is aberrant, and not the departures from that insulation? I offer this in no way as exculpatory of any particular current conduct. But the story of the Court in the 20th century, as a minimum, and of its justices' contacts with politicians and others, without excusing any particular conduct today, is one of frequent contact with--indeed, immersion in--political life and political friendships by the justices. This relates to question 2. We might ask: Are the norms that are supposed to guide judges and justices today realistic and workable? Or, by being unrealistic and unworkable, do they encourage and lead to corrupt approaches, secrecy, and so on? Should those norms and rules--to the extent there are any actual rules--be enforced more strictly, but also relaxed? Ruth Bader Ginsburg's friendship with Nina Totenberg, for instance, was certainly corrupting for Totenberg and arguably was mutually corrupting. But those sorts of friendships were the norm when Washington was treated as a closed society in which relationships between powerful and engaged people extended across party lines, but those relationships in general were accepted and part of the currency of life in the capital. That relationship was rightly cited as an example of "insider culture." I am no fan of insider culture (which is not limited to the capital; it's a feature of life for many well-connected and affluent people, including legal academics). But would we be worse off without any insider culture? (And do we have the worst of all possible worlds right now--two polarized inside cultures instead of a single, bipartisan inside culture?)  

4) What kinds of social and professional contacts are corrupt, and what are merely corrupting? Meeting with litigants is corrupt. Is meeting with Supreme Court Historical Society donors corrupt, or merely corrupting--in the way, common to many rich or powerful people ( including the ones you probably admire), that living in a world in which one's contacts with most "regular" people are limited but it is common to hob-nob with the powerful, the wealthy, those who donate to one's favorite causes, those who provide hunting lodges and other nice places to get away from it all, and so on, is corrupting? (AOC supporting the Met, for instance, or other major arts institutions in New York City, is not corrupt. AOC being invited to attend and be photographed at a Met gala is corrupting.) 

5) Should we reexamine other aspects of insider culture or of celebrity-justice culture, aspects that come closer to our own doorstep? Some of them are obvious. The justices arguably shouldn't speak at events like the annual conferences of the Federalist Society or the American Constitution Society. Why anyone wants them to is beyond me. Other than the lure of celebrity, why invite someone to say something that will surely be uninteresting? What person with a rich and full life could possibly enjoy putting on uncomfortable garb to eat poorly prepared chicken or salmon, while listening to someone delivering a semi-informed or trite speech about why cancel culture is bad or stare decisis is good? The lure of celebrity is corrupting and degrading for the audience; but the lure of being celebrated is corrupting and degrading for the justices, and regardless of whether we treat such speeches as raising any conflicts of interest or poor perceptions, they ought not do it.

But how about the AALS? Again, I see no particular reason why we should invite justices to speak at the annual AALS convention, as that organization has done several times, and not much reason why we should invite most lower court judges to do so either. There's no point inviting them if they're going to say something uninteresting, and they're not really supposed to say something interesting. So why bother? What are the motives for issuing such invitations--and for accepting them? And why should individual law schools invite justices to speak? Why do they invite them to speak? To paraphrase Posner, schools of veterinary medicine study dogs; they don't invite them to give full-attendance talks to the student body, along with a more exclusive kibble luncheon with the dog for faculty and specially invited guests. I should think that other than mere habit, one reason we do so is marketing, both to students and to the outside world. Another, which is part of the marketing, is selling the appearance of access or impressiveness for that institution. A third is an attempt to curry favor with or influence the justices for a limited purpose--namely, encouraging the justices to hire clerks from that school. A fourth, somewhat incidental but real, is attempting to influence the justices in precisely the way that is mentioned in the Times story: ensuring that the justice "hear[s] from people who would hail them as heroes" for doing one thing or another. I attended a luncheon with then-Justice Kennedy at one law school I taught at, where most of the faculty used their time with him to fawn over and thank him for his opinion in Lawrence. I'm sure it was sincere, but I'm not sure it was seemly and they surely hoped to encourage him to issue more opinions along the same line. A fifth is impressing current or potential donors to that school, who may well end up being invited to share the kibble at that exclusive luncheon with the justice. 

Isn't all of this not only corrupting but, still worse, uninteresting? On the other side, if the justices are there for public relations purposes, what business does a law school have allowing itself to be used for such efforts--indeed, subsidizing them, including by sending very nice planes to pick up the PR person and putting them up in a luxe hotel? How much of this sort of thing do we take for granted in our own corner of the world and how corrupting is it? 

6) The story of law and social movements is certainly not limited to the story of influencing judges; it is mostly not about that. But some efforts in this space are aimed at doing precisely that. What constitutes a legitimate deliberate effort to influence a judge's vote and what constitutes an illegitimate one? 

7) How much of Mr. Schenck's story is, in effect, yet another effort to gain influence or power or money? The story notes that Schenck "is trying to re-establish himself, now as a progressive evangelical leader." In plain English, that means that he would like to gain influence or power or money in a slightly different circle than the previous one. Even if the "regret" that he now expresses and describes as a motive for speaking out is sincere, is it not also a motivated sincerity, or at least one that he is putting to work for himself? (There are so many ways to monetize sentiment in America that I wonder if we shouldn't have a line on the tax form for "passion" or "conviction" or "sincerity.") If we use this story as an entry point for thinking about casual, legal corruption in the legal and political world, is it relevant that today's story will itself be used by various groups to raise still more money, and that even ostensibly legitimate responses to it--recusal motions, calls for investigation, and the like--will in turn, as the people engaging in them will know full well, open productive new fundraising opportunities?

Incidentally, while it seems quite true that Schenck attempted to learn the outcome of cases, and while the fact that he might be as highly motivated in his disclosures now as he was in his efforts then doesn't mean he's speaking inaccurately, his current possible motives should affect how we read the evidence here. One can still read the story and conclude both that Schenck acted reprehensibly and that Justice Alito was a fool for allowing such people to be or remain friendly with him. But anyone who has made even part of the journey from innocence to experience is surely aware that in this sort of world, people routinely exaggerate their own importance and wildly exaggerate what inside knowledge they actually have. It is possible that Schenck, and Schenck's moles, learned nothing. (Even when they are not exaggerating, of course they can still puff and profit from their access. One can assume the truth that Nina Totenberg had a special friendship with Ruth Bader Ginsburg, while noting that taking the extra step of converting that friendship into a book contract--and a book in which Totenberg, like Schenck, profits from sharing her after-the-fact Hamlet-like ambivalence about its propriety--and thus turning that friendship into a profit-making enterprise, as so many of Ginsburg's friends and relations did with her complicity, involves its own forms of exaggeration.) 

8) Is there any good news to be taken from the story? I think the answer is yes. The story includes three, or perhaps two-and-a-half, brush-offs, from Roberts, Kennedy, and Scalia. (Scalia indicated a willingness to meet with an anti-abortion activist, while also stating that he could not and would not assist that activist's group.) I suppose the bad news is twofold. First, people who are willing to abuse the current system, to abuse what is legal but potentially corrupt, are playing the odds, and the rebuffs are easy to accept as part of the game, as long as someone occasionally succumbs or willfully cooperates. (And even if no justice does succumb, the people engaging in this conduct can still fundraise on the basis of their supposed closeness to the justices. Those Supreme Court Historical Society donations are sound financial investments.)

Second, the justices don't talk much about any of it. I have no interest in listening to a talk from judge or Justice X, at the AALS or my own law school or anywhere else, about the rule of law or the long arc of justice or the importance of stare decisis or of textualism. I can read that kind of thing in my monthly bar journal. But any of these topics would be worth the ticket: "How I Negotiated My Book Deal." "Summer in Salzburg." "Powerful People I Have Known." "How Rich People Try to Get Close to Me and How Often I Let Them." "Why I Shut Off Most of My Old Relationships and How it Might Distort My Worldview." "The Paranoid Style in Judicial Life." "Why You Really Invited Me to Give This Talk." "What People Want From Me and What They Actually Get." "'Yes, Sir, Mr. Justice,' or Why I Don't Retire." "Living With Temptation." Those might actually be useful and informative talks.       

Posted by Paul Horwitz on November 19, 2022 at 12:13 PM in Paul Horwitz | Permalink


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