Public Opinion and the Supreme Court

James L. Gibson writes at The Volokh Conspiracy about the Supreme Court’s institutional legitimacy. He makes a number of claims, which I imagine are backed up by data and evidence:

1. The Supreme Court has a high level of institutional legitimacy.
2. This public support has been roughly constant for 25 years.
3. The more citizens know about courts, the more legitimacy they extend to them.
4. The “highly legitimizing symbols of judicial power” (robes, courthouses, “your honor”) are largely responsible for this enhanced respect among “knowledgeable” citizens.
5. The Court’s legitimacy went up after Bush v. Gore, as Republicans viewed it more favorably, and Democrats just as favorably as before, because they saw the decision as grounded in law, not politics… presumably because of the robes.

These claims lead to the conclusion that the Supreme Court “can get away with virtually any policy, so long as it is draped in the appropriate symbolic shroud.”

Now, a number of scholars (e.g. Robert Dahl) have argued that the Supreme Court is actually quite constrained by public opinion — there might be some lag time or some short period of trailblazing, but in the end, the Court won’t and can’t stand in the way of a determined and active political majority. It is “inevitably a part of the dominant national alliance,” as Dahl wrote.

If Gibson wants to contradict that idea, that’s his right. Where he runs into trouble is in trying to make this argument coexist with his tendency towards back-patting regarding the role of citizens in this courtroom drama. First, Gibson does not seem to think it even slightly objectionable that “legitimizing symbols” play the role that one might hope would be played by, you know, sound judicial decisions (of which Bush v. Gore was certainly not one). Second, he argues that the public, in addition to conferring legitimacy, actually extracts some degree of accountability from the Court. He writes, “Citizens who are unhappy with the Supreme Court can properly petition their legislative representatives, for instance, to change the jurisdiction of the institution, removing some types of cases from the Court’s docket.” Never mind that this is extraordinarily tenuous and generous — how is this supposed to sit with the claim that the Supreme Court can get away with anything so long as it maintains appearances?

Gibson’s endgame is to attack the idea that “elite opinion should dominate” judicial policy making, but his case is confusing. Why would we want public opinion to hold sway if it is so malleable as to be affected by the sight of robes, and so lacking in normative value as to actually approve of a terribly reasoned decision like Bush v. Gore? Gibson wants to demystify and democratize the Court, but it seems to me that Dahl and his cohorts already did that — by pointing out that the Court is, by nature and necessity, in lockstep with democratic majorities, exactly the claim that Gibson seems to contradict.

The Evil Assumption Underlying Ricci

Drew Westen, writing for The New Republic,  is the first commentator I have seen who has hit on a key assumption made by the five-man Ricci majority: the belief “that in a racially diverse city with a racially diverse fire department, it is perfectly plausible that the best candidates for leadership are all white.”

This might seem an unfair characterization of the conservatives’ position. How could a reasonable person believe such a thing, especially in an era when our president, the most important leader in the country, is a black man?  Surely the majority acknowledged that New Haven’s written and oral exam was flawed, but argued that the city had to live with the test it chose, because it had created an expectation that the test results would be used.

Well, the majority did make that argument, although, as Justice Ginsburg noted, it’s a flawed one: “The legitimacy of an employee’s expectation depends on the legitimacy of the selection method…. Title VII surely does not compel the employer to hire or promote based on [a flawed test].”  In the second paragraph of her opinion, she noted that nobody has “a vested right to promotion.”

Furthermore, the majority opinion does in fact rely on the pretension that New Haven’s exam was — I hesitate to say perfect — without major flaws. That assessment, unavoidably, rests on the assumption Westen identifies: that an unflawed test could produce such racially lopsided results, and therefore that white men must simply be better candidates for fire-department leadership positions, as a class, not as individuals, than black men.

Thus Justice Kennedy’s statement that New Haven “rejected the test results solely because the higher scoring candidates were white” (emphasis added).  Justice Alito adds the insulting insinuation that the test results were thrown out to please some two-bit race-mongering black preacher. The possibility that the test results might be invalid, might be the result of a terrible method of evaluation, is not taken the least bit seriously.

Though the legal ruling may not do so, the majority’s assumptions and reasoning absolutely tear the heart out of the idea of disparate impact: no longer should government agencies or private businesses be suspicious of their evaluations if they produce results that defy logic, defy the assumption that blacks and whites are equal. Instead, they should just say to themselves, perhaps blacks and whites aren’t equal after all; maybe the white guys are just going to be better firefighters, or policemen, or middle managers, or whatever.

Killing such a pernicious line of reasoning is worth the price of upsetting the white firefighters’ “legitimate expectations.”

Stanley Fish on Empathy and Legal Realism

In his column today, Stanley Fish asks “What kind of judges do we want?” and decides, eventually, that we want judges with empathy, understanding, imagination, or what he calls, for no apparent reason, “hearkening to the spirit rather than the letter.” While I’m always glad to read a defense of the role of basic humanity in the art of judging, something about Fish’s column left me uneasy. I think it is this section:

“Sen. Jeff Sessions (R-Alabama) complains, ‘She [Sotomayor] seems willing to accept that a judge’s rulings may be influenced by the judge’s personal backgrounds or feelings.’ But whether this is a matter of concern depends on just what Sotomayor is imagined to be accepting. Is she accepting an account of the way human beings invariably perform? Is she endorsing a psychology? Or is she accepting a view of how judging should be done? Is she endorsing a method? Is she being descriptive or prescriptive?”

This is a remarkably pervasive distinction, but it is, I think, ultimately fallacious and useless. If you read Sotomayor’s infamous “wise Latina” speech in its entirety, it is clear that she is being descriptive and prescriptive, and that the latter follows from the former. Here’s one relevant passage:

“While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases.”

What do I mean that the prescriptive follows from the descriptive? Well, ask yourself, if you believe something is X, and will always be X because of human nature, does it make much sense to try to make it not-X? This is where the distinction that Fish makes in his column throws me for a loop. He seems to say that even if judges “invariably perform” a certain way, we might (legitimately) believe that “judging should be done” a different way.

Fish eventually concludes that judging shouldn’t be done that way (the formalist/originalist way), but his reason seems to be that it is undesirable, rather than impossible. But if we accept the legal realist critique, as Sotomayor appears to do, then it really doesn’t matter what is desirable or not, because it makes no sense to aspire for the impossible. And yet, in the popular discourse on judging, the truth or falsehood of the legal realist critique is never treated as a particularly interesting or relevant dispute, because people believe that they can make an “is/ought” distinction, when legal realists are not claiming only that the law is a certain way but that it inevitably has to be so. I am not trying to argue the validity of the legal realist position, not here anyway, but I cannot understand why the question posed by legal realism is not treated as more dispositive than it usually is, even among people like Fish who end up on the “empathetic” side of the dispute.