Tuesday, July 09, 2013
Fictions of the Court
In these weeks after a blockbuster Supreme Court session, I am often asked by people what I think of various opinions that were issued-- about gay marriage, or voting rights, or affirmative action. Almost never do people ask me about the sentencing cases I actually know about, even the significant Alleyne case that I wrote about with Judge Bennett.
What strikes me about those questions is that they often contain the premise that "The Court" felt this way or that way, or announced a grand principle of some kind. This conception, that "The Court" speaks as one, is both wrong and right.
It is wrong in the sense that most of the controversial decisions are determined through compromise at some level. They result from negotiation and coalition; saying that they propound any single view is like saying that the Italian government (which is usually comprised of unstable coalitions) has such a view on an issue.
It is right in what is probably a more important sense. Those majority opinions, formed by coalition-building and compromise, do project fundamental principles that shape important parts of our law. The fact they grew out of a philosophical Hydra does not mean that they are any less grand. I kind of like the duality of it-- it's like great music coming from a band that is about to break up, Fleetwood Mac's Rumours album reduced to paper and citation. There is an elegance in it, a precarious beauty, that may be exactly what our sophisticated forefathers intended.
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At some point in the past, I jokingly suggested a Constitutional Amendment outlawing 5-4 decisions.
But, in all seriousness, I do not think this 5-4 world is very good for us or what the Founders intended. The first Supreme Court actually had an even number of justices. And the SOP (and political genius) of the Marshall Court was unanimity (Marbury v. Madison was a 6-0 decision).
When the Court is such an obvious extension of partisan politics, I feel we are ill-served.
But, in all seriousness, I do not think this 5-4 world is very good for us or what the Founders intended. The first Supreme Court actually had an even number of justices. And the SOP (and political genius) of the Marshall Court was unanimity (Marbury v. Madison was a 6-0 decision).
When the Court is such an obvious extension of partisan politics, I feel we are ill-served.
WF-- I was just thinking about that idea of yours! We will take it up on Political Mayhem Thursday....
Cool.
A few more selected data points as fuel for the fire:
McCullough v Maryland (7-0); Dartmouth College case ((5-1); Gibbons v. Ogden (6-0).
Dred Scott case (ostensibly 7-2--although the deeper you dig into that opinion the more complicated it gets and more divided).
Plessy v. Ferguson (7-1, with a dissent for the ages). However, the big majority reflected a post-CW & Reconstruction consensus (among whites) that lasted for more than a half century.
Brown v. Board (9-0). Interestingly, the Court could have had the same decision at 5-4 or 6-3 much earlier. Held out for a more decisive division b/c of the gravity of the issue. Unanimity comes with the political skill of Earl Warren. Best modern example of the power of unanimity.
Roe (7-2). Really goes against my argument. Decisive opinion but major unforeseen public uproar over a long period of time.
A Few Famous (albeit selected) 5-4 decisions:
Lochner
Slaughter House Cases
Dennis (the Communist Menace)
Everson
Bush v. Gore
Shelby County
and many more...
A few more selected data points as fuel for the fire:
McCullough v Maryland (7-0); Dartmouth College case ((5-1); Gibbons v. Ogden (6-0).
Dred Scott case (ostensibly 7-2--although the deeper you dig into that opinion the more complicated it gets and more divided).
Plessy v. Ferguson (7-1, with a dissent for the ages). However, the big majority reflected a post-CW & Reconstruction consensus (among whites) that lasted for more than a half century.
Brown v. Board (9-0). Interestingly, the Court could have had the same decision at 5-4 or 6-3 much earlier. Held out for a more decisive division b/c of the gravity of the issue. Unanimity comes with the political skill of Earl Warren. Best modern example of the power of unanimity.
Roe (7-2). Really goes against my argument. Decisive opinion but major unforeseen public uproar over a long period of time.
A Few Famous (albeit selected) 5-4 decisions:
Lochner
Slaughter House Cases
Dennis (the Communist Menace)
Everson
Bush v. Gore
Shelby County
and many more...
I wonder about the interplay between society's divisions and the courts. Is the court not good for us, or does it merely reflect us? Probably both?
To compromise or to fight? For me that is a perennial question.
To compromise or to fight? For me that is a perennial question.
“Any compromise on mere fundamentals is a surrender” said Mahatma Gandhi, the god of passive-aggressive accomplishments.
Just to regroup and state a couple of things that might go missing with my usual avalanche of words and ideas; or, alternative title, "Cutting Through the Fog" (ironically, the product of my own fog-making machine):
1. I really like Mark's point and totally agree that the Court is capable of great beauty and elegance.
2. In re David's question, I agree with his answer: "both." Does the Court push us or reflect us? Over time both. is it good to fight or compromise? YES!
1. I really like Mark's point and totally agree that the Court is capable of great beauty and elegance.
2. In re David's question, I agree with his answer: "both." Does the Court push us or reflect us? Over time both. is it good to fight or compromise? YES!
WF how do you go about resolving a “YES” answer to a “this OR that” question ("is it good to fight or compromise")? I’ve always assumed one goes with both, but that is not always feasible.
One of the way's I have been thinking about compromise and politics of late is along the lines of: If you are will to compromise, Then I am willing too. But If you are intransigent...
Of course this begs the question, who is going to make the first move? And it renders me reactionary. Will no one lead?
Of course this begs the question, who is going to make the first move? And it renders me reactionary. Will no one lead?
In general, I reject the tyranny of "either/or" as a false choice in many, many cases (DW).
Would you like to learn history in this class or have fun? YES! Mr. Madison shall we have national supremacy or state rights? YES!
Do we need statesmen who are willing to fight for principle? Or willing to compromise? Of course, the answer is yes.
Great statesmen or great judges or great administrators or great parents are ones who are adept at negotiating the inherent tensions n human endeavor and finding the best balance available.
Would you like to learn history in this class or have fun? YES! Mr. Madison shall we have national supremacy or state rights? YES!
Do we need statesmen who are willing to fight for principle? Or willing to compromise? Of course, the answer is yes.
Great statesmen or great judges or great administrators or great parents are ones who are adept at negotiating the inherent tensions n human endeavor and finding the best balance available.
Addendum:
Having said and meant all the above, I reserve the right to support various revolutions and go to the mattresses in any and all cases I deem worthy.
"Foolish consistency is the hobgoblin of small minds."
Having said and meant all the above, I reserve the right to support various revolutions and go to the mattresses in any and all cases I deem worthy.
"Foolish consistency is the hobgoblin of small minds."
I’m all for having cake and eating it too, but I see no adept negotiation at finding the best way to have cake after having eating it. Well, unless I get me another slice altogether.
As for me, I have never seen the point of having cake, if I could not eat it. And, after eating my cake, after an appropriate pause, i often times repeat the whole process.
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