I’ll certainly be the first to admit that my off-the-cuff remarks were still somewhat rough-hewn and probably need quite a bit more thought before they’d pass academic muster.

Thinking more about it, I believe part of the source of my views might be a bit of fatalistic thinking about the judiciary. As far as I can tell, judicial activism is hard to avoid, no matter where a judge is situated on the political spectrum. For example, I’ve seen Justice Rehnquist invent government deference out of thin air before. Opinions from other judges have similarly perplexed me.

Perhaps my view was simply:

“We will never be rid of judicial activism. But we needn’t worry, because the Court has a limited amount of political capital which ought to keep them in check.”

The solution then is to simply seek out judges who are politically shrewd enough to know which way the political winds are blowing.

But admittedly, this is quite a cynical view of American government. I’ll have to mull it over a bit more.

Further, your invocation of Jackson is not apropos. You assume that he did so blithely, or even correctly, not understanding that defiance of the court brings on a constitutional crisis and throws off the balance that the Founders established. The Founders built other safeguards into the system that have been subverted (direct election of Senators), and this disturbance of the balance leads to disproportionate pressure on the Court to resolve disputes the Founders had no intention they resolve and to ideas like allowing the Court to just spend all of the political capital it possibly can until someone yelps.

Further, your reading of Roe v. Wade’s historical context is just plain wrong. Justice Ginsberg herself has argued as much. You said, “The Supreme Court ruled on Roe v. Wade, because a large portion of America and its leadership WANTED them to rule that way.” Ginsberg argues that the backlash to Roe v. Wade occurred precisely because the majority of America DID NOT want them to rule that way. She posits that if the Court had left things alone and let the legislative process work things over, with its necessary catharsis for those whose views are ultimately not accepted, we would not see the backlash, including abortion clinic bombings, to the extent we see them now.

Those violent actions are a result of people simply ignoring the Court’s ruling. You cannot blame the American people for a decision that was imposed on them by nine people without reference to any guiding principle. It is exactly because the Court was advocating your no-holds-barred approach that we ended up with that ruling and the present climate of recrimination surrounding abortion; in other words, without going through the process of debate and acceptance inherent in the legislative process, citizens revolt at having an idea they haven’t come to terms with shoved down their throats by philosopher-kings.

Finally, Seth, no one has argued that the Founders were infallible. I think that you are setting up a straw man here. The system they established, however, was brought into existence under guidance from God. I’m not sure if you are attributing this idea of infallibility to me or not, since I don’t see where anything I’ve said might lead you to that idea.

The Federalist Papers most assuredly disagree with you. I can’t see how you can use them for support without taking passages out of context. I could be wrong, so please explain. Also, please note that my invitation to have you read them was not meant to sound condescending or flippant, so I apologize if it did. On rereading I see that it could have been misinterpreted that way. My point was that for someone who is obviously thinking about these issues, the Federalist Papers might provide a guide to good policy. As a result of this post, I’ve renewed my desire to get back into them, as it’s been over a year since I’ve studied them.

Your post is internally inconsistent, in that you argue that the Court should do whatever it can get away with, and then in the next breath argue that it is the messenger of the American people. Maybe I’m misreading you here, so please explain.

Courtesy seems to compel a response to such a lengthy and thought out response. You make a number of good points, but, from where I sit, they all address assumptions (which, like models themselves, are neither true nor false but merely more and less useful) or a side comment about the nature of the judiciary and the legal professoriate. My main original point was that in looking only at percentages and creating them based on a potentially biased sample, a law professor trying to do social science was making unjustified claims per the data, or at least ignoring the elephant in the room–that policy preferences, either written into judicial philosophies or existing of themselves may play a significant role in striking down laws. (My experience with judicial philosophy is clearly more limited than yours–it comes from an undergraduate con law class taught by a very good professor who was both lawyer and PS PhD–but is more than that experienced in the general public. As to the relationship between policy preference and judicial philosophy, the grounding for my assumption is that most people have policy preferences before they have judicial philosophies (that is, over the course of thier lives), and that the former may bias acceptance of the latter.) As a social scientist, not looking at that elephant, or considering the role of that selection bias, poisons any conclusions drawn (whether they are actually there or not is, of course, an empirical question). Now, this is indeed probably because the law professor was not trained as a social scientist (just as legal advice from a social scientist would probably not be as good as that from a law professor), but the outcome is the same. The dig about the culture of the legalists was based on the fact that no where have I heard this line of critique, that it is not the first time that a law professor has sought to create a big stir about something based on a bad analysis of data (McConnell’s miranda results were used as an example of what not to do in my intro-to-research design class in graduate school), and yet certainly, if a political scientist tried to give legal advice (say Epstein), people would probably critique pretty heavily, and maybe even laugh. Cheers!

I don’t think you got my meaning. I am not advocating the “wise rule of philosopher kings.” The Supreme Court Justices are usually not wise. They certainly are not kings.

People tend to overrate the power of the Supreme Court. The Court pronounces a woman’s right to an abortion in Roe v. Wade and the conservatives are up in arms about how the Court is “legislating.” To hear them tell it, you’d think Justices O’Connor and Kennedy were single-handedly forcing America to embrace abortion.

Hogwash.

The Supreme Court doesn’t have an army, they don’t have a police force. Neither do they control the budget. The only source of Supreme Court power is their legitimacy in the eyes of the American public.

I mentioned Andrew Jackson for a reason. The Supreme Court ruled against the President and he basically said: “Oh yeah? You and what army?” Then he ignored the Court.

The Supreme Court leads a rather fragile existence. The moment Americans in general stop believing in it, it will become irrelevant. Once the President and Congress sense that ordinary Americans no longer believe in the Court, they will feel free to follow Andrew Jackson’s lead and ignore it.

If you look at the history of the Supreme Court, they were usually the last institution to embrace any new trend in American politics and society. The Court has always been an incredibly slow-moving body.

This is because they realize their power would be instantly destroyed if they crossed the line.

The Supreme Court ruled on Roe v. Wade, because a large portion of America and its leadership WANTED them to rule that way. If they didn’t think they could get away with it, they wouldn’t have ruled on it.

Don’t shoot the messenger. That’s really all the Supreme Court is.

You want to blame Roe v. Wade on someone? Blame the American people.

Now, answering other points … I’ve already read the Federalist papers (admittedly, it was some time ago). I think they support my view (though I doubt the author would have). The brute force of the Executive Branch, the mob rule of the House, the aristocratic elitism of the Court … All were meant to counterbalance each other.

Daniel, don’t invoke the Book of Mormon here. It supports my view just as easily as yours. You can point to your corrupt judges in Helaman. I can point to Alma in Mosiah. You can talk about how these “elites” twisted the system for their own gain. I can point out that wise judges were directly advocated by King Benjamin. This kind of back and forth will lead us absolutely nowhere.

The Book of Mormon offers little direct guidance on the issue of the Supreme Court.

Neither does bringing up the Lord’s endorsement of the Founding Fathers help much. They may have been inspired, but they certainly weren’t infallible. Furthermore, they were a highly contentious bunch. Their views were widely diverse. Some even advocated a more extreme form of aristocracy than I am being accused of (though if you read my posts carefully, you’ll see otherwise).

If you want to give the “Founding Fathers” semi-prophetic status, that leads us to ask: which one? You can find an opinion at the Constitutional Convention to match anybody’s taste.

Re: #63

The problem is that law reviews don’t have a system of peer review. Instead, they’re student-run.

This example makes it sound like you do after all trust the law review system, unless I am reading you wrong. So how do the weaknesses probably outweigh the strengths? Is it just the sheer volume of law reviews out there all seeking to publish . . . something?

Furthermore, it is not true that all constitutional issues are so unsettled as to amount to little more than opprotunity for policy prescriptions. Substantial portions of constitutional law are fairly well settled, and applied in reasonably consistent ways by courts every day. I have read a fairly big chunk of the political science literature on judicial decision making. Some of it is quite good and it offers some interesting insights. However, it is ultimately an unsuccessful account of judicial decision making precisely because the models only work if the issues in a give case are simplified to such an extent that the theory ends up obscuring as much as it reveals. Furthermore, even in terms of predictive power, the sine qua non of the social scientists bringing light and truth to the benighted masses of the law, the political science literature is a bit of a flop. Consider, for example Lee Epstein’s assertion that the statistical analysis of voting patterns ought to replace the exegesis of judicial opinions as a means of discovering the law. Aside from resting on a deeply flawed philosophy of law, Epstein simply cannot deliver the goods. Social science has thus far been utterly unable to produce theories with enough predictive power to answer the sort of basic questions faced by lawyers every day. Any good lawyer knows that that the identity and opinions of the judge matter, but only an idealogue unburdened by the actual requirement of advising clients and advocating their causes in the courts thinks that the process can be reduced to such things.

My second point has to do with the woeful state of legal academia and peer review. I fully agree that law professors frequently make emperical claims that cannot be supported by the data to which they cite. This, however, has to do less with the fact that law professors publish in non-peer reviewed venues than with the fact that law professors are not trained as social scientists but as lawyers. It is rather like ascribing the rather simplistically asinine claims that social scientists make from time to time about jurisprudence to the fact that they do not publish in law reviews. A much better explanation would be the fact that social scientists do not recieve any formal legal training.

As it happens, I am not a fan of the law review system. I think that while it has some great strengths, they are probably outweighed by its weaknesses. However, it is worth pointing out that law professors publish in peer reviewed fora quite regularlly. There are peer reviewed legal journals, and books published by peer reviewed academic presses are increasingly becoming the norm. Furthermore, there are certain fields — such as philosophy of law and contract law — that are fairly international. In the area of philosophy of contract law, which I know somewhat, I have a difficult time seeing a tremendous difference in the quality of what is published in the Oxford Journal of Legal Studies and the Virginia Law Review.

Your observation that “many judges are very careful about trying to ensure that their decision is not being affected by their prejudices” and the apparent significance of judicial philosophy in discussions of judges and courts is, I think, structurally induced. Because in the US federal judiciary the principal agent-problem is so grave that the principals are almost completely unable to constrain their agents (i.e., judges), in order for the agents to remain legitimate and therefore effective, they must at least pretend that they are constrained by something—their judicial philosophies, the law, precedent, something. After all, as the earlier reference to Andrew Jackson indicated, courts are only as powerful as they are perceived to be legitimate. Regardless of who is talking, discussions of judicial philosophy often seem to me to be part of euphemization of politics, a variant of what George Orwell was talking about in his famous essay on writing—that is, we know what we want, but often times we’re too afraid to say it straight out because we know we couldn’t get enough support for it if we did.

This all makes me see a very cynical and pessimistic person, I’m sure. But, really, I’m not—I just don’t have unreasonable expectations about how politicians (and certainly judges fall into this category) will act.

PS, to Kaimi: Regarding my dig at the legal professoriate, of course op-eds aren’t peer-reviewed. But the ethic of peer review meaningfully disciplines at least the claims political scientists make about evidence, and the way they use it. If a respected political scientist had so casually made such public claims on the basis of this evidence, he or she would surely lose face (with career implications), either because they were clue-less about methods or because they were disingenuous in their usage of them. I do not see the same responses at work among legal faculties, and I think that in good part this is due to an absence of peer-review processes in their publishing outlets.

I believe that the legal profession in general is much more vulnerable to the ideas from academia, etc. Historically, at the time of the Founders this was good, as it contributed to more enlightened statesmanship. Many of those good effects remain, but at the same time, there are significant disadvantages to this problem now, given that the academy has largely become a bastion of atheistic or agnostic, amoral or immoral thought that has been influenced greatly by the ’60s, post-modernism, etc.. There are too many studies showing this influence in academia to even attempt to link to them. While young conservatives go into business, young liberals migrate to journalism and to academia, simply because of the nature of the beast (for example, young conservatives are more likely to have a family and therefore less likely to have the freedom to take a low-paying job in academia or journalism). As a result, the academy has become corrupted (and I recognize that there are well-meaning liberals in academia, but by and large, there is a significant hostility towards traditional morality there). This has only been heightened by a growing separation of the practice of law in the upper echelons from everyday life. Most big firm lawyers, from which the majority of the judiciary is now drawn, have very little practical experience with the everyday struggles of common people. They are products of a common-law system that originally trained its lawyers by mentor programs, but has now adopted the ill-fitting approach of the university more appropriate for civil law systems and which ignores that the brilliance of the common law was its being informed by practical experience. These and other factors, combined with a growing elitism among the nation’s lawyers from higher and more exclusive standards to enter law school, contribute to a general opinion among lawyers in general that they are the best and brightest. It isn’t too many steps to the “philosopher king” attitude. Accordingly, the courts, when presented with a problem, are much more likely to try and come up with a solution than they are to defer to the legislature. The whole debate reminds me of Jefferson’s statement that if you state a case to a plowman and a professor, the plowman will 9 of 10 times give you the correct answer because he is not bound down by artificial rules. In short, judges might be reasonable people and might even be trying to do good, but they simply are not equipped to answer some questions, and thence venture well-meaningly but incompetently into areas where they might have restrained themselves.

One of my law professors referred to this in another context as the “clean hands, empty head” defense. How can those judges who have no understanding of political history (or limited understanding) provide answers to questions that should be answered in the court of public opinion? When presented with a question they simply feel compelled to give an answer — rather than deferring as they often should.

Greg, I agree with your assessment, but I think it is our problem with the 10% that we are talking about here. Most law remains practical and good, but in those areas most highly-charged with political meaning that have the most drastic effects. In short, judges and lawyers have stepped in and substituted for good, old-fashioned, grass-roots convince-your-neighbor.

This attempt to explain all of the causes of this change is embryonic, but I would be curious to hear everyone else’s sense as to why this obvious (to me) phenomenon occurs.

Also, for purposes of this discussion, please note that I am not advocating some kind of yeoman citizenry that is all virtuous or some kind of always corrupt judiciary. My major point, as has been argued by such luminaries before me as John Yoo, Todd Zywicki, and even Justice Scalia, is that when the Seventeenth Amendment was passed, the critical and crucial system of checks and balances established in the Constitution was thrown off, tearing down the first line of defense and putting a disproportionate weight on the Court to correct abuses. Originally, Senators would act as the first line of defense to popular passions that might oppress the minority. When this wall was torn down, the judiciary was given even greater power and responsibility, a responsibility which it is often ill-equipped to handle, especially when discussing contentious issues such as civil rights, affirmative action, abortion, gay marriage, etc.