SCOTUS Not as Radical as You Think!
Who are you going to believe, the WSJ or your lying eyes?
Somewhat credulously, the WSJ Editorial Board proclaims, “The ‘MAGA Supreme Court’ Doesn’t Exist.” After two paragraphs quoting Democrats railing against the current Court, they actually make a compelling, evidence-based case:
As the Justices go into their summer break, the scholars at the Empirical Scotus blog have crunched the statistics for the 2023 term: 45.8% of cases were unanimous, down slightly from 2022, but higher than in 2021 (26.4%) and in all of the three years before that. The perception is that boring, minor cases get unanimous rulings, but not always, and not this year.
Nine Justices agreed that Colorado can’t remove Donald Trump’s name from its ballot as an “insurrectionist” under the 14th Amendment (Trump v. Anderson).
Nine Justices agreed that pro-life doctors lack standing to sue the Food and Drug Administration over the abortion pill mifepristone (FDA v. Alliance for Hippocratic Medicine).
Nine Justices agreed that the National Rifle Association can sue a New York regulator for coercing insurers to stop doing business with gun-rights groups (NRA v. Vullo).
The list goes on. There were 22 cases decided 6-3 this term, but only half produced outright ideological splits, with six conservative Justices in the majority and three liberals in dissent. The other 11 rulings were at least somewhat scrambled, sometimes in significant cases.
Six Justices rejected a claim that the federal government had unconstitutionally pressured social-media websites to delete user posts, particularly on Covid-19 (Murthy v. Missouri). Justice Amy Coney Barrett wrote for a majority of three conservatives plus three liberals, while Justice Samuel Alito filed the dissent.
Six Justices said prosecutors had stretched the law in charging Jan. 6 rioters with obstructing Congress (Fischer v. U.S.). That majority included Justice Ketanji Brown Jackson, and the dissent this time was by Justice Barrett.
The 7-2 and 8-1 outcomes are also hard to interpret through a political lens. Justice Clarence Thomas wrote an opinion to uphold the funding scheme for the Consumer Financial Protection Bureau (CFPB v. Community Financial Services Assn.). Who had that on their bingo card?
A cross-bench majority in a tax case (Moore v. U.S.) refused to close the constitutional door to a wealth tax. Eight Justices said the Second Amendment permits the government to disarm an alleged domestic abuser via a civil restraining order (U.S. v. Rahimi). Justice Thomas vigorously dissented in both of those cases.
So, that’s pretty good, right? Nearly half the cases were unanimous and half of the 6-3 cases were not along ideological lines. So how, pray tell, did we get the impression that this is an ideological Court?
Presumably, it’s because the most controversial decisions went in President Trump’s favor, mostly along ideological lines. But, the Board contends,
Today’s Supreme Court takes a textualist and originalist view of legal questions, but it’s no MAGA court. This term the reversal rate for the conservative Fifth Circuit Court of Appeals, not double counting cases consolidated for argument, was 67%. That’s higher than the rate for the notoriously progressive Ninth Circuit. If Republican lawmakers imagine these Justices are ready to fulfill their wildest constitutional dreams, they are courting disappointment.
Without breaking down the cases to see if something else is at work, that seems compelling. It may well be that the 5th Circuit is simply sloppier but if the rulings were sheer partisan hackery, one wouldn’t expect this result.
Alas, they don’t help their credibility with this:
As for Presidential immunity on core executive functions, the Supreme Court is enforcing the constitutional separation of powers. The amazing thing is that Democrats are so surprised. They unleash history’s first prosecution of a former President, they’re astonished when it turns up novel legal issues, and then they’re outraged when the Justices consider the matter in light of the Constitution.
That’s just disengenuous. “They” (the Democrats) didn’t “unleash history’s first prosecution of a former President,” the Justice Department did. And, I would argue, Trump gave them little choice. He was the first President in American history to lose and election and then attempt to wield the power of his office to coerce officials to reject the will of the voters and keep him in power. He was the first President in American history to incite a riot on the Capitol to intimidate Members trying to perform their duties. He was the first former President in American history to not only absond with boxes and boxes of classified material but then refuse to voluntarily return them when asked. It was he, not “them,” that forced this standoff.
It’s indeed true that this raised novel legal issues—ones that had been debated in scholarly circles since long before Trump entered politics—regarding the separation of powers. But the Constitution offers essentially no guidance on this question. Indeed, the Framers specifically made, for example, Members of Congress immune from prosecution for certain official acts but did not do this for the President.
Who should they blame instead? Well, special counsel Jack Smith could have declined to file a Jan. 6 indictment. Or he could have written it narrowly to exclude clearly official conduct, such as Mr. Trump’s consultations with his Justice Department. But Mr. Smith didn’t do modesty. Neither did the appeals panel at the D.C. Circuit, which ruled in sweeping fashion that Presidents have no immunity whatsoever. The Justices almost had to take the case.
Again, this is just hackery. It can’t simultaneously be true that this is a novel case requiring the Supreme Court to issue guidance and that Smith should obviously have known the guidelines ahead of time. It is by no means obvious that ordering cabinet officers to do obviously illegal things is covered by Executive privilege. And, certainly, while it’s obvious that sitting Presidents have some level of immunity from prosecution, it is far less obvious whether that immunity pertains once out of office.
This is more defensible:
Democrats denounce the Supreme Court for making the Presidency too powerful, while they also denounce the Justices for stopping Mr. Biden’s unilateral regulatory actions, including his effort to forgive $430 billion of student loans without Congress. Who really thinks he’s king? The Justices are keeping each branch in its constitutional lane, and those decisions will apply to President Trump, if he wins, the same as they do to President Biden.
Leaving hyperbole aside, it’s human nature to denounce the Supreme Court for rulings whose outcome one dislikes while giving them no credit for “correct” rulings, which were after all the obvious way to decide the case. At the same time, given the extreme machinations used to get three Trump Justices on the Court—the unprecedented blocking of Merrick Garland’s appointment to keep the seat open for Trump to fill and then the rush to ram an appointment through between Justice Ginsburg’s passing and Election Day—it’s not unreasonable for Democrats to see these rulings as partisan—a ruling in favor of Presidential power in a Republican President’s case and against it in a Democratic President’s case—rather than a balancing act. Nor, frankly, is it obvious that the rulings will go the same way if Trump returns to power.
Circling back to the considerable statistical evidence that the Court has been considerably less partisan than it seems, I would point you to Adam Feldman, J.D., Ph.D. and Jake S. Truscott, Ph.D., who compiled the data in question:
First, we fully recognize that our data provides only surface-level inferences. As many have pointed out, the Court retains considerable discretion with respect to the size and scope of its docket. Indeed, a considerable majority of the Court’s decision-making is determining which appeals will not receive review, rather than what will. It is not lost on us that the population of orally argued and decided cases in the 2023 term are not fully emblematic of the Court’s broader decision-making. While we do provide statistics on the docket more generally, we advise pursuing additional scholarship focusing on this area.
Second, our summary analyses do not make distinctions between cases of varying importance to
the national discourse. Not because we fail to recognize that these distinctions obviously exist,
but because our goal is to provide an overview of the Justices’ most observable decision-making
behaviors – irrespective of the broader importance some of these decisions may have compared to
others. In short, they are numbers – nothing more, nothing less. There is no underlying agenda in
our decision to present topline statistics.
It’s beyond my expertise, and certainly the time I have available to collect and analyze data, to assess what to make of the cases the Court did and didn’t decide to hear. Or even to assess the relative importance of the 45.8% of the cases decided unanimously. That there were so many of them, though, does lend some weight to the notion that the Republican Justices are not uniformly partisan hacks. Ditto the fact that there are a considerable number of cases where individual Justices did not vote with their bloc.
Aside from increasing evidence for, at the very least, willful disregard for the appearance of impropriety on the part in several Justices taking lavish gifts from plutocrats, failing to reuse themselves from cases where they have obvious personal interests, engaging in partisan displays, and the like, the most damning indication of hackery was their handling of the immunity case. Leaving aside whether they ultimately got the ruling right, it was simply unconscionable to delay Smith’s case for months and months, virtually assuring it would not be heard before the election. That, combined with the speed in which they handled the cases on whether the Insurrection Clause kept Trump from the ballot, it’s next to impossible for anyone not a Republican partisan to believe the Justices didn’t have a thumb on the scales.
Regardless of anything else, I think that the ruling in the immunity case was radical and will have long-term negative consequences.
Activist Judges.
I call bullshit. The immunity ruling has basis in the Constitution. None.
They appointed Bush President.
Emboldened, because they got away with it, they appointed Trump King…if he wins.
And if he wins, there will never be another free and fair election.
Have you seen the clip from the Heritage Foundation guy threatening a bloody revolution?
https://thehill.com/homenews/campaign/4753439-heritage-leader-second-american-revolution/
I have to ask, what does anyone think it looks like, living in an unfree authoritarian regime?
Aren’t they all like this, where the vast majority of the operations of government are mundane and apolitical and unremarkable?
In China and Russia right now, cops arrest petty thieves, courts administer jail sentences indistinguishable from anything in America.
Business disputes are heard and adjudicated and their version of SCOTUS makes rulings that aren’t political, but mundane and technocratic.
This claim, that the court isn’t as radical as we think, is a bit like declaring that most of the doors on Boeing planes don’t fall off in midair.
True, but largely irrelevant.
This is important because we are going to be hearing a lot of this if Trump wins.
Are there bodies in the streets? Is your local Starbucks still open? Are there TV shows and porn on the internet?
So what are you worried about?
I have to keep repeating this, that for the majority of people, life in an unfree authoritarian regime is actually pretty normal.
It is true that the republican justices are not uniformly partisan hacks, there are shades of hackery with Thomas and Alito on one tail of that spectrum and with Roberts and Barrett on the other end of that spectrum. At the end of the day though they are all partisan hacks, it’s just that some of them are hackier than others.
That didn’t mean much when Scalia was its voice and means considerably less today.
Is the right of public officials to take bribes in the Constitution? Because I’m willing to go out on a limb here and say that there is absolutely no basis for this other than the desire of several justices ti keep on taking massive bribes — oops, “tips” — for services rendered.
Contra the WSJ, Kevin Drum makes a pretty interesting point about recent decisions: Precedent? We don’t need no stinkin’ precedent.
This is not the behavior of a conservative court (if the word conservative has any meaning apart from the label we put on the right wing of politics).
Why is it possible to speak of the “conservative 5th circuit” or the “progressive 9th circuit”? Since I’m on about structural problems lately, this is certainly one. There is no justification for justice to look sufficiently and stably different in different circuits. Maybe federal judges need to be treated more like military officers and have their duty station change every 7 years or so. As a bonus, a guy running a one man shop in Texas wouldn’t be making decisions for the whole country forever
@Steven L. Taylor: Yup. Precedent can’t be 100% binding, otherwise we’d still be stuck with Plessy v Ferguson. But it ought be accorded tremendous weight, as it’s the essence of a common law system.
@Erik: The Senate has forced that through the Blue Slip process. California judges are going to be wildly more left-leaning and Southern judges more right-leaning until that changes.
The raw numbers are not informative, but the disclaimer by Feldman and Truscott gets us closer to what we want to know. First the cases the court chooses to take and when they choose to take them allows for a lot fo political bias. Was it just coincidence that the court delayed taking the immunity case when it could have earlier and then released its findings as late as possible?
As to the numbers themselves it is not surprising that a a lot of the cases are unanimous. Most decisions arent especially political. Nor is it surprising that the most outrageous cases from the most partisan lower courts get overturned. Some of those are outright wacky and the court still wants to at least pretend it practices law. However, on the big, politically involved issues there is no doubt about where the court is going, even if it has to be extreme in reaching its conclusions as we have seen with Dobbs, Loper, Chevron and the gratuity case. That last one remains especially mind boggling.
It’s not just the polarization but the extremes to which it is taken. I liked this piece at Politico. They are not just partisan but also overconfident, lacking in any humility or reasonableness when they make decisions. Prior to 1994 the court on average overturned 1 law per year. After that it has been 3 per year and IIRC the last 2 years have been above that average. They are overconfident and wrong which makes it worse. Note that Alito placed a lot fo weight on historical facts from the 1800s which were completely wrong.
Finally, before I redo War and Peace, note that in the mifepristone case they only cited standing leaving open having the case come back, which it will. Note that it means the case will come back after the election where they will be free to ban or limit mifepristone without affecting Trump’s election chances.
Steve
https://www.politico.com/news/magazine/2023/08/30/supreme-court-partisanship-unpopular-00113401#:~:text=Today's%20court%20is%20extremely%20partisan,voting%20rights%20to%20environmental%20law.
The ruling was anything but radical. Pretty much status quo. Where was the outrage when Clinton claimed he shouldn’t be sued by Paula Jones?
Differentiating official vs unofficial has been remanded to the legislature, and the lower courts were told to deal with it. That’s all.
@Chip Daniels:
Sites like OTB get shut down, the people who run them wind up in prison (or worse), as do many who make comments. People flee the country and set up websites critical of the regime in other countries. The media either kowtows to the regime or gets wiped out. Small things like that.
I’ve said mean things about the Federalist Society in these threads. In response to comments that Chevron isn’t really important, I’ve noted the FedSoc has made getting rid of it a priority for years. I’ve also noted they don’t really care about abortion and guns except as electoral window dressing for the electorate. Today, over at Volokh Josh Blackman
and commenter Brett Bellmore
confirmed what I’ve been saying. Thanks guys.
Thanks for the Volokh link. Loved the McConnell quote.
“McConnell: “Dismantling the administrative state and empowering people who are actually elected to make decisions has been the motivating force” for nearly every “Federalist Society-type lawyer.”
So decisions will move from the unelected agencies that have actual expertise to the unelected courts that have no expertise in the areas in which they will rule.
Steve
@Jack: Clinton’s claim was that Jones did not state a claim for which relief could be granted. She did not allege in her complaint and could not prove any adverse action by Clinton which affected her employment as required by the statute. The Court agreed and dismissed her complaint.
@James Joyner:
Of course. But you have to admit that from an objective point of view, conservative jurists should be far more likely to uphold precedence than not, yes? (Which is my point without getting into the specific merit of a given case).
@Steven L. Taylor: Oh, for sure—I was agreeing with you. Thomas was always an outlier in insisting that precedent was irrelevant if the ruling was in conflict with original intent.
@Chip Daniels: Most of us, I assume, do not have much regard for the good little Germans not actually “supporting” the Nazi regime. We may soon find out what it’s like to try to differentiate ourselves from Americans under the MAGA regime.
@Jack: As I recall, you were the guy who was complaining when Clinton said he shouldn’t be sued by Paula Jones. Something something Presidents think they’re king or something.
@Kathy: Still, those things are happening to the outliers of the society. Sort of like not being homeless in the US. I live downtown, but nobody ever tells me to move on if I sit, or even sleep, on a bench at the Library. Why? Because I’m not one of the people who doesn’t belong.
Don’t kid yourself for a moment. An authoritarian government in and of itself does not equal dystopia. Dystopia come when you don’t care for/can’t follow the rules. “Authoritarian” is code for government of which I don’t approve in the political / rhetorical sense. And it’s certainly and admittedly horrible for the “I”s in the configuration. Most people, not so much.
If I know a computerized finite element analysis of my structural design will say it’s overstressed, but an old school pencil and paper analysis won’t, and I then do only the pencil and paper analysis, I don’t get to defend myself by saying I just followed what my analysis said. Originalism was designed to produce the results it produces, and further to justify overturning any precedent as improperly decided according to originalism. So you don’t get to say the Court innocently arrived at their result via their originalist analysis. (IANAL, much less a Constitutional scholar, but it’s entertaining they apparently failed to find an originalist argument for Trump’s immunity and had to just wing it with consequentialist arguments.)
That said, WSJ is right that they are not a MAGA Court, they are a Leonard Leo, FedSoc, glibertarian billionaire supervised, GOP establishment Court. For which see @gVOR10: above. They are MAGA only as political window dressing. And, like the Party, they are becoming more MAGA because they, and their sponsors, believe their own bullshit.
@Joe: One more comment, then groceries. In my highschool days (i.e. the best time of my life) there was a chant that went
We escaped in the 60s. Maybe we’re not getting away again. Who knows?
@Jack: “The ruling was anything but radical. Pretty much status quo. Where was the outrage when Clinton claimed he shouldn’t be sued by Paula Jones?”
Slapped down hard and fast.
@Chip Daniels: @Kathy: Some years ago I read Max Hastings Armageddon, a history of the last many months of WWII in Germany. It had a lot of material on the fall of Germany in the East, a complete horror show. I was struck by his quoting German civilians saying if Germany lost they’d lose their freedom. One’s first reaction is, “You’re living in a military dictatorship.” But these were the proverbial “good Germans”, patriotic, apolitical to start with, manipulated by Goebbels, the common clay of the new Reich. They read the Volkisher Beobachter for the sports scores. The Gestapo wasn’t preventing them from doing anything because they had no thought of doing anything out of the ordinary.
You’re right that most Americans won’t see anything out of the ordinary. Until the recession, and WSJ, along with, under gentle guidance, WAPO, and NYT will successfully blame that on Biden. I already feel like I see hints of Quisling in WAPO and NYT.
@just nutha:
Mexico was a soft authoritarian one-party dictatorship until at least 1988. So, there was no mass imprisonment, not much violent repression,and the government overall was more concerned with getting their cut. The media were controlled through broadcast licenses and a government monopoly on newsprint (really).
But there was repression and censorship, and we all knew it. It just wasn’t bad enough for most people to do much about it.
I don’t think Wannabehitler will be so restrained.
SCOTUS has slowly been moving the law to the right for a long time, much as a football team executes plays that produce “three yards and a cloud of dust.” There may not be one pivotal moment in the drive, or a moment when we know they will reach their goal, but they get there in the end. The “three yards” is that year’s few target cases. The “cloud of dust” is all the other cases. It’s hard to mount a defense to this because people can’t muster urgency against slow progress. Citizens United should have been a turning point. That was 14 years ago. Dobbs caused some movement in terms of fewer votes for Republicans, but so far not enough movement. It seems like what the court has done with the immunity case is leave it open to be decided based on what the country is in the mood to enforce. There’s plenty of law to support prosecuting Trump for crimes. There are judges who are waiting to exonerate him. There are judges who would preside over conviction. They’ve kind of left it to Trump to find a friendly judge and see if exoneration will cause riots (cf Rodney King).
It’s easy to argue that the Court isn’t partisan when you proclaim that any partisan decision was correctly decided.
@Kathy: I don’t know whether he will or not either. More importantly, I don’t live in one of the states that will be deciding. Either way, the choice is to continue living as best as one can or decide to try and upend the system. Choose wisely.
@Jack: Why bother? No one here believes it, and it’s obvious that you don’t, either. You just want that orange scumbag to throw people you hate in jail. Why not go off and do something useful with your life?
@Kathy:
That’s whart I’m talking about. In most political discussions “Authoritarianism” is always synonymous with Nazi Germany, Stalinist Russian and Maoist China.
But those three were, in the entire sweep of history, freakishly abnormal for the scale and scope and intensity of their tyranny.
Far more common are governments like George III (remember, his rule was so tyrannical it sparked a bloody revolution!), Mexico under the PRI, or any of the East Bloc Communist countries, or maybe the Latin American countries like Guatemala, or maybe Pinochet’s Chile.
In none of these were death camps like Auschwitz, none of them had killing fields comparable to the Khmer Rouge, None of them had the scale of terror and slaughter like Stalin.
Instead they were all just stifling petty authoritarianism, where you could live, but never really thrive.
This is what the Republican party has planned for America.
@Chip Daniels: You are correct in your discussion of authoritarianism. This reminds me of a post I wrote back in 2020 which linked to an essay that is along the lines of what you are describing: The Mundanity of Authoritarianism.
@Steven L. Taylor: I’d add bribery as second worst in terms of outcome.
“Radical” can be apparent in behavior, not just in decisions. For example, consider:
– Ginni Thomas, openly participating in a conspiracy to overturn the 2020 election;
– The Alitos flying flags at their homes signifying support for Trump’s ‘stolen election’ propaganda;
– “SPOTTED at Matt and Mercy Schlapp’s [2022] annual Christmas party at their Alexandria home on Friday night: Justice Brett Kavanaugh, Rep. Matt Gaetz (R-Fla.) and Ginger Gaetz, Sean Spicer, Alex Acosta, Sebastian Gorka, Stephen and Katie Miller, Chad Wolf, Greta Van Susteren and John Coale, Laura Schlapp and Bryan Wells, Brendan Carr, Rep.-elect George Santos (R-N.Y.), Erin and Nick Perrine, Erik Prince, Ziad Ojakli, Peter Davidson, Steve Holland and Ben Terris.”
The appearance of partisan bias could not be more blatant.
@Ken_L: I alluded to the first two in the last paragraph of the OP. I had never heard of the third and, frankly, don’t know what to make of it. Justices being at a party whose other guests include prominent but radical members of their political party isn’t that shocking.
@a country lawyer: The Court agreed and dismissed her complaint.
The judge ruled that Clinton’s testimony turned out to be immaterial, which is why a perjury charge was probably not tenable. Clinton was found in civil contempt.
@Chip Daniels: Aren’t they all like this, where the vast majority of the operations of government are mundane and apolitical and unremarkable?
Quite so.
@Kathy: Sites like OTB get shut down, the people who run them wind up in prison (or worse), as do many who make comments.
With creeping authoritarianism, OTB will adapt to the changing environment. Only later will the proprietors find it to be too much trouble with all the new rules and fees and gratuities to keep the blog going. Eventually, perhaps dystopia, or perhaps just low-grade corruption permeating all aspects of society, reducing economic prosperity. Bribing of Supreme Court Justices and threatening to lock up political opponents will become routine. Life will go on for the vast majority of people, most of whom have no strong political opinions, but do love His Imperial Big Orange Brother, Sacred and Inviolable, may peace be upon Him, and hate His enemies.