From TPM Reader AC …
As someone who almost certainly falls into your “elite academic” category, I have some thoughts about the current discussion.
A while back, many people thought that the law was deterministic. Enter a set of facts, and the law will immediately spit out an answer, one that is replicable regardless of who the judge is. I think that most now understand that the judge’s identity matters. This does not mean that the process is necessarily corrupt. Rather people approach interpretive questions and understand facts differently, with those differences often being based on life experiences.
Historically, academics have defended the judicial process, even as when they disagree with the results of a given decision. It is too easy to assume that judges are imposing their own preferences, acting as legislators, rather than applying their judicial approaches in a principled manner. And just as liberals get aggravated when conservatives demand that we “impeach So and So” when Judge So and So issues an opinion they disagree with, conservatives hate when liberals call the process corrupt and demand impeachment when the shoe is on the other foot.
Before the justices supercharged the shadow docket, they wrote opinions justifying their decisions, allowing critics to point out inconsistencies and hypocrisy. Regardless, they were operating within the accepted range of legal discourse, trying either to fit within or distinguish precedent, or, on rare occasions, to overturn it. Put simply, there was always room for disagreement short of calling the other side corrupt. And no judge has ever been 100% consistent in applying his or her declared judicial approach. Indeed, it is amusing to see the liberals and conservatives switch sides on the states’ rights debate, depending on the politics of law in question. However, there has long been a sense that they at least tried.
For years the conservatives accused liberal justices of judicial activism and lack of humility in the face of legislative decisions. They argued that their judicial approach hewed the law and proper role of judges. However, as they gained power, they began to behave exactly like their caricature of liberal judges. The immunity decision would be funny if it were not so serious. All of the criticisms they lobbed at Roe could be leveled against Trump v. U.S.
With that background, let’s turn to the question of whether academics and their purportedly close relationship to the judiciary are part of the problem. I seriously doubt that the fact that many academics clerked for judges has anything to do with the general effort to defend courts as engaged in something more than the exercise of pure power. While everyone can argue and have opinions, judges have historically been constrained by professional expectations. The power of the courts rests on their ability to convince people that their answers follow the law. Because the law is not as deterministic as some might wish, this leaves plenty of room for disagreement about specific results without deciding that judges have absolute discretion to do what they want and are simply exercising power.
I think what has happened is that the game has recently changed, with a number of major developments. First, the government is taking positions completely at odds with what the law has been understood to be, pushing the envelope in ways we’ve never seen before. Second, the court has abandoned its reverence for precedent, with several justices eager to strip away two centuries of interpretation. Third, the court has taken to using the shadow docket, which yields results without explanation. The apparent inconsistency of the results, see, e.g., the inconsistent application of the Purcell principle, supercharges the perception that the justices are just making it up based on their political preferences. Finally, even when the court provides its reasoning, it is fairly clear that it is not consistently applying its interpretive approaches.
Most legal academics are appalled by what is happening, and they are reluctantly coming to the conclusion that the results are partisan, not driven by differences in judicial philosophies. A few of the justices no longer even appear to be pretending. That they have been slower than some to get there reflects that fact that they are small “c” conservatives, believe that legal analysis is more than just an expression of personal preference, and we should not live in a world where every decision we disagree with is a sign of corruption. The fact that this court is behaving in ways that take it beyond the realm of legitimate legal analysis and into partisan politics does not mean that the law is infinitely malleable and that all judges are simply exercising power they should not have.
I think most legal academics are either on the “reform the court” bandwagon or will get there soon. I don’t think this means they were wrong about the legal process all along or even about this particular batch of justices. Rather, I think things have changed, and it has simply taken many some time to accept that. Just because the early alarmists may have turned out to be right doesn’t mean that those taking a more cautious wait and see approach were wrong to do so.
As an aside and by way of other examples, a lot of people were accusing Israel of genocide even before it responded to 10/7. To my mind and that of many others, such claims seemed overblown and inappropriate. However, as Israel has systematically destroyed Gaza, those claims seem more justified (though I am not saying they are true). Were those who took a wait and see approach and have come to agree with the early adopters part of the problem? Israel, like our court, had lots of opportunities to take an offramp and chose not to. I know that analogies to Israel are fraught, but I think it captures the conundrum those who are cautious face.
There will always be institutionalists whose first instinct is to defend the court. However, as the court behaves in ways that look less and less like a court operating within traditional constraints, I think you’ll see more and more folks deciding that the court needs to be fixed.
In response I told AC that I mostly agreed with his overall take. This paragraph was the core of my response …
I’d say that three conceptually distinct but in practice almost indistinguishable things have happened over roughly the last decade. 1. No consistent jurisprudence by almost any definition (not a problem in itself but a big problem in concert with the rest). 2. A consistent pattern of applying different standards to Democrats and Republicans. 3. A category difference in simply manufacturing new constitutional law in cases where the constitution is simply as clear as it can be. To me the immunity decision was the last straw on that front. When you put these together I think there is simply no legitimate/non-corrupt explanation for Court’s actions. There’s simply no way to see these actions in totality as any kind of legitimate judicial review. I think the situation looked very different a decade ago, though I think you can see the roots of this another five years earlier.
