Man Without Qualities

Sunday, October 06, 2002

Psychoanalyzing the Supreme Court Some More

Linda Greenhouse serves up another helping of her signature dish on the Supreme Court, beginning with this choice morsel:

IMAGINE going to work every day with the same eight people: laboring together on joint projects, eating together in a small private dining room, huddling together for hours every week behind a locked door that discourages all but the most urgent interruptions. The same eight colleagues. For nine years.

One gets the impression that the Supreme Court spends its days in one or two small, airless rooms in the basement of their marble palace, hour after hour, day after day. The pressure to get along with one's colleagues is unbearable! Anyone would cave! Everyone thinks it's a choice position - but it's really HELL ON EARTH! No wonder the Justices almost always buckle under the strain, stop voting in accordance with their own, disinterested, independent view of what the law is (or should be) - and, according to Ms. Greenhouse, JUST VOTE IN PATTERNS AND COALITIONS SO AS TO GET ALONG WITH AT LEAST SOME OF THOSE OTHER EIGHT OLD PEOPLE!

Consider a somewhat different - and, I believe, far more accurate - version of Ms. Greehouse's lead:

IMAGINE going to work every day to a marble palace, cushioned with the thought that you have life tenure with an irreducible salary by the specific terms of the United States Constitution, coupled with about the best health benefits the mind of modern man can muster, and a job whose prestige cannot be exceeded anywhere in the world. Your large, elegant and well appointed chambers are decorated in your sole discretion and staffed by intelligent people- most of all, by a constantly-changing cast of three or four law clerks chosen each year by you, personally, from the best and brightest graduates of the best law schools in the country. Aside from their almost incandescent intellects and energy, these clerks funnel to you in a most delightful, personalized fashion, the latest thinking of the legal academics who trained them. They are, among other things, a virtual insurance policy against your ever making a truly stupid mistake in anything you write. You daily receive requests to speak on topics of your choice from famous places all around the world, all expenses paid.

When you consider dissenting from your colleagues, you snuggle into your recollection that two of your predecessors thought by many to be among the greatest jurists of the 20th Century - Holmes and Brandeis - were known as the "Great Dissenters," and routinely signed their names to lonely dissents that became the law only decades later. Your Court is headed by a Chief Justice, William Rehnquist, who for many of his first years on the Court was often a singular and repeat dissenter in many controversial cases - and now has a distinct possibility of being considered by history as one of the nation's great Chief Justices despite the harping of his critics.

When Court is in session, you spend just a few hours each week in private with the other Justices, as votes are taken and cases assigned, and of course you sit in the public courtroom for more hours listening to cases and controversies, during which time you communicate little with the other Justices on the bench. Indeed, if you are Justice Thomas, you almost never say anything to anyone during this court time - you just listen attentively. You may or may not take meals or snacks from time to time in the small but elegant dining room. Your "joint projects" are rarely more than either writing a draft opinion which you send to your colleagues for written comment, or your receipt of one of their drafts - there is never even an opportunity for personal, face-to-face acrimony.

The same eight colleagues. For nine years.

What bliss! I dare say under such conditions most people wouldn't give a fig if a single one of their colleagues ever agreed with a word they wrote. Can one imagine conditions that would reduce the felt need to cooperate further than these?

Ms. Greenhouse also writes:

"A court that sits together for a long period of time is more likely to develop stable coalitions," Professor Merrill said, "and those coalitions are likely to grow in strength over time" and to "evolve cooperative strategies." Within the dominant coalition, there develop "dense bonds of reciprocity" — a greater willingness to compromise in order for the group to speak with one voice. He said that may account for the increased number of solid 5-to-4 decisions and the declining number of fractured plurality opinions in which no one speaks clearly for a majority of the court.

How can it not be true that "A court that sits together for a long period of time is more likely to develop stable coalitions" - whatever the heck this is supposed to mean? If the make up of a court (or any group) is not "stable" for a long period, then how could the coalitions in that make up be "stable"?

And nothing is added to the original assertion by the superfluous squib "and those coalitions are likely to grow in strength over time" and to "evolve cooperative strategies." Obviously coalitions (assuming they exist on this Court) are likely to grow in strength over time - in what other way can they or anything "grow in strength" but over time? Conversely, coalitions are also likely to shrink in strength over time. For example, former Chief Justice Warren Burger helped get his old Minnesota buddy Blackmun on the Court, and for years their votes were so similar that they were known as the "Minnesota Twins." Then Burger drifted right (he concurred in Roe v Wade, for example, and later disavowed it) while Blackmun drifted into a distinct if eccentric left niche. Then there was the famous "switch-in-time-that-saved-the-nine," where a conservative bloc broke up after dismembering much of the original "New Deal" in time to disgrace President Roosevelt's attempt to "pack" the Court (a break-up, by the way, demonstrably not precipitated by the election results or the packing attempt, contrary to much urban legend). If Ms. Greenhouse or Professor Merrill want to say something meaningful, then let them opine as to whether "coalitions," once formed, are more likely to strengthen or weaken over time under whatever conditions apply. But I very much doubt if such an assertion could be even formulated in a way that isn't risible. Which may explain the opaque phrasing actually chosen by Ms. Greenhouse and Professor Merrill.

Similarly, what is a "coalition" other an a group of people engaged in "cooperative strategies?" If Professor Merrill is positing a strange kind of "coalition" that at first has no "cooperative strategy," but later "evolves" some, his meaning certainly isn't conveyed by Ms. Greenhouse. Is the point supposed to be that once a "coalition" forms with respect to some topic, then it tends to spread to others? So if some Justices see eye-to-eye on, say, evidence rules, we should expect them to pretty soon be trading away their votes in, say, states' rights cases? That's a pretty strange and inflamatory model of the Court - and it surely is not well articulated by Ms. Greenhouse here.

In short, this entire portion of the above paragraph is near-tautology masquerading as an insight.

While the first part if this paragraph resides in territory a philosophically minded realtor might call "tautology adjacent," the rest of the paragraph is nearly delirious. What is a sinister "dominant coalition" supposed to be? Is this something other than a frequent Court majority? And what evidence is there for the existence of "dense bonds of reciprocity" within the "dominant coalition?" Indeed, what is the evidence for any of this speculation with respect to this actual United States Supreme Court.


Ms. Greenhouse even seems to be aware of the high nonsense factor here, since in the very last paragraph of her article she admits that all the preceding speculation exists "with no laboratory experiment available to test any hypothesis about the impact of change or lack of change..." So very true. And that is why her article is so very meaningless. Too bad she then ruins even that glimmer of intellectual honesty with an uncharacteristically absurd quote from Justice White, apparently taken out of context.

Even the one rather obvious thing that does happen when people - or at least intelligent, sensitive people like the Justices - spend a lot of time around each other -specificlly, people get a better and better idea of how each other think, and a better and better idea of what arguments will play with one or the other - is recast in this article as something exotic and savoring of "insider knowledge":

One of the most important commodities for any justice is information. In staking out a position, drafting a proposed majority opinion or deciding whether to add a new case to the docket, each justice needs an idea of how the others will respond. "The accuracy of the estimates of positions on potential issues that each justice has about the other eight justices will differ significantly on a court in flux than a court in stasis," Professor Merrill said. "Justices on a court in flux will make more `mistakes' about the positions of other justices than will the justices on a court in stasis."

One would also probably get a good idea of which Justice gets on somebody else's nerves. But then, none of that sounds as sinister, gnostic and cabalistic as "dominant coalitions" and "cooperative strategies" "information as a commodity" and all the rest of it.

And then there are the flashes of Ms. Greehouse's own rather obvious political agenda, as with this:

It may also, in his view, account for the court's lock-step march, virtually since the start of the second Rehnquist Court, in the direction of increased autonomy for the states within the federal system. Professor Merrill is not the only one to observe that the court's latest decisions on sovereign immunity are so far afield from the Constitution's textual treatment of the subject as to make it implausible that such a devout textualist as Justice Antonin Scalia could actually be in whole-hearted agreement. But it would be apostasy at this point for any one of the "federalism five" to go over to the other side.

Let us take as received wisdom that a reporter who cannot restrain herself from characterizing a set of Court decisions as "the court's lock-step march" is not exactly a dispassionate observor. And, while it is certainly fashionable in some academic quarters to criticise the direction fo the Court's states' rights decisions, there is a notable lack of alternative approaches other than the always-popular-on-the-left proposal to just let the federal government take over the states if that's what Congress wants. Ms. Greenhouse's unsupported assertion that "it would be apostasy at this point for any one of the 'federalism five' to go over to the other side," which patronizingly suggests that these Justices think their opinions are wrong but just refuse to change their minds is just embarrassing and silly - as is (given her highly personalized position in this article and that of Professor Merrill) her description of Professor Merrill as "a former Supreme Court clerk" with no mention of which Justice he clerked for. By Ms. Greenhouse's own lights, isn't it relevant whether Professor Merrill didn't clerk for one of the "federalism five?" She knows - why doesn't she share? Doesn't she realize that one of the most important commodities for any reader is information?


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