(replying to the message below, which claims the Court is divided along partisan lines)
... I think it is terribly misleading to say the Court is polarized, partisan or ideological. These are mere projections that scholars of politics frequently throw onto the Court. E.g., In the health care case, all five conservatives devils voted to uphold Wickard v. Filburn. The New Deal State remained in tact, in theory, even in a Court of Five. Likewise, there isn't anyone on the Court who believes social security is unconstitutional. So I don't know how congruent any of the current conservatives are to the Tea Party, which has members that would presumably dismantle Wickard and Social Security. So, another interpretation could be that the Court has been able to insulate itself from "the crazies" that erupted in the Republican party in the aftermath of Obama's election.
A similar point can be made about affirmative action. The six justices took positions that I bet a strong majority of the public would have agreed with. Yet, among liberal professors, this decision is said to be conservative ideology run amok by the Republican Devils.
The last I looked at the data, current justices were less directional than previous ones. They are unanimous a good bit. And the things they disagree upon only concern what incremental steps should be taken in this case or that. These are pre-structured conflicts which only affect the policy process at the margin. The central sin among scholars in this field is that they think 5-4 decisions have to be partisan or ideological, merely because the Democratic-appointed ones are on side and Republican-appointed on the other. This has always been the fatal sin of this club. For the only thing you could ever show with these methods is that the MEASURES indicate partisan disagreement, not that there is such disagreement in fact.
To REALLY say that the Court is partisan requires a philosophy of partisanship that is independent of the presence of any of the measures. The simple fact of the matter is that, even among parties, disagreement could be pragmatic. I'm sure I disagree with Richard Epstein about Obamacare. But I would never characterize either position as being "partisan." Honestly, I don't even know what that word says. A man either has a reasonable view or he doesn't. And if he doesn't, it's not that he's being partisan; it's that he's being a fool.
________________________________ To: LAWCOURT-L@unt.edu Sent: Wednesday, May 14, 2014 1:00 PM Subject: Re: partisan splits on the Court
Not surprisingly, our courts (especially SCOTUS) ... are polarized and closely divided, with most important decisions decided by the slimmest margin.
... ok, the parties play a role in the social learning of the Court over time. So, I imagine, do educational institutions, news media, history, and uncontrollable events. All that might be said here is that the philosophic disagreement on the Court is increasing. I don't speak of this as being "partisan disagreement" because the Court doesn't act like a partisan organization. Take a look at how judges behaved when Republicans tried to suppress the vote with voter id laws during the Romney loss. Sandy Levinson was out there proclaiming the political thesis: Republican judges were going to help Romney win, because, after all, they were Republicans. It never happened. And there are countless examples of where the Supreme Court has avoided doing things to help parties win elections, even though the opening was there. Bush v. Gore was the exception. So a court that would really be partisan would look very different indeed.
So just because there are Democrat justices disagreeing with Republican justices doesn't make the disagreement "partisan," any more than, if playing Spades, their disagreement over a local rule would be partisan. I mean there's only 9 of them. Let's imagine they go to dinner and have a fight about whether high fat diets are bad. The Republicans say the diets are not bad, because of a story in the Wall Street Journal (true, by the way). Even Rush Limbaugh had a radio bit about how we were all being fooled by the fat conspirators (again, true). But, in a reversal of role, the 4 Democrats happen to say, "I'm conservative on this -- I'm not going to eat high fat." Is this a partisan dispute? I surely would never speak of it as such.
I think you need to do more to show us why you think these disputes are "partisan."----- Original Message -----
Sent: Wednesday, May 14, 2014 2:51 PM
Subject: Re: partisan splits on the Court
I would just add that the idea that views about law held by judges and others are politically/socially constructed over time, and that political parties play a crucial role in this process, seems to me neither misleading nor especially controversial.