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« The Failure of The Politics of Law | Main | The Illusion of Partisanship on the Court »
Wednesday
May142014

The Court and Partisanship

(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. 

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