How can the Supreme Court escape from the perception that it's partisan?

Lawprof Barry Friedman is working on the theory that people have lost trust in the Court (or so the polls show) because they perceive the Court as political. (Friedman stresses that politics is different from ideology, ideology being something one actually believes in.)

Okay, so if the Court cares about the public's disapproval and wants to do something about it — which would be, ironically, political — then the Court should work to deflect the perception that it is political.

Well, then, the question becomes why do people perceive the Court as political? One answer is: Because it is political. In which case, people should be congratulated for their perceptiveness. Nice going, people. You are not dupes. But that's me saying that.

What Friedman is saying is that certain cases are making people see the Court as political. What cases?
Basically, Citizens United. Why do people think the Court is political because it valued free speech rights above a congressional effort to squelch speech 60 days before an election? Because elite lawprofs like Friedman have been telling people over and over that Citizens United was political, and you know how much people trust elite lawprof commentators... manipulating the perceptions of American people since... never.

Let's back up a minute. Citizens United came in 2010, the year that "marked the beginning of the current downward slide." Here's something else that happened in 2010: Elena Kagan joined the Court. The year before, Sonia Sotomayor joined. 2 Obama appointments in 2 years. Friedman talks about those 2 appointments, but only in the context of saying that after Kagan replaced Justice Stevens, it became true for the first time since 1953 that all the liberals are appointees of Democratic Presidents, and all the conservatives are appointees of Republican Presidents. (Stevens had been appointed by Gerald Ford and, Souter, whom Sotomayor replaced, had been appointed by George H.W. Bush. You have to go back really, really far to get to a Justice who went conservative on a Democratic President!)

Friedman concludes:

The more justices are seen as making decisions on partisan issues and the more cases are decided along the current 5-4 Republican-Democrat divide, the more the public will disapprove. 

See how that works? There are 5 conservatives and 4 liberals. The liberals, though they are the minority, need to win a whole lot more if the Court wants to recover the approval of the people. And that — if the Court were to buy it — would shift the Court to the liberal side without needing another appointment.

But here's the test of Professor Friedman's actual belief in his theory. What if President Obama gets the opportunity to replace one of the 5 conservative Justices? Would Friedman publish an op-ed pressuring the liberal Justices to vote with the conservatives in order to bolster respect for the Supreme Court? Or would he be cheering hooray for the liberal majority?

Oh, it's not that I think he (and his fellow elite lawprofs) would publish op-eds saying that out loud. I just think we'd be flooded with academic-sounding praise for all the thoughtful, well-reasoned opinions.

It's the first Monday in October, time for people like Barry Friedman and Dahlia Lithwick to tell us "the court has taken the law for a sharp turn to the ideological right..."

"... while at the same time masterfully concealing it." And, annoyingly enough — to them, anyway — ordinary Americans still think the Supreme Court is too liberal.

How to explain the justices shoving the law rightward, while everyone thinks it is dead center or too far left? 

Their metaphor is magic — the article is accompanied by a photoshop of the Chief Justice in magician garb about to pull something out of a hat — and that question fails to acknowledge the difference between absolute and relative position. Obviously you can push — or shove as the exaggerated language of anguished liberals will have it — something to the right and have it still be on the left if the thing started out way the hell to the left. And obviously liberals know this: Tell Friedman/Lithwick that Anthony Kennedy is in the legal/political center because he's at the center of the current array of Supreme Court Justices. It will take them much less than a second to decide to inform you of the distinction between absolute and relative position.

Like TV's "Masked Magician," Friedman and Lithwick want to reveal the secrets behind what they'd like you to think are magic tricks the Court uses to conceal its terrible right-wingitude.

First, they say, there's "stacking the deck": "picking cases with facts so extreme that only one outcome seems possible." One of only 2 examples they give is Gonzales v. Carhart, in which the Supreme Court, in 2005, upheld the federal law banning so-called partial-birth abortion. Friedman and Litwick say:

The law bans late-term abortions in which the fetus is partially delivered before its brains are sucked out and skull collapsed. If you find it hard even to read that, you've caught the point: That's deck-stacking.

But the Court didn't choose that case out of a big pool of abortion cases in order to get something with "gruesome facts" that would keep us from "notic[ing] the major inroads the case makes on women's rights more generally." Congress passed the Partial-Birth Abortion Ban Act in 2003, right after the Supreme Court had stricken down Nebraska's partial-birth abortion law in 2000, in Stenberg v. Carhart. The Court in Stenberg showed legislatures what would be needed to pass a law against these abortions that would avoid the same constitutional flaw and Congress responded with a statute that we knew would have to go through judicial scrutiny and end up in the Supreme Court.

That it came to the Supreme Court in 2005 has nothing to do with the Court "stacking the deck"! Friedman and Lithwick just don't like what the case said about abortion rights, but the truth is that Gonzales v. Carhart was a moderate decision that avoided both extremes and, because of that, produced a separate opinion by Justices Thomas, joined by Justice Scalia (rejecting abortion rights altogether and questioning Congress's use of the Commerce Clause to regulate abortion), as well as a dissenting opinion consisting of the 4 Justices who, with the now-retired Justice O'Connor, had formed the majority in Stenberg.

The second "trick" Friedman and Lithwick identify is "misdirection":

While we are watching the term's "big" cases, it works its magic on the ones we aren't paying attention to, which often matter more. In this enterprise, the court is aided and abetted by the media.

Speaking of tricks, calling this a trick is itself a trick! It lets Friedman and Lithwick discount all the big cases that came out liberal and cherry pick any and every case that came out conservative. Hey! Look what the Court did in here! They proceed to tell you about their least-favorite recent cases.

Iqbal, Twombley, Garrett, Gross, Rapanos, Rent-a-Center. Maybe you haven't heard of most of those. But these are the cases that, read together, are making it harder and harder for everyday litigants to walk into a courthouse and hold unscrupulous employers, manufacturers of defective products, or polluters to account.

And you could pull out an equivalent list of little cases that make it easier. So what?

Friedman and Lithwick have 3 more tricks to reveal/do, so if you're up for their whole show, click through and read.

Why is Anthony Lewis so in love with Barry Friedman's book?

Here's Anthony Lewis:

We think of the Supreme Court’s constitutional decisions as lofty, lonely, unchallengeable. But in truth they are part of a dialogue with public opinion and political leadership—and in the long run the Court does not stray far from the public. That is the convincing conclusion of Barry Friedman’s stunning, fascinating history.

Here's a review of Friedman's book in The New Republic:

In Friedman’s assessment, no journalist was more closely attuned to the sentiments of ordinary Americans in the latter half of the twentieth century than Anthony Lewis of The New York Times. “In a probing 1962 feature story,” Friedman writes, “Lewis explained that the Supreme Court’s rapid development of the law in the areas of race relations, legislative apportionment, and the rights of criminal suspects reflected ‘a demand of the national conscience.’” Unburdened by data, Lewis unabashedly identified national trends that just happened to coincide perfectly with the Warren Court’s jurisprudence. Lewis explained the Court’s decision in Brown as follows: “Once again no complicated motive need be sought. The Supreme Court was reflecting a national moral consensus on segregation--perhaps anticipating a feeling that had not yet fully taken shape.”

This assertion is historically inaccurate. A great deal more opposition and ambivalence greeted Brown than is revealed by such a tale of moral triumph. But Friedman’s admiration for Lewis knows no bounds. “Though critics complained constantly that the Warren Court was running ahead of the crowd,” he remarks, “at least one perceptive observer understood that the Court did what it did because the public supported these outcomes and no other organ of government would provide them. That was Anthony Lewis.” In extolling Lewis’s coverage of Bickel’s Oliver Wendell Holmes Lectures at Harvard Law School, Friedman gushes: “Ultimately, it was Anthony Lewis who proved the Court’s most perceptive spectator.”


Whatever Anthony Lewis’s other journalistic strengths, having his finger on the pulse of the common man is not among them. Lewis was born in New York City and attended an elite private high school followed by Harvard College. His first job took him to the Times. When Justice Frankfurter suggested to James Reston that the Gray Lady needed a Supreme Court correspondent, Reston personally tapped Lewis for the assignment and returned him to Cambridge, where he studied at Harvard Law School as a Nieman Fellow. Lucas A. Powe Jr. has accurately characterized Lewis’s assessments of the Court as “both first drafts of history and explanations by one part of the Establishment of another part of the Establishment to other parts of the Establishment.” Friedman promises Joe Sixpack, but he delivers Tony Martini.

The book’s endorsement of Lewis’s many national-consensus pronouncements is most egregious in the instance of the Warren Court’s 1961 decision in Mapp v. Ohio, which required state courts to exclude evidence obtained in violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. “Although police complained [about Mapp],” Friedman writes, “the decision appears to have been in line with popular opinion, at least to the extent the public was paying attention. As Anthony Lewis wrote in The New York Times, the Court’s decision reflected ‘a national moral sentiment’ that refused ‘to tolerate police misbehavior in any state.’” It is worth observing that three justices dissented in Mapp, thereby rendering it difficult to believe that broad agreement existed in the entire nation when it did not even exist at the justices’ conference table. In 1961, moreover, half of the states permitted what Mapp forbade, including such notorious backwaters as New York. Abe Fortas, a Washington lawyer who would soon be elevated to the Court by his old friend Lyndon Johnson, called Mapp “the most radical decision in recent times.”

"Althouse is probably live-blogging my remarks. I hope so."

Says lawprof Barry Friedman — in the middle of responding to the comments about his book "The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution" here at the symposium.

There's a lot of talk about puppies. Professor Jenna Bednar, a few minutes ago, said, characterizing the message of Barry's big book: "The Court is the People's puppy and the people hold it firmly by the leash." How does the Court feel that leash? That's a question. Can you answer it? The Court doesn't just do its own thing and say whatever the hell the law is. It must interact with public opinion and things evolve accordingly.

Another metaphor is marriage, which Barry quips he's an expert on because he's had 2.

He says: "Any good marriage requires confrontation." This has something to do with the Supreme Court. I'm sure you can extrapolate.

But in a marriage that works — which includes, presumably, his 2d — you derive the unspoken rules about what you can do without having to have a whole fight about it. He recites a list of things you can possibly do and get away with.

The only one I remember is coming in drunk at 2 a.m. with no explanation. One reason I can't remember anything else on his list was that I got distracted by how similar it was to something Andre Gregory says in "My Dinner With Andre":

You see, that's why I think that people have affairs. Well, I mean, you know, in the theater, if you get good reviews, you feel for a moment that you've got your hands on something. You know what I mean? I mean it's a good feeling. But then that feeling goes quite quickly. And once again you don't know quite what you should do next. What'll happen? Well, have an affair and up to a certain point you can really feel that you're on firm ground. You know, there's a sexual conquest to be made, there are different questions: does she enjoy the ears being nibbled, how intensely can you talk about Schopenhauer in some elegant French restaurant. Whatever nonsense it is. It's all, I think, to give you the semblance that there's firm earth.

But, Althouse, are you live-blogging my remarks?

Yes, yes, because I'm the one who says what blogging is... subject to the leash-tugging of traffic, linkage, and the commentariat.