Saturday, January 16, 2021

Randall Kennedy · Cynical Realism: Supreme Court Biases · LRB 21 January 2021

Randall Kennedy - an African American Harvard Law Professor - and self described cynical realist takes a look at the Supreme Court.  He takes his main inspiration from his colleague Michael Klarman, author of from Jim Crow to Civil Rights, and, most recently of  THE DEGRADATION OF AMERICAN DEMOCRACY —AND THE COURT, his Foreword to the Harvard Law Review's survey of the Supreme Court's 2019 term.†
Randall Kennedy · Cynical Realism: Supreme Court Biases · LRB 21 January 2021

The first is that constitutional text, judicial precedent and jurisprudential methodology are much weaker constraints on justices’ conduct than we are given to think. Justices have resources that make it possible for them to slip these hindrances when there is sufficient incentive to do so. This is true of all of them, whatever their ideological inclination. As Klarman observes, when it suits the purposes of both conservative and liberal justices to be originalists – interpreting a constitutional provision as it was understood by its framers – they do so. When deferring to history does not suit their purposes, they don’t. Similarly, he writes:

Conservative justices favour an originalist methodology to interpret vague constitutional phrases when the issue is gay marriage or abortion, but not when it is campaign finance regulation or race-based affirmative action, which are difficult to invalidate on originalist grounds. Liberal justices do not purport to be originalists, but are happy to argue in such terms when originalist evidence supports their conclusions ... Conservative justices accuse liberals of being a ‘threat to American democracy’ when the court rules that same-sex marriage is a constitutional right, but do not hesitate themselves to invalidate a local school board’s efforts to integrate its schools or gun control measures enacted by city councils. Government paternalism deeply offends the conservative justices, except when they embrace it ... Precedents are not to be lightly overruled, except when ‘there are strong grounds for doing so’ ... In some doctrinal areas, government motive is everything, but in others it is irrelevant ... The court will not decide more than is necessary to resolve the matter before it, except when it does; and the court will not decide issues unless properly presented, unless it feels like doing so ... With so many diametrically opposed practices and maxims of interpretation to choose from, how could constitutional interpretation not be thoroughly political?

Klarman’s second point is that the Supreme Court has for some time now been reliably biased *

**Klarman, who clerked for Ruth Bader Ginsburg when she was a court of appeals judge, has also felt some of these pressures, but he has resisted them, delivering a powerful polemic that presses three key points.

The first is that constitutional text, judicial precedent and jurisprudential methodology are much weaker constraints on justices’ conduct than we are given to think. Justices have resources that make it possible for them to slip these hindrances when there is sufficient incentive to do so. This is true of all of them, whatever their ideological inclination.

Klarman’s second point is that the Supreme Court has for some time now been reliably biased towards outcomes favourable to Republicans. One thinks immediately of Bush v. Gore, the case arising from the presidential election of 2000, in which the Supreme Court, to the shock of many, intervened in the counting of votes in Florida, issuing a ruling that assured the election of George W. Bush. Bush v. Gore stands for the proposition, Klarman writes, that ‘if justices care enough about a case’s outcome, the law goes out the window.’ 


Although anxiety about the court is spreading, there is little chance that major reforms – the end of life tenure, for instance, or substantial enlargement of the number of justices – will be attempted anytime soon. Relief at the ejection of Trump will dull the sense of danger and urgency required to drive reforms of that magnitude. The Biden Democrats are at heart moderate restorationists. And the party of Trump – remember that he received more than seventy million votes – will remain sufficiently influential to stymie the changes needed to address the constitutional and other flaws that have been so vividly revealed over the past few years. The Republican justices are unlikely to take any action that is so out of keeping with accepted protocols that it calls into being a determined and united opposition. Rather, they will act calmly, quietly and deliberately to entrench the policies propelling the degradation of democracy in America.


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