Every year about this time, the reporters who cover the Supreme Court get to do their end-of-term wrap-ups and analyses. It’s their chance to make sense of it all for the rest of us. This year brought two sterling examples of the genre.
On Sunday, July 6, Linda Greenhouse of the New York Times published the first article in the paper’s “Week in Review” section. Titled “Heartfelt Words from the Rehnquist Court,” it was an effort to explain why Chief Justice Rehnquist and Justices O’Connor and Kennedy had shown a capacity in the last term for “evolution” in some cases where either their votes or their words — or both — were unexpected. Rehnquist, breaking a pattern in recent “sovereign immunity” cases, had written the Court’s opinion upholding the right of state employees to sue their employers under the Family and Medical Leave Act. O’Connor had written to uphold racial preferences for the sake of “diversity” in the Michigan law-school case. And Kennedy had swept aside the sodomy laws of the states. There was no mistaking that, from Greenhouse’s perspective, these were all welcome developments. But how to explain such glad tidings?
Hmm, Greenhouse ruminated. Maybe it’s that the Court in recent years “has become a gay-friendly workplace.” Or that several of the justices have traveled overseas and “held extensive sessions with judges in Europe” and other places where O’Connor in particular is a “star participant.” Or that Rehnquist’s “daughter, Janet, is a single mother,” and the chief has sometimes “left work early to pick up his granddaughters from school.” Good, mind-broadening, life-affirming stuff, all of that. Ain’t it wonderful when the justices break out of their marble cocoon and wake up to the way the rest of the world lives?
Except that some of them — we know who they are, but Greenhouse tells us anyway — just can’t manage this self-liberation:
Of course, not everyone responds to change in the same way, as shown by Justice Antonin Scalia’s bitter dissent in the Texas case, warning of “a massive disruption of the current social order.” It was as if he and Justice Kennedy, born within four months of each other 67 years ago, both Roman Catholic, both Harvard Law School graduates, both elevated to the court within 15 months by President Ronald Reagan, were speaking from parallel universes. So the bare facts of biography are not enough to explain Anthony Kennedy.
The “bare facts of biography,” then, are perfectly adequate to explain Scalia.
Kennedy, on the other hand, is such an interesting fellow! His boyhood home in California “had a constant flow of people and ideas” (neither of which, we can be sure, ever darkened the door of the Scalia household). Three of his kids live in New York and must therefore be a good influence (this is the Times, after all). It all proves that “even in late middle age, people are open to new ideas.” Some people, anyhow.
The following morning Nina Totenberg took a slightly different tack, deciding that for her analysis piece on NPR’s Morning Edition, it was O’Connor and Justice Clarence Thomas who most needed explaining. O’Connor was actually given short shrift, with the now-standard explanation that she is (as Dennis Hutchinson of the University of Chicago said to Totenberg) a “sensitive politician” who avoids the tendency of other justices (again we know who they are) “to think more doctrinally and sometimes with a more limited view.” Oh, how the professoriate strains to divert our attention from the frequent incoherence of her opinions and her casual attitude toward legal principles. Not to mention the fact that this very “sensitive politician” has succeeded more often than any other member of the current Court in trampling on democratic decision-making.
But it was Thomas who came in for the bulk of the “analysis” in Totenberg’s piece. Focusing on his dissent in the racial-preferences case, she phoned up a half-dozen sources (two of them former Thomas clerks) to shed light on his “angry rejection of affirmative action,” in an opinion “remarkable for its personal tone of anguish.” (In truth, the dissent was remarkably impersonal.) Totenberg explored how he drew upon his own experience as a black man and a beneficiary of affirmative action in coming to his views in the Michigan case. The implicit racism of even asking such a question apparently didn’t cross Totenberg’s mind. Extremely silly answers were given by one and all of Totenberg’s interviewees, even those who once worked side by side with Thomas (and ought to be off his Christmas card list now). Cheap psychoanalysis, all of it.
Totenberg’s piece shows not the slightest interest in any actual arguments about the law made by Thomas. Perhaps this is because Thomas’s evisceration of the logic of O’Connor’s majority opinion is unanswerable. Perhaps this is also why Greenhouse avoids responding to Scalia’s destruction of Kennedy’s decision.
Perhaps. But I suspect that neither Totenberg nor Greenhouse believes that arguments are the real stuff of the law. So steeped in a fetid brew of judicial legislation are we all that few of us any longer believe that the opinions of the justices are ever the products of thought — thought about the rule of law, about the meaning of the Constitution, about the quality of reasons advanced for this or that view of what the law requires or forbids. Instead it is widely believed (and every one of the justices on occasion gives us reason to believe) that there is no distinction between law and politics, that decisions are the products of sentiments about “justice,” not of reasoning about the Constitution.
From there it is a short step to believing that the reasons given by the justices for their rulings (or their dissents) are not really worth any scrutiny. For they are, after all, mere rationalizations for the underlying sentiments. Got kids in New York? Know some nice gay people? Then make the Constitution protect a right to commit sodomy, and then dress up the visceral conclusion with some high-sounding rhetoric about dignity. Feel put upon as a black conservative whom folks suspect of getting ahead on your race? Angry about it? Why then, fulminate about the “stigma” of affirmative action, and manufacture some guff about the Constitution’s “principle” of equality to make your anger seem righteous.
The disdain even for the possibility of reasoned judgment in these journalistic exercises has its counterpart in the academy. In political science, the dominant school of thought in the study of the Supreme Court for the last four decades has been the “behavioral” approach, which uses an “attitudinal model” to understand judicial decision-making. The first rule of this model: Do not read the Court’s opinions with any care. Instead, skim them for just enough information to pigeonhole each case in some predetermined category: civil liberties, business regulation, the overturning or upholding of precedent. Second rule: Count noses and arrange the votes into a pattern. Don’t forget to notice the political parties of the appointing presidents. Third rule: Make some charts and if possible some equations. This will make the obvious and superficial seem less so. Fourth rule: Announce that the patterns, charts, and equations themselves explain something. Not something interesting, mind you. Something like the conclusion you assumed from the outset, that “law” is not an independent variable in judicial decision-making.
Forty years ago the great constitutional-law scholar Wallace Mendelson blasted this approach with arguments that have never been rebutted. “We are apt,” Mendelson wrote, “to see what we are prepared to see — and the neo-behavioralists are prepared to see lawlessness. As a group, they have, in effect, found every member of the modern Supreme Court guilty of fraud, hypocrisy, or foolishness.”
So with Greenhouse and Totenberg today. Perhaps they think that as “objective” journalists they cannot themselves engage in any reasoned analysis of the arguments of the Court’s members. That would lead to taking sides! But we know what side they’re on already. Better if they gave up on their annual “analyses,” which in truth paint even the justices they like as frauds, hypocrites, and fools.
— Matthew J. Franck is chairman and professor of political science at Radford University.