Magazine | July 30, 2012, Issue

Your Complimentary Gavel Is in the Tote Bag!

And other advertisements for Supreme Court justices

Roughly 1,000 years ago, when Sunday-morning political talk shows were relevant, I used to enjoy watching This Week with David Brinkley. One thing about the show confused me, though — aside from the presence of ABC White House correspondent Sam Donaldson — and that was the commercials.

There were a lot of them for an agricultural-products company called Archer Daniels Midland — ADM for short — and during my early post-college years, when I watched This Week with religious devotion, it seemed like an unusual way for a company with no products in the stores to spend its money. It was a perplexing “media buy,” to use a term I regret having learned since that time. Why would a company spend so much money to advertise its unavailable wares to me?

It wasn’t advertising to me, of course. ADM couldn’t care less about me. Or you, probably. Its target audience was, maybe, the roughly 1,000 people — lawmakers, lobbyists, lawyers — on Capitol Hill who were busily making agriculture policy. The actual viewership of the television program — all of those political junkies across America in their pajamas and Sunday bed-head — was irrelevant. ADM knew that the 1,000 important movers were all watching the show, and that made its advertising decision very smart.

It’s the same in Hollywood. Marketing is marketing. Because the Golden Globe Awards reliably influence the voters for the Academy Awards six weeks later, movie studios aggressively court the folks who hand out Golden Globes, who turn out to be a rather downscale and threadbare group called the Hollywood Foreign Press Association. They’re pampered and gifted and smothered in swag, in the hopes that they’ll present a Golden Globe to this actor or that movie, which in turn will influence the Academy of Motion Picture Arts and Sciences — which isn’t downscale or threadbare at all — which will in turn award an Oscar to this actor or that movie, which in turn, statistically, means millions more in ticket sales. So if a Serbian journalist living in a crappy studio apartment in some murderous part of town wants a leather satchel with the studio logo on it, give it to him!

It’s the same, apparently, when it comes to the Supreme Court. About the only believable explanation for the torturously incomprehensible decision by Chief Justice John Roberts — who, until a week or so ago, was thought to be a staunch conservative — to uphold the Affordable Care Act known as “Obamacare” on grounds that it was not dependent on a liberal reading of the Commerce Clause (which supporters of the act said it was) but instead was a tax (which supporters of the act said it wasn’t) is that he was the target of some very specific, very focused marketing.

#page#Which he was. In the weeks leading up to the decision, the tribal drums beat relentlessly. The Court, liberal commentators maintained, was in danger of being tarnished by a partisan decision. Liberal editorialists — is there any other kind? — reminded their readers — but, really, they had only one reader in mind, ADM-style — that the legitimacy of the Court itself was what the Obamacare decision was really about. The past six months of point-counterpoint was merely kabuki theater aimed at terrifying one man.

It worked.

“When they come, they come at what you love,” says a wise Michael Corleone in the worst of the Godfather films, The Godfather Part III. But a piece of terrible dialogue in a terrible movie is a fitting way to illustrate what happened to Chief Justice John Roberts, who heard the code words beneath all of that target marketing — we’ll go after the Court itself; you’ll be the chief justice of a hobbled and disrespected institution. And if there’s one thing an unelected official wearing a black negligee for a living cannot abide, it’s being made to appear irrelevant.

The opening salvo, you’ll recall, came during Barack Obama’s State of the Union speech, when he called out the justices — most of whom were sitting in the front row — like hapless henchmen to a psychotic Bond villain. He let them know, and more important he let his supporters know, that the Court needed to be taken down a peg. That the traditional respect accorded these powerful folk was about to be pricked.

And in a way — and I know it’s a stretch — Obama did us all a favor, especially us conservatives. For too long we’ve struggled with the idea of fashioning a rock-solid conservative Court. For too long we’ve been disappointed when this or that “conservative” judge drifts leftward — “evolves,” to use the liberal reporter’s favorite term. Conservative judges “evolve” to the left; they “mature” to a liberal interpretation of government’s role; they “deepen their understanding” of the foggy possibilities etched into the Constitution.

We don’t have a phrase to describe a liberal judge who moves to the right, because that’s never happened.

So, lesson learned. If we want to reestablish a stricter reading of the Constitution, or shift the country permanently to the right, we’re not going to find allies on the bench unless we do some more effective media buying. We’re going to have to learn to target our marketing a little more ruthlessly. The Supreme Court, like congressional pork barrelers and Hollywood journalists, can be pushed and bullied and cajoled. Good to know.

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