Wednesday, May 23, 2012

"Lobbying" the Supreme Court

Mark Tushnet

Kathleen Parker may not be responsible for the remarkably silly title of her op ed in the Washington Post, "The Public Trial of John Roberts." But, I've noticed a theme (meme?) going around, that saying something about how a Supreme Court decision invalidating the Affordable Care Act will -- may? might? -- adversely affect the Court's reputation, or the way "history" will treat the Chief Justice, amounts to "lobbying" the Court -- a term Parker uses -- or is an attempt to "delegitimate" such a decision.

This strikes me as silly in two ways. (1) It's probably too late to "lobby" the Court. The justices have already cast their votes and opinions are being prepared. Of course there's always the chance of what political scientists call "fluidity" before the case is handed down, and sometimes fluidity means that the result of the preliminary vote is reversed. And, I suppose, there's some -- I'm pretty confident minuscule -- chance that some justice's vote will be fluid because of what the justice thinks people are going to say about a decision one way or the other, although I'd be quite surprised to learn that that was true because of  things that were said or written after the preliminary votes were cast: A justice would have to be pretty thick to think about reputation and the like afterwards but not have it in mind beforehand.

(2) The comments or predictions about the Court's reputation and the like are just that -- comments and predictions. They may be right, they may be wrong, but really, it's not much different from political commentary about whether Republicans or Democrats are going to  be hurt more by a new debt-ceiling crisis. "History" will tell us in its own good time how "it" regards the Roberts Court, but right now all people are doing is writing political commentary (not even the first draft of history).

So, is there anything to say about this theme (instead of participating in its development)? A couple of things occur to me. Maybe it's softening the battlefield (by both sides) in anticipation of the Court's decisions, laying out the themes that both sides expect to use after the decisions come down. "The Court's a captive of partisan Republicans"/"It's obnoxious [again, one of Parker's words] to criticize the Court for partisanship." If that's what's happening, it's interesting that the battlefield seems to be one where the Court has invalidated the Act. Neither Democrats nor Republicans seem to be working out plans for using a Court decision upholding the Act for political gain. Maybe they know something I don't about how the case is going to come out. (But, I do know that good strategists draft one press release to distribute if the Court comes out one way and another to distribute if it comes out the other. The NAACP archives, for example, have this sort of "dual" press release ready to go before the Court's decision in Brown v.Board of Education.)

The other thing is that the "Greenhouse effect" discussed by conservative critics of Justices O'Connor, Kennedy, and sometimes Souter, seems to have morphed. In its origins, the effect was that mushy conservatives came to Washington and, desiring to be liked by the people they hung out with, drifted to the left. The effect was gradual and "environmental." Now conservatives seem to be worrying -- completely needlessly -- that the effect might occur in a quite targeted way, with respect to a specific case. But, one thing's pretty clear: John Roberts isn't going to be affected by these articles. He knows his own mind. Maybe he's concerned about his reputation in history or the Court's legitimacy, maybe he isn't.* But he's going to vote -- or has voted -- the way he thinks correct. (I would have written "right," but in the present context that would be too easy to misinterpret.)

* For myself, I don't think there's anything wrong with a justice building concerns about the Court's legitimacy into a general view about interpreting the Constitution. That's certainly one way of understanding Bickel's advocacy of the passive virtues, for example. (Concern for personal reputation is a trickier matter, but I'm inclined to think that it's OK as part of a general view.)

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