Monday, November 26, 2012

Democracy is Disdain

Gerard N. Magliocca

Over the weekend I read Pam Karlan's Foreword in the Harvard Law Review, which is entitled "Democracy and Disdain."  Like almost everything Professor Karlan writes, this paper was filled with terrific insights and makes a strong case.  Nevertheless, I did come away with a significant doubt.

The thesis of the Foreword, put crudely, is that a characteristic trait of the Roberts Court is disdain for the elected branches, especially Congress.  In contrast to the Warren Court, which was deferential and respectful towards Congress (in upholding the Civil Rights Act of 1964 and the Voting Rights Act of 1965, for example), the Roberts Court is far more skeptical of congressional motives and capabilities.  Professor Karlan argues that this negative attitude is corrosive to democratic institutions, and claims that the Court's disdain for Congress can be traced, to some extent, to the current lack of any Justices who served in Congress or in any other elective office.  (Once again, the comparison is with a Court filled with Earl Warren, ex-Governor of California, and Hugo Black, ex-Senator from Alabama.)

While I agree with much of this analysis, my problem with Professor Karlan's position is that the Court's disdain is an accurate reflection of popular opinion, which holds Congress in low esteem.  (Much lower than in the 1960s).  In effect, her complaint is that the Justices are too representative.  That's an ironic twist for an article arguing that the Court is not treating democratic institutions with enough respect.  Moreover, I think the disdain that Professor Karlan describes is not the product of ignorance about the legislative process.  I was once at an event where the Chief Justice expressed his frustration with congressional treatment of judicial pay increases, an issue on which he personally lobbied and met with the leadership.  (To paraphrase, he said he was fed up with Congress.)

I think the deeper question lurking here is why the American People are so disappointed with Congress, and what can be done about that.  More applause from the Justices probably will not help.


I would argue (indeed have argued that lack of congressional experience colors how judges look at the legislative process. Those whose formative legal experiences were with the executive branch do tend to be dismissive of congressional legal positions and are generally skeptical of the possibility that Congress arrived at any conclusion in a principled way. So, without having read Professor Karlan’s article, I can see where she may be coming from.

The Warren court acted out of ideology rather than any love for democratically elected legislatures. The court backed congressional legislation with which it approved over law enacted by state legislatures which it did not.

Before the Roberts affirmation of Obamacare, I might have said the same thing about the Roberts court.

I don't think there's really any cure for the contempt pretty much everybody, except perhaps the members themselves, have for Congress. It's not a problem of perception, it's a problem of reality:

They're contemptible.

Take, for instance, the case of Rep. (Freezer cash) Jefferson. A search of his office turns of bribe money, and the response of his fellow Congressmen was outrage... That a Congressman's office got searched!

The problem appears to be that corruption has become so endemic in Congress that it is the norm, not the exception, and so Congress has become incapable of cleaning it's own house.

This isn't a problem better PR will ever fix. A better reputation for Congress can only result from a better Congress.

The Foreword from prof. Karlan begins with a depiction of the utmost disregard of the opposing barristers. Shame on those nine "Justices" for interruptions midsentence, as if their minds work so much more mercurially than the esteemed presenters!

Karlan believe the sixties were transformatve but the seventies saw Burger's court being defferential to what congress did in the 70s. Which congress is not willing to modernize with respect
to NAMUDNO Chief Justice Roberts' advisory to congress to fix preclearance. Lauguishing upon senate rules and lower chamber conservative lassitude trusting that no action is as good as striking down that section of the VRA, and polity being what it is, it appears a fait accomplis, now in the interim between certiorari and oral argument.

Significantly, the Mansfield rule for "two-track" filibuster was an accommodation to the Dixiecrats, who tried vainly to halt desegregation. But reactionaries of all stripe are working toward a new polity of race in the US, trying to consolidate their losses in the recent national election and morph that into a win in the next election. Hope, even pernicious hope, springs eternal.

I see a world breaking out, one that is atomized by cellphoone technology, everyone as samizdat.

But then we are confined be Justice Tony Kennedy's abjurement to hew to stare decesis. There's some casuistry on both sides of the SCOTUS bench, barristers, and Justices.

As usual, John Lopresti's comment taught me something:


which I Googled, as I was not familiar with it. It brought to mind a discussion on another thread at this Blog on the distinctions between the First Amendment's Speech Clause and the Press Clause. I had read Prof. Sonja West's 2011 article and then the later one by Prof. Eugene Volokh. Volokh's view, based upon his research of original meaning/understanding of the press, concluded that it is press as technology, not press as industry. I pointed out in one of my comments at that thread that current cell phone technology in conjunction with the Internet means that just about anyone with a modern cell phone and current apps has First Amendment press technology in his/her hands. This makes me uncomfortable, what with my concept of the role of the Fourth Estate in my 82 years. I don't have a cell phone, don't want one. But I am not a Luddite. But can the world's problems (let alone those of America) be resolved by modern day "samizdat" with opinion/views changeable in a nano second via cell phones and the Internet?


Iirc Jefferson lost his seat on the Ways and Means Committee (and this before he was convicted of anything), not a small thing for a congresscritter. But more importantly, the Congressional outrage at what they saw as an executive encroachment on their turf is kind of what the Founders hoped would go on in our system (in fact most people think the Congress has been far too supine lately in guarding its own powers).

While the approval rating of "Congress" goes down most people re-elect their Congressperson. I think saying you disapprove of "Congress" has just become some kind of shorthand for saying you don't like "government/politics" and that is a shorthand for saying "they don't do what seems like common sense to me!"

Sadly, I don't think the Robert's Court dislikes Congress per se, I think the liberals on the court dislike conservative bills Congress passes and the conservatives on the court dislike liberal bills it passes. Here's some interesting research from SCOTUSblog which seeks to measure this tendency:

The Warren Court was a product of the same political generation as the one that controlled Congress. So, it was not too surprising they agreed with them. The Roberts Court majority is more a product of the post-1970s Republican executive.

The Warren Court, however, was more "negative" about certain "democratic institutions." For instance, democratic institutions, including local elections of prosecutors and judges, didn't stop them from making major changes in state criminal justice.

Anyway, Roberts, Alito, Scalia and Thomas all spent time in the executive department while Kennedy is a libertarian sort (his conservative leanings fairly common in that party) that is comfortable with judicial power to overrule legislative action so it is not too surprising that the majority has disdain for Congress.

As noted by the OP, the people distrust Congress too & they indirectly chose these people. Still, the democratic process has its benefits and some respect from the courts is warranted.

Anyway, as Mr. W notes, not sure if there is some consistent disdain. Karlan leans liberal, the majority leans conservative, so you know ...

To break the silence - which can be deafening at times - Linda Greenhouse's Opinionator post "Press Clips" at the NYTimes website discusses the First Amendment's Press Clause: "Do the dual references to speech and press amount to one and the same, or does the amendment place 'the press' in a special position, with rights not accorded to other speakers? The Supreme Court has never fully resolved this question." [Query: is my comment speech or press, or both?] Her post also focuses upon Scotusblog's role as "press," or not.

Out of curiosity, have Sandy and/or Jack views on the distinctions, if any, between the Speech Clause and the Press Clause expressed in their writings?

Greenhouse perpetuates the journalists' annoying conceit that THEY are "the press" referred to in the 1st amendment. When "the press" is no group of speakers at all, but instead refers to printing presses.

The 1st amendment guarantees, to all of us, freedom of speech, and freedom of the printing press. It's not conditioned on who you are, but instead, what you're doing.

If you're printing stuff, the 1st amendment protects you, whether you're the New York Times, or running off a block club newsletter.

This comment has been removed by the author.

Brett reads into the First Amendment "printing" as descriptive of the "press." But how about the "wine"* press? That was popular with some of the Founders/Framers/Ratifiers. There may have been other popular presses in use back then. Some, perhaps many, textualists/originalists take the position that the "Speech Clause" is not limited to oral utterances. So perhaps the kindergardener using printing blocks is covered by the Speech Clause and not the Press Clause.

*Brett may be a teetotaller and may not understand that the wine press produces a product conducive to speech. Of course, wine is not free under the First Amendment, whereas "whine" apparently is.


Brett put forth a quite reasonable argument but "journalists" are not the only ones who disagree as her citation of Justice Stewart (not a journalist) shows.

Legally, "the press" as an institution is not treated the same as anyone out there printing certain. Thus, there are laws protecting members of the media from testifying. An article Shag cited in the past notes the debate over where to draw the line there.

I would apply that broadly and think there probably is some constitutional security warranted there, but don't necessarily think anyone who prints a blog for ten people should get the same treatment in that respect.

At least, it's a complicated issue.

Yes, there are statutes treating journalists differently from other people. Which is quite a different thing from their having a different Constitutional status from everybody else.

If the government selectively favored Catholics over Jews in this way, it would be deemed a violation of the 1A, even if the privilege was statutory.

Are you saying the statutory or policy (as to the federal government in various cases) here is constitutional?

Also, various state courts have determined that such privileges are required by state analogues to the 1A [they aren't only pursuant to statute] and Justice Stewart et. al. would apply the principle to the federal Constitution.

On the earlier thread - now archived - I commented on Prof.Volokh's post-Prof. West article on his conclusion that based on original understanding the Press Clause was based upon press as technology and not press as business. As I noted there, and in an earlier comment on this thread, I grew up with the role of the Fourth Estate and find it difficult accepting press as merely technology. But, as Prof. West pointed out, it is difficult defining the press. And of course anyone can claim to be a journalist. Perhaps the Press Clause, like the Second Amendment, needs a boost.

Toda's NYTimes editoria "Press Freedom at Risk" focuses on the current brouhaha in England on regulating the press to lessen the risks of the likes of certain publications unlawfully invading the lives of people looking for whatever (aka Murdoch). While England may not have a written constitution, it has long recognized rights of speech and press, which Framers/Ratifiers here in her former colonies recognized in structuring the First Amendment's Speech and Press Clauses. As the editorial points out, in England the press is treated more roughly than here, especially on defamation and state secrets. Fortunately, PM Cameron has not bought into the study recommending regulation of the press.

But all this makes it clear that the press, in present day terms at least, is more than technology, as non-corporate people are involved in newsgathering, editing and other decisions, etc, prior to publication that may illuminate the public. Granted, what is published may not always be illuminating and may in fact be harmful to public interests. But here's where Thomas Jefferson comes in:

"Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter."

The press is of course today more than newspapers. While the Fourth Estate has not been perfect in America, it has worked well. Just ask politicians.


Shag might appreciate an interesting 2A case out of my neck of the woods:

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