Sunday, June 04, 2017

"Working the Refs" and the Supreme Court -- A History?

Mark Tushnet

Over the past several years I've seen a fair number of references to how people (bloggers, op ed columnists) are "working the refs," meaning the Supreme Court, by framing issues before the Court not as raising contestable legal questions on which the author is taking a side, but as presenting the Court with an opportunity to take a stance on some collateral issue. (I'm not committed to this definition of "working the refs," but it's the best I can do at this point.) The current version is that the Supreme Court should be alert to the possibility that lower courts are applying "Trump Law," that is, rules of law that they would not apply to any other president. That is an example of working the refs: If you rule against Trump, you'll confirm the existence of Trump Law, which is not what you, devoted to the impartial rule of law, want to do. A prior claim was indirect: While the original ACA decision was pending, conservative bloggers, etc., claimed that liberal bloggers, etc., were working the refs when they argued that a decision holding the ACA unconstitutional would severely damage the Court's reputation-- a claim that was itself a sort of reverse double flip version of working the refs.

My sense is that working the refs is a relatively new phenomenon. Of course there were earlier examples of commentary on pending and recently decided cases (Felix Frankfurter and Alex Bickel in The New Republic), which were aimed in part at public education/propaganda and in part at some of the justices themselves. Those seem different to me from the current forms of working the refs, maybe because they rested on the assumption that the justices might be influenced by arguments about the merits whereas working the refs seems to rest on the assumption that the justices are influenced by public perceptions of their work rather than by arguments. (Again, I'm not committed to that account. Maybe there's a better one.) My research on the Supreme Court in the 1930s shows that there was a fair amount of inside-the-(as yet nonexistent)-beltway dinner party gossip that circulated around the Court, and that some justices were almost certainly aware of the gossip. Again, that seems different from working the refs -- the gossip was about what had happened, not about what might happen.

A first iteration of working the refs was the development of references to "the Greenhouse effect," the claim that some justices (nominally conservative ones) were unduly influenced by their desire to get the approval of Linda Greenhouse (or, the inside-the-beltway dinner party set, or liberal media more generally). A relatively simple text-search should be able to track this, though the technical ways of doing the search to turn up only the Supreme Court related Greenhouse effect from the climate related greenhouse effect are beyond my abilities.

There's probably an interesting piece to be written about the history of working the refs. My sense at this point is that it emerged as a result of the proliferation of legal journalism and quasi-journalism -- the opportunities presented by print media op ed practices, and new media blogging/tweeting practices. And (almost certainly more controversially), my sense is that the practice originated with conservatives concerned that their nominal "control" of the Supreme Court wasn't being translated into as many actual achievements as it should have. They attributed the outcomes to the fact that liberals were successfully working the refs, and then started to work the refs themselves. (Here it would be nice to find discussions that were (a) uncontroversial examples of working the refs (b) by liberals.)

Older Posts
Newer Posts