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Sunday, September 23, 2007

SCOTUS members and results as cartoon characters and themes

Flashing-eyed Associate Justice John Paul Stevens In response to my short post yesterday on The Jeffrey Rosen's NYT Magazine article about Justice Stevens, one of my commenters, referring to the nine members of the Supreme Court, wrote: "Nobody likes to work with a backstabber and, when the backstabber is one of only nine, relations can't be good."

Here's the thing, though: Yellow journalists masquerading as legal scholars like The Jeffrey Rosen do their very best to persuade us that the Justices view each other in terms like "back-stabbers." In truth, you'll find, for example, Justice Scalia and his wife joining Justice Ginsberg and her husband at the opera several times a year because they like and respect each other despite their very different judicial viewpoints.

Not everyone in this world operates at the schoolyard level of decorum. And in fact, there tends to be a pretty high level of positive correlation between (a) maturity and (b) the set of talents and career histories that can get one appointed to the Supreme Court.

Read Rosen's whole interview with Stevens. Look hard for personal insults toward other Justices that come from Stevens' lips. There aren't any. Instead, you get things like Rosen reporting that Stevens' "eyes [were] flashing" as he talked about Bush v. Gore.

Flashing-eyed Autobot Optimus PrimeWow, really? His eyes were flashing? Way cool: John Paul Stevens as Optimus Prime! Pew-pew-pew! That, plus gossip and innuendo, is what Rosen has to peddle.

In July, I wrote a lengthy review of the best book about the SCOTUS I've read in years, Jan Crawford Greenberg's Supreme Conflict. One of the things that made that book better than most is that it relied very little on the notion that personality and personal politics define judicial outcomes. For the most part, Greenberg avoided turning the Justices into cartoons; and she performed a genuinely useful public service, in a genuinely fascinating manner, by helping us get a better sense of the "people inside the robes."

But where her book was weakest was on those occasions when she did fall prey to the perhaps irresistible temptation to presume that amateur psychology and politics can explain or even predict any given Justice's votes. And less disciplined writers offer almost nothing but that.

My friend Patterico, for example, is reading Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court, which I haven't yet read, and he describes it as "entertaining." But he literally can't get through the book without feeling compelled to turn to his blog keyboard to point out an incredibly obvious internal contradiction in Toobin's writing about Justice Thomas — a contradiction so stunning that one wonders just how bad Toobin's editors must have been. Ann Althouse has had similar reactions (e.g., here, here, and here), as has Eugene Volokh (e.g., here and here).

The Justices themselves generally resist efforts to turn them into cartoons, and sometimes these journalists will quote them directly as they do so. From Rosen's piece on Stevens, for example, consider this (emphasis mine):

In general, Stevens said, the idea that a justice can sway his colleagues through collegiality and personal lobbying — a talent often attributed to Justice William J. Brennan Jr. — is exaggerated. He suggested that in most cases, justices cannot be swayed to change their votes once they make up their minds, and when they can be swayed, it is only as a result of legal arguments, not charm or charisma. "I was very fond of Bill Brennan — loved the guy and had great admiration for him," Stevens said. "But it’s simply not right to say that he was able to craft the majority. He just had five votes on his side!"

So what does Rosen do in the very next paragraph? He insists that Stevens sways colleagues other than through legal arguments, by using an "intellectual" method of persuasion — namely, gamesmanship in assigning the writing of majority opinions:

Stevens himself, however, has been notably successful in building majorities by courting his fellow justices — in particular, Kennedy. His methods of persuasion are intellectual rather than personal, and they are closely tied to the court’s procedure for deciding cases. After the justices hear the oral arguments, they meet in a private conference to deliberate. After the chief justice speaks, each of the remaining justices speaks in order of seniority, so that Stevens speaks second. Then the justices vote, and the majority opinion is assigned. The majority opinion later circulates among the justices, and on rare occasions a justice may then change his or her vote, and a majority can become a dissent. But "you very rarely win votes if there aren’t five votes persuaded after our conference," Stevens stressed. "Very rare."

"Oh-ho!" we're expected to chortle, "That clever Justice Stevens! He's got that Justice Kennedy wrapped around his little finger!" Rosen would thus have us believe that the outcomes of decisions at the highest court in the land are based on B'rer Rabbit strategies, instead of the Justices' very best efforts to decide cases fairly and appropriately based on the actual law.

But suckers nevertheless will eat up melodrama like that dished out by Rosen — and think him wise for having written it, and themselves better-informed for having read it. Life is indeed more entertaining, and vastly simpler, if we reduce all the complexities — of which there are many at the SCOTUS — down to a cartoon level. The question is, gentle reader: Do you choose to be one of those suckers?


UPDATE (Tue Sep 25 @ 7:08pm): Betsy Newmark highlights another part of Rosen's story — regarding Justice Stevens' military service as one of the codebreakers who helped decrypt Japanese communications that, in turn, led to the successful fighter attack on General Yamamato — and one of my commenters asked for my take on it. My reactions were multi-fold: First, as the son of another Pacific Theater veteran from WW2, I respect and honor Justice Stevens' service.

Second, notwithstanding that respect, it strikes me as entirely understandable from a human perspective, but naïve from a military one, to feel any qualms about a leadership decapitation strategy in wartime — a strategy that surely predates recorded history, and that we saw again as recently as 2003's Iraq War strikes hoping to kill Saddam.

Third and finally, this particular bit of reporting by Rosen is just fine insofar as it helps better acquaint us with Justice Stevens as a living, breathing individual inside his robes, so to speak. But Rosen's assumption that it explains, or even significantly influences, Stevens' votes on death penalty cases is another example of the cartoonish treatment the rest of the article gives to Justice Stevens' work on the Court. Rosen wrote: "Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately." Well, okay. Let's assume that's an accurate paraphrase of something Justice Stevens actually said. That's not the same as saying — and I'm sure Justice Stevens would dispute any suggestion — that his war-time experience is equally or more important than the law, the factual record, and the arguments of counsel in influencing Stevens' votes. Unlike Justices Brennan and Marshall, Stevens does not routinely dissent from denials of cert in death penalty cases. There's no question that he's "liberal" or "predisposed" against death sentences, but it's not for reasons as simple as Rosen's piece implies. And ultimately, it's insulting to Justice Stevens' (or other principled death penalty opponents') intellect to gloss over the real, and very complicated, reasons that he votes as he does.

So: My take, boiled down to seven words: "Interesting. But not profound. And potentially misleading."

Posted by Beldar at 06:04 PM in Law (2007), Mainstream Media, SCOTUS & federal courts | Permalink


Other weblog posts, if any, whose authors have linked to SCOTUS members and results as cartoon characters and themes and sent a trackback ping are listed here:


(1) antimedia made the following comment | Sep 23, 2007 7:12:09 PM | Permalink

Sadly there is an increasing tendency in our society to reduce all of our leaders to caricatures and to assume of them the worst of all possible motives.

It does not bode well for the future.

(2) anduril made the following comment | Sep 23, 2007 10:23:04 PM | Permalink

Beldar wrote:

In response to my short post yesterday on The Jeffrey Rosen's NYT Magazine article about Justice Stevens, one of my commenters, referring to the nine members of the Supreme Court, wrote: "Nobody likes to work with a backstabber and, when the backstabber is one of only nine, relations can't be good."

Here's the thing, though: Yellow journalists masquerading as legal scholars like The Jeffrey Rosen do their very best to persuade us that the Justices view each other in terms like "back-stabbers."

I have no idea whether Rosen wanted to persuade me or anyone else that the Justices view each other in terms like "backstabbers." The characterization was entirely my own. My choice of words arose from events which occurred this summer in (I think) Aspen. Senator Arlen Specter informed reporters that he had been approached by Justice Breyer, who had suggested that Senator Specter should examine the treatment of precedent in the opinions Justices Roberts and Alito and compare that treatment to their confirmation testimony regarding the principle of stare decisis. The obvious inference was that Senator Specter might well find that Justices Roberts and Alito had given misleading testimony at their confirmation hearings, leading the Senate to confirm their nominations based on the belief that Justices Roberts and Alito would respect existing precedent--and then proceeded to play fast and loose with precedent once they were confirmed. The further inference was that Justice Breyer was hinting broadly that his brother justices could possibly be impeached for their allegedly misleading testimony.

In my post I characterized Justice Breyer's conduct as "backstabbing" and further suggested that this conduct was guaranteed to produce tension among the nine justices. It seems clear to me that any normal justice would deeply resent a colleague--one of only nine justices--requesting that the Senate Judiciary Committee examine their record with a view toward impeachment. Obviously, no conservative leaning justice should feel able to trust Justice Breyer at this point, but it is equally possible that liberal leaning justices such as Justice Ginsberg may also be disturbed by Justice Breyer's conduct and may even, in the circumstances, feel personally disinclined to trust him--despite ideological kinship.

I suppose it's possible that I'm wrong about this. Perhaps Justice Breyer has offered a full explanation to Justices Roberts and Alito that has convinced them that Justice Breyer was acting in their own best interests--in short, as a true friend rather than as a backstabber. If they believe that, however, I would say they are fools.

(3) Beldar made the following comment | Sep 23, 2007 10:36:37 PM | Permalink

Anduril, thanks for the follow-up comment.

I'd suggest an alternative explanation that strikes me as vastly more likely: Arlen Specter is delusional, and Justice Breyer wasn't suggesting to him that Congress ought to consider impeaching anyone for "lying" during their confirmation hearings.

Specter does apparently think of Supreme Court Justices in cartoon terms — right down to "Super-Precedents."

Here, by the way, is a Wall Street Journal op-ed about Specter's comments. Here is the Politico story that started the (small) fuss.

(4) anduril made the following comment | Sep 23, 2007 11:04:15 PM | Permalink

I should make it clear that I didn't read Rosen's article and don't intend to do so. My comments were based solely on my experience of human nature--that conduct of the sort that Senator Specter ascribed to Justice Breyer is almost certain to produce serious tensions in any small group of normal persons.

Obviously, I'm in no position to know whether Specter's account has any connection with reality. While I am by no means inclined to accept all of Senator Specter's statements at face value, I do suspect that some conversation took place that contained the elements that Senator Specter cited. It may well be that Senator Specter misunderstood Justice Breyer's intent, but Breyer would (in my view) have definitely had some 'splainin' to do to Roberts and Alito. In light of Senator Specter's remarks, it is also possible to view Roberts' extraordinarily sharp remarks directed at Breyer (in the whatchamacallit case) as further evidence of tension among Breyer and the two newcomers to the Court. While I've forgotten the name of the case, my recollection is that Roberts' opinion contained some quite direct criticism of Breyer's approach to jurisprudence.

All of which is simply to say that I would not dismiss gossip of tension out of hand--there is actually some evidence that at least points in that direction.

(5) Carol Herman made the following comment | Sep 23, 2007 11:55:58 PM | Permalink

More than "back stabbing," I remember hearing that Nina Tottenberg was a girl friend of Stevens; and the "source" who leaked insider information to Bob Woodward, who then built his book The Brethren, on this stuff.

Anyway, the only evidence of "not getting along" that we get; is the splits we see in the decisions. And, sometimes, when Scalia writes one of his dissents; you get to see that there are not only TWO SIDES; there are arguments.

Where they weren't allowed were in Rehnquist's closed door sessions. He cut short "debates." PERIOD. WHich means the "meat" always ends up in how the opinions are drafted.

And? Sandra Day O'Connor learned the art of peeling away votes; or offering her's. WHich is vital in parliaments, when they are cobbling together "working" governments.

Americans don't expect this. Because? We're a "winner take all" system. But there's no question that FIRST the public became more conservative. While the court sits alone. These days.

If FDR's "padding" idea came own the pike again? I think seeing the bench squeezing in 14 more seats; would definitely mean, the "bench" would need to be changed to subway seating. With overhead straps.

What went wrong, went wrong in law schools.

(6) Forbes made the following comment | Sep 24, 2007 7:41:22 AM | Permalink

If Breyer truly wanted to challenge Roberts' and Alito's confirmation testimony, regarding stare decisis, into an investigation leading towards impeachment, I would imagine he'd be better off communicating with the chairman of the Judiciary Committee.

Say what you will about political maneuvering, but Justices are used to expressing opinions--and having them challenged.

(7) nk made the following comment | Sep 24, 2007 10:04:59 AM | Permalink

I imagine that there may be a grain of truth, albeit a small one, behind all this innuendo. It can't be easy for nine prima donnas to sing in a chorus.

(8) Jessica made the following comment | Sep 24, 2007 12:27:57 PM | Permalink

Maybe Justice Stevens is the Final Cylon...

(9) stan made the following comment | Sep 25, 2007 6:49:20 PM | Permalink


What is your take on this bizarre story by Stevens (from Betsy). 1) I think his moral perspective is really twisted. 2)That he uses it to justify his jurisprudence on the death penalty is even worse.

The quote:

After graduating Phi Beta Kappa from the University of Chicago in 1941, Stevens enlisted in the Navy on Dec. 6, 1941, hours before the Japanese attacked Pearl Harbor. He later won a bronze star for his service as a cryptographer, after he helped break the code that informed American officials that Adm. Isoroku Yamamoto, the commander of the Japanese Navy and architect of the Pearl Harbor attack, was about to travel to the front. Based on the code-breaking of Stevens and others, U.S. pilots, on Roosevelt’s orders, shot down Yamamoto’s plane in April 1943.

Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. “I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,” he said. “There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.” Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately. He has been the most outspoken critic of the death penalty on the current court.

(10) Beldar made the following comment | Sep 25, 2007 7:08:05 PM | Permalink

Stan, thanks for the comment. See my update to the main post above.

(11) Nac made the following comment | Sep 25, 2007 9:47:07 PM | Permalink

I do not understand why you characterize Rosen's use of "intellectual" as meaning "non-legal"; must that be the case? Doesn't the passage you quote read most plainly as Rosen saying that Stevens is able to sway Kennedy in conference by intellectual (ie, legal) argument, exactly the method that Stevens himself says is successful? If not, then what intellectual but non-legal strategy is Rosen accusing Steven of using?

Nor do I understand how you see that passage as a description of "gamesmanship" and "Bre'r Rabbit strategies."

And it has already been pointed out that Rosen himself never characterized Bryer's actions as "backstabbing."

If Rosen is creating cartoon versions of the Justices, it seems even clearer to me that you are creating a cartoon version of Rosen's writing, and then criticizing that strawman. To paraphrase an author I recently read,

Rosen's writing is indeed more ridiculous, and vastly simpler, if we reduce all the complexities down to a cartoon level. The question is, gentle writer: Do you choose to be one of those suckers?

It seems to me that you do.

(12) Beldar made the following comment | Sep 25, 2007 10:46:45 PM | Permalink

Nac, Rosen accuses Justice Stevens of exploiting Justice Kennedy's hubris, rather than his intellect, either by citing Kennedy-drafted opinions in proposed majority opinions of Justice Stevens' own, or by using his prerogative as senior Justice in the majority to assign opinion-writing chores to Justice Kennedy when Justice Stevens thinks Justice Kennedy's vote may otherwise be weakly cast and still up for grabs.

Assuming (as I do) that the direct quotes Rosen included are indeed words that actually came from Justice Stevens, I'm frankly surprised and dismayed that Justice Stevens gave Rosen such a strong basis to make such an argument. I would bet the ranch that Justice Stevens never intended to say, and that Justice Kennedy would be horrified and deeply offended to hear, that Justice Kennedy's votes were so easily manipulated by arguments having nothing to do with the prior caselaw, the record, or the principled legal arguments of counsel and the other Justices on the Court.

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