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Will the Tooth Fairy and the Easter Bunny Dump a Truck Full of Money on Your Front Lawn This Week? It’s Possible!

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Ann Althouse’s response to Linda Greenhouse starts…problematically:

But I think it’s easily possible for many Americans to see the Supreme Court as a legitimate, independent branch — and not in spite of but because of the election. The death of Antonin Scalia, less than a year before the presidential election, made what we want from the Court a big issue in the campaign. Denying the outgoing President his choice gave Americans our choice. What sort of person belongs on the Court? Candidate Trump committed to a list of names, and Hillary Clinton had endless opportunities to criticize his choices and offer her own, and the people voted. It seems to have been the decisive issue for many of us. The kind of Justices Trump promised to nominate — and Gorsuch was known and named — are what Americans think belongs on the Court.

Even leaving aside the fact that the Court wasn’t a particularly big issue in the campaign, I remain unclear why what the electorate said in 2016 is more indicative of what the public wants out of the Supreme Court than what it said in 2012. The bigger problem with this argument is that the American people spoke…and said they preferred Hillary Clinton, although they were thwarted by America’s undemocratic presidential selection process.

Look, from a procedural standpoint there’s a perfectly reasonable defense of McConnell’s actions. The Supreme Court is a political branch; the norm that the Senate will defer to a president’s choices is dead; McConnell had an opportunity within the rules of the Senate to take a Supreme Court seat and he took it. But let’s not make some mystical defense of his actions in terms of the people’s will.

But now we get to the real rube-running:

But here’s the tricky part. Once the nominee is confirmed and goes on the Court, he (or she) becomes independent. There’s life tenure, and the Justice has sworn to follow the judicial method and to stick to deciding cases according to the law. It’s not supposed to be political.

So the other way that it’s possible for people not to see the Supreme Court as a partisan tool is if they believe what the nominees always say in the confirmation process: Partisanship and political preference have no place in the work of a judge. It’s what Gorsuch assured us. It’s what everyone else on the Court assured us. And it’s what Merrick Garland would have assured us.

Now, it’s probably not what Linda Greenhouse believes, nor is it what her compatriots in the coastal elite believe. And I can tell you it’s not what is generally believed on the higher altitudes of the Blue Island where I live. But I at least understand how many of my fellow Americans can believe it.

And how can nominee after nominee sit before the Senate and swear they will do something if no one can possibly think that it’s true? It’s possible.

And that’s why the Supreme Court isn’t even broken, let alone the sole possession of the Republican Party.

You really have to love the assertion that it’s only “coastal elites” who deny that “[p]artisanship and political preference have no place in the work” of a Supreme Court justice. Apparently, she’s using the Trumpian definition, i.e. “people who know what they’re talking about.” The idea that political preference does not play a major role in the work of a Supreme Court justice is quite simply absurd. (Does Althouse think that Mitch McConnell denied Marrick Garland a hearing because of his strong commitment to a particular legal method?)

It doesn’t even require a particularly strong form of legal realism to recognize this obvious truth. There are, in my view, any number of legal questions to which the relevant text provides determinate answers, and there are also many cases in which a legal question is resolved by a black-letter precedent a court is bound to follow. To state the obvious, virtually none of the cases that come to a top appellate court that for the most part carefully chooses its own docket and is permitted to overrule its own precedents fall into this category. Virtually by definition Supreme Court cases involve cases where reasonable people can disagree about what the law means, and in politically salient cases these questions are going to be resolved politically. And when dealing with broad constitutional principles like “unreasonable serach and seizure” or “due process of the law” or “cruel and unusual punishment” the idea that there could be determinate answers technically derived from applying legal methods in cases of any interest is wrong on its face.

This doesn’t mean that the law is irrelevant to the Supreme Court. Votes on the merits in politically salient cases are largely determined by policy preferences, but the law matters to what cases the Supreme Court chooses to resolve, what legal questions the court chooses to answer, etc. But the idea that it’s possible that Neil Gorsuch, a longtime Republican operative who reaches results that conservatives find politically agreeable in case after case, will suddenly turn into Santa Claus an impartial, apolitical legal technician is transparent nonsense.

I genuinely wonder how a tenured law professor can write this twaddle. Is she insulting the intelligence of her readers? Is she trying to convince herself her career wasn’t devoted to a lie a la Larry Lessig? It’s bizarre.

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  • Matt

    artisanship and political preference have no place in the work of a judge. It’s what Gorsuch assured us. It’s what everyone else on the Court assured us.

    Shorter Outhouse: “I believe conservatives automatically when they lie to me, no matter how much evidence to the contrary exists. It’s literally my only qualification for my job!”

  • Hayden Arse

    Wasn’t there a time when someone in academia would be embarrassed to engage in obvious sophistry like this? I have no idea how she handles herself when not blogging, or how she is viewed in the halls on Bascom Hill, but I can’t imagine that she (or any competent professor) would accept tripe like this from a student.

    • Q.E.Dumbass

      To the degree that their sophistry is transparently poor rather than dishonest, then yes…although even that level of shame has been on the decline recently (see also: “Moops.”) They might accept tripe like this, though, for their school newsletters, at least if the author was a previous president.

      (Here’s the original, just to show how much the Advocate writer’s talking out of his ass. This has bothered me for a long time).

    • Q.E.Dumbass

      Probably, although that may have more to do with the sophistry in question being transparently stupid rather than, you know, sophistry…and rank partisanship is one hell of a drug (see also: The fact that the “Moopish invasion” school wasn’t immediately laughed out of court).

    • DrDick

      There is absolutely no evidence that Althouse is even capable of embarrassment or ever was.

    • Hogan

      Wasn’t there a time when someone in academia would be embarrassed to engage in obvious sophistry like this?

      When did Glenn Reynolds get started? Must have been before that.

    • sigaba

      Obvious sophistry in the service of Everything is Fine is an ancient custom.

    • aaronl

      To be fair to Althouse, when a student considers law schools, the student will create a list of schools to which to apply. When accepted by more than one school, they’ll be choosing from a list of schools that accepted them.

      Law schools make it easy to find their faculty lists, so students know if Ann Althouse is on the list. If they get assigned to her class as a 1L, it’s clearly the result of their carefully considered evaluation of the lists, with the possibility or probability of being in Althouse’s class being the sole relevant criterion in their selection of the University of Wisconsin School of Law.

      You have to understand that every single Trump voter took the list of possible Supreme Court nominees that a right wing think tank handed to Trump carefully authored, researched every single person on the list, and easily recognized that Gorsuch was by far the best candidate and would inevitably be nominated — and then made their choice to vote for trump solely on that determination.

      That’s simply the way it is, and it is completely unfair to challenge Althouse with such coastal elite tactics as the introduction of facts or logical argument.

      • ColBatGuano

        All of Trump’s voters are constitutional scholars.

  • Marlowe

    Actually, there have been many cases in the recent past (Bush v. Gore is a good starting point) in which reasonable people using objective non-political standards cannot seriously disagree on the proper outcome. That doesn’t mean that five Republican justices have not again and again chosen the unreasonable outcome.

    Oh, and yay–the edit button is back!

  • NobodySpecial

    I genuinely wonder how a tenured law professor can write this twaddle.

    Copious amounts of alcohol combined with wingnut welfare makes for one hell of a cocktail.

    • aaronl

      Being tenured makes it easier to write twaddle, or not to write at all. Although law schools are perhaps more apt than most other graduate programs to confuse twaddle with scholarship.

      • DrDick

        Glen Reynolds has built a career on it.

        • Dr. Ronnie James, DO

          Heh-indeedy.

      • prognostication

        Yup. A huge proportion of legal scholarship consists of heavily footnoted opinion pieces.

  • Murc

    Even leaving aside the fact that the Court wasn’t a particularly big issue in the campaign, I remain unclear why what the electorate said in 2012 is more indicative of what the public wants out of the Supreme Court than what it said in 2016.

    You want to flip these years, I think, Scott.

    It’s what Gorsuch assured us. It’s what everyone else on the Court assured us. And it’s what Merrick Garland would have assured us.

    Yeah. And they’ve all been lying. All of them.

    The last Supreme Court nominee to be honest, open, and forthright about what they would do while on the Supreme Court was, I think, Robert Bork, who as near as I can tell during his confirmation hearings stood by his vile judicial philosophy and defended it vigorously. (I think. I’m prepared to be proven wrong here.)

    But as near as I can tell, for the past quarter-century or so, every Supreme Court nominee, and this includes the liberal ones, has engaged in an extended act of mendacity during their confirmation hearings. They mouth the expected bromides and pieties and then when they are asked questions of substance completely punt. “I don’t think I should comment on an issue I might be asked to rule on” is popular. (Finding out how you’re going to rule is the Senate’s job, you unbelievable assholes.)

    They basically dare the Senate to reject them for keeping mum, and the Senate of course is usually unwilling to take that dare, although frankly I’d like to see it happen.

    • Rob in CT

      +1.

    • yet_another_lawyer

      “My thoughts on abortion? Why, I’ve never given it any thought and I shouldn’t pre-judge…”

    • Joe_JP

      honest, open, and forthright

      Ruth Bader Ginsberg was honest, open and forthright, including talking about her support of abortion rights.

      Yes, she in various ways used the “can’t comment” but even Bork probably used that at times. Bork had a long paper trail too. Hard for him to do that too.

      I do agree that nominees should say more & that Kagan was right the first time when she wrote about that. Until she herself had to do it. Lame, Elena.

      ETA: Ultimately, it is a game of trying to get a sense of the candidates’ general approach to judging here & there is some ability to do that. We got some sense, accurately so, of Kennedy supporting privacy rights & an open-ended view of liberty. Souter also was more positive about Brennan than you’d think a Thomas conservative would be. OTOH, we had a lot of pablum too over the years.

    • Scott Lemieux

      Fixorated!

    • efgoldman

      for the past quarter-century or so, every Supreme Court nominee, and this includes the liberal ones, has engaged in an extended act of mendacity during their confirmation hearings

      Absolutely. Bork, and to a lesser extent, Sotomayer, were the only ones who strayed.

  • Reasonable people stopped believing in the sanctity of the Supreme Court years ago. All McConnell has done is legitimize the process for making it even more of a political tool.

    • DrDick

      Hell, Reagan did that and every Republican since has followed his lead.

    • witlesschum

      Reasonable people definitely stopped believing anything Ann Althouse assured them about what people other than Ann Althouse believe and I’m not sure they should even give her that much trust.

  • sleepyirv

    There are, in my view, any number of legal questions to which the relevant text provides determinate answers, and there are also many cases in which a legal question is resolved by a black-letter precedent a court is bound to follow.

    And of course, the lower court judges who are ignoring black-letter precedent are people more of Gorsuch’s ilk than Garland. Just look at Judge Brett Kavanaugh’s opinion which argues the structure of the CFPB is unconstitutional because Rich Cordray is too good at his job. Now, the public doesn’t follow these things at all and have no idea how weak Kavanaugh’s argument is, but it’s hard for people with law degrees (Even those without those fancy coastal elite law degrees!) to suggest this isn’t “legislating from the bench.”

    • Dilan Esper

      It’s worth noting that while most of Scott’s post is right, the idea that SCOTUS never takes easy cases or cases resolved by the text or non-ideological cases is wrong. Much of the Court’s docket is such cases. Obviously the cases that political actors really care about are ideological (which is Scott’s real point), but every term there are plenty of unanimous cases on stuff like tax law and ERISA.

  • Bloix

    “Virtually by definition Supreme Court cases involve cases where reasonable people can disagree about what the law means, and in politically salient cases these questions are going to be resolved politically.”

    But this doesn’t imply that the law can mean anything at all. An honest, technically competent judge with a “judicial temperament” will always see that his or her choices are constrained. You can drive the constitutional bus to Poughkeepsie or to Albuquerque but you cannot drive it to Timbuktu. This is what honest nominees mean when they promise to be non-partisan: that they will reach a result that flows naturally from the language and structure of the Constitution, the statutes, and prior precedents.

    If the justice is honest and technically competent, the results will satisfy both the community of lawyers and judges who actually read and must apply these decisions, and the broader community of citizens who accept the Court’s role in the evolution of the law – even if it could have developed in some other direction.

    But a hack does not care. A hack will make up some shit and wave his hands around like a sideshow magician – the “fundamental principle of equal sovereignty” of the states, say – and reach a pre-determined result. And the results are obvious fakery, persuading no one and useful only to partisan operatives.

    • Nobdy

      It doesn’t really matter if it’s obvious fakery if lower courts and the rest of the government believe they are bound by it.

      All Republicans seem to rely on reservoirs of respect/authority/whatever when they take over an institution, and they spend that down as they go about their dirty business. John Roberts spent some of the Court’s prestige in order to disenfranchise people. It was a worthwhile trade off for him. Republicans treat infrastructure the same way. They inherit a place with resources and they strip mine those resources until someone makes them stop.

      • Morse Code for J

        Exactly. And this sort of cost-benefit analysis with spending institutional prestige also applied to NFIB v. Sibelius. Roberts makes a majority of the people who want to rule the whole thing unconstitutional, and maybe it generates enough outrage for the Democrats to maintain congressional majorities portraying that as the Court helping the rich at the uninsured’s expense. Democrats would feel obliged to pack the Court in response. On the other hand, Roberts pulls a principle out of thin air to hobble the Medicaid expansion in Republican states, and then the potential for that outrage is much less.

        A new Earl Warren would be welcome on the Court. And by that I mean a career legislator or executive with experience making government work with or around judicial decisions.

  • Nobdy

    There are, in my view, any number of legal questions to which the relevant text provides determinate answers, and there are also many cases in which a legal question is resolved by a black-letter precedent a court is bound to follow.

    I think you are being a little too generous here to the “balls and strikes” claim, which is surprising coming from you. The constitution is the ultimate “relevant text” and the fifteenth amendment isn’t obtusely written or tough to understand. Sure there’s that “appropriate” in front of legislation, but the VERY SAME people who will scoff at “emanations of penumbras” and tell you that the whole “regulated militia” part of the second amendment is pointless throat clearing cannot rely on that word OR the concept of equal dignitude to override it.

    The truth is that the Supreme Court is restrained more by norms, negotiation, and politics than actual texts or “black letter law” You’re right that laws matter, of course, but often they matter because A) the issue being discussed isn’t one of great political controversy, so the court is just focused on having a workable legal regime and goes with its best interpretation of the law, or B) they provide guidance and soft restraints to the political limitations of the courts decisions. But Shelby County shows that even a clearly written constitutional provision can be overruled if the political will is strong enough.

    As for why law professors pretend it’s otherwise…a lot of them are invested in the prestige of the law and by extension their profession and are invested/paid to pretend law is entirely a technical pursuit. It makes them seem more prestigious if they are unlocking and revealing the truths behind a complex intricate system, rather than just commenting on the decisions/writing of other human beings. Some of them even seem to think that we’re better off as a society if we maintain the illusion that law is a purely technical field, for a variety of reasons.

    This is a similar impulse to the decision to pretend that a law degree should be a “doctorate” in legal studies even though it requires no thesis/dissertation or original research, and the vast majority of people with J.D.s do not consider themselves academics or even graduate with the necessary tools to be one if they wanted to.

    • Srsly Dad Y

      legal questions

      Scott didn’t say constitutional questions. Statutes and regulations often provide reasonably determinate answers to litigated issues (i.e., close enough for Stanley Fish). And since he wrote “black-letter precedent a court is bound to follow,” I assume he wasn’t even referring to the Supreme Court in particular. Supreme Court doctrine, once announced, often gives lower courts a fairly determinate roadmap, even if the Supremes’ reasoning wasn’t great to begin with.

      • Nobdy

        Can you come up with any examples in recent history where Supreme Court justices clearly had a strong political preference, had some constituency that supported that position, and were forced to decide another way because they were “bound by the law?” The Supreme Court sometimes does act like a fair umpire, but usually that’s when the legal question isn’t of particular import (sometimes you genuinely do need someone to interpret an unclear statute or apply it to a new situation.)

        As for lower courts, they are more constrained than the Supreme Court because other courts are looking over their shoulders, but that’s still a political/power issue. Courts can and will deviate from precedent if they believe that the current makeup of the Supreme Court will back up and accept interpretation. That’s often how we see the ridiculous lower court decisions on things like Obamacare that end up going up to the Supremes. The lower court is testing the boundaries of prior interpretation and teeing things up for the guys upstairs.

        There’s more variety among lower courts than the supreme court, though, since there are a lot more of them. You do find lower court judges who actually intend and try to be fair referees. And since a lot of what they deal with is non-controversial and apolitical even “activist” judges spend a lot of their time just managing cases and keeping things moving along. It’s a different job.

        • Just_Dropping_By

          Can you come up with any examples in recent history where Supreme Court justices clearly had a strong political preference, had some constituency that supported that position, and were forced to decide another way because they were “bound by the law?”

          A couple dozen or so criminal cases where Scalia and/or Thomas ruled for the criminal defendant (Kyllo, Apprendi, etc.)? A couple dozen or so free speech cases where Kennedy and/or Thomas struck down conservative-originated laws restricting speech (Free Speech Coalition, Entertainment Merchants Ass’n, etc.)?

          • Denverite

            Coming from the other side, you’d really think a lot of the personal jurisdiction and arbitration cases in the past decade run pretty strongly contrary to the policy preferences of the liberal judges. (Daimler, Goodyear, Marmet, etc.)

          • Nobdy

            Scalia and Thomas both believe in certain rights for certain defendants. That’s just a matter of their personal political beliefs not following conservative orthodoxy (they both have some more libertarian views around certain issues), and I don’t think anybody is arguing that doesn’t happen. That happens all the time.

            Free speech is similar, with the added element that Kennedy is often less predictable than the others (which is why he’s the swing vote) but not because he’s more doctrinal or bound by precedent. He just seems to have a difficult to map personal belief system that doesn’t quite square with liberal or conservative doctrine.

            • Joe_JP

              The challenge:

              Can you come up with any examples in recent history where Supreme Court justices clearly had a strong political preference, had some constituency that supported that position, and were forced to decide another way because they were “bound by the law?” T

              The examples cited by others include those where “some constituency” disagreed with the judgments.

              You argue S/T supporting criminal defendants here are “personal political beliefs” but how is this different here than being “bound by the law” in various cases? In each case, is it merely a “personal political belief” or are they sometimes bound by the law, including precedent (Scalia repeatedly voiced distaste but followed it, more than Thomas)?

              Free speech is a different animal to me in that in recent years there has been a libertarian/conservative free speech ideology that conservatives have joined (especially anti-PC but also pro-business, money in politics etc.).

              But, the conservative coalition don’t all have one view on such issues. So, sometimes there will be splits there too.

        • Srsly Dad Y

          1. Depends what you mean by political. I think we can be pretty sure the liberal justices wished Noel Canning, the recess appointments case, could have come out differently. Probably also true in Hosanna-Tabor Church v. EEOC, about the ministerial exception to the ADA. I think the conservatives who found the state immigration law preempted by federal law in Arizona v. U.S. (2012) probably personally wanted to give Arizona a freer hand. These come to mind.

          2. The rest of your take is a matter of perspective IMO. I think of the tightening of the failure-to-state-a-claim standard under Twombly and Iqbal. A lot of judges who probably wish they could give particular plaintiffs their day in court are still going to toss complaints that don’t plead facts that, if proven, could plausibly support relief, per Twiqbal. This standard isn’t compelled by Rule 12(b)(6), but it’s reasonably clear and most everyone is following it by now.

          • Denverite

            A lot of judges who probably wish they could give particular plaintiffs their day in court are still going to toss complaints that don’t plead facts that, if proven, could plausibly support relief, per Twiqbal.

            Actually, I think most of the empirical work done on this shows that although dismissals are up since Twiqbal, they’re mostly without prejudice, so judges are finding a middle ground where they apply the (personally disliked) doctrine but they don’t kick the plaintiff out of court.

            • Srsly Dad Y

              Could be. That was just the first thing that came to mind. But flip it around — dismissal without prejudice will be more often the right result under Twiqbal than under the old Conley (“no set of facts”) test. So it’s possible that anti-plaintiff judges are doing the right thing, against their preferences, by dismissing without prejudice rather than with.

    • Dilan Esper

      One reason law professors are invested in this view which you guys see as complete BS is because they are practicing lawyers or were at least trained to be.

      I mean, the strong version of this argument would basically mean that all the research and briefing and argument we do is basically meaningless.

      Now, of course, in the most politically charged cases, it probably is LARGELY meaningless. But (1) that’s only true in the really big ticket cases and (2) even in those cases, there are examples, rare as they were, in which a vote was shifted by an argument.

      • Srsly Dad Y

        Yup. And the retort to any specific example, like the ACA case, that “the Court only did THAT to maintain its institutional respectability,” doesn’t cut ice either. Of course! Judges are judges because they are sociologically constrained by their professional role. Otherwise some district court judges would just F with the court of appeals all the time and not follow the law at all. To be a respectable judge is to at least try, or appear to try, to apply the law, so the game is played within those lines.

        • Denverite

          Otherwise some district court judges would just F with the court of appeals all the time and not follow the law at all.

          FTFY

          • Srsly Dad Y

            Oh please

        • Dilan Esper

          Also, in Sibelius, just because there may be a political effect from what Roberts did doesn’t mean that legal arguments had nothing to do with it.

          One reason why Roberts may have found Obamacare’s mandate to be a tax is because he couldn’t come up with a persuasive way to distinguish it from other taxes. Indeed, when the decision came down, Scott posted that this was a possibility. In other words, as bad and hackish as the Supreme Court can be, they still have their limits. For instance, I don’t think Scalia, for all of his personal opposition to abortion, would have ever found the Fourteenth Amendment to require a ban on abortion, as some on the far right claim. There are situations where a Supreme Court justice just says to him- or herself “that just doesn’t work”.

      • Nobdy

        I am a practicing attorney.

        Most of the briefing and argument we do is not meaningless precisely because most law we do is not very political. If the question is who broke what contract, whether a defendant is guilty of some crime, or whether a certain group of investors was defrauded that isn’t really a political question, and the political questions embedded in some of those (like what constitutes a material misrepresentation to investors) have been answered at a level higher than the court where the litigation is taking place and I’m not arguing that lower courts are not bound by higher courts…they are.

        I do think, however, that arguments in front of the supreme court, oral or written, ARE mostly useless. There are examples where justices minds have clearly been changed, but they are relatively rare.

        • Dilan Esper

          1. That isn’t remotely true in non-politically charged cases.

          2. It’s only mostly true, not completely true, in politically charged cases. (Again, see Roberts’ vote in Sibelius, for instance. Or read the backstories about Hustler Magazine v. Falwell to see how the Association of Editorial Cartoonists’ brief had a role in persuading Rehnquist.)

          • Nobdy

            1. I think this is somewhat dependent on the case (since many supremes have their minds made up about certain non-political legal questions) but from the beginning I have differentiated from the more ministerial aspect of the court (resolving circuit splits, for example) and the political aspects. Nobody really thinks that Gorsuch won’t be able to do the ministerial parts.

            2. I disagree that Roberts vote on Sibelius was anything other than a very carefully crafted political decision. The decision doesn’t really make sense. He wanted to cripple the law but not outright kill it because he was worried about blowback on the court, and he did just that. If you want to go back as far as Hustler v. Falwell then we will have a different conversation, because it was a different era. I think the court WAS less explicitly political then. The country wasn’t polarized in the same way and justices were selected with less of a focus on trying to accomplish specific policy goals than is part of the selection process now.

            • Dilan Esper

              Of course Sibelius makes sense.

              Look, I don’t like the commerce clause analysis, but (1) it makes total sense that you can’t distinguish the individual mandate from other forms of taxation, and (2) the spending power decision has always made more sense (and got 7 votes!) than people here have said. I am far from an expert on the spending power, but it isn’t as though everyone in the world of constitutional law thought South Dakota v. Dole was a brilliant piece of jurisprudence or that Congress had unlimited power to coerce states through spending cut-offs.

              Sibelius looks exactly like the Supreme Court of old that you say no longer exists. You have a justice crossing party lines, a decision on a contested issue that got 7 votes, etc.

        • Srsly Dad Y

          Which is essentially where this subthread began. SCOTUS doesn’t decide all that many cases to begin with, and we all agree that politics usually drives the hard constitutional and quasi-constitutional statutory cases; so SCOTUS cases where minds got changed will be rare by definition. Wish I could say what my job is.

        • Denverite

          I do think, however, that arguments in front of the supreme court, oral or written, ARE mostly useless.

          One of the funniest courtroom scenes that I’ve ever witnessed was when the pretty high profile attorney in a pretty high profile appeal realized in sheer terror that the federal COA judges clearly had not read the briefs. (It was a challenge to a particular law, and the judges all seemed to think that the law said “X,” when the parties agreed that it said “Y.”)

          I just lost a motion on something where the caselaw used to say “A,” and then a couple of years ago it was expressly changed by the COA to say “B.” In the briefs I carefully explained what the law used to be, what it was now, and the impetus for the change, and I quoted and cited the relevant cases. The other side studiously ignored B and argued only under A (because it was a more friendly standard to them). The judge said that A applied, citing a pre-change case from a judge who, just last year, acknowledged that the law had changed and was now B. The judge couldn’t have read our brief.

          (The real kicker is when we filed the appropriate reconsideration/objection motion, the other side conceded that the law was actually B but argued that they should win under that too. That was less funny.)

  • eclare

    I swear to Flying Spaghetti Monster, the next time I read the phrase “coastal elite” used non-ironically, I’m gonna punch something.

    • Aaron Morrow

      Since Althouse grew up in Delaware and New Jersey, I’m left to wonder if that’s code for something else…

      • Hungover Hank Moody

        If I were King for a Day, my first official act would be to force Ann Outhouse, Megan McGarble and Neo-Neocon to sit through an NASCAR race at gunpoint.

    • Boots Day

      Particularly since many people are single-issue voters who support the Republican Party primarily so it can institute an abortion ban via a Supreme Court ruling. I mean, they’re pretty upfront about this being their reason for supporting any Republican, even someone as blatantly non-Christian as Donald Trump. These people tend not to live on the coasts.

  • Sly

    Look, from a procedural standpoint there’s a perfectly reasonable defense of McConnell’s actions. The Supreme Court is a political branch; the norm that the Senate will defer to a president’s choices is dead; McConnell had an opportunity within the rules of the Senate to take a Supreme Court seat and he took it. But let’s not make some mystical defense of his actions in terms of the people’s will.

    But Scott, why would Mitch McConnell, a man of Deep Principles and Earnest Convictions about the need for Bipartisan Comity in America’s political institutions, sink so low as to prioritize naked partisan advantage over pure procedural splendor and the upholding of long-standing political norms?

    It’s almost as if you’rem suggesting that such a fine and upstanding representative of the people, clad in the purest and most glimmering cloak of high-minded integritude, would sacrifice those Deep Principles and Earnest Convictions just to keep one of those institutions firmly in the grasp of his ideological cohort.

    Pish posh and shake my head. I really thought you were better than that. Someone fetch me a mint julep and a fainting couch.

  • Joe_JP

    the Court wasn’t a particularly big issue in the campaign

    To speak generally, I have seen some accounts, and the new senator from LA said it during the hearings (that guy, btw … kinda liked him — didn’t just use the usual b.s. in his questioning), that the courts were a significant issue for many Republican votes. How the numbers split overall, not sure. But, probably had some importance.

    Partisanship and political preference

    In the beginning, there were “Federalist” judges and non-Federalist judges. In this sense, yes, judges are going to be in part — especially in close cases where there is room for debate — be guided by political views. Gorsuch’s c.v. included REPUBLICAN lawyer groups in it. He joined the REPUBLICAN Bush Administration. Not just to support random clients.

    The Heritage Foundation etc. strongly supported him because of his conservative views. This doesn’t mean he simply will vote like a Republican would in Congress. But, that sort of simplistic analysis of what people are talking about here is a bit dumb.

    • Joe_JP

      Somewhat relevant to all of this:

      “Ask the author: A critique of a concept – Dorsen on Justice Scalia’s jurisprudence”

      There are various ways to critique Scalia, some overly simplistic.

    • Dilan Esper

      I think SCOTUS was key in convincing some Trump skeptical conservatives to vote for him.

      And more generally, I think SCOTUS has been key in getting a number of left wing voters to vote for Dems they didn’t like over the years.

      It’s a consequential issue.

      • petesh

        Consequential, at least on the margins, in the general; functionally irrelevant in the primary.

        ETA, since I can (!) after fighting with auto-incorrect:
        Pictura delenda est.

  • wjts

    Once the nominee is confirmed and goes on the Court, he (or she) becomes independent. There’s life tenure, and the Justice has sworn to follow the judicial method and to stick to deciding cases according to the law.

    Once a nominee declares with his (or her) mouth that “Jesus is Lord” the oath of office and believes in his (or her) heart that God raised Him from the dead the Supreme Court is an apolitical body charged with calling balls and strikes, all of his (or her) previous sins political opinions are washed away by the blood of the Lamb John Marshall.

    • CJColucci

      If by “independent” one means that Gorsuch isn’t going to do what Trump wants him to do simply because Trump wants it, I think that’s true. Gorsuch will largely do what Trump wants (to the extent he has any coherent wants in this area) because Gorsuch himself, for his own reasons, wants to do what Trump wants done. And any damn fool can find a judge that will, sincerely and for his or her own reasons, rule the way you want.

  • Mike Furlan

    http://taxmarch.org/

    Tomorrow.

    Get out there.

    Blog posts haven’t worked. Maybe marching will. At least someone outside our bubble will see you and might start thinking.

  • Cheerfull

    In case anybody was wondering, AA has an answer to the pesky point that more people voted for Clinton than for T, to the extent we are to take the election as registering an opinion about the Court:

    (from her comments):

    “Since Clinton got more votes, I don’t think you can use the election to say what Americans, in general, think belongs on the court.”

    I thought about that as I wrote the post, but the same thing that must always be said in response to this argument works just as well here as it works everywhere else. The relevant process for selecting the President is the Electoral College, and the candidates were chosen and the arguments were made to Americans as we exists in the various states. I only regret that there isn’t a word to replace “Americans” that would highlight our location in states — United Statesians.

    The popular vote is a weird statistic. It includes many people in California where many people may have chosen not to vote, because their preferred candidate had no chance and many people who voted for 3d party candidates because they knew they couldn’t affect the outcome. And there are all the people who didn’t vote in red states because they could see that Trump would win by so much they didn’t need to get out.

    It was a fight fought according to the rules and the losing side could be more respectful of the process.

    Make of this what you will. Apparently the “United States” made a decision for Gorsuch regardless of what the various people constituting it might or might not have wanted.

    • Joe_JP

      made a decision

      She spins the results in the portion you quote and people can spin some more in various ways there. Clearly the person appointing the person being elected isn’t enough. See, Garland.

      The bottom line, to me, is that the election wasn’t just a moratorium on the Supreme Court vacancy. And, to the degree it is some big picture way that, you should analyze things as a whole.

      Of course, once you do that, you can come out various places in the end. So, it doesn’t really amount to much really.

    • davidsmcwilliams

      “The relevant process for selecting the president is the EC.”
      “Why?”
      “Because we just elected a president using the EC.”
      “Well, why did we do that?”
      “Because the relevant process for selecting the president is the EC.”
      “Why’s that?”
      “Because we just elected a president using the EC…”

      The popular vote is a weird statistic. It includes many people in California where many people may have chosen not to vote, because their preferred candidate had no chance and many people who voted for 3d party candidates because they knew they couldn’t affect the outcome. And there are all the people who didn’t vote in red states because they could see that Trump would win by so much they didn’t need to get out.

      Wait, so if people didn’t vote in blue states because their candidate couldn’t win, and people didn’t vote in red states because their candidate couldn’t win, aren’t we left with a popular vote that still approximates the will of the people?

      I’m not sure why the losing side should be respectful of the process when the process is stupid and undemocratic (referring to the electoral college).

    • Dilan Esper

      I don’t agree with much of what she says, but this is actually right.

      The “popular mandate” always includes the electoral formula. For instance, suppose a majority of those under 18 favor one candidate but the adults voted for the other one. We wouldn’t reject a claim of a popular mandate on those grounds. We accept the popular mandate of Presidents elected during slavery when women and blacks couldn’t vote. We accept mandates now when felons can’t vote in many states.

      Our system is stupid and weights votes by state. But that’s a given.

      And honestly, the popular vote is a fun talking point but means shit. If we had a popular vote system, the tally would be different. The campaigns would be different. (Yes, I think HRC would have won it. But her actual margin could have been very different in either direction than it was.) The party alignments might wven be different. They might not even have state by state primaries.

      • petesh

        Yes and no. The election was fairly close, so the concept of a mandate is less than it frequently has been. Also, the nominee presented was fairly extreme, so it is not unreasonable to suggest that some modest fraction of Republicans would not have approved. Had Trump nominated someone only marginally to the right of Garland, that appointment would have been confirmed without too much fuss. This is where unwritten norms come to affect the written constitution.

        Also: Pictura delenda est.

        • Srsly Dad Y

          You know they’re just going to mess with you now, Cato.

          • petesh

            I am but a simple farmer who wishes the best for his country. Also, a horny old toad who fathered a child at 80.

            OK, I suppose I must: Pictura delenda est.

      • Joe_JP

        the popular vote is a fun talking point but means shit

        In what way? Yes, it “means shit” to the degree that the popular vote winner still isn’t in the Oval Office.

        But, that isn’t the only ‘meaning’ here. The popular vote has significant importance in this country.

        It is not just “a fun talking point.” It matters to many people and this has some importance alone. The fact the electoral vote is the ultimate determination doesn’t mean the popular vote is meaningless. The people voting is a means of expressing the public will. This factors into the overall equation of governing in various respects.

        Bottom line, I don’t know how you determine what the American people ‘think’ here. The election wasn’t a moratorium on any one thing. So, in that respect neither the electoral or popular vote settles it. Things like voting for the senators up for election, especially in close elections, also would be useful given their role.

        And, this surely doesn’t tell me how much ‘respect’ we should have in the process.

        • Dilan Esper

          Joe:

          The popular vote:

          1. Isn’t an accurate statistic. It measures the total votes within a system where many state votes don’t count, aren’t campaigned in, aren’t served by the political parties, aren’t strategized about, etc. It can even be manipulated by a politician “running up the score” in states that don’t count.

          2. Isn’t the polity that decides who is President. In that way, it is like people under 18, or felons, or residents of territories, or, back in the day, black slaves, women, non-property owners, the 18-21 demographic, etc.

          3. You can’t determine what the American people “think”, because there will never be a universal franchise (although we should move in that direction and definitely get rid of the EC and allow felons and residents of territories to vote for President). All you can do is define how to count the votes, and then parties and political actors will try to win within that framework. And then the person who wins has some sort of greater or lesser mandate based on that.

          4. The fact that the “popular vote” motivates some liberals is irrelevant. Many talking points are illogical. This is one of them.

          • Joe_JP

            Dilan:

            1) Granting this is true to save time, it doesn’t mean it is merely a fun talking point.

            2) Same. Likewise, back in the day, those who could not vote mattered in various respects, and there were some (imperfect) means to get a sense of their sentiments.

            3) If there is a mandate, it would be determined in various ways. It need not merely be based here on electoral vote count. Lots of people don’t think so. The term leaves a lot to be desired anyway as much as trying to determine thinking.

            4) The basic question yet again is irrelevant to what? And, it is not only something that liberals care about. Things that are illogical often mean more than shit. Religious belief comes to mind.

            (But, the illogical nature of popular vote is being exaggerated.)

            • Dilan Esper

              Joe:

              Getting back to Althouse’s point:

              If the Supreme Court seat was an electoral issue, than the relevant polity (the electoral college, determined by the state vote counts and weighted) voted in Trump’s favor. Therefore he fills the seat.

              That’s the point. That’s the mandate. And it isn’t negated by his losing the popular vote, because in our (stupid!) system, the popular vote isn’t the polity that gets to decide the question. Any more than it would matter if a majority of under 18 year olds or felons had a different opinion.

              I would say the same thing about the seat if Hillary had won the election and lost the popular vote. She should get to fill the seat in that situation (assuming the lame duck Congress hadn’t confirmed Garland).

              • Cheerfull

                I am not sure who is arguing with you that T should not get to fill the seat. The question is whether the argument put forth in early 2016, that the American people should decide who gets to be a Justice, not the guy currently holding the office of president, was disingenuous. It clearly was. The people who actually vote in a presidential election may be an imperfect representation of every human being living in the U.S. in November 2016, but it was that group of people that was being referred to in early 2016 as the “people” whose voice should be heard.

                • DAS

                  Exactly … McConnell’s argument was “let the American people decide”, thus the popular vote is the relevant metric.

            • Furthermore, even if we accept the presumption that some people may not bother voting in some states because the outcome is predetermined, there is no evidence that there are vastly more of these people in blue states than in red states, and indeed, even if there were, the fact that California, New York, and Illinois are by far three of the four largest ‘safe states’ in the country (with Texas being the other one) should mean that, if anything, the popular vote would be skewed towards Republicans, since three of the four largest states where turnout would be depressed are overwhelmingly blue. That is, unless you mean to make the argument that people are less likely to turn out in ‘safe’ states if their states are unlikely to vote the same way they do, which seems a difficult premise to establish.

              Beyond that, I’m not even sure it’s safe to assume states’ ‘safe’ status would necessarily depress turnout there, because the popular vote is commonly cited and commonly cared about, and downballot races and initiatives in those states can be just as decisive to people who live in them as the presidency.

              • Hogan

                That’s exactly AA’s slight [sic] of hand here: if you add in all the Republicans who didn’t vote because they were in safe red states and all the Republicans who didn’t vote because they were in safe blue states, and pretend there were no Democrats who made the same calculation, then Trump might very well have won the popular vote.

  • Q.E.Dumbass

    My comment has been in moderation for a few hours, but it only has the two links. What happened?

  • Major Rager

    I took Con Law 1 and Civ Pro 2 with Althouse. She is a legitimately stupid person and seemingly incapable of comprehending that bias exists and that she could possibly be afflicted by it. Her comprehension of con law is truly so shallow that her instruction amounted to “the justice plugs facts into his/her preferred method of legal reasoning and out comes the holding.” U of Wisconsin should be paying people to listen to this moron rather than charging students to learn nothing from a nitwit.

  • No Longer Middle Aged Man

    What’s offensive about Altmouse is her overt disingenuousness. For instance

    Now, it’s probably not what Linda Greenhouse believes,

    is almost certainly correct. Likewise re coastal elites. And also likewise re the entire Republican contingent in Washington and Rep party loyalists throughout the country. It really is just total piece of shit dishonesty to pretend that this is unique to Democrats and the dreaded coastal elites. I’d expect it from a Republican political operative, from a law professor it’s shameful.

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