The law question

John Roberts would like to make clear that there is no cannibalism whatsoever in the British navy:

Chief Justice John Roberts on Wednesday defended the Supreme Court from what he believes are misconceptions held by the American people that he and his colleagues are “political actors” who are making decisions based on policy, not law.

Speaking at a conference for lawyers and judges in Hershey, Roberts said the Supreme Court is required to make decisions that are not popular and bemoaned that there is not a better understanding among the public of how the court operates.

“I think at a very basic level, people think we’re making policy decisions, [that] we’re saying we think this is what things should be as opposed to this is what the law provides,” Roberts said. “I think they view us as truly political actors, which I don’t think is an accurate understanding of what we do. I would say that’s the main difficulty.”

While he conceded that people have a right to criticize the court and its decisions, he added that there is a tendency to focus too much on politics.

“We’re not simply part of the political process, and there’s a reason for that, and I’m not sure people grasp that as much as is appropriate,” Roberts said.

Roberts is a member of the court’s 6-3 conservative majority, which has moved federal law to the right on a number of weighty issues in recent years, such as abortion and gun rights.

The court has also in several cases weakened the landmark Voting Rights Act of 1965, including in a ruling last week that led to outrage and disappointment on the left.

This is a situation where the dumbass median voter’s belief — “it’s all just politics” — is a lot closer to the truth than the view held by Elite Lawyer Brain cases like Roberts (FWIW I believe that Roberts believes what he’s saying is true).

I wrote about this a day or two ago, and I’ll elaborate a little further.

In my earlier post, I argued that given the structure of legal and political institutions in America, the Supreme Court must function as a kind of crypto-Super Legislature a good deal of the time, and that this is unavoidable, absent truly radical alterations of those institutions that at this point no one is even really imagining let alone working towards.

Borrowing a distinction that Jack Balkin used in discussing Bush v. Gore, we can imagine the SCOTUS engaging in what could be called, respectively, high legal politics or low legal politics. High legal politics are the politics of favoring certain methodological approaches and understandings of how law ought to work, without regard to whether the consistent application of those approaches and understandings happen to favor a particular political outcome in a particular case. Low legal politics are “I want George W. Bush to appoint my successors rather than Al Gore, so I’ll ignore all my putative methodological commitments to make that happen in this case.”

But here’s a key point: Even judges who are 100% faithful to their methodological beliefs/commitments in re legal decision making — that is, judges who always stick to high legal politics, even when it gets them bad results from a low legal politics perspective — are still making political choices, in every sense of the word “political” other than the narrowest partisan meaning (“I want my guy to win because he’s my guy.”). That’s because making a methodological choice, no matter how consistently one adheres to it without regard to partisan political considerations as to what political outcomes this choice produces in particular cases, is stilla political choice.

The easiest way to see this is with a concrete example. Suppose you have a methodological commitment to originalism as an interpretive approach, which leads you to conclude that, at the time the relevant constitutional provisions were adopted, those who authored/ratified/interpreted them didn’t believe they created a constitutional right to X, which means, leaving various potential complications about precedent and the like aside, those provisions don’t create a constitutional right to X.

Now what originalists want to claim is that this is a “non-political” conclusion, because it’s not that they’re personally opposed to the existence of a constitutional right to X, is that “the Constitution” doesn’t contain one. The problem is that this is sheer question-begging, because the “the Constitution” doesn’t contain one if you choose to adopt this interpretive methodology, but maybe it does if you don’t.

Now the originalist will come back and say this interpretive methodology isn’t a political choice, it’s just “the law.” But what does that mean? This statement is clearly false as a sociological matter: Some recognized legal authorities in our culture reject originalism. You can say they’re “wrong,” but again, what would that mean? It could mean we should adopt originalism because it’s the most desirable legal methodology, but that, one would think, is obviously a normative political commitment like any other. And of course if you see it in those terms you will also see that originalism is simply a tarted up version of reactionary political ideology writ large: We should maintain the political arrangements and beliefs held by a very discrete group of people two centuries ago, because those beliefs are good beliefs. I mean that’s a literal statement of reactionary politics in its purest form.

Again the originalist will reject that conclusion, because he’s doing “law” not “politics,” and “law” simply is originalist interpretation, by definition. But whose definition? The originalist’s? Since that’s the most obvious possible question begging, that can’t be the answer. The society’s in general? But again from a sociological perspective that’s just as obviously false, since originalism is just one methodological/political choice among many possible such choices, as a matter of straightforward social description.

So what makes originalism “law” as opposed to “politics?” The answer is nothing . . . and again I want to emphasize what I said in the original post, originally, which is that this critique applies with equal force to all legal methodologies, which is exactly the conclusion that Elite Legal Brain, whether in its reactionary or centrist or progressive form, is desperate to deny.

All of which is a very convoluted way of saying John Roberts is either a liar or a fool. Knowing what I know about the institutions that educated him, which happens to be a lot, I’m going to go with the latter conclusion, which may be rather charitable of me, but charity is a virtue, at least according to the Bible, when interpreted from an originalist perspective.

And let me repeat once more that the single most pragmatic conclusion one can and should draw from all this is that the Supreme Court of the United States in its current form is a completely absurd and indefensible institution, and radically reforming it should be the first thing on every non-reactionary’s political to-do list (take the cannoli).