The Politics of the Roberts Court

Shorter Jeffrey Rosen: I am beginning to have serious questions about the existence of Santa Claus.

While I can't resist making fun of Rosen's belated recognition of the obvious, he does go on to raise a serious issue. about the potential for interbranch conflict. Rosen argues that the Court may have overplayed its hand in Citizens United:

It’s impossible, at the moment, to tell whether the reaction to Citizens United will be the beginning of a torrential backlash or will fade into the ether. But John Roberts is now entering politically hazardous territory...Roberts may feel just as confident that he knows the “right” answer in cases like Peek-a-Boo as he did in Citizens United. But political backlashes are hard to predict, contested constitutional visions can’t be successfully imposed by 5-4 majorities, and challenging the president and Congress on matters they care intensely about is a dangerous game. We’ve seen well intentioned but unrestrained chief justices overplay their hands in the past--and it always ends badly for the Court.

There are a couple elements present that could lead to conflict over campaign spending. First, whatever my other quibbles with Friedman and Litwick on this question, they were right about public opinion being unfavorable. And Obama's willingness to criticize the Court at the State of the Union is indeed potentially important. Does this mean that I think that Citizens United is going to cause a major political struggle over judicial power?

In a word, no, for one minor reason and one major one. On the minor reason, the direction of public opinion is only important if an issue is also salient, and I just don't think there's any evidence that a non-trivial number of people will vote on campaign finance. The important reason is the most important factor: do a majority of members of Congress really "care intensely" about campaign finance reform? Almost certainly not, I'd say, and indeed I'd go further and speculate that a substantial majority of Congress is perfectly happy with what the Court did. My friend George Lovell and I use the term "legislative default" to describe a case in which the Court gets the apparently final say on a question because a coalition of members of Congress either substantively supports the Court or doesn't really care how a question is resolve but see political benefits in letting someone else take responsibility. (More explanation here for people with institutional subscriptions or who want to email.) I think that this is the case with campaign finance. The Court has a lot of open congressional support here, at least enough for a minority veto of any attempt to curb the effects of Citizens United. But in addition to that, my guess is that they'll be joined by a lot of members of Congress who don't feel they can vote against campaign reform legislation but are happy to have the courts give them the excuse not to try again. (Cf. John McCain saying that the Court has spoken.)

I don't see any meaningful political action against the Court over campaign finance, not because there's nothing Congress can do but because a majority of Congress supports Citizens United for either substantive or political reasons.

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More thoughts on Citizens United

Here.

I was reading a review yesterday of a collection of Henry Farlie's essays, and discovered that The Daily Beast and The Daily Brute were lightly fictionalized versions of The Daily Mail and The Daily Express in Evelyn Waugh's novel Scoop, which sounds like fun.

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Campaign Finance and Oral Arguments

In response to Jeff Rosen's recent argument that Elena Kagan blew it at the recent oral arguments on a campaign finance case, Yglesias argues that oral arguments at the Supreme Court probably don't matter anyway. John Sides responds with a summary of some recent scholarship buy Johnson, Walbeck, and Spriggs:

We posit that Supreme Court oral arguments provide justices with useful information that influences their final votes on the merits. To examine the role of these proceedings, we ask the following questions: (1) what factors influence the quality of arguments presented to the Court; and, more importantly, (2) does the quality of a lawyer’s oral argument affect the justices’ final votes on the merits? We answer these questions by utilizing a unique data source—–evaluations Justice Blackmun made of the quality of oral arguments presented to the justices. Our analysis shows that Justice Blackmun’s grading of attorneys is somewhat influenced by conventional indicators of the credibility of attorneys and are not simply the product of Justice Blackmun’s ideological leanings. We thus suggest they can plausibly be seen as measuring the quality of oral argument.

A couple points:

• Even assuming that the J/W/S data establishes that the causal relationship runs in the direction they claim (i.e. that Blackmun didn't just consider oral arguments better when he agreed with them on the merits a priori), generalizing from the case they use is very problematic. It's not just that it's an n of 1 -- whatever might be optimal, in practice social science frequently has to proceed through small case studies. The bigger problem is the identity of the n in this case. Small case studies are most convincing when they represent "tough cases"; that is, if a case shows something occurring when one would expect the opposite. If you were going to name a Supreme Court justice who was unusually likely to be affected by oral arguments in marginal cases, however, the insecure, indecisive, and fussy Blackmun would be at the top of the list. I would be very leery about assuming that this applies to other justices.
• Even if we assume arguendo that Blackmun represents the rule rather than the exception, I think Rosen is engaging in a classic pundit's fallacy. On the merits, I agree with Rosen 100% that the ability of monied interest to dominate political campaigns and the consequences for democracy are a more convincing justification for campaign finance restrictions than the need to alleviate the appearance of corruption. The idea that an argument based on structural inequality is more likely to convince the conservative Republicans who represent a majority of the Court, however, is unpersuasive in the extreme. Kagan made the argument most likely to appeal to the median justice; it almost certainly won't work, but that's because she was drawing dead, not because she made a strategic error.
  

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