Wednesday, June 27, 2007

Why Do People Care Whether the Justices Like Each Other?

A story in yesterday's Washington Post accurately quoted me stating that the liberal Justices seem more frustrated than angry with their conservative colleagues, both because the liberals are losing a lot more cases this Term than in recent Terms (a consequence of the replacement of O'Connor with Alito) and because in a fair number of cases the conservative majority seems either to dismiss or ignore prima facie persuasive objections from the liberals. One of the main points of the story is that despite the ramped up professional pique, personal relations among the Justices remain harmonious. The story quotes Justice Alito and Georgetown law professor Richard Lazarus for this proposition, and I see no reason to doubt them. As I've noted before, Justice Breyer's standard stump speech explains that the Justices' disagreements are about the law but that they like and respect one another across ideological lines.

To me the interesting question is why the media seem to care so much whether the Justices are being nasty to one another behind closed doors. I suppose there's a gossipy element to it. The Justices lead pretty boring lives, yet they wield enormous power, so if there's some way to spice up the story, reporters want to do that. The interest in whether Justices Souter and Scalia are on good terms is a bit like the interest in whether Brad and Angelina are happy together.

Moreover, inter-personal dynamics could explain results in some cases. Many people have speculated that Justice Scalia was passed over for the Chief Justiceship because he was thought insufficiently attentive to the feelings of his colleagues to be able to build majorities. And it's hard to imagine that Justice McReynolds---easily the worst asshole ever to sit on the Supreme Court---did not affect the outcome of quite a few cases through the sheer force of his despicable personality.

Ultimately, I suspect that the discussions of how famously the Justices get along serve two purposes. First, they shore up the Court's legitimacy, which is why the Justices encourage these discussions. At a time when Capitol Hill softball leagues have had to split into Democratic and Republican divisions because of partisan bickering, it's comforting to know that there are grownups running at least one branch of the federal government. Second, the focus on interpersonal relationships is simply easier for the lay public than trying to understand the actual work of the Court. It takes a fair bit of training and effort to see how a Supreme Court opinion misreads some precedent. If the vote can instead be explained by the fact that Justice X hates Justice Y, that's much easier; hence the interest in looking for such hatred even where it does not exist.

12 comments:

Róbert said...

Dear Professor Dorf.

I think the issues you deal with are more profound than you seem ready to admit. Anybody who has ever taken an active part in collective and authoritative decision-making on difficult issues of law will be aware of the undisputable human fact that relationships between the individual decision-makers matter as regards substantive outcomes. It would therefore indeed be a matter of concern, if the development of internal dynamics within the Supreme Court, as in any comparable court of last instance, were towards increased hostilities and factionism. History in your Court bears this witness, as e.g. the stories of Hugo Black's and Robert Jackson's relationship, if true, demonstrate as well as many famous accounts of intra-Court clashes in The Brethren. This however is nothing knew and part and parcel of the inherent flaws in human decision-making. From the perspective of the public it is therefore without a doubt "newsworthy" if the mantra of collegiality regularly espoused by individual justices is, in reality, not reflective of actual events.

Yours, Robert R. Spano, professor of legal theory, University of Iceland

egarber said...

I think the media -- and maybe the public -- are curious as to how "divided" we really are as a nation. Following this thinking, if the inability to respectfully find a middle ground has permeated the Supreme Court of all institutions, well, that would mean we're basically ...... screwed. Personal dissension could be read as a sign of that.

I'm just talking about possible motive here. In truth, the American people probably aren't as divided as we're led to believe.

Sobek said...

Just because it's in a newspaper article doesn't mean people care.

Michael C. Dorf said...

I agree with Professor Spano that a truly frosty working environment would be significant and thus newsworthy (whether or not, pace Sobek, people actually cared), but I see little evidence that personal animosities are having jurisprudential effects, however. At most, the Justices' disagreements in cases might be having some impact on their inter-personal relations (if we read Justice Breyer's protestations to the contrary as him protesting too much).

Róbert said...

Just a brief note from an outside observer on the occasion of Professor Dorf's response to my post:

I understand from news reports that recent oral pronouncements in dissent by Justices Stevens, Ginsburg and Souter during opinion announcement are, at a minimum, reflective of a pattern of public behaviour by the same justices not seen before during their service, at least to the same extent. Furthermore, having followed the work of the Court from afar for a number of years, I do not recall these justices, usually considered the more calmly mannered of the Nine, using rhetoric of the sort widely reported to have been included in their dissenting speeches during opinion announcement. One could, I think, at least plausibly argue that these public outbursts of discontent are a manifestation not just of disagreement with the relevant substantive outcomes but, more profoundly, a public accusation of jurisprudential dishonesty. That is certainly worth pursuing further I should think. It, of course, will come to light tomorrow, June 28, but I would not be surprised if Justice Breyer will then conclude this quartet of criticism when giving a summary of his dissent for himself and the other three in the school-assignment cases, especially if the Chief Justices´ anticipated majority opinion again pretends to respect stare decisis as regards Grutter and Brown, but in actuality leaves your Court's famous jurisprudence of affirmative action and respect for pro-active legislative action in the realm of desegration a thing of the past.

Sincerely yours, Robert R. Spano

Benjam said...

I think there is a parallel between what is happening in the media and what has taken place in the social sciences. That is, people have begun to conceptualize the supreme court not as a unitary actor working in the esoteric realm of constitutional jurisprudence. Instead, we see supreme court justices as political actors in a nine-member chamber. Bush versus Gore did a great deal to crystallize this formulation. As such, we now pay greater attention to the purely political dynamics affecting the court, and this would include the personal relationships amongst the Justices. Personally, I think these relationships are very close to insignificant but not always. My understanding was that justice Warren took advantage of his personal relationships in order to build a unanimous opinion in Brown. That counts for something I suppose.

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