Thursday, June 27, 2019

Vivid Pictures, Public Revulsion, and the Supreme Court

 by Neil H. Buchanan

We are waiting for the ever more intensely hyper-conservative Supreme Court to reveal itself, thus far without much fanfare.  Yes, there have been some notable wins for the conservative movement, and Professor Dorf noted three days ago that last week's decision in Gundy v. U.S. "should probably be understood as the case that marked the beginning of the Roberts Court's open war on the administrative state."

Professor Dorf notes that Gundy is "not exactly Lochner, but it serves similar aims and interests."  As I argued last Fall, a key part of the long game in the conservative movement's judicial strategy is to restore the Lochner Era's fealty to narrow reactionary economic dogma, which involves holding that all ameliorative government actions are not merely bad policy but unconstitutional.

I subsequently argued that the Court's new hyper-conservative majority might not be as restrained as some people expect it to be.  Who is expecting it to be restrained?  I know that the idea sounds a bit counter-intuitive, but a conventional wisdom quickly emerged that Chief Justice John Roberts cares so very deeply about the "institutional legitimacy" of the courts that he will temper the passions of his four ideological siblings.  Maybe, but maybe not.

As I suggested in that later column, "if movement conservatives are thinking that they are inevitably going to lose their battle against demographics (and modernity), they might also be ready to decide to take everything that they can while they can still take it."  The question is whether they can fight against the reality of their electoral non-viability by continuing to rewrite the rules to favor their side.  In other words, can they make democracy both less democratic and less Democratic?

The answer is almost certainly yes, and the Court's decision today refusing to block partisan gerrymandering is one response to that problem, allowing the Republican politicians who stole the Supreme Court and the rest of the federal judiciary to fight against democracy tooth and nail.

One reason that the Court will probably get away with this is that assaults on democracy -- no matter how consequential -- are simply too abstract to capture people's collective imagination.  Put simply, the news media cannot show a dramatic photo of the corpse of American democracy, so no one will truly care.  Is that too cynical?

The best counter-example to my thesis above might be the abortion debate.  Anti-choice protesters have long used images of bloody fetuses to try to sway public debate, but their success was surprisingly limited.  Partly, this is probably because people understand that even live births of full-term babies involve a lot of blood and other unpleasantness.  Even so, it is surprising (pleasantly so, but still surprising) that more people do not fall for the ick factor in that debate.

Even more surprisingly, it is now widely believed that the Roberts majority is treading lightly in its campaign to take away women's rights to control their own bodies, specifically because they worry that a dramatic "We hereby overrule Roe" decision would invigorate the strong majority of voters who favor at least some legal abortions.  An anti-Roe decision would be dramatic, and it would spark large protests and possibly swamp the political fortunes of many Republicans who currently view their seats as safe -- a tidal wave that could even overcome all of the anti-democratic moves that Republicans have pulled over the years.

Of course, in a post-Roe world, there would also be an opportunity for pro-choice activists to use vivid images.  A dead teenage girl in a back alley abortionist's filthy "clinic" would garner attention, for example.

I am paying special attention to political optics here because of the most recent example of a debate being hijacked by an especially heartbreaking photograph.  The Trump Administration and other Republicans are on the run from the backlash caused by the publication of the photo of a Salvadoran father and his 23-month-old daughter, both of who were found dead and face-down in the Rio Grande.  It a gasp-inducing scene.

More to the current point, it is also having an immediate impact on the immigration debate.  We knew that this was happening, but we had to see it before we believed it.  Washington Post columnist Paul Waldman suggests that even this will not be enough to change things, but the headline on his piece at least captures the idea: "Can a dead father and daughter make us feel what we already know?"

"What we already know."  The infamous case of now-former pro football player Ray Rice continues to be an instructive example.  There, a world-class athlete was arguing with his then-fiancee (a woman who actually ended up marrying the monster) as they entered an elevator, at which point he knocked her out with a vicious punch to the face and then dragged her limp and possibly lifeless body out of the elevator.

When the video of that incident was released, it told us nothing that was not already in the public record.  The National Football League had been given all of the information yet decided that the brutal assault merited less punishment than steroid use.  Only when people could witness the brutality with their own eyes did the narrative change.

Back in April of this year, I did note an odd inversion of this dynamic, wherein Joe Biden's unwelcome and very personal contact with women (going far beyond the "handsiness" description that Biden's defenders dismissively adopted) had been visible for decades but became (at least temporarily) an issue only when a person made an accusation.

Perhaps the point, then, is not so much that dramatic visual evidence changes the discussion but simply that dramatic changes are likely to spark a response.  Even in that framework, however, some issues are much less likely to generate outrage because they are so inherently undramatic.

Where does drama come from?  People understand viscerally what overruling Roe means, but they find it harder to worry about gerrymandering, simply because even the most blatant redistricting thefts are so hard to understand: "Yes, you packed and cracked voters, but people still voted, didn't they?"  It feels wrong, but if the idea is that we would be more outraged only when we saw it with our own eyes, there is nothing that we can truly see (other than funny-looking maps, which are hardly compelling TV and will almost certainly not spark public revulsion).

Similarly, the return of Lochner will be very damaging, but it will be difficult to dramatize the connection between the Court's decisions and real-world harm.  Not impossible, but difficult.

As I write this, the Court has just announced that the justices have punted the Census case (whether Trump can add a citizenship question to the 2020 enumeration).  I might have more to write about that case tomorrow, but I honestly am a bit surprised by this outcome.  The Census is enormously important, but it is very difficult to dramatize that importance.  Roberts et al. could very likely have given their political patrons what they wanted -- more "too much democracy insurance" -- without losing much more of the court's institutional credibility.  But they passed.

This is especially surprising because, as far as I understand it, the lead time for preparing forms for the census is so long that any delay in this case -- and the Court's non-decision today at least temporarily blocks the citizenship question from the census -- means that the question will be left off the forms for the 2020 count entirely.  The Court's scheduling of the case for re-argument next term would amount to a ten-year delay.  The Court could apparently act in an emergency session, but the time seems short, at best.

If, as many expected, the Court's hyper-conservatives had blessed the citizenship question, that would have been additional evidence to support my thesis that drama -- and lack of drama -- matters.  I will have to read the various opinions in the case to get a clear sense of what happened, but for now it appears that Roberts (joined in the key part of the decision by the four non-conservatives) passed up an opportunity to give Republicans another big win.  If so, then my thesis is either wrong, irrelevant, or needs to be updated.  Stay tuned.

3 comments:

Joe said...

This seems a bit less funny now.

http://www.dorfonlaw.org/2016/04/youre-fired-mr-chief-justice.html

Shag from Brookline said...

Neil's penultimate [still my favorite word] paragraph closes with this on the CensusCon case:

"The Court's scheduling of the case for re-argument next term would amount to a ten-year delay. The Court could apparently act in an emergency session, but the time seems short, at best."

The conservative five on the Court just might asses the risk of a Trump reelection loss over the next few months as an incentive to call for an emergency session to permit the citizenship question for the 2020 census.

Looking back at the 1787 Constitution with its 3/5ths clause, did it realistically benefit that group to be included in the census? Could that group opt out of the census? Surely the slave owners would not permit that. As to current day non-documented persons, there would be benefits to them if they were included in the census; except for the fear that the citizenship question might incriminate them and thus their status in America. Reacting to that fear would jeopardize the benefits of such group being included in the census not only to themselves but also to states for funding based upon the census clause. Unlike the slave owners of yesteryear, Republicans want the non-documented group to opt out of the census for the benefit of Republicans. The conservative five on the Court surely are aware of this. So such an emergency session may come about as a political decision comparable to Bush v. Gore (2000).

Shag from Brookline said...

Emily Bazlelon's NYTimes OpEd " The Supreme Court Isn’t as Naïve as Trump Hoped - The chief justice didn’t buy the explanation for putting a citizenship question on the census." closes with this caution:

"The Roberts opinion reads as if it is politically neutral. But it won’t be clear how important or lasting it is until we know the ultimate fate of the citizenship question. The chief justice’s legacy on this score is still to be determined."

Might the Chief pull the Court's emergency cord in time to benefit Republicans?