Wednesday, July 13, 2016

Political world scandalized that Ruth Bader Ginsburg admits she's a Democrat. Also, there's no Santa.

Yes, Supreme Court Justice Ruth Bader Ginsburg has criticized Donald Trump and effectively endorsed Hillary Clinton.  Critics, left and right, say that she has compromised her own integrity and that of the entire Judiciary, which is supposed to be independent and impartial.

I have lost no respect for her or the Judiciary.  I never had any to lose.

Political science time!  Justices like to pretend that they have no political ideologies, or at least none that influence their behavior on the bench.  They simply follow the law and the Constitution.  It's those other assholes who insert their own biases into their rulings.  In political science, we have "the attitudinal model."  The attitudinal model is the notion that judges are basically just conventional political ideologues in silly costumes.  They rule in ways that are heavily influenced by their ideologies, and construct rationalizations for their preferred outcomes that consist of legalese, but the explanations they give for their rulings are rationalizations, not the real reasons.  On abortion, Ginsburg, Kagan, Sotomayor, Breyer and Kennedy have an ideological preference for abortion remaining at least partially legal, so regardless of the fact that the Constitution doesn't mention it, they will find it in a right to privacy.  Thomas, Roberts and Alito are ideologically opposed to abortion, so they are disinclined to look for a right to abortion when it isn't mentioned in the Constitution.  According to the attitudinal model, everything else is bullshit.  Beliefs about the constitutionality of abortion, even among Supreme Court Justices, are determined by ideological preferences over whether or not it should be legal.

In case you can't tell, I'm pretty much an attitudinalist.

The tricky thing is that while congressional voting looks very ideological, Supreme Court voting looks less ideological overall.  Keith Poole and Howard Rosenthal developed the NOMINATE score, which measures congressional ideology based on roll call votes.  Those scores explain congressional behavior very well.  Try to use the same algorithm to measure Supreme Court ideology and it is messier.  Why?  The agenda is messier.  Most of the time, SCOTUS isn't dealing with abortion, Obamacare, etc.  Mostly, they deal with minor, technical shit that nobody except a few lawyers with sticks up their asses the size of the Washington Monument care about.  That isn't conducive to ideological voting.  On abortion and other ideological stuff, we know pretty well how Supreme Court Justices will vote most of the time.  Why?  Because they are politicians.  Will they surprise us some of the time?  Sure.  See:  Roberts on Obamacare.  But, those are the anomalies.  They surprise us because they break so dramatically from regular patterns.

Yup, I'm an attitudinalist.

And so is every president and senator.  That's why the confirmation process is so thoroughly fucked.  Sen. McConnell immediately announced his intention to block any nominee by Obama to replace Scalia because everybody involved thinks that everybody on the court is a conventional political ideologue.  Everybody involved is secretly an attitudinalist.

Ginsburg, Breyer, Kagan and Sotomayor are Democrats.  They will be voting for HRC.  Roberts, Alito and Thomas are Republicans.  They will grudgingly vote for Trump, and then go shower.  And probably have a stiff drink.  Kennedy will either go that route, except have a few drinks first, or vote third-party.

We all know this.

You're just not supposed to say it publicly.

And that's the rule that Ruth Bader Ginsburg broke.  She revealed a truth that everybody knows but that we all tell ourselves isn't true to make society function.  Supreme Court Justices are partisan politicians.  Clutch those pearls!

Now, go watch Dr. Who, "The Beast Below."


  1. In the context of your previous posts about legitimacy, do you think there is value in the Supreme Court upholding it's myth of independence and impartiality? At the end of your post you wrote that Ginsberg "revealed a truth that everybody knows but that we all tell ourselves isn't true to make society function." Does the court need to appear nonpartisan for society to respect the legitimacy of its decisions?

    1. Wow, great question. Let me respond by running and hiding...

      I'll actually refer back to my Game of Thrones/legitimacy in Westeros post and say that it depends on what confers legitimacy. Does the Supreme Court derive legitimacy from the constitutional process by which justices are appointed (back when that used to happen) or by the myth of impartiality that we all know to be false? It depends on how many of us really already know that it is false. If Democrats haven't already revolted over Bush v. Gore, and Republicans haven't already revolted over the two Obamacare rulings, I'd say that public opinion can withstand a lot, and if anybody still views the Court as legitimate, we're OK.

      But, let's accept the premise that it can benefit people to lie to them. I'm a professor. In theory, a scholar and a teacher. My responsibility is not to uphold a lie that may or may not help society function. My responsibility is to explain how politics work. Here is what I know. RBG believes that abortion should be legal. She arrived at that normative belief before she had any opinions about the constitutionality of abortion. Her beliefs about the constitutionality of abortion were influenced by her normative belief that it should be legal. Those same beliefs make her a partisan Democrat. Those same beliefs make her an opponent of Trump. All of this was knowable and known before she criticized Trump. She revealed nothing. Hence my snarky post.

      Then again, the substance of your question is actually the gist of my throw-away line at the end. If you aren't a Doctor Who fan, you won't get the reference, but "The Beast Below" is all about a society in denial, intentionally forgetting because it doesn't want to deal with the knowledge of what's really going on.