The Difficulty of Separating Law and Politics

By Scott Lemieux

To follow up on my recent post about judicial decision-making, the upcoming Supreme Court hearings are likely to involve the candidate arguing that there is a splendid isolation between "law" and "politics" on the Supreme Court.   Political scientists (and some law professors) have marshaled considerable evidence that such a separation does not describe Supreme Court decision-making very well.   On the other hand, claims that policy preferences can explain most of what Supreme Court justices decide can also be overly simplistic.   

One case that seems to illustrate the limitations of the "attitudinal" model is Ex Parte McCardle, an 1869 case concerning the constitutionality of martial law in the South during Reconstruction.   The Court held that it did not have jurisdiction to hear a habeas corpus appeal from a newspaper editor who had been detained without charges.   The case presents an obvious challenge to the attitudinal model, because private correspondence and future decisions strongly indicate that a majority of the Court in fact believed that martial law in the post-CIvil War South was unconstitutional.    Many scholars have argued that the case provides an excellent example of the strategic model -- that is, the Court subordinated its policy preferences in order to preserve its own authority.   The Court, as the legal scholars Barry Friedman and Jeffrey Rosen put it, "bowed to Congress’s action, recognizing another fight it could not win."

As an interesting recent paper by Mark Graber argues, however, McCardle is actually an example of a case that can be explained very well by the legal model.   As Friedman and Rosen also note, the Court in 1869 was simply applying its own clear precedents.   Several cases had unambiguously established that federal courts only had jurisdiction to hear cases if they were granted this jurisdiction by Congress.   It's possible to explain McCardle, therefore, by arguing that justices will tend to subordinate their political views in cases where the law is relatively clear.

As Graber notes, however, this doesn't mean that strategy played no role in the Court's decision.   First, the Court can overrule its own precedents, and one can argue that in a more favorable political climate it might have done so.    In addition, the precedents that seemed to compel the result in McCardle quite clearly did represent strategic retreats by a Supreme Court under extreme pressure from the Jeffersonian Republicans.   The lesson is not that either "law" or "strategy" or "policy attitudes" can explain the outcome in McCardle, but that there is always a complex relationship between these factors.   As Graber puts it, "claims about whether justices were influenced by a legal strategy inevitably encompass contestable claims about good law and efficacious strategy."    

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The path we are on is not sustainable. The economy is falling apart, and somebody better wake up and do something before even more Americans find themselves drowning in poverty. The following are 20 signs that the economic collapse has already begun for one out of every seven Americans…..

1. The Census Bureau says that 43.6 million Americans are now living in poverty and according to them that is the highest number of poor Americans in 51 years of record-keeping.

2. In the year 2000, 11.3 percent of Americans were living in poverty. In 2008, 13.2 percent of Americans were living in poverty. In 2009, 14.3 percent of Americans were living in poverty. Needless to say the trend is moving in the wrong direction.

3. In 2009 alone, approximately 4 million more Americans joined the ranks of the poor.

4. According to the Associated Press, experts believe that 2009 saw the largest single year increase in the U.S. poverty rate since the U.S. government began calculating poverty figures back in 1959.

5. The U.S. poverty rate is now the third worst among the developed nations tracked by the Organization for Economic Cooperation and Development.

6. Today the United States has approximately 4 million fewer wage earners than it did in 2007.

7. Nearly 10 million Americans now receive unemployment insurance, which is almost four times as many as were receiving it in 2007.

8. U.S. banks repossessed 25 percent more homes in August 2010 than they did in August 2009.

9. One out of every seven mortgages in the United States was either delinquent or in foreclosure during the first quarter of 2010.

10. There are now 50.7 million Americans who do not have health insurance. One trip to the emergency room would be all it would take to bankrupt a significant percentage of them.

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12. There are now over 41 million Americans on food stamps.

13. The number of Americans enrolled in the food stamp program increased a whopping 55 percent from December 2007 to June 2010.

14. One out of every six Americans is now being served by at least one government anti-poverty program.

15. California’s poverty rate soared to 15.3 percent in 2009, which was the highest in 11 years.

16. According to an analysis by Isabel Sawhill and Emily Monea of the Brookings Institution, 10 million more Americans (including 6 million more children) will slip into poverty over the next decade.

17. According to a recently released Federal Reserve report, Americans experienced a $1.5 trillion loss in combined household net worth in the second quarter of 2010.

18. Manufacturing employment in the U.S. computer industry is actually lower in 2010 than it was in 1975.

19. Median U.S. household income is down 5 percent from its peak of more than $52,000 in 1999.

20. A study recently released by the Center for Retirement Research at Boston College University found that Americans are $6.6 trillion short of what they need for retirement.

How anyone can look at those numbers and think that things are about to “get better” absolutely boggles the mind. It is time to wake up. Things are not going to get better. Things are only going to get worse. The United States is rapidly becoming a nation where poverty is absolutely rampant. As poverty continues to spread, crime will not be far behind.

Source: http://www.washingtonpoliticsnews.com

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