There is a general lesson here. A Republican appointee to the Supreme Court, having served for thirty-five years with mostly Republican appointees and under three Republican chief justices, is arguing for constitutional amendments that would largely entrench judicial restraint, and that would reduce the role of the federal courts in American political life. His proposals attest to the fact that in recent decades, the most aggressive judicial decisions have tended to come from the right—and have an uncomfortable overlap with the political positions of the conservative wing of the Republican Party.
.. With campaign finance regulation, the goal is not to entrench the power or opinions of the majority, but to ensure that economic inequalities are not turned into political ones. In a society that tolerates disparities in wealth, that is not merely a worthy goal; it is essential. As those disparities continue or even grow, there is a serious risk that wealthy people will be able to buy not only their preferred goods and services, as they are certainly entitled to do, but also their preferred policies and candidates, which is anathema to a system that prizes self-government.
The Dubious Sources of Some Supreme Court ‘Facts’
The phenomenon is novel. “The U.S. Supreme Court is the only American judicial entity that depends so heavily on amicus briefs to educate itself on factual matters,” Professor Larsen wrote.
.. “The Supreme Court has the same problem that the rest of us do: figuring out how to distinguish between real facts and Internet facts,” he said. “Amicus briefs from unreliable sources can contribute to that problem.”
The Anti-Court Court
A former student of Scalia’s, later a federal judge, Michael McConnell, said,
I will predict you will not see him running off and writing separate opinions merely because he takes exception with small issues or details…. He believes it is important to the country for the Court to get together and to speak with a single voice.
These predictions could not have been more wrong. Scalia is famous for his acerbic pen, and has often seemed to reserve his sharpest attacks for Justices O’Connor and Kennedy, by whom, one senses, he feels betrayed—but whose votes he almost always needs if his views are to become law. In his third term on the Court, he wrote that Justice O’Connor’s refusal to consider overruling Roe v. Wade in an abortion case was “irrational” and “cannot be taken seriously.”
.. Scalia called Kennedy’s approach “incoherent” and said that “interior decorating is a rock-hard science compared to psychology practiced by amateurs.” In 1994, when Kennedy and O’Connor joined an opinion holding that a New York state school district drawn exclusively for the Jewish village of Kiryas Joel impermissibly established religion, Justice Scalia dismissed the Court’s ruling as “preposterous.” He shows no inclination to pull punches in order to avoid alienating his colleagues whose votes he will need in future cases.
In part, this may be a relic of Scalia’s experience as a star debater in his youth. He was one of the nation’s best, first at Xavier High School in Manhattan, then at Georgetown University. Debaters don’t compromise. As Murphy puts it:
Success required four skills: a razor-sharp wit to cut through arguments under great pressure, a sharper tongue to deliver penetrating and concise attacks, an unflappable nature to deal with a barrage of attacks, and the ability to organize and deliver swift persuasive extemporaneous orations.
Scalia still has all four skills, but they don’t serve him quite as well on the Supreme Court.
.. The Warren Court viewed the courts’ highest calling in a constitutional democracy as safeguarding those who cannot protect themselves through the political process. The Roberts Court, by contrast, prefers that courts have a much smaller part in regulating American life. In pursuit of that deregulatory agenda, it often leaves the vulnerable effectively unprotected. And on this issue, there has been virtually no “uncertainty.” In the end, what most defines the Roberts Court may be its hostility to courts themselves.
The Supreme Court Justices Have Cellphones, Too
I had planned to conclude my discussion of the court and the search cases with a mention of “empathy,” the ability to put oneself in someone else’s shoes, so often missing from the Supreme Court’s criminal law decisions but perhaps on display here. But on reflection, it’s not really empathy. The justices are walking in their own shoes. The ringing cellphone could be theirs — or ours.