Evidence from recent Supreme Court arguments suggests that the chief justice, like most people, may have ideological and gender blind spots.
Chief Justice John Roberts would like us to think that Supreme Court justices are mere umpires who “don’t make the rules” but simply “apply them.”
When President Trump criticized what he saw as an unreasonable ruling by an “Obama judge,” the chief justice said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
Yet at Supreme Court oral arguments, chief justices have applied rules of the court with very real differences among justices depending on their partisan appointment: Justices appointed by Democrats have been interrupted more frequently than justices appointed by Republicans. And women have been interrupted more frequently than men.
And recently, as the court conducted oral arguments over the phone, it was Chief Justice Roberts himself who did the uneven interrupting in his role as timekeeper.
The pattern of interruptions reflects the reality that Supreme Court justices, like everyone else, are susceptible to bias. It is an unfortunate reality that women are often perceived as talking too much even though studies show that they talk less than men. And it is also the case that people like to hear things they already believe — and interrupt those with whom they disagree.
The same pattern manifests at the Supreme Court.
Normally, Supreme Court arguments are unstructured sessions in which any justice can ask any question at any point in the argument. Justices sometimes interrupt one another and the advocates, and some advocates even interrupt justices.
A 2017 study showed that the interruptions at the Supreme Court are both gendered and ideological. The study, which focused on the Roberts court as well as two earlier Supreme Court terms from the Rehnquist and Burger courts, found that female justices were interrupted at disproportionate rates by their male colleagues and by male advocates. Male justices interrupt more than female justices, and male justices interrupt their female colleagues more than their male colleagues. The interruptions do not reflect female justices’ participation in arguments: Female justices do not talk more than their male colleagues.
The same study also showed an ideological bias in interruptions. Both Democratic-appointed and Republican-appointed justices are more likely to interrupt a justice with whom they disagree. But the conservative justices interrupt their liberal colleagues at higher rates than the liberal justices interrupt their conservative colleagues.
The Covid-19 pandemic has sharpened these divisions. Last month, the court held oral arguments over the phone, and the justices spoke in order of seniority.
The new format shifted more responsibility to the chief justice. In the court’s usual argument structure, the chief justice’s role is to “referee” among justices when more than one speak at the same time. But in the new format, the chief justice was tasked with ensuring that each justice had the opportunity to speak for roughly the same amount of time. That gave the chief justice the power to decide when to end each justice’s time for questions (unless the questioning justice concluded it).
Looking at all the cases together — 10 in total — the chief justice arguably succeeded at being evenhanded. The justices who spoke the most, per questioning period that they used, were Justice Neil Gorsuch and Justice Sonia Sotomayor, who represent different wings of the court. Justice Samuel Alito also spoke for a similar amount of time.
But the devil is in the details, and in some striking respects, the chief justice fell short of the ideal of the neutral umpire. The three justices who were allowed to speak the most in the very politically salient cases — the two cases about the president and one about access to contraception under the Affordable Care Act — were conservative men: Justice Brett Kavanaugh had two of the longest amounts of time in a case, and Justice Alito had the other. The justices who received the three longest individual questioning periods were also all conservative men: Justice Alito had two such periods, and Justice Gorsuch had the other. By contrast, the justices who received the three shortest questioning periods that the chief justice ended were all liberal women: Justice Ruth Bader Ginsburg had two, and Justice Elena Kagan had the other.
When it came to the controversial topic of a woman’s right to contraception access, the conservative Justice Alito was given over a minute and a half longer than the longest questioning period by a justice appointed by a Democratic president — or any of the female justices.
There were also notable differences in whom the chief justice interrupted or cut off. The chief justice ended questioning periods nearly 160 times, typically by interrupting an advocate or concluding after an advocate’s response to another justice’s question. But on 11 occasions, the chief justice interrupted or cut off another justice. Every one of those 11 occasions involved justices who were appointed by Democratic presidents, and nine of the 11 involved female justices.
That is not because the female or Democratic-appointed justices were taking more time. The chief justice interrupted Justice Ginsburg and Justice Stephen Breyer even though they used less time than a majority of their colleagues, including Justice Gorsuch and Justice Kavanaugh, whom the chief justice never once interrupted.
Justice Ginsburg, a senior member of the court, participated from her hospital bed on some days. But the chief justice did not lend her great deference, ending more of her questioning periods than that of the newest member, Justice Kavanaugh, even though she spoke, on average, over 10 seconds less per questioning period than he did. Ten seconds may not sound like much, but is more than enough time to get out an additional question or at least a remark about how an advocate’s claims are unpersuasive.
Similarly, the chief justice ended many more of Justice Sotomayor’s questioning periods than Justice Gorsuch’s, even though they spoke, on average, the same amount of time per questioning period and even though he had two of the six longest questioning periods and she had none.
To be fair to the chief justice, this was an unusual arrangement, and at the same time that he was supposed to be keeping the justices to their time limits, he was also participating in the arguments as a questioner and as a decision maker. By any standard, he had a difficult job.
Still, his uneven application of the rules was not random. It was gendered and ideological, as interruptions have been in previous courts. But it is possible that having these new demands, he could not or did not devote sufficient attention to checking his own biases.
The justices promise to be neutral, but the fact is that they are human with real human biases that affect their decisions. Oral arguments are just another occasion where that comes through.
It’s possible that with experience, Chief Justice Roberts will take corrective steps. If the court continues to have arguments on the phone into the next term, someone else, such as the clerk of the court or the counselor to the chief justice, could keep time and end questioning periods rather than the chief justice.
And if the court reverts to its usual argument, Chief Justice Roberts might want to keep a running tally of who interrupts and whom he allows to speak. Because as much as we may want the chief justice to be a neutral umpire, that is not what we have seen this month at the Supreme Court.
The coronavirus crisis once seemed to be the kind of gut-wrenching shock that would pull together a politically divided nation. Increasingly, though, it is pulling the nation apart along familiar lines.
To see why, start by looking at how the pandemic’s effects are falling along partisan lines, leaving people on both sides of the red/blue divide now feeling they are bearing unfair burdens.
Political power in the country’s states today is almost evenly split between the two parties: 26 have Republican governors, 24 have Democratic governors. Yet the coronavirus’s effects aren’t even close to falling evenly between red and blue states.
Two-thirds of confirmed coronavirus cases are in states with Democratic governors. When states are measured by the sheer number of coronavirus cases, six of the top seven have Democratic governors. Together, those six blue states have about half of the nation’s cases, though only about a third of its population.
Coronavirus deaths tell a similar story. Eight of the nine states with the most deaths due to the virus are states with Democratic governors. When measured by deaths per capita, eight of the top nine states also have Democratic governors.
Obviously, the virus isn’t picking partisan sides. It moves without regard to borders or political affiliation. It just happens that more of the blue states have densely populated metro areas, heavily used mass transit systems and colder climates, which help the virus spread more easily. In some cases, they also have older populations more vulnerable to it.
These aren’t partisan distinctions. Massachusetts with its Republican governor, Charlie Baker, has been hit as hard as its Northeastern neighbors.
Nor are the state-by-state discrepancies necessarily a sign of how well or how badly governors are handling the outbreak. Certainly some will be judged to have acted better than others, but mostly they are dealing the hand that nature and the gods of disease handed them.
Inevitably, though, this uneven distribution of disease has led to uneven political reactions about its burden. Red states feel they are being hit harder than justified by a national economic shutdown that, to them, simply feels more acute than the problem it is addressing. It’s no surprise, then, that the debate over how quickly to reopen the economy is both an emotional one, and is falling along partisan lines.
“A red-state governor is losing his business in exchange for blue-state lives,” said Angus Deaton, a Nobel Prize-winning economist at a Brookings Institution seminar last week. “So for him, opening up is a no-brainer, which is sort of why it is happening.”
He added: “It is a lot to ask those governors to kill their businesses and their GDP for people who live far away, and who they may not even like very much.”
At the same time, blue-state leaders are starting to feel that, despite all the “we’re all in this together” sentimentality heard early in the crisis, that feeling isn’t prevailing today—particularly not in the U.S. Senate.
The states hit hardest by the virus are suffering the double whammy of lost tax revenues as economic activity grinds to a halt as well as skyrocketing costs for health care. These states’ finances, obviously, are being hit hardest, and they are seeking more help from Washington to cope, on top of billions of dollars Congress already has approved. And the Democratic-controlled House voted last Friday to do just that—to provide almost a trillion dollars more in a new aid package.
But that package is going nowhere in the Republican-controlled Senate, whose leadership has characterized additional aid as a “blue-state bailout” of badly run states and deeply indebted public pension programs in which they have little interest. At one point, Senate Majority Leader Mitch McConnell suggested that troubled states could simply declare bankruptcy.
And it’s in the Senate where the imbalance between coronavirus impact and political clout is most acute. Those six hardest-hit blue states have more than half the country’s coronavirus cases, and a third of its population—yet only 12% of the votes in the Senate. It is almost a perfect formula for political tensions.
President Trump is straddling this red and blue divide. In sheer political terms, two of the hardest-hit states, Michigan and Pennsylvania, are critical to him because they happen to be swing states he carried in the 2016 election.
The president “is absolutely open” to negotiating more aid for states, White House economic adviser Kevin Hassett said in an interview Friday. But, he added, “the one thing he has taken off the table is fixing old problems” with new aid.
Mr. Deaton notes that the splits may narrow if cases continue to grow in red states. But for now, the ideal world in which red and blue sympathize with each other may be slipping further away.
The pandemic has put psychological theories of politics to a very interesting test.
Over the past two decades, as conservatives and liberals have drifted ever farther from each other, an influential body of literature has attempted to psychologize the partisan divide — to identify conservative and liberal personality types, right-wing or left-wing minds or brains, and to vindicate the claim of the noted political scientists Gilbert and Sullivan, That every boy and every gal / That’s born into the world alive. / Is either a little Liberal / Or else a little Conservative.
In its crudest form this literature just amounts to liberal self-congratulation, with survey questions and regression analyses deployed to “prove” with “science” that liberals are broad-minded freethinkers and conservatives are cramped authoritarians. But there have been more sophisticated and sympathetic efforts, too, like the influential work of New York University’s Jonathan Haidt on the “moral foundations” of politics: Haidt argues that conservatives actually have more diverse moral intuitions than liberals, encompassing categories like purity and loyalty as well as care and fairness, and that the right-wing mind therefore sometimes understands the left-wing mind better than vice versa.
Both the crude and sophisticated efforts tended to agree, though, that the supposed conservative mind is more attuned to external threat and internal contamination, more inclined to support authority and hierarchy, and fear subversion and dissent. And so the political responses to the pandemic have put these psychological theories to a very interesting test.
In the coronavirus, America confronts a contaminating force (a deadly disease) that originated in our leading geopolitical rival (an external threat) and that plainly requires a strong, even authoritarian government response. If there was ever a crisis tailored to the conservative mind-set, surely it would be this one, with the main peril being that conservatives would wildly overreact to such a trigger.
So what has happened? Well, several different things. From the Wuhan outbreak through somewhere in mid-February, the responses to the coronavirus did seem to correspond — very roughly — to theories of conservative and liberal psychology. Along with infectious-disease specialists, the people who seemed most alarmed by the virus included the inhabitants of Weird Right-Wing Twitter (a collection of mordant, mostly anonymous accounts interested in civilizational decline), various Silicon Valley eccentrics, plus original-MAGA figures like Mike Cernovich and Steve Bannon. (The radio host Michael Savage, often considered the most extreme of the right’s talkers, was also an early alarmist.)
Meanwhile, liberal officialdom and its media appendages were more likely to play down the threat, out of fear of giving aid and comfort to sinophobia or populism. This period was the high-water mark of “it’s just the flu” reassurances in liberal outlets, of pious critiques of Donald Trump’s travel restrictions, of deceptive public-health propaganda about how masks don’t work, of lectures from the head of the World Health Organization about how “the greatest enemy we face is not the virus itself; it’s the stigma that turns us against each other.”
But then, somewhere in February, the dynamic shifted. As the disease spread and the debate went mainstream, liberal opinion mostly abandoned its anti-quarantine posture and swung toward a reasonable panic, while conservative opinion divided, with a large portion of the right following the lead of Trump himself, who spent crucial weeks trying to wish the crisis away. Where figures like Bannon and Cernovich manifested a conservatism attuned to external perils, figures like Rush Limbaugh and Sean Hannity manifested a conservatism of tribal denial, owning the libs by minimizing the coronavirus threat.
Now we are in a third phase, where Trump is (more or less, depending on the day) on board with a robust response and most conservatives have joined most liberals in alarm. Polls show a minimal partisan divide in support for social distancing and lockdowns, and some of that minimal divide is explained by the fact that rural areas are thus far less likely to face outbreaks. (You don’t need a complicated theory of the ideological mind to explain why New Yorkers are more freaked out than Nebraskans.)
But even now, there remains a current of conservative opinion that wants to believe that
- all of this is overblown, that
- the experts are wrong about the likely death toll, that
- Trump should reopen everything as soon as possible, that
- the liberal media just wants to crash the American economy to take his presidency down.
Where does this leave the theories of conservative and liberal minds? It’s too much to say that they don’t describe anything real. A certain kind of conservative personality (a kind that includes more than a few of my own friends) really did seem particularly well attuned to this crisis and ended up out ahead of the conventional wisdom in exactly the way that you would expect a mind-set attuned to risk and danger, shot through with pessimism and inclined to in-group loyalty to be.
At the same time, the behavior of what you might call “normie” Republicans — not Very Online right-wingers or MAGA populists but longtime Fox News and talk-radio consumers — suggests that any such conservative mind-set is easily confounded by other factors, partisanship chief among them. The fact that the virus seemed poised to help Democrats and hurt the Trump administration, the fact that it was being hyped by CNN and played down by Hannity, the fact that Trump himself declined to take it seriously — all of this mattered more to many Republicans than the fear of foreign contamination that the virus theoretically should have activated or the ways in which its progress seemed to confirm certain right-wing priors.
So one might say that the pandemic illustrates the power of partisan mood affiliation over any kind of deeper ideological mind-set. Or relatedly, it illustrates the ways in which under the right circumstances, people can easily swing between different moral intuitions. (This holds for liberals as well as conservatives: A good liberal will be as deferential to authority as any conservative when the authority has the right academic degrees, and as zealous about purity and contamination when it’s their own neighborhood that’s threatened.)
But the right’s varying responses to the pandemic also illustrate two further points. The first point is that what we call “American conservatism” is probably more ideologically and psychologically heterogeneous than the conservative mind-set that social scientists aspire to measure and pin down. In particular, it includes an incredibly powerful streak of what you might call folk libertarianism — which comes in both highbrow and middlebrow forms, encompassing both famous legal scholars predicting minimal fatalities from their armchairs and “you can’t stop the American economy … for anything” tough guys attacking social distancing on Twitter.
This mentality, with its reflexive Ayn Randism and its Panglossian hyper-individualism, is definitely essential to understanding part of the American right. But it’s very much an American thing unto itself, and I’m doubtful that it corresponds to any universal set of psychological tendencies that we could reasonably call conservative.
The second point is that on the fringes of the right, among QAnon devotees and believers in the satanic depravity of liberalism, the only psychology that matters is paranoia, not conservatism. And their minimizing response to the coronavirus illustrates the unwillingness of the conspiratorial mind to ever take yes for an answer — meaning that even true events that seem to vindicate a somewhat paranoid worldview will be dismissed as not true enough, not the deepest truth, not the Grandest of All Grand Conspiracies that will someday (someday) be unraveled.
In his novel “Foucault’s Pendulum,” a sendup of crackpot esotericism that anticipated “The Da Vinci Code” years before its publication, Umberto Eco captured this spirit by describing the way that self-conscious seekers after hermetic wisdom and gnostic mysteries approached the rise of Christianity:
… someone had just arrived and declared himself the Son of God, the Son of God made flesh, to redeem the sins of the world. Was that a run-of-the-mill mystery? And he promised salvation to all: you only had to love your neighbor. Was that a trivial secret? And he bequeathed the idea that whoever uttered the right words at the right time could turn a chunk of bread and a half-glass of wine into the body and blood of the Son of God, and be nourished by it. Was that a paltry riddle?
… And yet they, who now had salvation within their grasp — do-it-yourself salvation — turned deaf ears. Is that all there is to it? How trite. And they kept on scouring the Mediterranean in their boats, looking for a lost knowledge of which those thirty-denarii dogmas were but the superficial veil, the parable for the poor in spirit, the allusive hieroglyph, the wink of the eye at the pneumatics. The mystery of the Trinity? Too simple: there had to be more to it.
This is where the pandemic-minimizing sort of conservative has ended up. They are confronted with a world crisis tailor-made for an anti-globalization, anti-deep-state worldview — a crisis in which China lit the fuse, the World Health Organization ran interference for Beijing, the American public health bureaucracy botched its one essential job, pious anti-racism inhibited an early public-health response, and outsourcing and offshoring left our economy exposed.
And their response? Too simple: Just a feint, a false flag, another deep state plot or power grab, another hoax to take down Trump. It can’t be real unless Hillary Clinton is somehow at the bottom of it.
Attorney General William Barr will deliver the Barbara K Olson Lecture at the Federalist Society’s 2019 National Lawyers Convention.
And he’s on a mission to use the “authority” of the executive branch to stop it.
Why would a seemingly respectable, semiretired lion of the Washington establishment undermine the institutions he is sworn to uphold, incinerate his own reputation, and appear to willfully misrepresent the reports of special prosecutors and inspectors general, all to defend one of the most lawless and corrupt presidents in American history? And why has this particular attorney general appeared at this pivotal moment in our Republic?
A deeper understanding of William Barr is emerging, and it reveals something profound and disturbing about the evolution of conservatism in 21st-century America.
Some people have held that Mr. Barr is simply a partisan hack — willing to do whatever it takes to advance the interests of his own political party and its leadership. This view finds ample support in Mr. Barr’s own words. In a Nov. 15 speech at the Federalist Society’s National Lawyers Convention in Washington, he accused President Trump’s political opponents of “unprecedented abuse” and said they were “engaged in the systematic shredding of norms and the undermining of the rule of law.”
It is hardly the first time Mr. Barr stepped outside of long-established norms for the behavior of attorneys general. In his earlier stint as attorney general, during the George H.W. Bush presidency, Mr. Barr took on the role of helping to disappear the case against Reagan administration officials involved in the Iran-contra affair. The situation demonstrated that “powerful people with powerful allies can commit serious crimes in high office,” according to Lawrence Walsh, the independent prosecutor in that case. According to some critics, Mr. Barr delivered the partisan goods then, as he is delivering them now.
Another view is that Mr. Barr is principally a defender of a certain interpretation of the Constitution that attributes maximum power to the executive. This view, too, finds ample support in Mr. Barr’s own words. In the speech to the Federalist Society, he said, “Since the mid-’60s, there has been a steady grinding down of the executive branch’s authority that accelerated after Watergate.” In July, when President Trump claimed, in remarks to a conservative student group, “I have an Article II where I have the right to do whatever I want as president,” it is reasonable to suppose this is his CliffsNotes version of Mr. Barr’s ideology.
Both of these views are accurate enough. But at least since Mr. Barr’s infamous speech at the University of Notre Dame Law School, in which he blamed “secularists” for “moral chaos” and “immense suffering, wreckage and misery,” it has become clear that no understanding of William Barr can be complete without taking into account his views on the role of religion in society. For that, it is illuminating to review how Mr. Barr has directed his Justice Department on matters concerning the First Amendment clause forbidding the establishment of a state religion.
In Maryland, the department rushed to defend taxpayer funding for a religious school that says same-sex marriage is wrong. In Maine, it is defending parents suing over a state law that bans religious schools from obtaining taxpayer funding to promote their own sectarian doctrines. At his Department of Justice, Mr. Barr told law students at Notre Dame, “We keep an eye out for cases or events around the country where states are misapplying the establishment clause in a way that discriminates against people of faith.”
In these and other cases, Mr. Barr has embraced wholesale the “religious liberty” rhetoric of today’s Christian nationalist movement. When religious nationalists invoke “religious freedom,” it is typically code for religious privilege. The freedom they have in mind is the freedom of people of certain conservative and authoritarian varieties of religion to discriminate against those of whom they disapprove or over whom they wish to exert power.
This form of “religious liberty” seeks to foment the sense of persecution and paranoia of a collection of conservative religious groups that see themselves as on the cusp of losing their rightful position of dominance over American culture. It always singles out groups that can be blamed for society’s ills, and that may be subject to state-sanctioned discrimination and belittlement — L.G.B.T. Americans, secularists and Muslims are the favored targets, but others are available. The purpose of this “religious liberty” rhetoric is not just to secure a place of privilege, but also to justify public funding for the right kind of religion.
Barr watchers will know that this is nothing new. In a 1995 article he wrote for The Catholic Lawyer, which, as Emily Bazelon recently pointed out, appears to be something of a blueprint for his speech at Notre Dame, he complained that “we live in an increasingly militant, secular age” and expressed his grave concern that the law might force landlords to rent to unmarried couples. He implied that the idea that universities might treat “homosexual activist groups like any other student group” was intolerable.
This form of “religious liberty” is not a mere side issue for Mr. Barr, or for the other religious nationalists who have come to dominate the Republican Party. Mr. Barr has made this clear. All the problems of modernity — “the wreckage of the family,” “record levels of depression and mental illness,” “drug addiction” and “senseless violence” — stem from the loss of a strict interpretation of the Christian religion.
The great evildoers in the Notre Dame speech are nonbelievers who are apparently out on the streets ransacking everything that is good and holy. The solutions to society’s ills, Mr. Barr declared, come from faith. “Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct,” he said. “Religion helps frame moral culture within society that instills and reinforces moral discipline.” He added, “The fact is that no secular creed has emerged capable of performing the role of religion.”
Within this ideological framework, the ends justify the means. In this light, Mr. Barr’s hyperpartisanship is the symptom, not the malady. At Christian nationalist gatherings and strategy meetings, the Democratic Party and its supporters are routinely described as “demonic” and associated with “rulers of the darkness.” If you know that society is under dire existential threat from secularists, and you know that they have all found a home in the other party, every conceivable compromise with principles, every ethical breach, every back-room deal is not only justifiable but imperative. And as the vicious reaction to Christianity Today’s anti-Trump editorial demonstrates, any break with this partisan alignment will be instantly denounced as heresy.
It is equally clear that Mr. Barr’s maximalist interpretation of executive power in the Constitution is just an effect, rather than a cause, of his ideological commitments. In fact, it isn’t really an interpretation. It is simply an unfounded assertion that the president has what amount to monarchical powers. “George III would have loved it,” said Douglas Kmiec, a law professor at Pepperdine who once held Mr. Barr’s position as head of the Justice Department’s Office of Legal Counsel, of Mr. Barr’s theory. It’s almost beside the point to note, as the conservative lawyers group Checks & Balances recently wrote, that Mr. Barr’s view of history “has no factual basis.”
Mr. Barr’s constitutional interpretation is simply window dressing on his commitment to religious authoritarianism. And that, really, gets to the heart of the matter. If you know anything about America’s founders, you know they were passionately opposed to the idea of a religious monarchy. And this is the key to understanding the question, “What does Bill Barr want?”
The answer is that America’s conservative movement, having morphed into a religious nationalist movement, is on a collision course with the American constitutional system. Though conservatives have long claimed to be the true champions of the Constitution — remember all that chatter during previous Republican administrations about “originalism” and “judicial restraint” — the movement that now controls the Republican Party is committed to a suite of ideas that are fundamentally incompatible with the Constitution and the Republic that the founders created under its auspices.
Mr. Trump’s presidency was not the cause of this anti-democratic movement in American politics. It was the consequence. He is the chosen instrument, not of God, but of today’s Christian nationalists, their political allies and funders, and the movement’s legal apparatus. Mr. Barr did not emerge in order to serve this one particular leader. On the contrary, Mr. Trump serves a movement that will cynically praise the Constitution in order to destroy it, and of which Mr. Barr has made himself a hero.
Thomas Jefferson hated confrontation, and yet his understanding of power and of human nature enabled him to move men and to marshal ideas, to learn from his mistakes, and to prevail. Passionate about many things—women, his family, books, science, architecture, gardens, friends, Monticello, Paris—Jefferson loved America most, and he strove again and again, despite fierce opposition, to realize his vision: the creation, survival, and success of popular government in America. Jon Meacham lets us see Jefferson’s world as Jefferson himself saw it, and to appreciate how Jefferson found the means to endure and win in the face of partisan division, economic uncertainty, and external threat. Drawing on archives in the United States, England, and France, as well as unpublished Jefferson presidential papers, Meacham presents Jefferson as the most successful political leader of the early republic, and perhaps in all of American history.