Where Is The Academic Truth Squad?

Have you heard of Mark W. Smith? He is a ’95 graduate of NYU Law School and a partner at the New York office of Kasowitz, Benson, Torres, and Friedman. More to the point, however, he is an up-and-coming Fox-News-style “legal affairs commentator.” He is described as “one of the fastest-rising legal stars in the country” by no less a legal luminary than … Ann Coulter. Get the picture?

I just heard Smith on our local talk radio station flogging his latest book, “Disrobed: The New Battle Plan to Break the Left’s Stranglehold on the Courts,” about which its publisher (Random House) says this:

America’s courts, legal culture, and law schools remain solidly in the Left’s camp. Decades of liberal legal precedents fill volumes of law tomes. Absent a sweeping change—precisely what bestselling author Mark W. Smith calls for in Disrobed—liberals will ruthlessly exploit their dominant position in the law to continue advancing their radical agenda, as they have for the past seventy years.

So steamed was I by Smith’s harping on the theme that the federal courts are in the grips of “loony leftists” (like, you know, David Souter and Anthony Kennedy) that I called in to the program. Smith agreed to talk with me on the air, but he has studied the Fox News Playbook, so after I said “hi,” Smith launched into a two-minute filibuster about how, as a law professor, I am so mired in the liberal atmosphere of the American legal academy that I can’t possibly perceive the truth about how dominated the entire legal system is by the legacy of “fifty years” (!) of radical leftist control of the courts. The show’s hosts had to interrupt him to create space for me to ask my question, which was this:

Richard Nixon was elected President in 1968. In the 38 years since then, Republican presidents (including presidents elected from right of the center of their party) have appointed federal judges for 26 of them. Democrat presidents have done the appointing for just 12 years, and those two presidents, Carter and Clinton, were candidates from the center or right of their parties who defeated candidates to their left (Ted Kennedy in 1980; Tom Harkin and Paul Tsongas in 1992) in the primaries. So how is it possible to maintain that the federal judiciary is currently staffed by judges of the “loony left,” or for that matter, of any kind of left, loony or otherwise?

Smith’s response was, predictably, a filibuster about how the supposedly conservative Rehnquist Court was really a court of the radical left, endorsing the killing of unborn children while forbidding the killing of baby spotted owls, encouraging the seizure of private property, and so on.

Smith is not alone in this venture. The airwaves and bookstore shelves are full of these sorts of claims, often based on brazen distortions and lies. I can’t imagine that you could fill a telephone booth with legal academics of any political stripe who would defend the claim that the current personnel of the federal courts is shot through with “loony lefties,” or lefties of any stripe.

These sorts of claims — because of their prevalence, even their ubiquity — play a crucial role in American political discourse about the judiciary. We legal academics write our law review articles; some of us even carefully study the political and jurisprudential makeup of the federal courts. We talk to each other. But we do not talk to the public. We do not respond to the Mark Smiths and Andrew Napolitanos and William Pendleys and Robert Dierkers with popular-press books, or on the airwaves.

Why not?

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37 Responses

  1. Elizabeth says:

    JUST a question: Isn’t it possible that we crazy lefty faculty members are churning out lefty lawyers, such that even the righty judges appointed by righty Presidents are lefty?

    Is it possible that the few righty lawyers who are out there are making piles of money on Wall Street (or writing books ala the blond righty women), unwilling to foolishly slog it out as judges for $200,000 a year?

    Souter, by the way, was the Stealth Justice, correct? That is to say, he was appointed by a Republican President, but he (Souter) was a big disgrace to the party. He was a lefty in righty clothing. As was Kennedy, to a degree. (Kennedy was also a Repub. appointee, right?)

  2. Eric Muller says:

    Elizabeth, it seems to me that this characterization of Souter and Kennedy is more a talking point of the right than it is an accurate depiction of where these Justices’ philosophies stand along a historical spectrum of jurisprudence.

    Here’s what I mean: you are absolutely right that some on the right are disappointed with Souter and Kennedy. No doubt about that. But in what sense is it accurate to describe them — as Smith and Napolitano and Coulter and others invariably do — as ringleaders of the loony left? Or of any left?

    One might quite plausibly say that in their incrementalism, their preference for standards over rules, and their willingness to work within rather than outside the constraints of certain precedents, they are judges more or less in the tradition of John Marshall Harlan than Thurgood Marshall.

    But in what sense can one describe these men as “lefties?”

    I just don’t think one can. And I think that our willingness to use a word like “lefty” in the same breath as the name “Anthony Kennedy” proves the very dominance of the sloganeering of the Mark W. Smiths and Ann Coulters in our current political discourse.

  3. Orin Kerr says:

    Eric writes:

    The airwaves and bookstore shelves are full of these sorts of claims, often based on brazen distortions and lies. I can’t imagine that you could fill a telephone booth with legal academics of any political stripe who would defend the claim that the current personnel of the federal courts is shot through with “loony lefties,” or lefties of any stripe.

    I was interested to see this not long after reading David Cole’s new article in the Georgetown Law Journal, The Liberal Legacy of Bush v. Gore. Cole’s argument is that the last few Terms of the Rehnquist Court were surprisingly liberal, perhaps because of public reaction to Bush v. Gore. Maybe David Cole is planning to apply for the job of Fox News commentator?

  4. Eric Muller says:

    Orin, do you believe it accurate to say that the federal courts of today are dominated by loony leftist judges? Or even non-loony leftists?

    It is one thing to argue, as David Cole does, that the last couple of years of the Rehnquist Court had a more liberal bent than one might have expected from that Court. It’s quite another to maintain that the federal courts are full of liberals who are “ruthlessly exploit[ing] their dominant position in the law to continue advancing their radical agenda.”

  5. Ivan Ludmer says:


    You may also want to check out this post (http://uchicagolaw.typepad.com/faculty/2005/10/the_myth_that_j.html#more) by Professor Strauss, arguing that, first, the Court has been moving right, making those who are not on the extreme seem further on the left, and second, the Justices in question were not appointed as solid conservatives but rather because they had conservative leanings on certain issues important to the president at the time, which they still reflect.

    Also, the concept of “stealth Justice” only matters if we appoint Justices expecting them to rule in certain ways (which we obviously do), but this seems at odds with calls for “principled” jurisprudence. It seems difficult to reconcile charges of betrayal with charges of “liberal results-oriented” jurisprudence.

  6. Matt Bodie says:

    This reminds me of the Mark Levin book, “Men in Black.” Dahlia Lithwick wrote about how folks in the media were ignoring the book, even though it was eighth on the NYT best seller list. Of course, she also wrote: “I use the word ‘book’ with some hesitation: Certainly it possesses chapters and words and other book-like accoutrements.” And: “The reason it may take you only slightly longer to read ‘Men in Black’ than it took Levin to write it is that you’ll experience an overwhelming urge to shower between chapters.”

    The Lithwick article is here:


  7. William Baude says:

    But don’t legal academics “talk to the public” with “popular press books”? See Cass Sunstein, Radicals in Robes; Mark Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law; etc.

  8. Seth R. says:

    The problem is that the public wants efficient governance. They want our nation governed seamlessly and without any hitches or bumps. This is far and away, the dominant viewpoint.

    This is why any force that places a check on the Executive Branch (the “efficient wing” of our government) is immediately met with a negative gut reaction from your average Joe on Mainstreet America.

    Why is Congress universally reviled? Because they debate, dither, and ultimately topedoe many good ideas that might have been good if the Department of Justice had just been given free reign to manage our affairs.

    Why is the Judiciary under attack? Because they are often used as a delaying tactic, they sometimes run counter to democratic opinion, and there’s all that bothersome PROCEDURE you have to go through (which tends to get expensive).

    But here’s the rub:

    You can have efficient government.

    Or you can have a fair government.

    You cannot have both.

    At present, the American public is willing to sell its democratic birthright for mess of Executive pottage.

    It will take some serious Executive abuses before public opinion shifts back the other way and people start thinking that maybe inefficient governance isn’t so bad after all.

  9. Humble Law Student says:

    Its very easy to back up Mark Smiths claim at least in regards to law schools.

    How many law profs, especially at top schools, give to Dems and how many to Reps? Or, what are the ratios of Dems to Reps? Oh about 8 to 1.

    Yes, I realize that there are significant problems with using party identification as a metric, but they are fair enough as general indicators.

    Granted, these are only VERY coarse measures and somewhat incomplete, but the pictures they paint are of stark contrasts.

    And just to pre-empt a bit, you can decry the sources of these studies all you want, but very few actually dispute the accuracy of the data.

    Further, look at the political makeup and stances of the ABA and the Trial Lawyers – hardly redoubts of conservatism.

    You can argue all you want about the impact of these facts. But they definitely exist, despite how “steamed” you get.

  10. Orin Kerr says:


    “Dominated by loony leftists”? No, of course not. Obviously the claims are hyperbolic, cranked up to shock the audience for TV and radio.

    On the other hand, here’s an interesting thought experiment. Imagine yourself a social conservative who cares most passionately about issues like abortion, gay rights, and the role of religion in public life. If you were in these shoes, how would you describe the Supreme Court of the last decade or so? In particular, how would you describe the votes of David Souter and Anthony Kennedy in the cases in this area?

  11. Eric Muller says:

    Orin, a question about your thought experiment: am I imagining myself in the shoes of a thoughtful and reflective social conservative who cares passionately about these issues, or the shoes of a guest on Hannity & Colmes?

  12. Orin Kerr says:

    Thoughtful and reflective, please.

  13. Doug H. says:

    Professor Kerr mentioned:

    “On the other hand, here’s an interesting thought experiment. Imagine yourself a social conservative who cares most passionately about issues like abortion, gay rights, and the role of religion in public life. If you were in these shoes, how would you describe the Supreme Court of the last decade or so? In particular, how would you describe the votes of David Souter and Anthony Kennedy in the cases in this area?”

    I would add “what if you were a conservative who cared deeply about private property, affirmative action, and the death penalty?”

  14. Elizabeth Nowicki says:

    Ditto what Orin said.

    I would be surprised, Eric, if you would paint with so broad a brush as to imply that it is only the “crazy righties” who are disappointed with where Souter and Kennedy have come out on certain issues.

    (I am using crazy righties as the easiest shorthand to use to refer to who I think Eric is targeting with the “guest on Hannity & Colmes” comment. No offense to the crazy righties or loony lefties. I am using these imprecise labels for purposes of saving words and for no other purpose.)

  15. Eric Muller says:

    Elizabeth, a dental appointment will keep me from responding to Orin’s and Doug H.’s very good question until later today, but in the meantime, let me just say that I did not mean to imply that thoughtful social conservatives would not be “disappointed” with Souter’s and Kennedy’s votes in some cases. A good bit of “disappointment” would be quite natural, and expected.

  16. Paul Gowder says:

    This is a stupid, pointless argument. Perceptions of the judiciary as “left” or “right” have no meaning outside the context of the perceiver.

    As a left-winger, I see the courts as horribly rightist and moving ever further to the right in every decision. Consider the Fourth Amendment jurisprudence. Are there ANY searches now that aren’t constitutional? Maybe the absolutely blatant “police officer breaks into the house of his ex-girlfriend to plant drugs” would still be unconstitutional, just barely. Likewise in the national security area, the courts have recently permitted absurd and outrageous conduct by the executive, and even conduct that almost everyone agrees is illegal is kept out of the courts by frivolous appeals to the risk of disclosing classified information. Even in some “social conservative” issues, the courts have moved to the right in recent years. Take legislative prayer. Please.

    And then there’s Bush v. Gore.

    On the other hand, it’s easy to see how a social conservative could fairly experience their political views as not supported by the courts, particularly in the abortion department. (Although no complaint about the lower courts should be heard in the face of the clear supreme court constraint.) Uh, I’m sure there are other issues than abortion about which the Christian right hasn’t gotten its way. I don’t know, offhand, what they are, but I’m willing to believe they exist.

    There’s no objective external viewpoint from which to describe a trend, as “left” or “right,” because the left and the right get screwed on different issues. Those who think that civil liberties are important believe the left is getting screwed. Those who believe that abortion is important believe the right is getting screwed. So can we shut up about it?

  17. Orin Kerr says:


    It seems to me that there are two major weaknesses in your view that measuring this is “stupid” and “pointless.” First, the U.S. Supreme Court only takes about 80 cases per year. You can try to measure the net effect on the law of those 80 cases, right? That is, you could compare the state of the law if the Supreme Court denied cert on *everything* as compared to the state of the law based on the cases that the Court did decide, and thus determine if the Court is on the whole moving the law in one direction or another in a given year.

    Second, you can always pick a meaningful context, even if it is one that a particular person doesn’t share. For example, in the case of United States law, you can choose the context of the typical American voter. Norming the question to the typical American voter doesn’t answer everything, but I think it provides a modestly useful standard. It’s kind of like the weather: “hot” and “cold” are relative terms, but they are understood to be useful in context of comparing temperatures to a typical standard in a typical place and time. Although they are relative terms, no one suggests that it is “stupid” and “pointless” to say that the weather today is hot or cold.

  18. Paul Gowder says:


    I can’t agree. WRT your first point, calculation of a “net” effect would be frustrated by the differing weights given to various decisions. Ten left-wing decisions on commerce clause issues would be outweighed for me by one right-wing decision on holding prisoners without trial. I’d view that as an overall rightward trend, and quite a significant one at that. By contrast, a Cato Institute guy who was concerned about federalism and economic regulation would believe that the commerce clause decisions far outweighed the national security decision, and might even see ten national security decisions as less significant than one major commerce clause decision. It’s hard to see how me and the Cato Institute guy would ever see eye-to-eye.

    WRT your second point, I’m not sure why norming our judgment of the court’s political leanings to the political preferences of the typical American voter is appropriate. You agree that generally, when we (from either side of the spectrum) say that the court is leaning “right” or “left,” that’s really a coded way of saying that the court is illegimately injecting the political views of its members into its decisions? Even if that’s not the intention when such claims are made, it’s certainly the interpretation that partisan groups will give it.

    If so, then by norming our right/left claims to the political views of some typical American voter (mean, median, or mode, one wonders), what we’re really saying is that the positions of the courts should follow the positions of the elected branches. That’s a controversial claim, and not one that should be buried in the decision to compare the court’s political stances to a specified group of people.

    (Personally, I’d like to norm the Supreme Court to the typical person on earth. Then everything will be right-wing. Anthony Kennedy, eat your heart out.)

  19. Orin Kerr says:


    I don’t think I follow your response.

    Re the first point, the fact that we need to make judgements about the net impact of different decisions doesn’t mean that such judgments are impossible. It only means that they require judgment, and we make these sorts of judgments all the time. For example, how do you know that you are (as you say) “left-wing”? Surely you have complicated views, and some of your views are hard to categorize. At the same time, you feel comfortable labeling yourself. If you can label yourself, why is it “stupid” to label the Supreme Court?

    On the second point, you object to the American median voter norm because you think that “what we’re really saying is that the positions of the courts should follow the positions of the elected branches.” But no such statement is implied. It’s just a measuring stick, a frame

    of reference, not a hidden normative claim. We could also use your own preferred standard of the typical person on earth; I think it’s much less helpful, as the existence of nation states makes politics more local than that, but it’s at least conceptually possible to do that on a number of issues.

  20. Paul Gowder says:


    On the first point, my claim is that there’s no principled way to make those judgments based on anything other than the political bias of the observer. If that’s the case, then the utility of calculations based on those judgments approaches zero. There’s no more reason to believe my calculation of the net effect of Supreme Court decisions than yours or Eric’s or Mark W. Smith’s, and all those calculations can be expected to be wildly divergent. It oversimplifies a complicated picture.

    The only honest way to do it would be to divide it up by categories. We could say that the court is leftish on abortion and commerce clause, and rightish on the fourth amendment and government prayer. That at least would minimize subjective importance judgments about the different categories. However, it would do little good in resolving the perennial fights about whether the court as a whole is “left-wing” or “right-wing.” Moreover, the question would then become determining HOW left/right wing any given decision is. Is Stenberg v. Carhart more left-wing than U.S. v. Lopez was right wing? How many leftness points go to Stenberg, and how many rightness points go to Lopez? Again, that’s a question that will have many answers from many different people, and no obviously principled way to argue that some of those answers are wrong.

    On the second point, I think selection of the frame of reference necessarily is a normative claim, because of the pragmatic realities of the political situation. The original post highlights that nicely. The right-wing commentators use the claim that the court is further left than the american people as a proxy for a claim that the court is making decisions on an illegitimate basis. Left-wingers don’t usually use the American people claim, but the left claims that the court is right-wing compared to historical courts in a similar move, with the implied claim that this represents an illegitimate change (perhaps an undermining of stare decisis).

    Those who would compare the court to one or another population can sincerely disclaim such intentions, but there’s no disclaiming the fact that the political meaning of statements like “the court is further to the left than the American people” is understood as normative.

    “Stupid” was an ill-chosen word. I withdraw it. I’m sticking to “pointless” though.

    Incidentally, all these arguments I’m offering apply with equal force to claims that the media is either left or right-wing.

  21. Orin Kerr says:


    You say that “selection of the frame of reference necessarily is a normative claim, because of the pragmatic realities of the political situation.” I couldn’t disagree more. It is true that many people pick references to score political points; they’ll pick the frame to substitute for actual analysis, and let the frame do the work. But the fact that this is common doesn’t make it necessary. Maybe I am just naive, but I see our goal as trying to get beyond this game-playing to see if we can reach a deeper understanding of the Court regardless of our ideological views. The goal is insight, not scoring political points for a side. But maybe others look at this differently.

  22. Paul Gowder says:


    That’s surely an admirable goal, and one I’d support. Sadly, even setting aside the political realities, I don’t think it’s practicable for the reasons noted above re: the necessity of making totally subjective judgment calls.

    Let me push the example I just offered to its limits. Imagine a Supreme Court universe that held just two cases: Stenberg and Lopez. Grant that Stenberg was more left-wing than the American people (arguendo) and Lopez was more right-wing than the American people. Now how do we design defend any method for generalizing from those cases and saying that the Supreme Court as a whole is more left-or-right wing than the American people?

  23. Paul Gowder Is Wrong says:

    “Granted, these are only VERY coarse measures and somewhat incomplete, but the pictures they paint are of stark contrasts.”

    Maybe they paint pictures of stark contrasts because they are VERY coarse measures that are incomplete.

    Personally, I’d like to norm the Supreme Court to the typical person on earth. Then everything will be right-wing.

    Because the claim is often made that the United States is an empire or at least the world’s governing body, norming the Supreme Court to the typical person on earth might be useful in telling us whether the Supreme Court is legitimate in the community of nations. Likewise, norming SCOTUS to the typical American voter is useful in telling us whether the Supreme Court is legitimate in the American electoral community because American citizens often claim the Court is antidemocratic in a way that exceeds the counter-majoritarianism necessary and sufficient to secure judicial independence. Simply to be thorough, we could also norm the Supreme Court to the typical voter in each state and to each sizeable voting demographic (i.e.,religious denominations, racial classifications, race, class) and to each political party with a membership above 5% of the total population. Then we could compare whether the claims made these partisan groups reflect what the typical American voter, the typical voter in any state, the typical voter from any sizeable political party or voting demographic views as legitimate or antidemocratic. We would probably find that the partisan activist groups you speak of are hyperbolic sophists who are misdescribing reality in accord with their ideology.

  24. Orin Kerr says:


    I’m glad we are in agreement in principle. It seems to me that if the evidence is mixed, then the evidence is mixed: We can say that the Court’s decisions are hard to classify, or that they are ideologically eclectic. That in itself is a very valuable contribution, isn’t it?

  25. No Need to Compromise, Orin says:


    They aren’t hard to classify. People who don’t like a decision almost always call it illegitimate because it is antidemocratic in some sense of the word democracy. Since democracy requires majoritarianism, we can easily check the speaker against the rest of the community. If I say that the decision is illegitmate because it is antidemocratic, and 55% of the nation’s population disagrees with me, then they are right and I am wrong, because the decision is democratic and thus it is legitimate.

  26. Paul Gowder says:


    That’s very true.

  27. Eric Muller says:

    I was unable to get back to this thread until this morning, unfortunately. Probably stale by now. In any event, let me take a quick pass at this.

    Orin asked: “Imagine yourself a social conservative who cares most passionately about issues like abortion, gay rights, and the role of religion in public life. If you were in these shoes, how would you describe the Supreme Court of the last decade or so? In particular, how would you describe the votes of David Souter and Anthony Kennedy in the cases in this area?”

    And Doug H. added: “What if you were a conservative who cared deeply about private property, affirmative action, and the death penalty?”

    I see Orin and Doug as asking about very different areas. I’ll take Doug H.’s first. If I were a conservative who cared deeply about private property, affirmative action, and the death penalty, how would I describe the Supreme Court of the last decade or so? On property rights, if I allowed myself to think about something other than the caricature of the Kelo decision that gets bandied about on talk radio, I think I’d be pretty happy. Property rights have done fairly well — both directly, through changes in takings doctrine (Dollan, Nolan, Lucas, Loretto, and others), and indirectly, through changes in commerce clause and federalism doctrine. Affirmative action? Again, while I might be disappointed that the Court had not managed to establish total colorblindness in every nook and cranny of this area of the law (assuming, that is, that a “conservative” is necessarily against any sort of racial preference — something that strikes me as contestable), I think I would probably see Grutter as a modest, highly contextualized exception to a more general hostility to race-conscious awarding of benefits. And the death penalty? I’m not even sure what a conservative really has to be upset about here, at least in terms of the Court’s performance. Public acceptance of the death penalty may be on the wane these days, but it’s not because of doctrinal change engineered by the Supreme Court. The Court has crafted a standard for effectiveness of defense counsel that is so low that it allows people to be executed after being defended by a lawyer who was asleep at trial. (I’m not at all clear on why a conservative should wish for a posture of judicial “friendliness” to the administration of the death penalty, by the way, but I’m taking as a built-in assumption of Doug’s that a conservative wants a pro-death-penalty Court). And the Court has both crafted and enforced rules of waiver, exhaustion-of-remedies, and retroactivity that create byzantine challenges out of cases with eminently plausible claims of actual innocence. So I really don’t think that as a thoughtful and reflective conservative (the kind that Orin said I should be imagining myself to be), I’d have a strong basis for decrying the judiciary as being under the domination of a “loony left,” or any left, as Mark W. Smith would have us believe.

    Now to Orin’s questions, which focus on the likely view of a thoughtful and reflective conservative who cares most deeply about social issues — abortion, gay rights, and the role of religion in public life. Here I suspect that such a conservative would have a greater entitlement to feeling a sense of disappointment, especially in the votes of Souter and Kennedy, although I don’t think it would really rises to the level of out-and-out betrayal. In the areas of abortion and gay rights, I see the center of the Court as pressing, with some studied ambiguity, for these issues to be the subject of public deliberation in the political processes chiefly of the states, and to a lesser degree of the federal government. A social conservative might wish for the Court simply to declare that the federal Constitution simply has *nothing whatsoever* to say about these matters — something Souter and Kennedy obviously have not said — but Kennedy at least has been notoriously vague about what the Constitution actually *does* have to say about these matters, and I strongly suspect that he’d be inclined to see the Constitution as tolerating quite a broad range of political resolutions of these debates, saving only those that are shot through with bare and unadorned animus or reveal overtly religious (and even denominational) straightjacketing. (On this point, I doubt that even Souter is terribly far away.)

    (I’ve not been a close enough student of the religion cases Orin mentioned to feel comfortable opining about them.)

    So I guess what I’m saying, at the end of it all, is that on the “social issues,” a thoughtful conservative has good reason to feel somewhat disappointed with where the Court has recently gone, and with Anthony Kennedy for helping to chart that course. But I just don’t see the basis for howls of outrage or betrayal — or for depicting Kennedy or Souter as judicial “liberals” (by which I guess I mean someone in the tradition of Thurgood Marshall) or “leftists,” let alone “loony” ones.

  28. Eric Muller says:

    That wasn’t such a “quick pass” after all.

  29. Orin Kerr says:


    Your use of the word “disappointment” is rather odd, I think. It is a very distant and detached word, the sort of unemotional reaction you get when you you wanted to order the ravioli but the kitchen was out. If you are passionate and care deeply about these ideas — that is, if the Court’s decisions cut to the bone of how you look at the world — aren’t you going to be a heck of a lot more than just “somewhat disappointed”?

  30. Eric Muller says:

    Orin, I thought we were talking here about a person who cares deeply about these social issues but is also a thoughtful and reflective observer of the Court. Such a person, I think, would say, for example, “My position has not prevailed in its pure and crystalline form on the current Court, or in the mind of Anthony Kennedy. But on balance it has done fairly well. Abortion need not be publicly funded; the line of when it may be forbidden has been pushed back from the line set in Roe; and courts are under instruction not to be so tough on a state’s asserted interests.”

    Though you don’t say it, you seem to be defending the notion that a thoughtful and reflective Court watcher who cares deeply about social issues would rightly reply to the current Court not with “disappointment” but with a howl of outrage (which, incidentally, is where we started, with the absurd words of Mark W. Smith that I (and you) criticized), and there I disagree with you. A howl of outrage would come only from someone who wants Total Victory — the establishment, from foundation to ceiling, of his/her own preferred jurisprudential edifice and outcomes.

    Not only do I think that we learned from Roe that Total Victory isn’t necessarily something to wish for, but I also think that thoughtful and reflective Court observers (which Mark W. Smith and his ilk decidedly aren’t) don’t tend to be Total-Victory-seeking warriors. If they do repeatedly howl when a Court appointed from the ranks of their own party doesn’t do precisely their bidding, I think they undermine the plausibility of the idea that they are pressing for a reasonable and sustainable rule of law.

  31. Doug H. says:

    Professor Muller,

    When I mentioned the death penalty, I was thinking of Roper v. Simmons. I probably should have said federalism instead (I was also in a hurry to get somewhere yesterday, although thankfully it wasn’t the dentist).

    While I’m not sure I completely agree with your post, I thank you for taking the time to thoughtfully respond to my point.

  32. bob says:

    The Supreme Court is not (or at least should not be) in charge of enacting the policy preferences of the majority, but whenever a policy preference is endorsed (for whatever reasons, whether perceived to be appropriate or not) the other side will howl (majority or not).

    “Imagine yourself a social liberal who cares most passionately about issues like choice, gay rights, and the separation of church and state.”

    From this perspective, looks like a loony-right court imposing its social values, doesn’t it? I think this fits in with the idea of Total Victory.

    Just because you want your policy preferences enshrined in law doesn’t make them constitutional. It goes back to the legitimacy of various methods of constitutional interpretation. There were howls after Brown; was that illegitimate? Pick your constitutional decision. Plessy?

  33. Orin Kerr says:


    I think you have given a thoughtful and reflective perspective of a legal realist who accepts the institutional status quo but happens to have some policy preferences. But is that really the perspective of someone who feels deeply and passionately about the issues?

    I wonder, for example, how you think a thoughtful and reflective civil libertarian in the 1940s should have reacted to Korematsu. Would this thoughtful and reflective person think, “Well, my position has not prevailied in its pure and crystalline form. But despite feeling somewhat disappointed, I think I’m in good shape over the next few decades”? Or would that person be deeply outraged?

    I suppose I’m not sure of what you’re arguing: Is it that the Supreme Court shouldn’t trigger outrage, because reflective people don’t get outraged?

  34. Eric Muller says:

    Orin, I think it’s revealing to see how you’ve shifted the question you’re asking. You began by asking this: “Imagine yourself a social conservative who cares most passionately about issues like abortion, gay rights, and the role of religion in public life. If you were in these shoes, how would you describe the Supreme Court of the last decade or so?”

    Now you ask me about how a reflective civil libertarian should have reacted to a single case (Korematsu).

    These are very different questions, with very different answers.

    1) How should a thoughtful and reflective civil libertarian have reacted to Korematsu? Well, I like to think I would have been outraged. (See Murphy’s dissent, and Eugene Rostow’s famous article.)

    2) How would a thoughtful and reflective civil libertarian have described the decade that included the 1944 decision in Korematsu? I like to think that I would have had a view that was less “outraged” and more nuanced. After all, I would have been looking at *lots* of data points over *lots* of time.

    Again, we have to remember that what we’re talking about here are outraged broadsides against the Court’s entire work product — over a decade, or many decades. I do think that a position of outrage about a decade or decades of the Court’s work is one that’s probably focusing on a couple of data points and selectively ignoring many others.

    If you disagree with this distinction between reaction to a case and assessment of the Court’s work over decades, then suppose I’m not entirely sure of what you are arguing. I would guess that you might actually be arguing that the last decade of the Court’s jurisprudence can fairly be described as outrageous. Or that a social conservative would be right in assessing the last decade of the Court’s work as outrageous, but you don’t because you don’t consider yourself a social conservative? Am I right about one of those, or is it something else?

  35. Orin Kerr says:


    I think I understand — I gather your point is about recognizing complexity. Got it; I hadn’t understood that.

  36. Anono says:

    If Muller admits that a reflective civil libertarian could have been outraged over Korematsu (not merely a touch peeved), why doesn’t he admit that the reflective abortion opponent might be outraged over the Supreme Court’s decision to strike down partial birth abortion laws in some 30 states? Muller: The question isn’t whether you yourself are outraged. The question is whether you can admit that there are people who genuinely care about abortion, and who legitimately feel outraged at the Supreme Court’s handling of that issue.

  37. Eric Muller says:

    No, anono, that’s not at all the question. See my June 22, 2006 comment, 6:41 p.m., above.

    Of course I admit that there are people who are outraged at the Court’s handling of some of its abortion cases!

    (Not all of the Court’s abortion cases, of course; I’m sure they’re not outraged by the abortion-funding cases — and that’s part of my point).