The Polarized Court

First of all, polarization isn’t necessarily a bad thing. Imagine (horror of horrors) a Supreme Court whose members voted en bloc with Ruth Bader Ginsburg. What’s left of the Constitution would disappear in no time.

So, hurrah for polarization when it means that the likes of RBG and her allies on the Court are opposed by — and sometimes defeated by — the likes of Clarence Thomas and his allies on the Court. As of now, Justice Thomas’s allies are (with certainty) Justices Gorsuch and Alito, (sometimes) Chief Justice Roberts, and (one hopes) Justice Kavanaugh, who replaces the too-often compromising Justice Kennedy.

It is therefore my earnest hope that the Court will be, if anything, more polarized than it has been in recent years and decades. How polarized is that? According to Richard L. Hasen, a professor of law at the University of California,

[t]he trend toward presidents choosing more ideologically reliable court appointments began with Democratic president Bill Clinton, following two surprises under Republican president Ronald Reagan. The conservative Reagan appointed perennial “swing” justices Anthony Kennedy and Sandra Day O’Connor (Bartels 2015). Reagan chose Kennedy after the Senate rejected Judge Robert Bork, a more conservative nominee on some key issues (Epstein & Segal 2005).

The days of ideological surprise from appointed justices appear to be over. Today, presidents place “near-exclusive focus on ideological compatibility and reliability” (Bartels 2015, p. 177). Devins & Baum (2017) argue that although both Democratic and Republican presidents have increasingly taken ideology into account in the last four decades, there has been more dramatic movement on the Republican side since the Reagan administration—the first to consider conservative ideology the paramount criteria for selecting nominees. They further contend that the Federalist Society, a private organization of conservative and libertarian lawyers, judges, and activists, has played a central mediating role in the cultivation and choice of Republican judicial nominees (Devins & Baum 2017). This trend has only accelerated in the Trump administration….

Today no one doubts that the Supreme Court is growing more polarized in its decision making. The Court has long been divided into two ideological camps, liberal and conservative, in a bimodal distribution with a center fluctuating in size. While the Court long has been polarized on the basis of ideology [see Clark (2009) on the ways this polarization has been measured over time], it used to boast a larger center and fewer justices at the poles. Ideological polarization has increased in the last 50 years (Gooch 2015)….

For the past few decades and until recently, the Court featured four generally conservative justices, all appointed by Republican presidents; four generally liberal justices, all appointed by Democratic presidents; and swing justice Anthony Kennedy, who often sided with conservatives but sometimes sided with liberals on issues such as same-sex marriage (Bartels 2015, p. 172; Devins & Baum 2017; Hasen 2016)….

… Gone are justices appointed by Democratic presidents who sometimes voted conservatively (Kennedy-appointed Justice Byron White voted against abortion rights) and justices appointed by Republican presidents who sometimes voted liberally (Ford-appointed Justice John Paul Stevens voted in favor of abortion rights) (Bartels 2015, Devins & Baum 2017). Today, each justice’s ideology is better defined and aligned with the political party of the appointing president. Justices are more likely to be ideologically in line with the interests of their nominating president’s party and less likely to drift ideologically (or “evolve”).

Those observations, which will surprise no one who is more than a casual observer of the Court, are from Hasen’s “Polarization and the Judiciary“, Annual Review of Political Science, May 2019 (forthcoming). (Literature cited in parentheses is listed at the end of the paper.)

Hasen goes off course when he ventures into quantitative measures of polarization on the Court:

Bartels (2015) notes a “polarization paradox” whereby the percentage of 5–4 (or other one vote margin) Supreme Court decisions has been increasing at the same time that the percentage of unanimous opinions is increasing. Figure 2 shows both of these increases from 1971 to 2016 (Epstein et al. 2015, Washington University Law 2017). Note the sharp drop-off in one-margin decisions and sharp rise of unanimous decisions following the 2016 death of Justice Scalia, a temporary period of a 4–4 evenly divided partisan Supreme Court.

In fact, the Court wasn’t evenly divided during the interregnum between Scalia and Gorsuch. The only reliable conservative votes were those of Alito and Thomas. Kennedy and Roberts were swing votes, as discussed later in this post. Breyer, Ginsburg, Kagan, and Sotomayor formed a solid “liberal” bloc.

Moreover, Hasen’s figure 2 looks odd. Here it is:

Neither of the lines in Hasen’s figure 2 resembles, in shape, the results I derived from the Stat Packs at SCOTUSblog, which cover the 1995-2017 terms:

Unanimous decisions include all cases in which there was no dissenting vote, including per curiam decisions, even where the majority opinion was accompanied by one or more concurring opinions. Given the similarity of the two graphs with respect to unanimous opinions, that must be the definition used by Epstein et al. (the source of Hasen’s figure 2).

I am especially struck by the disparity between Hasen’s figure 2 and my graph with respect to the trend (or lack thereof) in decisions with a one-vote margin. (All such decisions during the 1995-2017 terms were by a 5-4 vote.) There is no “polarization paradox”. To the contrary — and as one would expect — there is a strong (though not perfect) negative relationship between unanimous and 5-4 decisions:

Color me unimpressed by Professor Hasen, at least on the evidence of “Polarization and the Judiciary”.

Just how polarized is the Court — or, rather, how polarized has it been recently? Quite polarized.

In “U.S. Supreme Court: Lines of Succession and Ideological Alignment“, I draw on the SCOTUSsblog Stat Packs to summarize the degree of disagreement among the various justices in non-unanimous cases during each of the Court’s past 13 terms. (The use of non-unanimous cases highlights the degree of disagreement among justices, which would be blurred if all cases were included in the analysis.) The statistics yield an index of polarization (P) for each justice, by term:

P = maximum percentage of non-unanimous cases in which a justice disagreed with any other justice during the term

Graphically:

A slight upward trend over the past 13 terms? Perhaps. But trend or no trend, it’s clear that there has been a great deal of polarization among most of the justices. Roberts joined Kennedy in the middle during the past four terms, but there have been (at least) seven highly polarized justices on the Court. In the past two terms, it has been Alito, Gorsuch, and Thomas (on the right) against Breyer, Ginsburg, Kagan, and Sotomayor (on the left).

I relish the hope that Kavanaugh will shore up the right. Now, if Roberts would only revert to his 2005-2013 form….

Ford, Kavanaugh, and Probability

I must begin by quoting the ever-quotable Theodore Dalrymple. In closing a post in which he addresses (inter alia) the high-tech low-life lynching of Brett Kavanaugh, he writes:

The most significant effect of the whole sorry episode is the advance of the cause of what can be called Femaoism, an amalgam of feminism and Maoism. For some people, there is a lot of pleasure to be had in hatred, especially when it is made the meaning of life.

Kavanaugh’s most “credible” accuser — Christine Blasey Ford (CBF) — was incredible (in the literal meaning of the word) for many reasons, some of which are given in the items listed at the end of “Where I Stand on Kavanaugh“.

Arnold Kling gives what is perhaps the best reason for believing Kavanaugh’s denial of CBF’s accusation, a reason that occurred to me at the time:

[Kavanaugh] came out early and emphatically with his denial. This risked having someone corroborate the accusation, which would have irreparably ruined his career. If he did it, it was much safer to own it than to attempt to get away with lying about it. If he lied, chances are he would be caught–at some point, someone would corroborate her story. The fact that he took that risk, along with the fact that there was no corroboration, even from her friend, suggests to me that he is innocent.

What does any of this have to do with probability? Kling’s post is about the results of a survey conducted by Scott Alexander, the proprietor of Slate Star Codex. Kling opens with this:

Scott Alexander writes,

I asked readers to estimate their probability that Judge Kavanaugh was guilty of sexually assaulting Dr. Ford. I got 2,350 responses (thank you, you are great). Here was the overall distribution of probabilities.

… A classical statistician would have refused to answer this question. In classical statistics, he is either guilty or he is not. A probability statement is nonsense. For a Bayesian, it represents a “degree of belief” or something like that. Everyone who answered the poll … either is a Bayesian or consented to act like one.

As a staunch adherent of the classical position (though I am not a statistician), I agree with Kling.

But the real issue in the recent imbroglio surrounding Kavanaugh wasn’t the “probability” that he had committed or attempted some kind of assault on CBF. The real issue was the ideological direction of the Supreme Court:

  1. With the departure of Anthony Kennedy from the Court, there arose an opportunity to secure a reliably conservative (constitutionalist) majority. (Assuming that Chief Justice Roberts remains in the fold.)
  2. Kavanaugh is seen to be a reliable constitutionalist.
  3. With Kavanaugh in the conservative majority, the average age of that majority would be (and now is) 63; whereas, the average age of the “liberal” minority is 72, and the two oldest justices (at 85 and 80) are “liberals”.
  4. Though the health and fitness of individual justices isn’t well known, there are more opportunities in the coming years for the enlargement of the Court’s conservative wing than for the enlargement of its “liberal” wing.
  5. This is bad news for the left because it dims the prospects for social and economic revolution via judicial decree — a long-favored leftist strategy. In fact, it brightens the prospects for the rollback of some of the left’s legislative and judicial “accomplishments”.

Thus the transparently fraudulent attacks on Brett Kavanaugh by desperate leftists and “tools” like CBF. That is to say, except for those who hold a reasoned position (e.g., Arnold Kling and me), one’s stance on Kavanaugh is driven by one’s politics.

Scott Alexander’s post supports my view:

Here are the results broken down by party (blue is Democrats, red is Republicans):

And here are the results broken down by gender (blue is men, pink is women):

Given that women are disproportionately Democrat, relative to men, the second graph simply tells us the same thing as the first graph: The “probability” of Kavanaugh’s “guilt” is strongly linked to political persuasion. (I am heartened to see that a large chunk of the female population hasn’t succumbed to Femaoism.)

Probability, in the proper meaning of the word, has nothing to do with question of Kavanaugh’s “guilt”. A feeling or inclination isn’t a probability, it’s just a feeling or inclination. Putting a number on it is false quantification. Scott Alexander should know better.

Where I Stand on Kavanaugh

As I acquire new information about Christine Blasey Ford’s porous and perjurious memory, I will add links at the bottom of this post.

The cold civil war that rages in America became a bit hotter on September 27, 2018, when Judge Brett Kavanaugh bared his righteous outrage and dared to attack the Democrats who are hypocritically attacking him. Hypocritically? Yes, because Ted Kennedy, Bill Clinton, and Keith Ellison (among many others) have been spared the wrath of Democrats for having committed acts during their adulthood that are far better documented than the charges leveled against Judge Kavanaugh.

Now, Kavanaugh is under attack for having bared his outrage. As if he were not entitled to outrage because, after all, “women must be believed”. There’s a syllogism in there somewhere. It probably goes like this:

Women never lie.

Christine Blasey Ford is a women.

Therefore, Christine Blasey Ford isn’t lying.

That’s a logically valid statement. But, as any respectable professor of logic would tell you, a logically valid statement isn’t necessarily a true statement. The truth of a logically valid statement depends on the truth of its premises. The major premise — women never lie — is prima facie untrue. “Women must be believed” doesn’t pass the smell test.

That’s not to say that sexual assault doesn’t happen. It does, and it should be reported to the police and investigated by the police — as soon as possible after it happens.

Nor do I rule out the possibility that something like the events retailed by CBF happened in 1982. Though there is vast room for doubt given the vagueness and lateness of CBF’s recovered memory, and the lack (thus far) of corroboration by persons she has named as participants in the “party” where she was purportedly attacked. UPDATE: CBF  may soon join the ranks of exposed hoaxers. See this.

If (most of) the Republicans on the Senate Judiciary Committee accept Kavanaugh’s denial of CBF’s allegation, it is only because the Democrats on the committee are bent on convicting Kavanaugh on the flimsiest of evidence, so as to deny the “conservative wing” of the Court a majority.. This is another battle in the cold civil war, which is about control of government and, ultimately, control of our lives. The Republicans, for all of their many faults, are on the side of liberty. The Democrats, for all of their much worse faults, are on the side of oppression. That’s what it comes down to.

In any event, with respect to CBF’s allegation, what is the worst-case scenario? It is that Kavanaugh — as a 17-year-old — did something in a drunken state that he would not have done when sober. What does that have to do with his qualifications for sitting on the Supreme Court if, as seems to be the case, he has never come close to doing something similar in the ensuing 36 years, drunk or sober?

The correct answer is “nothing”. As lawprof blogger Tom Smith says,

a lot of people in positions of high authority are not very nice at all. Some of the Dems on the Senate Judiciary Committee make me want a long, hot shower after listening to them. I care about the environment, so I don’t listen to them. Some of the judges I have known were frankly a**holes, always jockeying for political advantage and not caring deeply about the law. Indeed, we seem to have entered an era in which few people care deeply about the law, attributable mostly it seems to me, and ironically, to law professors. Judge K seems ambitious but to at least care about the law.

In politics, you reach a point, usually near the beginning but almost always by the end, where you have to choose the greater good or the lesser evil. That’s where we are with Judge K. It’s possible he did sexually assault Ford long ago and does not remember it or half-remembers it now. It’s possible Ford has confabulated her memory of this possibly fictional incident. Lots of things are possible. Few lives, except mine of course, could stand up to the sort of hyperpartisan de- and reconstruction that K’s has been subject to. K seems to have been clean as a whistle since at least his graduation from law school. If he was something of a frat boy aggressor while drunk against young women, he seems to have gotten over that a long time ago, if indeed he actually had anything to get over. And yes, I realize this tags me as one of those old white guys who does not think it’s practical to dredge up 30+ year old accusations against an otherwise outstanding-seeming judge in a hyper-political context.

Here’s the bottom line:

But just hypothetically [emphasis added], whom would you choose: a guy who was perhaps, maybe, based on far from ideal memories from 30+ years ago, a heavy drinker and sexual assaulter, but who would uphold the basic structure of the republic, versus another Sotomayor, who is arguendo personally morally upstanding, but who would gnaw obsessively at the pilings under-girding our form of government? Given the choice, I know what I would do.

As the saying goes: Me, too.


CBF’s incredibility:

Sean Davis, “Christine Blasey Ford’s Ex-Boyfriend Told Senate Judiciary He Witnessed Her Coach A Friend On Polygraphs“, The Federalist, October 2, 2018

Christopher DGroot: “Christine Ford: A Singular Fraud“, FrontPage Mag, October 9, 2018

Quin Hillyer, “Ford: Confused. Kavanaugh: Innocent“, The American Spectator, October 3, 2018

Scott Johnson, “Visualize This“, Power Line, October 3, 2018

Kimberlee Kaye, “Grassley’s Gloves are Off: Third Request for Withheld Evidence Mentions Recently Uncovered Information’“, Legal Insurrection, October 5, 2018

R. Corl Kirkwood, “Multiple Perjury Counts For Kavanaugh Accuser Ford? Records, Boyfriend Contradict Sworn Testimony“, The New American, October 3, 2018

Thomas Lifson, “Blasey Ford Facing Perjury Trap?“, American Thinker, October 3, 2018

Patricia McCarthy, “The Kavanaugh Setup Becomes Clear“, American Thinker, October 5, 2018

Ilana Mercer, “Christine Blah-Blah Ford and Her Hiippocampus“, American Greatness, October 5, 2018

Tyler Watkins, “On the Fallibility of Memory and Importance of Evidence“, Quillette, October 4, 2018

Michael Thau, “Did the Deep State Recruit Christine Blasey Ford?“, American Greatness, October 15, 2018

Chistopher DeGroot, “Christine Ford, Washington Post, and Junk Science“, FrontPage Mag, October 19, 2018

Michael Thau, “Christine Blasey Ford’s Polygraph Was B.S.”, American Greatness, October 21, 2018

Lisa Boothe, “The Media’s Orchestrated Smear of Brett Kavanaugh“, Fox News, October 30, 2018

Kristina Wong, “Senate Report Reveals Christine Blasey Ford Had an Encounter Similar to Her Kavanaugh Claim“, Breitbart.com, November 4, 2018

Margot Cleveland, “7 Top Takeaways from Grassley’s Report about Kavanaugh’s Accusers“, The Federalist, November 5, 2018

The Kennedy-Roberts Court in Retrospect

Despite Justice Kennedy’s return to the Court’s conservative wing in the term just concluded (details below), he was a central player in the Court’s war on federalism and long-standing social norms. Chief Justice Roberts has (nominally) presided over the Court for the past 13 terms. But Justice Kennedy — far more often than any justice of his era — has been the Court’s main (and inconsistent) “decider”.

Kennedy’s legacy has been dissected almost ad infiinitum in the several days since he announced his retirement. I will offer just two samples of the (rightly) negative commentary about Kennedy before turning to a statistical summary of the Kennedy-Roberts years.

Christopher Roach offers this in “Kennedy’s Departure Diminishes Supreme Court . . . And That’s a Good Thing” (American Greatness, June 29, 2018):

Since the Earl Warren era, the Supreme Court has assumed enormous power over our politics, and this has become a significant obstacle to the constitutional design of Americans living as a self-governing people….

[T]he Supreme Court routinely has interfered with American self-government, either undoing or forcing results at various levels of government in accordance with its idiosyncratic and elitist views….

The Court undid California’s referendum on gay marriage after having earlier reversed Colorado’s referendum preventing gays from being added to the long list of “protected classes” in employment laws. Using the broad and vague mandates of “substantive due process” and “equal protection,” the Court simply decided the people were wrong and “irrational,” and Justice Kennedy authored opinions that accorded with the views of his friends and neighbors in Washington, D.C. In the process, the Court forbade the people of California and Colorado from undertaking the most quintessentially self-governing act for which the Constitution was designed: passing laws on controversial matters through a referendum.

This is merely an example. The Supreme Court has also second-guessed how wars are conducted, how schools are run, … has created new rights while ignoring those enshrined in the Constitution itself, and generally assumed the role of “super legislature.”

In addressing salient social issues, the Supreme Court has functioned as something of a Delphic Oracle, divining hidden mysteries in the otherwise prosaic constitutional text that disallows historically permitted practices on immigration, the treatment of enemy prisoners, abortion, and much else where the Constitution’s text is either silent or agnostic.

While preempting legislative supremacy and the broad powers of the executive, the Court is, in fact, unrepresentative in all meaningful ways. It is not, of course, supposed to be a representative institution. It is supposed to be a technical and intellectual job, devoted to the analysis of laws in light of other laws and our general law in the form of the Constitution. But it hasn’t been that since the 1930s.

So, in that milieu, it should be, if not representative, at least faithful to and sympathetic with the American people. But far from being sympathetic, its progressivism has been hostile to the mass of people and their views, labeling them irrational and bigoted when they deviate from the very narrow consensus formed among the almost exclusively Ivy League pedigreed justices. The retiring Justice Kennedy mostly embraced this snobbish and busy-body ethos….

[H]e was central to the developing “gay marriage” jurisprudence, which short-circuited the development of such rules (and limits) through legislatures. The left is probably right that this (and other anti-majoritarian rulings) shaped public opinion and pulled it beyond what might have happened using legislative means by themselves. But, at the same time, this approach generated significant backlash and resentment. These types of decisions have also made presidential elections, which should be about governance, instead into potential proxy fights on every social issue under the sun, when such issues otherwise could be resolved organically and diversely through political processes among the various states.

Here is Elizabeth Slattery, writing in “The Legacy of Justice Kennedy” (The Daily Signal, June 27, 2018):

It’s not always been easy for Supreme Court watchers to pigeonhole Kennedy’s jurisprudence. In fact, one mainstay of his jurisprudence and view of the Constitution was its inconsistency.

He authored the majority opinion in Gonzales v. Carhart and co-authored the plurality in Planned Parenthood of Southeastern Pennsylvania v. Casey, where abortion regulations were upheld under the most deferential standard of review (rational basis).

But then he joined the liberals in Whole Women’s Health v. Hellerstedt, requiring Texas to meet a higher standard of review for its commonsense regulation of abortion providers.

In Schuette v. BAMN, a case about a state’s ability to prohibit racial preferences in college admissions, Kennedy wrote:“It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. … Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.”

Yet the following year, in Obergefell v. Hodges, Kennedy was unwilling to extend the same goodwill to voters to decide through the democratic process whether their states should recognize same-sex marriages, cutting short a vibrant public debate over the issue.

Writing for the majority in Fisher v. University of Texas at Austin in 2013, Kennedy held that the university must prove that its use of race in admissions met the requirements of the 14th Amendment’s Equal Protection Clause and sent the case back to the lower court. When the case returned in 2016, Kennedy wrote for the majority again, gutting his 2013 decision and allowing the university to continue sorting students by race without defining its diversity goals or proving that race was necessary to meet its goals.

Do the numbers bear out the impression of Kennedy as an unreliable “conservative”? Yes.

In “U.S. Supreme Court: Lines of Succession and Ideological Alignment“, I have drawn on statistics provided by SCOTUSsblog to summarize the degree of disagreement among the various justices in non-unanimous cases during each of the Court’s past 13 terms. (The use of non-unanimous cases highlights the degree of disagreement among justices, which would be blurred if all cases were included in the analysis.) The statistics yield an index of defection (D) for each justice, by term:

D = percentage disagreement with members of own wing/percentage disagreement with members of opposite wing.

The wings are the “conservative” wing (Gorsuch, Alito, Thomas, Scalia, Roberts, and Kennedy) and the “liberal” wing (Breyer, Ginsburg, Kagan, Sotomayor, Souter, and Stevens).

The lower the index, the more prone is a justice to vote with the other members of his or her wing; the higher the index, the more prone is a justice to vote with members of the opposing wing. Here’s a graph of the indices, by term:

Kennedy’s long-standing proneness to defect more often than his colleagues grew markedly in the 2014-2015 terms and receded a bit in the 2016 term. His turnaround in the 2017 term restored him to the Court’s “conservative” wing.

Roberts slipped a bit in the 2017 term but is more in step with the “conservative” wing than he had been in the 2014-2015 terms.

Gorsuch started out strongly in his abbreviated 2016 term (he joined the Court in April 2017). His slippage in the 2017 term may have been due to the mix of cases at stake.

Perhaps that’s the reason for Roberts’s slippage in the 2017 term — or perhaps Roberts is “growing in office”, as leftists like to say about apostate conservatives. Time will tell.

What’s most striking about the preceding graphs, other than Kennedy’s marked departure from the “conservative” wing after the 2010 term, is the increasing coherence (ideological, not logical) of the “liberal” wing. This graph captures the difference between the wings:

The record of the past 6 terms is clear. The “liberals” stick together much more often than the “conservatives”. Perhaps that will change with the replacement of Kennedy by (one hopes) a real conservative.


See also the page “Constitution: Myths and Realities“, and these posts:
Substantive Due Process, Liberty of Contract, and the States’ Police Power
Substantive Due Process and the Limits of Privacy
Rethinking the Constitution: “Freedom of Speech, and of the Press”
Abortion and the Fourteenth Amendment
Obamacare: Neither Necessary nor Proper
Privacy Is Not Sacred
Our Perfect, Perfect Constitution
Constitutional Confusion
Obamacare, Slopes, Ratchets, and the Death-Spiral of Liberty
Another Thought or Two about the Obamacare Decision
The Court in Retrospect and Prospect (II)
Abortion Rights and Gun Rights
Getting “Equal Protection” Right
Does the Power to Tax Give Congress Unlimited Power? (II)
The Beginning of the End of Liberty in America
Substantive Due Process, Liberty of Contract, and States’ “Police Power”
Why Liberty of Contract Matters
Equal Protection in Principle and Practice
Freedom of Speech and the Long War for Constitutional Governance
Restoring the Contract Clause
The Kennedy Retirement: Hope Springs Eternal
Freedom of Speech: Getting It Right
Justice Thomas on Masterpiece Cakeshop

Election 2016: Does It Matter?

If a Democrat is elected president, he or she can’t do any more damage to liberty and the economy than Obama has already done. (But … see below.)

If a Republican is elected president, he or she is unlikely to undo the damage to liberty and the economy that Obama has already done. (But … see below.) Republican presidents have a poor track record of walking back the bad things done by Democrats. They just don’t want to be “mean,” I guess.*

Here’s the “but”: The president gets to nominate justices of the U.S. Supreme Court. Democrat nominees are reliable leftists; Republican nominees aren’t reliable constitutionalists (e.g., Warren, Brennan, Blackmun, Stevens, O’Connor, Kennedy, Souter, and Roberts) . But I’d much rather take my chances with a GOP-appointed justice than with a Democrat-appointed one.

If it weren’t for the power of appointment, I’d probably stay home on election day.

* Cruz may be “mean” enough, though possibly not electable because of his “mean” image. I’d love to have the chance to vote for Cruz, but I think Rubio would be a more appealing GOP candidate.

The Beginning of the End of Liberty in America

SEVERAL ITEMS HAVE BEEN ADDED TO THE LIST OF RELATED READINGS SINCE THE INITIAL PUBLICATION OF THIS POST ON 06/26/15

Winston Churchill, speaking in November 1942 about the victory of the Allies in the Second Battle of El Alamein, said this:

This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.

We may have reached the end of the legal battle over same-sex “marriage” with today’s decision by five justices of the Supreme Court in the case of Obergefell v. Hodges. But that decision probably also marks the beginning of the end of liberty in America.

Consider these passages from Chief Justice Roberts’s dissent (citations omitted):

…Today’s decision … creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution.

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage…. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage…. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage…. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n]or stigmatiz[e]” same-sex couples…. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,”“disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors…. These apparent assaults on the character of fair minded people will have an effect, in society and in court…. Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted….

Justice Alito puts it more plainly:

[Today’s decision] will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion,the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women…. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected…. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools….

…By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.

Erick Erickson drives it home:

Make no mistake — this is not the end of a march, but the beginning of a new march. You will be made to care. You will be forced to pick a side. Should you pick the side of traditional marriage, you can expect left to be ruthless. After all, the Supreme Court has said gay marriage is a not just a right, but a fundamental right. [“The Supremes Decide,” RedState, June 26, 2015]

Erickson counsels civil disobedience:

It’s time to defy the court on this. It’s time to fight back. Nonviolent civil disobedience is the only option we have been left under this terrible ruling. We will be heard. [“It’s Time for Civil Disobedience,” RedState, June 26, 2015]

Most citizens will, of course, attempt to exercise their freedom of speech, and many business owners will, of course, attempt to exercise their freedom of association. But for every person who insists on exercising his rights, there will be at least as many (and probably more) who will be cowed, shamed, and forced by the state into silence and compliance with the new dispensation. And the more who are cowed, shamed, and forced into silence and compliance, the fewer who will assert their rights. Thus will the vestiges of liberty vanish.

That’s how it looks from here on this new day of infamy.

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Related reading:

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Related posts:

The Marriage Contract
Libertarianism, Marriage, and the True Meaning of Family Values
Same-Sex Marriage
“Equal Protection” and Homosexual Marriage
Marriage and Children
Civil Society and Homosexual “Marriage”
The Constitution: Original Meaning, Corruption, and Restoration
Perry v. Schwarzenegger, Due Process, and Equal Protection
Rationalism, Social Norms, and Same-Sex “Marriage”
Asymmetrical (Ideological) Warfare
In Defense of Marriage
A Declaration of Civil Disobedience
The Myth That Same-Sex “Marriage” Causes No Harm
Liberty and Society
The View from Here
The Culture War
Surrender? Hell No!
Posner the Fatuous
Getting “Equal Protection” Right
The Writing on the Wall
How to Protect Property Rights and Freedom of Association and Expression
The Gaystapo at Work
The Gaystapo and Islam

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The Writing on the Wall

A headline at Slate puts it this way: “The Supreme Court Just Admitted It’s Going to Rule in Favor of Marriage Equality.” Which is to say that when it comes to the legalization of same-sex “marriage”* across the United States, the writing is on the wall.

Here are some relevant passages from the Slate story:

Early Monday morning [February 9[, the Supreme Court refused to stay a federal judge’s order invalidating Alabama’s ban on same-sex marriage….

Here’s how Monday’s decision reveals the justices’ intention to strike down gay marriage bans across the country. Typically, the justices will stay any federal court ruling whose merits are currently under consideration by the Supreme Court. Under normal circumstances, that is precisely what the court would have done here: The justices will rule on the constitutionality of state-level marriage bans this summer, so they might as well put any federal court rulings on hold until they’ve had a chance to say the last word. After all, if the court ultimately ruled against marriage equality, the Alabama district court’s order would be effectively reversed, and those gay couples who wed in the coming months would find their unions trapped in legal limbo.

But that is not what the court did here. Instead, seven justices agreed, without comment, that the district court’s ruling could go into effect, allowing thousands of gay couples in Alabama to wed. That is not what a court that planned to rule against marriage equality would do. By permitting these marriages to occur, the justices have effectively tipped their hand, revealing that any lower court’s pro-gay ruling will soon be affirmed by the high court itself.

Don’t believe me? Then ask Justice Clarence Thomas, who, along with Justice Antonin Scalia, dissented from Monday’s denial of a stay…. The court’s “acquiescence” to gay marriage in Alabama, Thomas wrote, “may well be seen as a signal of the Court’s intended resolution” of the constitutionality of gay marriage bans….

I suspect that Justice Thomas has it right. (I only hope that the acquiescence of Chief Justice Roberts and Justice Alito is part of a tacit deal in which their support for “marriage equality” is repaid by the evisceration of Obamacare when the Court rules in King v. Burwell.) The Court’s refusal to stay same-sex “marriage” in Alabama seems to be the writing on the wall — the foreshadowing of the Court’s decision in four related same-sex “marriage” cases.

If the Court, as now expected, rules for “marriage equality” under the rubric of “equal protection,” that will only mark the beginning of a push for other kinds of “equality.” What’s next? Here are my guesses:

  • How can polygamy fail to gain legal acceptance if the “partners” are willing adults?
  • When that’s done, the Court’s views will have evolved to the point of allowing pederasty at the urging of  NAMBLA.

Fuddy-duddies — like this one — who oppose the legalization of moral corruption will be silenced by the threat of fines and imprisonment.

Livy, the Roman historian, says this in the introduction to his history of Rome:

The subjects to which I would ask each of my readers to devote his earnest attention are these – the life and morals of the community; the men and the qualities by which through domestic policy and foreign war dominion was won and extended. Then as the standard of morality gradually lowers, let him follow the decay of the national character, observing how at first it slowly sinks, then slips downward more and more rapidly, and finally begins to plunge into headlong ruin, until he reaches these days, in which we can bear neither our diseases nor their remedies.

Livy foretold the fate of the Roman Empire. And I fear that he has also foretold the fate of the American Republic.

The writing is on the wall.
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* Why the “sneer quotes”? See “Notes about Usage” in the sidebar.

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Related posts:
Same-Sex Marriage
“Equal Protection” and Homosexual Marriage
Civil Society and Homosexual “Marriage”
Rationalism, Social Norms, and Same-Sex “Marriage”
In Defense of Marriage
The Myth That Same-Sex “Marriage” Causes No Harm
Abortion, “Gay Rights,” and Liberty
The Equal-Protection Scam and Same-Sex “Marriage”
Not-So-Random Thoughts (VIII) (first item)
The View from Here
The Culture War
The Fall and Rise of American Empire
O Tempora O Mores!
Murder Is Constitutional
Posner the Fatuous
Getting “Equal Protection” Right

Signature

Obama’s Law

Obama seems bent on nominating a woman (preferably a black or Hispanic one) to succeed Justice Souter. (See, for example, the top-10 list of likely nominees, at The Ninth Justice.) There’s nothing wrong with having a woman on the Supreme Court. But Obama’s evident zeal to nominate a woman  speaks volumes about his approach to the law.

The law, to Obama, isn’t a set of rules to protect the honest and — most importantly — limit government. Obama’s law know no constitutional bounds; it is a recipe that combines “empathy” (i.e., cheap compassion), political payoff, and power-lust.

A Prediction

It seems likely that General Motors will become a vassal of the United Auto Workers union and the federal government. Which means that GM will survive only because U.S. taxpayers pick up the tab in order to preserve the pensions of UAW members and keep them employed at above-market compensation. Similar arrangements may come to pass in other (effectively) nationalized industries — banking and health care, most notably (but not exclusively).

Nationalization of the auto, banking, and health-care industries (among others) will prove to be the straw that — when piled on Social Security and Medicare/Medicaid — breaks the back of the American economy. How so? The effective tax rate — the true cost of supporting Social Security, Medicare/Medicaid, nationalized industries, and the ever-growing panoply of government “services”  — will further (and fatally) deter work, saving, capital investment, innovation, and entrepreneurship. (See, for example, this piece by Lawrence Kudlow.)

The economy, if we are lucky, will muddle along at a rate of growth that is barely positive. And that growth will be phony because it will be attributable to the expansion of the public sector (i.e., government and its wholly controlled subsidiaries). We will then have achieved the Left’s Nirvana: Europeanism.

God help us. It’s unlikely that anyone else will.

UPDATE: Arnold Kling makes a related and equally gloomy prediction:

Cato Unbound this month deals with a core issue. Peter Thiel writes,

I no longer believe that freedom and democracy are compatible…

As one fast-forwards to 2009, the prospects for a libertarian politics appear grim indeed. Exhibit A is a financial crisis caused by too much debt and leverage, facilitated by a government that insured against all sorts of moral hazards — and we know that the response to this crisis involves way more debt and leverage, and way more government. Those who have argued for free markets have been screaming into a hurricane. The events of recent months shatter any remaining hopes of politically minded libertarians. For those of us who are libertarian in 2009, our education culminates with the knowledge that the broader education of the body politic has become a fool’s errand.

I think that perhaps the best positive approach for libertarians right now is to support institutions that compete with government. That means charities, churches, charter schools, clubs, consumer information services, and other sources of public goods. I would count the traditional family as an institution that competes with government.

You are likely to see Democrats under President Obama launch assaults against all of the institutions of civil society. Already, the Washington DC school voucher program is under attack, as is the tax deduction for charitable contributions. As libertarians, our electoral voice is worth little. Our threat to exit is probably too costly to carry out. Promoting institutions that compete with government is the best strategy I can come up with.

I tend to agree that for libertarians the “voice” option is looking bleak. I prefer exit options. But by the same token, I do not want to move to New Hampshire (see Jason Sorens) or to a seastead (see Patri Friedman).

UPDATE 2: The Supreme Court will be of no help to us, if Ed Whelan and I are right about its likely direction. I focus on the long run; Whelan, on the near future. Sadly, I must agree with his assessment:

Don’t be fooled by the false claims that we have a conservative Supreme Court. The Court has a working majority of five living-constitutionalists. Four of them—Stevens, Souter, Ginsburg, and Breyer—consistently engage in liberal judicial activism, and a fifth, Kennedy, frequently does. As a result, the Court is markedly to the left of the American public on a broad range of issues. Indeed, in coming years, Souter’s replacement may well provide the fifth vote for

  • the imposition of a federal constitutional right to same-sex marriage;
  • stripping “under God” out of the Pledge of Allegiance and completely secularizing the public square;
  • the continued abolition of the death penalty on the installment plan;
  • selectively importing into the Court’s interpretation of the American Constitution the favored policies of Europe’s leftist elites;
  • further judicial micromanagement of the government’s war powers; and
  • the invention of a constitutional right to human cloning.

American citizens have various policy positions on all these issues, but everyone ought to agree that they are to be addressed and decided through the processes of representative government, not by judicial usurpation.

Whither the Supreme Court?

It seems that Justice Souter has yet to hire any clerks for the October 2009 term of the U.S. Supreme Court. Given that and Justice Ginsburg’s recent hint about an impending vacancy on the Court, it may not be premature to speculate on the Court’s direction should Souter resign.

It would be premature to guess about Obama’s replacement for Souter, except to venture that the person he picks will be of the Left. But, thanks to SCOTUSblog‘s analysis of Court rulings for the October 2008 term to date (updated through 04/30/09), it is possible to gauge the effect of Souter’s departure on the Court’s ideological balance. Compare Souter’s record with that of his “liberal” peers in disagreements with the Court’s more conservative members*:

In disagreement, non-unanimous cases
Souter Stevens Ginsburg Breyer Average
Roberts 72% 76% 72% 52% 68%
Scalia 69% 79% 69% 62% 70%
Kennedy 55% 66% 48% 41% 53%
Thomas 69% 79% 69% 62% 70%
Alito 79% 76% 72% 52% 70%
Average 69% 75% 66% 54%

Souter, as it turns out, is more “liberal” than Ginsburg and Breyer, as measured by the frequency of disagreements with the Court’s more conservative wing. (I admit surprise at finding Breyer close to the center with Kennedy — for the Court’s current term, at least. UPDATE: More accurately, Kennedy is left-of-center, along with Breyer. See UPDATE 2 at this post.)

So, if Souter retires at the end of the current term, his replacement is unlikely to shift the Court’s ideological balance — in the near future.  Over the longer run, however, the appointment of a relatively young, Left-wing justice would shift the Court’s balance, if that appointee outlasts two or three of the Court’s conservatives, who are then replaced by persons of the Left. (UPDATE: The long run may come sooner rather than later. See UPDATE 2 at this post.)

Furthermore, Obama probably will have the opportunity in his current term of office to appoint two more relatively young, Left-wing justices (replacements for Stevens and Ginsburg), who could outlast all of the Court’s conservatives. That would set the stage for the creation of a solidly Left-wing Court, if Democrats continue to hold the White House and Republicans are unable or unwilling to block the sitting president’s Court nominees.

Incidentally — but perhaps germanely — Republican presidents have fared poorly when it comes to picking justices. Of the 18 appointments by Republican presidents since 1953, seven proved to be closet “liberals” or centrists: Warren, Brennan, Blackmun, Stevens, Kennedy, O’Connor, and Souter. Democrats, on the other hand, have appointed five justices since 1953,  only one of whom (White) revealed himself as somewhat conservative.

As for the present Court, Republican presidents selected seven members; a Democrat (Clinton) chose the other two. Clinton’s picks have been reliably “liberal.” The GOP picks break down like this: four conservatives, one middle-of-the-roader, and two “liberals.” Et tu, Brute?

I take the difference between Republicans and Democrats to be symptomatic of the way the parties play the game of politics. Republicans are prone to misguided even-handedness. For Democrats, winning is everything.
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* What passes today for liberalism is so illiberal that I can no longer use the word without enclosing it in quotation marks, as a short way of saying “so-called liberal.” Many “liberals,” knowing that their appellation is tainted, now prefer “progressive,” though “regressive” is a better description of the “liberal-progressive” philosophy. Mike Rappaport of The Right Coast has more to say about the modern meaning of “liberal.”