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I'm not sure why the inconsistency noted by Diane between the Findlaw and Rasmussen poll favors the Findlaw results. It could be that Rasmussen is right and Findlaw is wrong. A possible (partial) explanation for the inconsistency: Findlaw polls "American adults," while Rasmussen polls "likely voters." Typically, 40 percent to 50 percent of eligible voters vote in presidential elections; if "likely voters" is a subset of eligible voters, and both are more informed than "American adults" in general, then we might conclude that Rasmussen surveyed people who are more likely to be knowledgeable about public affairs, including the identities of Supreme Court justices. The puzzle, then, is why, within this subset of Americans with more information, people have favorable attitudes about the court and unfavorable attitudes about the individual justices. (The Rasmussen results also suggest, consistent with Findlaw, that substantial numbers of likely voters don't know or have no opinion, of course; but that doesn't address the puzzle, either.) I do not understand how the relative invisibility of the justices on the court explains the attitudes of those who do in fact see them.
However, I like Dahlia's hypothesis: Americans believe that the court has a valuable institutional role, but they resent the fact that these nine people exercise so much power over them. The more that these individuals have distinct personalities, flaws, quirks, recognizable ambitions, and so forth—the more they seem like ordinary human beings rather than disembodied spirits—the more difficult it is to acknowledge their exalted status in a democracy where authority is supposed to flow from the people. Perhaps judges, like priests, receive power on the condition that they withdraw from the world and submerge their identities in a public institution, and people sense and resent that some of the justices are violating their side of the bargain. Why didn't the oracle at Delphi write her memoirs or a how-to-be-a-supplicant book? Perhaps she better understood the political psychology of her position? An ironic twist: Are the justices who have made themselves more publicly accessible driven by democratic instincts that are inconsistent with the premises of their office?
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I have a slightly different hypothesis for Eric and the new Rasmussen poll. Eric is right to point to the odd disjunction between favorable institutional ratings and the lame reviews for individual justices. But the poll also suggests something fairly radical for those of us—um, let’s call them “me”—who’ve been urging the justices toward greater openness and transparency. Because a look at the individual rankings by justice suggests that the justices who have attempted to use the media to humanize and personalize the court have somehow achieved precisely the opposite effect. The justices with the highest unfavorable ratings here are the ones who have most avidly courted the public. Whereas the justices who have kept on keeping on under the radar remain unknown, but un-hated.
So, for instance, whose individual ratings are most unfavorable? The best known justice, Clarence Thomas, was the least-liked. Some 38 percent of respondents viewed him favorably, and 50 percent rated him unfavorably. Maybe it’s a coincidence that he was also the recipient of the most personal publicity this year, following a searing autobiography and a round of television appearances. Who has the next highest unfavorables? Antonin Scalia at 40 percent. Who’s been all over the media like Cheez Whiz on toast? Antonin Scalia. I don’t think this means Americans dislike originalists, by the way. I think it may mean, as Eric suggests, that we may prefer our jurists to be oracular, silent, and holed up in New Hampshire.
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I agree that much of the Rasmussen poll puzzle presented by Eric is solved by the Findlaw survey results presented by Diane. I take Eric’s puzzle to be why Americans rate the Supreme Court more highly than its constituent members (especially when we suspect that the Congress is not necessarily more highly rated than its individual members). I take Diane’s solution to be that 57 percent of Americans can’t name a single member of the Court (especially when we suspect that many more Americans could name a member of Congress). The remaining question is why the individuals who constitute these two bodies differ so much in their visibility as individuals. After all, it would seem that nine individuals might be more visible than 535 individuals, precisely because one could keep track of the players (as many lawyers do). The answer is both structural and, to a certain extent, volitional.
Certain structural features of the Supreme Court make it less likely to be viewed as the sum of its parts. Most obviously, members of the Court have life tenure, which is to say they are not constantly up for re-election. This means that the greatest publicity most Justices get in their careers is during their confirmation hearings. It is no surprise that, according to the Findlaw survey, Justice Sandra Day O’Connor is the Justice most Americans (27 percent) could name, while Justice Clarence Thomas (21 percent) placed second. Justice O’Connor was extremely visible during her confirmation proceedings because of her gender; Justice Thomas was extremely visible during his because of his race and because of the Anita Hill scandal. The Justices whose confirmation hearings were less memorable tended to be less well remembered overall: Only 3 percent of Americans could name Justices Stephen Breyer or John Paul Stevens.
It should also be noted that there are times when members of the Court exercise their agency to dissolve into the immortal corporate entity known as “the Court.” Chief Justice John Marshall, for instance, not only persuaded his colleagues to depart from the English practice under which each Justice issued a separate opinion, but also—with more limited success—sought to have the Court speak with outward unanimity. Even in modern times, when unanimity is the exception rather than the rule, the exceptions are important. Chief Justice Earl Warren went out of his way to get a unanimous opinion in Brown v. Board of Education—visiting Justice Robert Jackson in his hospital room to persuade him to join the majority opinion and telling Justice Stanley Reed that Reed, as a Southerner, would give too much fodder to segregationists if he dissented. And in the years following Brown, the Court extended its unanimous holding that “separate educational facilities are inherently unequal” to public transportation and recreational facilities through “per curiam” opinions that were, literally, “for the Court.”
For these structural and volitional reasons, individuals on the Court are much less likely to be visible than individuals in Congress. Indeed, the relative invisibility of the Justices may arise in part because of, rather than in spite of, their small numbers. Nine is a number that has the special property of being greater than one but fewer than 535. If there were only one member of the Supreme Court, I would be more surprised if the majority of Americans did not know the name of that Justice (Chief Justice?). Similarly, if the Supreme Court were a fifty-plus person body like Harry Potter’s Wizengamot or a 535-member body like Congress, I would expect more people to have heard of an individual Justice. (Let us pray more Americans can name a current Supreme Court Justice than can name a member of the Wizengamot who was seated during Harry Potter’s hearing in Book 5.) One could posit, then, that individual anonymity for those who belong to famous institutions is a bell curve, with middle numbers assuring greater anonymity for the individual than larger or smaller ones. The members of a nine-member Court may achieve anonymity because they can speak as one person without being one person.
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The Rasmussen poll's (un)favorability ratings for individual Supreme Court justices surely intrigue. But how can they be squared with repeated polls indicating Americans don't even know the names of the nine folks on the court?
Consider FindLaw's December 2005 "Supreme Court Awareness Survey," which found that "only 43 percent of American adults can name at least one justice who is currently serving on the nation's highest court," and that fully 57 percent of Americans "can't name any current U.S. Supreme Court justices."
Most-named in that polling of 1,000 Americans was the now-retired Sandra Day O'Connor; at 27 percent, she placed six points ahead of the second-place justice, Clarence Thomas. Notwithstanding that the confirmation hearings of Chief Justice John G. Roberts Jr. had taken place just a couple of months earlier, he placed a distant third, at 16 percent. The rest were named as follows: Antonin Scalia, 13 percent; Ruth Bader Ginsburg, 12 percent; Anthony M. Kennedy, 7 percent; David H. Souter, 5 percent; and Stephen G. Breyer and John Paul Stevens, tied at 3 percent.
These latter numbers seem entirely plausible. And that calls into question the Rasmussen poll. Let's take Breyer as an example. If only a very small handful of Americans is even aware that someone bearing his name sits on the Supreme Court, what can it possibly mean that, as Rasmussen reports, Breyer has a favorability rating of 18 percent, 10 points below his unfavorability rating of 28 percent?
The most significant numbers in Rasmussen's poll? Twenty-nine to 54. That's the percentage range of persons surveyed who are willing to admit that, even when supplied the name of an individual justice, that they simply haven't a clue what to think about her or him.
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Kenji's question about whether the Supreme Court would ever overturn the military's current "don't ask, don't tell" (DADT) policy about homosexuality raises all kinds of interesting questions—not the least of which, as Phil's response suggests, is about the military itself.
On that front, Phil's notes about the recent treatment of these cases by the CAAF are arguably consistent with a series of recent conversations I've had with experts in civilian-military relations (civilians and military). Although our discussions were principally on other topics, all managed to convey the sense in passing that the existence of gay soldiers was increasingly a non-issue for current troops compared with where matters stood 15 years ago. It wasn't entirely clear whether this perceived shift was being driven more by raw security need (we're in no position to be firing any of the few Arabic-speaking officers we have), or by evolving social sensibilities, or by some combination of the two. But I came away with the strong impression that the military, if left to its own devices, would soon be content to welcome a post-DADT world. Does this seem plausible, Phil, or am I just encountering an unusual sample of views?
And then there's the question of what judicial deference to the military looks like in a post-Hamdi/Rasul/Hamdan world. That is, a world in which it's not at all clear that old models of judicial deference to policies involving the military apply. My first instinct is to agree with Phil and Kenji—even in the current universe, there's a difference (constitutional, doctrinal, and practical) between military policies that regulate military members themselves and military policies that affect civilians in some way.
But let's say, at least for the sake of argument, that the uniformed military itself decides DADT is a terrible policy—hard to apply, hard to enforce, and ultimately counterproductive to the maintenance of an effective force. And let's say, too, that a group of distinguished retired generals files an amicus brief with the court arguing as much (not unlike, for example, the brief filed by military leaders in the 2003 affirmative action case, Grutter v. Bollinger—a brief Justice O'Connor, among others, found worthy of citation). In this scenario, the court is faced with a civilian executive (presumably) defending the policy and at least some fraction of the expert military community (the only fraction who can speak independently, more or less) arguing the opposite. Is it as clear how the court would come down then? Maybe so. Still, I'd be interested to know whether you guys think a division between the civilian leadership and the uniformed military would make any difference in the court's approach to this particular constitutional question.
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Here are some odd poll results from Rasmussen Reports. Americans think that the Supreme Court does a good job but that the Supreme Court justices do a bad job.
For the court as a whole, 41 percent of voters rated the Court good or excellent; 19 percent rated it poor.
For the individual justices:
Thomas: 38 percent favorable, 50 percent unfavorable
Ginsburg: 36 percent favorable, 35 percent unfavorable
Alito: 26 percent favorable, 38 percent unfavorable
Roberts: 26 percent favorable, 30 percent unfavorable
Scalia: 27 percent favorable, 40 percent unfavorable
Stevens: 17 percent favorable, 30 percent unfavorable
Kennedy: 25 percent favorable, 33 percent unfavorable
Breyer: 18 percent favorable, 28 percent unfavorable
Souter: 16 percent favorable, 31 percent unfavorable
So, except for Ginsburg, all the ratings are negative; and Ginsburg herself hardly receives much of an endorsement. Meanwhile, Congress receives 13 percent good or excellent ratings, yet I believe that voters typically give high approval ratings to their own representatives. Do voters realize that these institutions are composed of people? Maybe when voters rate the court, they unconsciously compare it to Congress and the presidency, but when they rate individual justices, they compare them to some imagined ideal of what a Supreme Court justice does or they recall some unfavorable story about the justice's confirmation hearings or out-of-court activities.
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Gerken Opening Post (Round 2)
Yesterday Kenji Yoshino and I debated whether, as a purely predictive matter, liberty or equality offers the more promising framework for litigating gay rights claims (our posts are here and here, with short essays on the topic here and here). Today I want to address whether there is a normative reason to prefer one strategy over the other in thinking about these questions, another point of disagreement between us. I must confess that here I am more ambivalent about which paradigm is more attractive as a normative matter, in large part because (as Kenji and I have both remarked) the two paradigms are necessarily intertwined. Nonetheless, given the current legal landscape, I mildly favor equality over liberty because it comes closer to capturing what we are actually fighting about. For the full opening post, click here.
Yoshino Response (Round 2)
It's always a dangerous thing to disagree with Heather, as I have learned over half a lifetime. So, here I am glad to see our disagreement is narrower than I thought. I do normatively endorse the Lawrence tactic of "leading with liberty." But I emphasize that I do so with two significant caveats. First, equality claims can and indeed must be made outside the courts by entities more institutionally competent to make them. Second, equality claims should still find their way into Supreme Court opinions, but under the guise of defining the metes and bounds of the liberty claim at issue.
Both the glory and the bane of the courts in this country is that they are generally expected to give reasons for their decisions. But it is very hard to give principled reasons for why one group is more worthy of judicial solicitude than another. The court's most famous formulation is that "discrete and insular" minorities deserve protection. But as my colleague Bruce Ackerman argued decades ago, it may in fact be "anonymous and diffuse" minorities who have a harder time being heard in the political process. Other formulations, like those that focus on immutability or political powerlessness, are similarly unhelpful. Few would say that the capacity of religionists to convert means they are less vulnerable to discrimination. And a group must have an enormous amount of political power before it can be recognized as politically powerless by the court.
I take Heather to say that past practice has shown that the court can make more specific distinctions in the equality context than in the liberty context, maintaining, for instance, that "certain intimate conduct" is necessarily less specific than "separate ... [is] inherently unequal." Here I disagree. The quotation from Brown is that "separate educational facilities are inherently unequal," suggesting that the court is trying to put domain-based limitations on its equality principle. That cuts both ways—it cuts for Heather because it's more specific even than her quotation, but it cuts for me because it suggests that the court will have to struggle (all the way through the Johnson v. California case in 2005) to figure out to the domains beyond education for which this principle holds. More importantly, even if we cash out the principle as "separate ... [is] inherently unequal" across the board for racial classifications, it's hard to export that principle beyond race to contexts such as sex/gender or disability. It's a truism that separate bathrooms for men and women or separate learning environments for individuals with and without learning disabilities are often consistent with equality, if not necessary to it.
Of course, moving from group-based equality claims to universal liberty claims just moves the courts from one slippery slope to another. Instead of the "too many groups" problem, the court must grapple with the "too many rights" problem. But I believe the courts are much more capable of picking and choosing among rights than of picking and choosing among groups. Scholars like Amartya Sen and Martha Nussbaum have generated and defended plausibly finite lists of such rights (what they would call capabilities), but I have yet to see anyone generate and defend a plausibly finite list of groups.
To be clear, the fact that I want the courts to lead with liberty does not mean that other bodies must do so as well. Legislatures don't have to give reasons for what they are doing. If they say discrimination on the basis of age is prohibited but discrimination on the basis of gender identity is not, then that's understood to be just a matter of politics, not a matter of principle. This is the comparative advantage of political bodies and grassroots movements, and this advantage not only should, but must, be used. It would be naive, for instance, to think that the court would ever have heard Lawrence or Lane without a gay rights movement or a disability rights movement.
The last point to be made here is that when the courts internalize the equality claims, this should not be a group-based analysis that they have themselves devised. If that were the case, the liberty claim forwarded by the court would just be a Trojan horse through which the court's own equality claim was smuggled into constitutional jurisprudence. Instead, to take a leaf from theories of dialogic constitutionalism, the courts should look out to the polity to see which groups are seen to be politically powerful enough to command some legislative results or popular sympathy, but not powerful enough that they can do just fine without any judicial solicitude whatsoever.
So, to sum up, everyone should grasp Tribe's point that, despite the doctrinal separation of liberty and equality into different doctrinal categories, these two values are intertwined. We are really talking about a hybrid claim that has aspects of both liberty and equality, a claim which I will call "dignity." Which aspect of the dignity claim should be figure and which should be ground will be in part a matter of institutional competence of the body making the claim. Courts and other reason-giving bodies should lead with liberty. Legislatures, grass-roots movements, and other overtly political bodies have the option of leading with either. But when the courts lead with liberty, they should hear claims of equality that are made in voices not their own. This is the new equal protection.
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Kenji, I, too, think the Supreme Court will likely side with the military in any challenge to "don't ask, don't tell" that percolates up through the courts. The thumb of judicial deference to the military is heavy indeed. Despite what we've seen in the recent terrorism cases (Hamdi, Rasul, and Hamdan), this deference remains strongest on such issues as military manpower, which flow from a specific grant of power to Congress to "raise and support armies."
However, I do think we're seeing a post-Lawrence evolution within military courts on this issue. Over the past few years, a number of military courts have heard criminal cases involving violations of Article 125, the military statute forbidding sodomy. These cases have involved both homosexual and heterosexual conduct, because the statute applies to both. In United States v. Marcum, the Court of Appeals for the Armed Forces (CAAF) affirmed the conviction of an airman for consensual sodomy with a subordinate. In its decision, the court "assume[d] without deciding" that Marcum's sexual acts were legally protected by Lawrence. But rather than cite Bowers v. Hardwick and the illegality of homosexuality per se, the court looked instead to the inappropriateness (in a military context, at least) of sex between subordinates and superiors and the effect of that consensual sex on "good order and discipline."
Similarly, in United States v. Stirewalt, decided in 2004, the CAAF “assume[d] without deciding that [the] conduct [fell] within the liberty interest identified by the Supreme Court” because the conduct occurred in an “off-base apartment” and “in private.” And in United States v. Bullock, the Army Court of Criminal Appeals (which sits below CAAF) overturned a male soldier's guilty plea under Article 125 for consensual oral sodomy with a female soldier. According to a Congressional Research Service report, these cases may "recognize a right to engage in consensual adult sodomy, under principles that may be equally applicable to Article 125 prosecutions targeting homosexual activity."
You're probably wondering why the military bothers to bring any of these sodomy prosecutions at all. Given that there's a war on, you'd think the military has better things to do. After Lawrence, sodomy prosecutions in the military now require sex plus something else—what the Marcum court called "additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest." These prosecutions all involve some aggravating factor above and beyond the sex itself, like fraternization (sex between superiors and subordinates, or peers in some settings), force (actual or constructive), or some other prejudicial effect on military order and discipline. In the post-Lawrence world, I don't think we're likely to see many prosecutions for sodomy per se—only for cases where such aggravating facts are present.
Which is as it should be, I think. The military has a unique need to maintain unit cohesion and morale, one which trumps certain fundamental rights. But, this imperative transcends any line between gay and straight soldiers; heterosexual conduct damages unit cohesion as easily (and much more frequently) than homosexual conduct. Military courts are starting to apply these rules more evenly. I don't know whether this will affect "don't ask, don't tell" in the long run, but it will certainly moderate its effect within the ranks.