SCOTUS Mythology Exposed
We deserve better.
In his NYT newsletter earlier this week (Maskless and Inaccurate), David Leonhardt raises some issues about the recent SCOTUS hearings about the Biden administration’s vaccine mandates that have struck me as well: that the Justices are behaving in ways that underscore their underlying partisanship.
In regards to Justice Gorsuch:
When the Supreme Court justices emerged from the red drapes at the front of the courtroom last Friday and took their seats — to hear arguments about President Biden’s vaccine mandate — all but one of the justices there were wearing masks. The exception was Neil Gorsuch.
That Gorsuch would resist mask wearing is no surprise. He is a conservative judge with a libertarian streak who has spent his life around Republican politics. In conservative circles, masks have become a symbol of big-government subjugation.
Gorsuch had to know that his masklessness could make other justices uncomfortable, including the 83-year-old Stephen Breyer and the 67-year-old Sotomayor, who has diabetes, a Covid risk factor. Sotomayor sits next to Gorsuch on the bench and, notably, chose not to attend Friday’s argument in person. She participated remotely, from her chambers.
When Ruth Marcus of The Washington Post asked a Supreme Court spokesperson whether Sotomayor had done so because Gorsuch was maskless, Marcus got no response.
One of the few public comments from somebody close to Gorsuch came from Mike Davis, a conservative activist and former Gorsuch clerk. On Twitter, Davis defended his former boss by writing, “We know cloth masks don’t [work].” It was a statement that managed to be both exaggerated and beside the point.
And then there was Justice Sotomayor, who stated the following
We have hospitals that are almost at full capacity with people severely ill on ventilators. We have over 100,000 children, which we’ve never had before, in — in serious condition and many on ventilators.
This was, well, wrong by several orders of magnitude.
As Leonhardt notes:
In making the case for mandates last week, Sotomayor first noted that Covid cases were surging and hospitals were near capacity. She then turned her attention to children: “We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.”
That last sentence is simply untrue.
PolitiFact called it “way off.” Khaya Himmelman of The Dispatch described it as false and misleading. Daniel Dale of CNN wrote that Sotomayor had made “a significant false claim.” Glenn Kessler, The Washington Post’s fact checker, called it “wildly incorrect.”
Both of these examples brought to mind Chief Justice Roberts infamous statement in a case about districting back in 2017:
the whole point is you’re taking these issues away from democracy and you’re throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook.
Dare I say, yes, it would appear to clearly be his lack of adequate educational background on the subject. Indeed, it was an agonizing ridiculous thing to say which maligned real academic work that did not deserve such casual dismissal (but fully unpacking that utterance is a different discussion). Such behavior about, say, chemistry in a water quality case would be a bit more obvious.
There are, no doubt, scores of such examples that could be cited, both from oral arguments and from written opinions, but since this is not an ocean in which I commonly swim, I can’t conjure more readily.
These three examples are great, and perhaps sobering, reminders that while we treat SCOTUS Justices like they are quasi-philosopher kings, they simply aren’t. They are all highly educated, but it is worth noting fairly narrowly educated, and approach their jobs highly influenced by the partisan world around them. Is there any doubt that Gorsuch and Sotomayor both have had their views of the pandemic shaped heavily by their own media diets?
If SCOTUS is making decisions, at least in part, the same way Joe Q. Public is, that is problematic given the amount of power that the institution has acquired over time. The vaccine mandate case is a case in point, insofar as it is the inability of Congress to act coherently that forces the executive to try and address a national crisis via executive orders and bureaucratic rule-making powers which, in turn, leads to the judiciary getting to decide what the rules can be.
The mythology of American politics is that courts, especially SCOTUS, are run by sages who transcend basic politics and settle things based on well-developed legal theories. This is certainly the way the Court is usually talked about in the press (and often here at OTB). But, the more one pays attention, the more it seems that the Court is what it is often accused of being: a group of partisan-influenced individuals who are not as sagelike as many, themselves included, like to think.
Quite frankly, from afar it looks like at least some of the Justices did less research about Covid than I might do for a given blog post. That is not a reassuring circumstance, especially given the abdication of duty (or, at least, institutional dysfunction) we have seen for quite some time in the Congress. This is a broad, long-term problem, especially given the lack of accountability of the Court, given lifetime appointments, and the utter disconnect between the electorate and the Court because of the Electoral College (and popular vote inversions) and the unrepresentative nature of the Senate.
In terms of this recent hearing, I have to agree with Leonhardt’s conclusion:
Last week’s Supreme Court session was striking because it highlighted both halves of the country’s partisan-based self-deceptions. Many conservatives are refusing to wear masks — or, even worse, refusing to be vaccinated — out of a misplaced belief that Covid is harmless. Many liberals are sensationalizing Covid’s risks out of a misplaced belief that it presents a bigger threat to most children and vaccinated adults than continued isolation and disruption do.
Partisanship, as some political scientists like to say, is a helluva drug.