Comments on the courts

[Keith E. Whittington]

Frank Cross wrote:

> I've been trying to collect critical comments on the courts.  So far, I've
> found lots of Republican politicans who called the Florida court partisan
> (Baker, BTW, did not say this, but just said it was terrible).  There are
> virtually no Democratic politicians, though, that I have found attacking
> the USSC as partisan.  Keith, tell me who you're thinking of.  However, the
> liberal law profs have been more vigorous in attacking the USSC as partisan
> than the conservative law profs were attacking the Florida court.  Please
> let me know if you have contradictory info.

Perhaps systematic collection of the evidence will give the lie to my first
impression.  It does seem right that there have been some pretty extreme
comments by public figures about the Florida Court, and more from the
Republican side than the Democratic side.  It also seems like such public
criticism of the USSC has generally been more indirect or veiled as to the
source -- as Frank notes, law profs on the left have generally been more
vigorous and high profile on this score than those on the right (e.g., Mark
Tushnet on Nightline last night), plenty of unnamed sources "close to Vice
President Gore" denouncing the Court as partisan, a clearly orchestrated
campaign to paint the conservative justices as partisan and/or self-interested
that yielded prominent articles in several elite newspapers yesterday, numerous
newspaper editorials today.  And a few Democratic politicians today -- Rep.
Jesse Jackson Jr. called the outcome a "coup d'etat"; Patrick Leahy shifted the
burden "many Americans will consider [this decision] political rather than
judicial"; Steve Grossman, former DNC chair, thinks the Court is "no longer
nonpartisan."  I don't know about over the weekend in response to the stay
order.  But as the Republicans understood during the fight over the Court
packing plan -- no need to go public without your own criticisms if others will
make the point for you.  In any case, it would certainly be interesting to see
how the criticism played out over the past few weeks -- who got criticized, by
whom, how and when, etc.

Even so, there are still the further points.  Is it, in fact, a virtue to
refrain from calling a court partisan or political, if in fact you think it is
behaving in such a fashion?  And is it surprising if state courts are more
subject to such criticism than the federal courts?  And having the more-or-less
final word probably helps -- relatively little to be gained by attacking the
USSC at this point (unlike Republican attacks on the Florida S.C. last week).
As Howard Gillman notes, this may be the self-inflicted wound that doesn't
particularly hurt the Court, in the absence of an on-going substantive conflict
with the Court.

Keith

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