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How People Evaluate Court Descisions

August 5, 2010

On days, like yesterday, when controversial court decisions come out I sometimes watch my Twitter and Facebook feeds and observe as various friends, bloggers, pundits, and celebrities react to the news.  One trend I’ve observed is that in the vast majority of cases, people’s opinion of the court decision align with each individual’s policy preferences on the underlying issue.

So for example, supporters of Arizona’s SB1070 generally bemoaned the Federal Court’s injunction preventing the enforcement of SB1070 pending the resolution of the Justice Department’s suit claiming Federal preemption invalidates the law; whereas opponents of SB1070 cheered the decision.   Very few commentators took the position that either 1) The AZ law is unconstitutional but it would be beneficial on policy grounds, or that 2) SB1070 is perfectly constitutional but it shouldn’t have been passed in the first place because it’s unwise.

Now perhaps the reason I seldom observe people taking nuanced positions (opposing the law but supporting its Constitutionality or vice-versa) is simply sample bias.  That is, many people might hold nuanced positions, but simply not comment on those issues as often as they do on court decision that they oppose on both policy and Constitutional grounds.

Nevertheless, I suspect that something more is going on.  I think people often decide what conclusion they want first, and then decide what legal arguments they agree with in light of how the desired outcome can be obtained.  I think everyone is tempted to think this way to some extent, but this kind of partisan thinking about legal questions should really be avoided to the greatest extent possible.  In our constitutional system partisanship belongs in the elected branches of government: in Congress and the Presidency.  The Courts ought to remain neutral.  In Justice Roberts’ confirmation hearing he compared the role of the courts to that of an umpire at a baseball game.  He ought to call ’em like he sees ’em without regard to which team the call favors.  Sometimes I’ll come across a sports fan who always disagrees with a close call if it goes against his team and always supports the ump if the call helps his team, but most sports fans have the integrity to acknowledge that some favorable calls are incorrect and some unfavorable calls are the right ones.  Politics seems different though.  People are even more partisan in politics than in sports.  Perhaps this is just because the stakes are so much higher, or perhaps the reason is that the Law is so much harder to understand than the rules of a sport.  If the Law seems incomprehensible, then the policy implications of a court decision are the easiest way to analyze the decision.

The decision that came out yesterday struck down a provision in the constitution of the state of California defining marriage as the union of a man and a woman (passed as Prop 8).  As far as I can tell, everyone who supports the decision opposes Prop 8 and vice-versa, myself included.  In my case, I think I have good reasons to oppose the court decision, naturally.

It’s an interesting exercise to try to think of a few cases where one’s preferred policies aren’t advanced by side one thinks should have won.  If you can’t think of any, that might be a sign that you look at legal news through a partisan lens.  I can only think of three off the top of my head.

4 Comments leave one →
  1. Flex727 permalink
    August 5, 2010 5:33 pm

    Your exercise is interesting, but difficult for those of us not as intimately acquainted with SCOTUS decisions (even high profile ones) as you are. Let me suggest this, name 5 or 10 decisions that you think might be good examples to use to determine ones partisan lensing and I will respond with my opinion on those cases.

    • August 6, 2010 10:26 am

      Here’s my list:

      LAWRENCE V. TEXAS I oppose sodomy laws but don’t think they were forbidden by the 14th amendment.

      KELO V. NEW LONDON Connecticut seized a woman’s house for no good reason, but I don’t see why the Federal government is involved and in any case the political branches of government are better suited to judge what is and isn’t “public use” since the political branches are closer to the public.

      v. Connecticut
      I support couples’ right to birth control, but the Court can’t just make up new rights out of emanations of penumbrae of the Constitution.

      v. LOUISIANA
      I oppose the death penalty for crimes other than murder or treason, but don’t think it’s banned by the 8th Amendment.

      • Flex727 permalink
        August 6, 2010 11:00 am

        I’m with Justice Thomas in every case, well, except Griswald of course. I know how Thomas would have voted on Griswald though. Thomas is my man.

        That Warren court was pretty colorful, what with White, Black, and Gold(berg). 🙂

        By the way, why isn’t Kennedy v. Louisiana on that fantastic Cornell site?

  2. Flex727 permalink
    August 6, 2010 12:18 am

    I’m betting one of your three was Kelo.

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