Speaking at Northwestern University Law School this semester, Justice Elena Kagan may have revealed more than she intended. Amidst her entertaining and witty remarks, she described two very different kinds of discussions that take place at the conferences where the justices decide cases. In shorter conferences, the justices, in order of seniority, with the Chief going first, state their votes with brief statements of reasons. Justice Kagan observed that shorter conferences tend to be the high profile cases that appear on the front page of the newspaper. She surmised that further debate in these cases would likely make her colleagues irritated with those of opposing views.
She then described longer conferences, where the justices after stating their positions—sometimes tentative ones– entertain more general deliberations, trying to figure out exactly what the right answer should be. They then focus on and often resolve thorny legal questions. Justice Kagan said that during her time on the Court one of the longest conferences revolved around an obscure jurisdictional issue of the kind that would draw no public attention.
Justice Kagan’s remarks are consistent with my view that we have not one but two Supreme Courts. One is a political court, in which the justices play the aristocratic element in a mixed political regime. Today our aristocratic element consists not of landed nobles but the cognitive elite well represented in judiciary by those who graduated from the nation’s best law schools.
A recent visit to Boston prompted me to reread E. Digby Baltzell’s Tocquevillean classic, Puritan Boston, Quaker Philadelphia: Two Protestant Ethics and the Spirit of Class Authority and Leadership (1979). Baltzell’s appreciation of the enduring effects of the seemingly dead hand of religion on the politics of two cities is sobering and bespeaks the entire American condition today. Does American politics more resemble Puritan elitism or Quaker pluralism? Are Americans better portrayed in Good Will Hunting or Rocky? The greatest American historian Henry Adams described Pennsylvania as “an ultra-democratic State, …. “the ideal American State, easy, tolerant, and contented.” Thus, “the…
TOCQUEVILLE 2012: Quick Thoughts on the 175th Anniversary of What’s Still the Best Book on Who We Americans Are.
Alexis de Tocqueville wrote the best book ever written on America and the best book ever written on DEMOCRACY. The first volume was published in 1835, the second in 1840.
Alexis de Tocqueville was born into a French aristocratic family after the French revolution that had overthrown the French hereditary aristocracy and replaced it with various forms of republics and empires.
So Tocqueville lived in a kind of privileged moment. He could look back to the aristocracy and aristocrats with all their virtues and vices, and he could look forward to the progress of democracy and democrats with all its virtues and vices. His greatness as a writer was being an aristocratic critic of democracy and a democratic critic of aristocracy.