Richard Hofstadter wrote a famous essay, The Paranoid Style in American Politics. It is about the recurring tendency of our political actors to allege that there is a vast and powerful conspiracy against the public interest. The Masons were alleged to be at the center of the conspiracy early in the nineteenth century, the Catholics later in the century.
In his opposition to Judge Gorsuch, Senator Sheldon Whitehouse embraces this style of argument. In his opening statement, he asserted that there is a “machine” that helps conservative Republicans get on the Supreme Court and then write amicus briefs to show them which way to rule. He endorses the characterization of the Roberts Court as a “delivery service” for the Republican party and right-wing ideology. How different in terms of respect for judicial independence is calling the Supreme Court a “delivery service” from referring to a judge as a “so-called judge?” Senator Whitehouse claims that this “delivery service” continually offers up cases against the public interest, protecting gerrymandering, money in politics and the rights of corporations against the people.
Like all conspiracy theories, it has a simplicity about it. But its simplicity is delusive because the world is a more complicated place.
Many on Left want to politicize American law and they are emboldened by the vacancy on the Supreme Court to achieve their long sought goal. But don’t take my word for it. Zephyr Teachout, a professor of law at Fordham, ex-candidate for the governorship of New York and current candidate for Congress, laments the current state of antitrust law: “If you can depoliticize antitrust law, you can depoliticize anything.”
The quote comes at the end of a long article in the New York Times in which many commentators complain about Supreme Court decisions friendly to business. The evidence that the Roberts Court has been the best court for business in decades comes from a study by Lee Epstein, Bill Landes, and Richard Posner. This study has been ably critiqued by Jonathan Adler, who notes, among other things, that the study leaves out regulatory decisions quite unfriendly to business.
But my observation here is that neither the authors of the study nor the commentators in the Times article try to show that that the decisions in favor of business were legally incorrect.
The Republican debate on CNBC confirms that campaign finance reform would boost the progressive agenda, because it shows the depth of bias in the free media. The questions of reporters–even those who worked for a business news network– tended to be premised on the need for one government program or another to solve a social problem. As William McGurn noted, in the Democratic debate reporters do not grill the candidates with questions from a small government perspective. And CNBC reporters are not the exception; studies show that media reporters lean strongly left.
It is the capacity of the media to shape the political agenda that puts Republicans on the defensive during campaigns. It is only at election time when citizens have more motivation to listen that independent political messages can puncture that progressive agenda control. That is the reason that Progressives want to reduce such messaging. Campaign finance reform magnifies the power of the agenda control that the media has the rest of the year.
One of the best comments in the debate was precisely to this effect, although it was not said in the context of a debate about campaign finance reform. Marco Rubio stated that the mainstream media was a ”Superpac for Democrats.”
Federal law (the Controlled Substances Act) prohibits the possession, use, sale etc. of marijuana. What to do about state laws, such as Colorado’s, that not only permit but affirmatively license (and regulate) this commerce? For an instructive discussion of the legal problems, see this debate, co-sponsored by the Federalist Society and the Center for Business Law and Regulation at Case Western Law School (headed by the excellent Jonathan Adler, who organized and moderated the event). Most conservatives, myself included, find this difficult. On one hand, why shouldn’t states be allowed to have their own laws on marijuana, just as they do…
At the volokhconspiracy, Jonathan Adler takes shots at a law review study by Lee Epstein, William Landes, and Richard Posner, purporting to document the Roberts Court’s unprecedented pro-business bias. The study was reported in a New York Times piece by Adam Liptak. After noting significant methodological flaws in the study (which, admittedly, I haven’t read yet but which seems just as shoddy as the “judicial behavior” literature in general), Adler comments: Quantitative studies of the Supreme Court’s behavior can be illuminating, but they only go so far, and they have a difficult time accounting for the actual impact of the Court’s…