The Language of Neutrality in Supreme Court Confirmation Hearings

At Justice Neil Gorsuch’s confirmation hearing, then-Judge Gorsuch repeatedly insisted that judging involves no more than examining the legal materials—like statutes and precedents— and applying them to the facts of the case. There is, he emphasized, no room for a Justice’s “personal views,” and he refused even to state his agreement (or disagreement) with such iconic cases as Loving v. Virginia and Griswold v. Connecticut. Instead, then Judge Gorsuch reiterated only that they were precedents of the Court and thus entitled to respect. Frustrating as his answers may have been to some senators, however, they differed from answers given by other recent nominees largely in degree and tone, not in kind. Indeed, all four most recent nominees before Gorsuch—but especially Chief Justice Roberts and Justice Sotomayor—made similar claims, of which Roberts’s invocation of the neutral umpire is only the most famous. Such forceful claims of neutrality and their attendant implication that there are necessarily right and wrong answers to difficult legal questions—answers that can be determined through deductive reasoning or by examining legal texts through the right lens—are not new, but their role and prominence in Supreme Court confirmation hearings have changed over the years. Using both qualitative and quantitative analysis, including empirical research on confirmation hearings already reported, this Article charts the history of such discussions in Supreme Court confirmation hearings from Justice Harlan’s hearing in 1955 through Justice Gorsuch’s hearing in 2017—the period of time during which all nominees have been expected to appear before the Senate Judiciary Committee. More specifically, the Article focuses on the extent to which nominees and Senators have claimed that there are objectively correct answers to the hard questions faced by the Supreme Court or, alternatively, have acknowledged and discussed the reality that textual and historical sources often do not provide clear answers and that Supreme Court Justices must balance competing interests, precedents, and constitutional principles and apply constitutional provisions and doctrines in new and complex factual circumstances. Specifically, the Article establishes that during the Warren court years, claims of objectivity were often made by conservative senators, with relatively little discussion of alternative views of judging by either senators or nominees. By the late 1980s and 1990s, however, senators and nominees were having surprisingly candid conversations about the role of the Supreme Court, conversations that acknowledged the importance of judgment and judicial philosophy in resolving many difficult constitutional questions. Since 2000, however, nominees have largely eschewed such discussions and, along with Republican senators, have embraced claims of objectivity and neutrality. As the Article demonstrates, however, such claims about the Court and its work are highly inaccurate, and they may have negative effects on the legitimacy of the Court as an institution. After all, when the Court announces its decisions in difficult cases, members of the public can plainly see that different Justices both approach those cases differently and often disagree about the result in predictable ways. News media regularly refer to the “liberal” and “conservative” Justices. So there is a significant disconnect between the claims made during confirmation hearings and the actions the Justices take—and research suggests that such a disconnect can undermine public confidence in the institution. The Article closes by proposing that senators use their questions during confirmation hearings to combat the myth that judging, especially on the Supreme Court, is necessarily about reaching objectively correct, logically deducible conclusions

Bentham's Image: The Corpo-Reality Check

In the eleventh and final chapter of the volume, dealing appropriately with Bentham’s auto-icon, entitled ‘The Image of Bentham’, Carolyn Shapiro argues that Bentham’s own auto-icon is ‘the corpo-realization of what underlies Bentham’s theories of logic, language, and legislation’. That Bentham wished to ground everything in the physicality of the human body is shown in the constant references in his writings to real entities, that is to physical bodies and in particular the sensations of pleasure and pain—this is the corporeality that underlies the greatest happiness principle. His interest in etymology involved relating the meaning of words to the physical image that lay at their ‘root’. Shapiro points out that Bentham’s writing was a physical activity related by pain and pleasure to every other activity, including those involving sexual gratification. She highlights the parallels between Bentham’s manuscript corpus and his own body—his corpse—in that they both needed to be crafted by other hands—the editor and the surgeon—following instructions of various sorts left by Bentham himself. Shapiro points out that Bentham criticized religion for its unjustifiable leap from the notion of physical to that of moral impurity, and its consequent demand for punishment, and hence the infliction of physical pain, for those deemed to be impure, despite the lack of any physical grounding. This was an example of the operation of the principle of antipathy, a passion located in the breasts (physical bodies) of rulers, in order to subdue those subject to them. Moving from the real, physical body to the imaginary paved the way for tyranny. The religiously inspired principle of asceticism, propagated by Paul despite being opposed by Jesus, was characterized by groundless pronouncements of immorality. The solution for Bentham was to remove fiction from language and link language to the physical by means of the techniques of phraseoplerosis and paraphrasis. The body, when language loses its connection to the physical, is claimed for mischievous and malign purposes, as exemplified in the condemnation of homosexuality when the body is co-opted by asceticism. Shapiro posits that the homosexual body, like that of Jesus, stands open to other bodies, while Bentham in turn proposes an intercoursing body with its ‘inlets’ to pleasure. Bentham proposed to invite William Beckford, novelist and homosexual, to collaborate with him on the ‘Not Paul, but Jesus’ manuscripts and thereby to give form and order to his corpus, just as his surgeon Thomas Southwood Smith would be invited to give form and order to his corpse

Context of Ideology: Law, Politics, and Empirical Legal Scholarship, The

In their confirmation hearings, Chief Justice Roberts and Justice Sotomayor both articulated a vision of the neutral judge who decides cases without resort to personal perspectives or opinions, in short, without ideology. At the other extreme, the dominant model ofjudicial decisionmaking in political science has long been the attitudinal model, which posits that the Justices\u27 votes can be explained primarily as expressions of their personal policy preferences, with little or no role for law, legal reasoning, or legal doctrine. Many traditional legal scholars have criticized such scholarship for its insistence on the primacy of ideology in judicial decisionmaking, even as empirical legal scholarship has grown in significance and influence in the legal academy. Recently, however, empirical scholars and traditional legal academics have begun to engage in serious discussions with each other about how to think about and evaluate the balance between law and ideology and about how to harness the powerful tools of quantitative analysis to study such questions. In this Article, I offer several contributions to this discussion. First, the Article evaluates current efforts by empirical scholars to identify the ideological character of cases. These efforts generally assume that the ideological character of a case can be determined by reference to a single liberal-conservative spectrum, and they generally presume that all or most cases present only a single issue. Through a recoding and quantitative analysis of a random sample of recent Rehnquist Court cases, as well as through a qualitative analysis of many of the cases, I establish concretely some of the limitations of these efforts. Specifically, I demonstrate that these approaches are indeterminate and oversimplified, and often prevent scholars from identifying cases in which the Justices face issues that pull them in different ideological directions. At the same time, however, I identify their strengths, particularly the strengths of approaches that leverage information derived from the Justices\u27 actual voting patterns. Finally, I propose a new approach for empirical scholars interested in studying the role of ideology in Supreme Court cases. Rather than starting with the assumption that ideology is the most important factor in Supreme Court decisionmaking, my approach focuses on just how important ideology was to the Justices in a particular case. Measuring ideological salience, I argue, would allow empirical scholars to study the empirical question of when and how ideology - and other factors - affects decisionmaking. Doing so would also open the door to a wide variety of important and interesting research questions. Most importantly, this approach would allow empirical scholars to engage with more traditional legal academics in the important normative debates about when and how ideology should play a role in the work of the Supreme Court

Compassion and Coalitions: A Review of Reshaping the Work Family Debate: Why Men and Class Matter by Joan Williams

Reshaping the Work-Family Debate: Why Men and Class Matter by Joan Williams is illuminating, intellectually challenging, and insightful. It is not, however, a typical law professor book. Neither academic inquiry nor policy analysis (although it contains elements of both), Reshaping the Work-Family Debate is more of a manifesto. Williams seeks measurable and meaningful change in the family and work lives of Americans, even if that change is imperfect or incomplete, and she sees theoretical or ideological rigidity as one obstacle to such change. Williams believes that coalition-building is essential to addressing the work family challenges she identifies. Although she has a lengthy list of policy proposals, she spends very little time in this book making the case for them because she believes that in our current political climate, enactment of such policies is impossible. So she wants to change that climate, by urging women to recruit men and progressive elites to make common cause with the white working class. This review evaluates and describes Williams\u27 insights and proposed strategies for coalition-building. But it also discusses some gaps in Williams’ analysis, such as her lack of focus on race and on single parents. These gaps are ripe for future work by Williams and by the many activists and academics she inspires

Coding Complexity: Bringing Law to the Empirical Analysis of the Supreme Court

In recent years, the legal academy has experienced a surge of interest in quantitative empirical analysis. Unfortunately, this enthusiasm has not always been accompanied by careful analysis of what the tools and resources of quantitative analysis can tell us about law and legal doctrine. As this Article demonstrates, the findings of some studies therefore unwittingly reflect the limitations of those tools and resources rather than providing insight into the workings of courts. Specifically, this Article provides a long-overdue critical analysis of the most influential source of data about the Supreme Court, the Original Supreme Court Database, created by political scientist Harold J. Spaeth. The Database, which codes every opinion issued by the Supreme Court since 1953, contains coding for legal provisions considered by the court and for what Spaeth calls issue and issue area. Although numerous scholars - within both political science and law - rely on them, these codes do not report reliable information about the role that law and legal doctrine plays in the Supreme Court\u27s cases. The Database does not reliably report the legal provisions or doctrines relied upon or at issue; it does not attempt to report legal issues at all, instead describing the public policy context of the case; and by design, it generally reports only one issue per case. These limitations have important, but poorly understood, implications for the many, many scholars who rely on the Database, and the Article describes a number of specific studies whose results are unreliable because of the way they use the Database. This critique of the Database and the ways scholars use it can help scholars to be smarter and more accurate in their use of the Database. At the same time, the Article explores ways to incorporate law and legal doctrine into empirical legal scholarship. To further both goals, the Article presents the results of my Recoding Project of a random sample of recent Supreme Court cases. The findings of the Recoding Project confirm that significant information about law and doctrine is omitted from the databases. Furthermore, the findings suggest that the databases systematically underreport law and doctrine related to courts in particular and to the structure and operations of government in general - issues that may be very salient to the justices in at least some cases. By demonstrating what information is missing or misstated in the Database and by exploring ways to develop more comprehensive and law-focused coding protocols, this Article helps positive scholars - whether political scientists or legal academics - to consider how to take account of law. The Article concludes by discussing implications for future research

Compassion and Coalitions: A Review of Reshaping the Work Family Debate: Why Men and Class Matter by Joan Williams

Reshaping the Work-Family Debate: Why Men and Class Matter by Joan Williams is illuminating, intellectually challenging, and insightful. It is not, however, a typical law professor book. Neither academic inquiry nor policy analysis (although it contains elements of both), Reshaping the Work-Family Debate is more of a manifesto. Williams seeks measurable and meaningful change in the family and work lives of Americans, even if that change is imperfect or incomplete, and she sees theoretical or ideological rigidity as one obstacle to such change. Williams believes that coalition-building is essential to addressing the work family challenges she identifies. Although she has a lengthy list of policy proposals, she spends very little time in this book making the case for them because she believes that in our current political climate, enactment of such policies is impossible. So she wants to change that climate, by urging women to recruit men and progressive elites to make common cause with the white working class. This review evaluates and describes Williams\u27 insights and proposed strategies for coalition-building. But it also discusses some gaps in Williams’ analysis, such as her lack of focus on race and on single parents. These gaps are ripe for future work by Williams and by the many activists and academics she inspires

Claiming Neutrality and Confessing Subjectivity in Supreme Court Confirmation Hearings

Supreme Court confirmation hearings provide a rare opportunity for the American people to hear what (would-be) justices think about the nature of judging and the role of the Supreme Court. In recent years, nominees have been quick to talk about judging in terms of neutrality and objectivity, most famously with Chief Justice Roberts’ invocation of the “neutral umpire,” and they have emphasized their reliance on legal texts and sources as if those sources can provide answers in difficult cases. Many of the cases heard by the Supreme Court, however, do not have objectively correct answers that can be deduced from the legal materials. Instead the justices must bring judgment to bear, and that judgment inevitably incorporates subjectivity and reference to values and principles not explicit in the legal sources. This Article considers the extent to which nominees admit to such subjectivity and the extent to which they claim neutrality or objectivity, looking at all confirmation hearings since 1955. Through coding the nominees’ testimony, the Article identifies some of the circumstances under which these claims and admissions are most likely to be made. Among other findings, the Article reports that Democratic and Republican nominees are equally likely to claim neutrality in colloquy with any particular senator. On the other hand, Democratic nominees are about twice as likely as Republican nominees to admit to a role for subjectivity. Drawing on the insights of cultural cognition scholars, the Article then considers the implications of such findings and raises potential concerns for public perceptions of the Court, especially in light of our current highly polarized political culture

Claiming Neutrality and Confessing Subjectivity in Supreme Court Confirmation Hearings

Supreme Court confirmation hearings provide a rare opportunity for the American people to hear what (would-be) justices think about the nature of judging and the role of the Supreme Court. In recent years, nominees have been quick to talk about judging in terms of neutrality and objectivity, most famously with Chief Justice Roberts’ invocation of the “neutral umpire,” and they have emphasized their reliance on legal texts and sources as if those sources can provide answers in difficult cases. Many of the cases heard by the Supreme Court, however, do not have objectively correct answers that can be deduced from the legal materials. Instead, the justices must bring judgment to bear, and that judgment inevitably incorporates subjectivity and reference to values and principles not explicit in the legal sources. This Article considers the extent to which nominees admit to such subjectivity and the extent to which they claim neutrality or objectivity, looking at all confirmation hearings since 1955 and reporting some preliminary analysis. Through coding the nominees’ testimony, the Article identifies some of the circumstances under which these claims and admissions are most likely to be made. Among other findings, this Article reports that Democratic and Republican nominees are equally likely to claim neutrality in colloquy with any particular senator. On the other hand, Democratic nominees are about twice as likely as Republican nominees to admit to a role for subjectivity. Drawing on the insights of cultural cognition scholars, this Article then considers the implications of such findings and raises potential concerns for public perceptions of the Court, especially in light of our current highly polarized political culture

Claiming Neutrality and Confessing Subjectivity in Supreme Court Confirmation Hearings

Supreme Court confirmation hearings provide a rare opportunity for the American people to hear what (would-be) justices think about the nature of judging and the role of the Supreme Court. In recent years, nominees have been quick to talk about judging in terms of neutrality and objectivity, most famously with Chief Justice Roberts’ invocation of the “neutral umpire,” and they have emphasized their reliance on legal texts and sources as if those sources can provide answers in difficult cases. Many of the cases heard by the Supreme Court, however, do not have objectively correct answers that can be deduced from the legal materials. Instead the justices must bring judgment to bear, and that judgment inevitably incorporates subjectivity and reference to values and principles not explicit in the legal sources. This Article considers the extent to which nominees admit to such subjectivity and the extent to which they claim neutrality or objectivity, looking at all confirmation hearings since 1955. Through coding the nominees’ testimony, the Article identifies some of the circumstances under which these claims and admissions are most likely to be made. Among other findings, the Article reports that Democratic and Republican nominees are equally likely to claim neutrality in colloquy with any particular senator. On the other hand, Democratic nominees are about twice as likely as Republican nominees to admit to a role for subjectivity. Drawing on the insights of cultural cognition scholars, the Article then considers the implications of such findings and raises potential concerns for public perceptions of the Court, especially in light of our current highly polarized political culture