James Gibson: Voters Beware! TV ads may damage Supreme Court legitimacy

The right-wing Judicial Crisis Network has launched a $10 million advertising campaign to put public pressure on Democratic politicians who oppose President Trump’s nomination of Judge Neil Gorsuch to the U.S. Supreme Court.

While ideological fights over who controls the courts are nothing new, my research suggests that this use of political advertising to sway public opinion of a nominee may do real damage to the the institutional legitimacy of the U.S. Supreme Court in the eyes of the American people.

In Citizens, Courts, and Confirmations, Gregory Caldeira and I focused on the 2006 nomination of Samuel Alito to the U.S. Supreme Court. During that confirmation battle, proponents and opponents of Alito’s confirmation ran intensely politicized television ads trying to shape public opinion on the nomination.

Using surveys of public opinion, we demonstrated that the ads spilled over to infect support for the Court as an institution, subtracting from its legitimacy. In order to understand how and why this happened, it’s important to consider what political scientists (including Caldeira and I) have discovered is the main source of the Court’s legitimacy.

Despite the arguments of some judges to the contrary, the American people do not believe that judges somehow mystically “find” the law. They realize, instead, that judges’ ideologies matter, that liberal and conservative judges make different decisions, and that they do so on the basis of honest intellectual differences. This philosophy is called “legal realism,” and it is widely embraced by the American people.

But there is a difference between honest ideological differences and the politicization of the courts. When people believe that a judge “is just another politician,” or that courts are filled with such judges, legitimacy suffers. The American people do not think highly of politicians. Politicians are seen as self-interested and insincere. That means one can rarely believe what politicians say because they so rarely say what they believe. It is not ideology that Americans oppose, but rather the insincere and strategic way that contemporary politics is fought.

Our analysis discovered that it is not damaging to the Court when Americans recognize that judges hold different ideologies and that those ideologies strongly influence their decisions. But when judges cross the line, when they engage in overly politicized behavior—either on the bench or off—then the Court’s legitimacy is threatened. Scalia’s intemperate language in his opinions is one such example of judges venturing into partisanship; so, too, is Ginsburg’s attempt to influence last year’s presidential election. Still, events like these do not widely penetrate the consciousness of the American people, and so in the end, they likely have small effects on institutional legitimacy.

The same cannot be said of televised advertisements. Millions of Americans are exposed to these churlish and politicized ads, and so they take their toll. The lesson of these ads is too often the same: The “Supreme Court is just another political institution,” worthy of no more esteem than the other institutions of government. As this belief becomes widespread, the institution of the Court is harmed.

Our analysis demonstrates that while Alito got his seat on the Supreme Court, the court he joined had a diminished supply of goodwill among the Court’s constituents, the American people. It also makes clear that the upcoming nomination fights have implications beyond who does and doesn’t get a seat on the bench. At stake is the very legitimacy of the U.S. Supreme Court.

GibsonJames L. Gibson is the Sidney W. Souers Professor of Government at Washington University. He is the coauthor of Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People.

Colin Dayan: White Dogs on Track in Trump’s America

“Prejudice sets all logic at defiance.”
—Frederick Douglass

Since Donald Trump has brought Frederick Douglass back among the living—“an example of somebody who’s done an amazing job and is being recognized more and more”—I begin with this epigraph. Trump is illogical. Yes. Trump is prejudiced. Yes. But more than that, he might just be our consummate white supremacist. “Bad logic makes good racism,” as I wrote in The Law is a White Dog.

Trump creates a reality that flies in the face of logic. The most fantastic fictions are put forth as the most natural, the most reasonable thing in the world. These fictions endure today in a lexicon of degradation well honed and reiterated by Trump. They create the stigma that adheres to radical states of non-belonging, summoned by him in names such as “thugs” or “criminals,” “rapists” or “terrorists.” Old inequalities and racial discrimination are repackaged in unexpected forms. But these inventions succeed only because they reflect the visceral approval of Trump’s constituency.

Shock and awe: Trump’s extravagant performance of cruelty, outright racism, and rule by executive decree in apparent defiance of law has been called a “constitutional crisis,” described with such adjectives as “unprecedented,” “un-American,” or “unpatriotic.” But we should not forget that his relentless generalizing operates under cover of excessive legalism. Perhaps excess is key to his success. America has always been excessive—not least in its institutionalization of slavery and its subsequent practices of incarceration, unique in the so-called civilized world.

So let’s take a few steps back. Is his touted ban on Muslims unusual? Not at all. Is his specious argument for torture out of the ordinary? Not at all.

Trump’s ban is brutal, but let’s face it, this country boasts a long, sordid history of evacuation. Blood as menacing taint was used during the forced repatriations of Haitians described as “boat people,” “the new migrants,” the “Haitian stampede.” The forced repatriations of Haitians in 1991–92 and the effects of arguments heard by the Supreme Court in March 1993 concerning those placed in custody at Guantanamo (and later on concerning forced removals, in 1994) were not the first nor would they be the last time the US banned “refugees” from our shores. Let’s not forget that as early as 1824, when Thomas Jefferson reflected on emancipation, he asked how “the getting rid” of “people of color” could best be done? He reckoned that in Haiti one might find fit “receptacles for that race of men.”

We have a heritage in America of torture and exclusion. These practices hide behind a veneer of legitimacy just as an idealized federal Constitution long ago abetted both discrimination and inequality. And though we deplore Trump’s wayward antics as a lapse from our normally high standards of respect for human rights, we need to consider the harm that a broad consensus of this country’s citizens has time and again meted out to those considered disposable, dangerous, or unfit. Again, when we hear that Trump’s executive orders are illegal or beyond the rule of law, we need to look hard and long at this country’s history of abusive treatment and discriminatory actions, especially in its prisons and detention centers.

Trump believes that torture—specifically banned interrogation methods such as waterboarding—works. But can it ever be legal? Let’s recall how George W. Bush attempted through White House lawyers to legalize torture. The infamous “torture memos” redefined the meaning of torture and extended the limits of permissible pain. Yet, and this matters, unprecedented as they appeared at the time, they relied—in their often ingenious legal maneuvers—upon at least 30 years of court decisions which gradually eviscerated the Eighth Amendment’s prohibition of “cruel and unusual punishments.”

Bush needed the so-called “torture memos” (sounds so quaint now) to skirt the rule of law, but this new dispensation needs none of it, since Trump and his cronies have already summoned the sometimes amorphous, always definitive moralistic standards that circumvent the basic tenets of constitutional law. Depending on vague and undefined legal provisos proclaimed by the executive, this regime depends on arbitrary willfulness backed up by police power, or in the case of what Trump calls the “carnage” in Chicago, his tweeted resolve to “send in the Feds.”

Police power is state power, ostensibly activated whenever there is any supposed threat to the health, safety, or welfare of citizens. Since 9/11, the so-called war on terror has widened the net: alleged terrorists, enemy aliens, illegal immigrants, all tarred with the same brush, are easily cast outside the pale of empathy.

Terror and legality go hand in hand. They always have done. Whether we look back to the law of slavery, to the legal fiction of prisoners as slaves of the state, to legalized torture in the “war on terror,” or to the discriminatory profiling and preventive detentions that we characterize as “homeland security,” we see how our society continues to invent the phantasm of criminality, creating a new class of condemned.

The ban and the wall are not exactly new stories. “Give us your tired, your poor, your huddled masses”—unless they’re Mexicans, Central Americans, Haitians, blacks, or other undesirables. As I said, we have a long tradition in this country of excluding people of color. But more recently, we have moved on from mass deportations of illegal immigrants. As a “consequence” (in the parlance of border patrol agents) of entering the United States illegally, many tens of thousands of Latinos are regularly subjected to brutal treatment by US Customs and Border Patrol. Trump’s executive order on January 27th barring immigrants and refugees from seven Muslim-majority countries from entering the United States, supported by nearly 50% of American adults, invites bigotry and its attendant techniques of violence and repression.

Legal rituals give flesh and new life to the remains of lethal codes and penal sanctions. The stigma of slavery—and its legal machinations—has never left us. Its ghosts still haunt our law and hold us in its thrall. The difference now is that Trump incarnates in his person and his words not just prejudice, but bad logic and maleficent law. He is wanton. There’s a lot of history in this word, in its hints of depravity, effeminacy, frivolity, and excess. The term also refers to pitilessness. Glee and malice work together in the abuse of those targeted for humiliation. Trump boasts, blusters, struts, and lies. This lethal affectation is his power.

Colin Dayan is the author of The Law is a White Dog.Dayan

Highlights from the Election 2016 Blog: What’s next?

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This election season, Princeton University Press has been featuring discussion from a variety of authors on the candidates and issues. Here is an overview of the fantastic posts we’ve featured to date. Is there something you’d like to see discussed here? Tweet your suggestions to @PrincetonUPress

Fass

Paula S. Fass wrote on Why Hillary Clinton Doesn’t Get the Youth Vote as well as why she thinks that Young Americans need required national service.

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Amy Binder addresses the surprisingly inciting tactics of Republicans in the past in The Provocative Politics of the Republican Party.

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George C. Edwards III explicates the important traits and knowledge necessary to any candidate in What do We Really Want in a President?

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Thomas Knock lists major books about presidents and politics in his article, Classic Presidential Reads.

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Lynn Vavreck examines John Kasich’s campaign and the power of television ads in Can Kasich Accentuate the Positive?

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Wendy Schiller talks about how other elected positions will affect the winning candidate in her article, The Supreme Court and the battle for the U.S. Senate.

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Jason Stanley discusses how Clinton has accused Sanders of being A Single Issue Candidate and in another article speaks on Donald Trump and Mass Incarceration.

good-bye hegemony reich jacket

Simon Reich looks at each of the major candidates and their experience on foreign policy in his article, Does it matter who wins the election when it comes to the Middle East?

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Jonathan Zimmerman contrasts the secrecy and unreliability that follow Hillary Clinton against the undeniable authenticity of Bernie Sanders in his article on Hillary Clinton and the Perils of Authenticity.

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Zoltan L. Hajnal discusses how despite creating controversy and outrage over his racist and sexist remarks, Trump has only gained popularity, in his article on how Trump’s strategy is nothing new for the GOP.

The Loneliness of the Black Republican

Leah Wright Rigueur discusses the disappointing suspension of Rand Paul’s campaign in Rand Paul’s failed appeal to black voters.

When Movements Anchor Parties

Daniel Schlozman questions why all of the Democratic party’s support has gone to Hillary Clinton in Why Bernie Sanders is getting movements’ cold shoulder.

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Jason Brennan insists that our notions about democracy are completely unreliable in his article, Our relationship to democracy is nonconsensual.

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Ellen Wu on the issue of a ‘model minority’ and Nikki Haley’s current position in that political stereotyping in her post, Nikki Haley and the American Dream.

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Nancy Woloch speaks about women’s healthcare and the laws currently being considered that may negatively affect women nationwide in The Explosive Potential of the Whole Women’s Health Case.

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Nicholas Bloom discusses poverty housing programs and how presidential candidates have recently been addressing these areas in The Perilous Politics of Housing Poor People.

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Chirstopher Kutz points out how loudly the silence of candidates’ speaks on drone strikes and taking responsibility for them in his article Drone warfare: The real moral debate.