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Wednesday, Oct 01, 2014
Commentary

Blind justices


Published:

Nobody should be surprised when the sharp teeth come out at the Supreme Court in March and April. This is, after all, the time in which many of the “easy” cases have been announced and the sticky polarizing 5-4 decisions start coming down in hurricane blasts. ’Tis the season for sparky dissents, and the spring of 2014 has been full of them. But one thing strikes me amid all the sharp language deployed by the justices in the minority this spring: accusations that the justices voting in the majority in hot-button, politically fraught cases are “blind.”

In some cases the accusations seem to be about the law — justice is blind, etc. — but more and more, what the dissenters are implying (or straight out saying) is that the majority is simply “blind” to reality, to how things work, to the world as the rest of us experience it. It’s not legal blindness. It’s more like life-blindness, and it signals a growing sense that the increasing isolation of the two wings of the court is beginning to show in the doctrine.

Consider, for example, Justice Elena Kagan writing last week in the controversial decision to allow sectarian prayer before legislative sessions. Responding on behalf of the court’s four liberal justices, and clearly irked at Justice Samuel Alito, who called her concern for members of minority religions “niggling,” Kagan accused the majority of suffering from not just one, but “two kinds of blindness.” She went on to unpack that accusation. “First, the majority misapprehends the facts of this case, as distinct from those characterizing traditional legislative prayer. And second, the majority misjudges the essential meaning of the religious worship in Greece, New York’s town hall, along with its capacity to exclude and divide.”

Now couple that with Justice Sonia Sotomayor’s much-discussed dissent a few weeks earlier in a case upholding Michigan’s ban on the use of affirmative action in higher education. Sotomayor accused the majority of declining “to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” (This is a doubly freighted accusation in a case that turns on whether the Constitution is indeed “color-blind.”) Sotomayor was responding to Justice Anthony Kennedy’s claim that “in a society in which those lines are becoming more blurred, the attempt to define race-based categories ... is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend.” Sotomayor then launched into an elaborate and deeply personal recitation of what racial divisions look like from her side of the bench.

In both cases, the minority justices accuse the majority (Kennedy as it happens) of failing to see what they see, although they are looking at the same data. Indeed both Kagan and Sotomayor, in a deeply personal sense, seem to be calling out the majority for failing to see them.

For good measure, we also had Justice Scalia using the language of blindness only a few weeks ago in his dissent in an EPA case that overturned a D.C. Circuit ruling and revived the EPA’s 2011 cross-state pollution rule.

Responding to Justice Ruth Bader Ginsburg’s contention in her majority opinion that the EPA policy contained a “gap” in the statute on how states should control air pollution, Scalia fired back that anyone who saw a gap in the language was, well, blind.

As he wrote: “The Good Neighbor Provision contains a gap only for those who blind themselves to the obvious in order to pursue a preferred policy.” It’s worth noticing that in all three cases the blindness alleged is willful blindness; the claim is that the majority is deliberately failing to see what everyone else knows to be true.

Now, I haven’t yet undertaken any kind of systematic study on the use of the word “blind” in judicial opinion writing over the centuries, and I look forward to hearing from the folks who have. But it strikes me that when three jurists accuse their colleagues of either shutting their eyes or being willfully blind in the course of three weeks, something new is going on. Particularly when in each instance, the dissenter is describing a world that is amply obvious to them: Sotomayor’s world of racial discrimination, Kagan’s world of religious sectarianism, and Scalia’s world of unchecked federal agency power grabs.

What should we think when the justices accuse each other of being blind?

Maybe it’s a compliment. The iconic image of Lady Justice has her wearing a blindfold for a reason. But these are not cases in which the justices are blaming one another for missing a line in an opinion, or distorting precedent.

In all three cases the claim is essentially that their entire worldview is stunted somehow. And it’s an argument that dovetails perfectly with the growing sense of isolation and polarization of the left and right wings of the court.

Adam Liptak writes persuasively in The New York Times that the high court is as sharply polarized and ideological as the rest of the government and the rest of the country.

This isn’t just about the justices’ voting records and the ways in which they dovetail with those of the men who appointed them. It’s about a contraction of the judicial field of vision that ranges from professional backgrounds to legal education. It extends beyond just judicial decision making, writes Liptak, and into judicial reading material, the partisan hiring of law clerks, and ever-more-partisan public appearances.

And as the world of the justices shrinks down along more rigid and immutable ideological lines, accusations of blindness on the part of the other side will become almost inevitable.

Cries that “you can’t see what I see” or “you don’t see what I live” in issues ranging from vote-suppression, church-state entanglement, religious liberty, racial discrimination and so on, are to be expected when, perhaps on either side, justices and judges look out upon a world that reflects back almost completely their own views and convictions.

The philosophers call this epistemic closure — you can’t see the world as others experience it if you limit yourself to people just like you.

If the media you consume and the events you attend and the friends you keep all share your values, it’s not hard at all to believe that this is the totality of the world.

These new claims of blindness are not about legal or even moral blindness. They come from a sense at each side of the court that aspects of life as the justices themselves live it, doesn’t even exist for the other side.

This profound polarization raises real questions, not just about the future of the court and the possibility of justice divorced from politics, but about the deeper possibility of ever achieving “justice for all.”

As Professor Ian Haney López of the University of California-Berkeley argued after the affirmative action case last month:

“Blindness toward group dynamics makes perceiving the demands of justice all but impossible.”

I have long argued that the justices of the Supreme Court need to open up their proceedings so that Americans of every race, socio-economic class, religion and background can watch them do their daily work.

But more and more I think the high court needs to throw open its doors and pull back its curtains for a more important reason: so that inside the marble palace it can start to see — truly see — what America looks like, even when it looks nothing at all like them.

Dahlia Lithwick writes about the courts and the law for Slate.

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