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Journal Article

Democracy and Disdain

01 Nov 2012-Harvard Law Review (Harvard Law Review Association)-Vol. 126, Iss: 1, pp 1-71
TL;DR: Karlan et al. as discussed by the authors pointed out that when the political branches take a step beyond what the Court's existing cases "have allowed," the presumption of constitutionality disappears, to be replaced by a heavy burden of justification to show authorization under the Constitution.
Abstract: THE SUPREME COURT 2011 TERM FOREWORD: DEMOCRACY AND DISDAIN Pamela S Karlan CONTENTS I THE VERY WORLD OF ALL OF US: THE REVOLUTION OF THE WARREN COURT ADemocracy and the Electoral Process BTrusting Congress CThe Democratization of Constitutional Enforcement II AS ON A DARKLING PLAIN: THE COUNTERREVOLUTION OF THE ROBERTS COURT AProtecting Spenders and Suspecting Voters: The Roberts Court and the Political Process B Suspecting Congress CUndermining Enforcement III SHINE, PERISHING REPUBLIC Sometimes the Justices seem barely able to hide their disdain for the other branches of government Take the oral argument three Terms ago in Northwest Austin Municipal Utility District No One v Holder Justice Scalia pointed to the overwhelming congressional vote in favor of amending and extending section 5 of the Voting Rights Act of 1965--the "crown jewel" of the Second Reconstruction--as a reason not for deference, but for suspicion: JUSTICE SCALIA: What was the vote on this 2006 extension --98 to nothing in the Senate, and what was it in the House? Was -- MR ADEGBILE: It was--it was 33 to 390, I believe JUSTICE SCALIA: 33 to 390 You know, the--the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there (1) In this Term's argument in Arizona v United States, (2) an important immigration case, Chief Justice Roberts cut off Solicitor General Donald B Verrilli Jr before Verrilli was able to utter a complete sentence (3) And during argument in National Federation of Independent Business v Sebelius (4) (NFIB), Justice Kennedy speculated that when the political branches take a step beyond what the Court's existing cases "have allowed," the presumption of constitutionality disappears, to be replaced by "a heavy burden of justification to show authorization under the Constitution" (5) The Justices are becoming umpires in the tradition of Bill Klem, who when asked whether a particular pitch was a ball or a strike, replied that "It ain't nothin' till I call it" (6) It was not always so The opening day of the marathon oral argument in the Affordable Care Act (7) cases--surely the defining decision for the Roberts Court so far--happened to be the fiftieth anniversary of what Chief Justice Warren called "the most important case" of his "tenure on the Court" (8): Baker v Carr (9) Why Baker, and not Brown v Board of Education (10) or Miranda (11) or Gideon (12) or New York Times Co v Sullivan? (13) Well, because Baker set in motion the reapportionment revolution--a centerpiece of the Warren Court's "participation-oriented, representation-reinforcing approach to judicial review" (14) The animating impulse behind many of the Warren Court's major decisions was a commitment to civic inclusion and democratic decisionmaking This impulse is captured not only by the Reapportionment Cases themselves, where the Court focused on equality in voting and problems of minority entrenchment, (15) but also by the way the Court tied public education to civic participation in Brown (16)and treated the landmark legislation of the Second Reconstruction as an important tool in realizing constitutional values (17) The Warren Court understood the problems and the promises of politics from its own experience The Court numbered among its members former senators, representatives, and state legislators, a former governor and a former mayor, and former cabinet members (18) Earl Warren himself was a politician of a kind we can scarcely imagine today Elected Governor of California as a Republican in 1942, (19) he proposed that California become the first state "to create and support a system of compulsory health insurance" (20) Although the proposal was defeated by one vote in the Assembly, (21) his health care agenda, among other things, garnered Warren such widespread admiration that when he ran for reelection in 1946, he won both the Republican and Democratic primaries …

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Citations
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Journal ArticleDOI
01 May 2017
TL;DR: This article conducted an experiment to probe two alternative answers: the science comprehension thesis (SCT), which identifies defects in the public's knowledge and reasoning capacities as the source of such controversies; and the identity-protective cognition thesis (ICT), which treats cultural conflict as disabling the faculties that members of the public use to make sense of decision-relevant science.
Abstract: Why does public conflict over societal risks persist in the face of compelling and widely accessible scientific evidence? We conducted an experiment to probe two alternative answers: the ‘science comprehension thesis’ (SCT), which identifies defects in the public's knowledge and reasoning capacities as the source of such controversies; and the ‘identity-protective cognition thesis’ (ICT), which treats cultural conflict as disabling the faculties that members of the public use to make sense of decision-relevant science. In our experiment, we presented subjects with a difficult problem that turned on their ability to draw valid causal inferences from empirical data. As expected, subjects highest in numeracy – a measure of the ability and disposition to make use of quantitative information – did substantially better than less numerate ones when the data were presented as results from a study of a new skin rash treatment. Also as expected, subjects’ responses became politically polarized – and even less accurate – when the same data were presented as results from the study of a gun control ban. But contrary to the prediction of SCT, such polarization did not abate among subjects highest in numeracy; instead, it increased. This outcome supported ICT, which predicted that more numerate subjects would use their quantitative-reasoning capacity selectively to conform their interpretation of the data to the result most consistent with their political outlooks. We discuss the theoretical and practical significance of these findings.

323 citations

Journal ArticleDOI
TL;DR: This paper conducted an experiment to probe two alternative answers: the Science Comprehension Thesis (SCT), which identifies defects in the public's knowledge and reasoning capacities as the source of such controversies; and the Identity-Protective Cognition Thesis, which treats cultural conflict as disabling the faculties that members of the public use to make sense of decision-relevant science.
Abstract: Why does public conflict over societal risks persist in the face of compelling and widely accessible scientific evidence? We conducted an experiment to probe two alternative answers: the “Science Comprehension Thesis” (SCT), which identifies defects in the public’s knowledge and reasoning capacities as the source of such controversies; and the “Identity-protective Cognition Thesis” (ICT) which treats cultural conflict as disabling the faculties that members of the public use to make sense of decision-relevant science. In our experiment, we presented subjects with a difficult problem that turned on their ability to draw valid causal inferences from empirical data. As expected, subjects highest in Numeracy — a measure of the ability and disposition to make use of quantitative information — did substantially better than less numerate ones when the data were presented as results from a study of a new skin-rash treatment. Also as expected, subjects’ responses became politically polarized — and even less accurate — when the same data were presented as results from the study of a gun-control ban. But contrary to the prediction of SCT, such polarization did not abate among subjects highest in Numeracy; instead, it increased. This outcome supported ICT, which predicted that more Numerate subjects would use their quantitative-reasoning capacity selectively to conform their interpretation of the data to the result most consistent with their political outlooks. We discuss the theoretical and practical significance of these findings.

317 citations

Posted Content
TL;DR: This article examined a remedy for a defect in existing accounts of public risk perceptions: despite their intensity and disruptiveness, such controversies occur less frequently than the affect heuristic and the cultural cognition thesis seem to predict.
Abstract: This paper examines a remedy for a defect in existing accounts of public risk perceptions. The accounts in question feature two dynamics: the affect heuristic, which emphasizes the impact of visceral feelings on information processing; and the cultural cognition thesis, which describes the tendency of individuals to form beliefs that reflect and reinforce their group commitments. The defect is the failure of these two dynamics, when combined, to explain the peculiar selectivity of public risk controversies: despite their intensity and disruptiveness, such controversies occur less frequently than the affect heuristic and the cultural cognition thesis seem to predict. To account for this aspect of public risk perceptions, the paper describes a model that adds the phenomenon of culturally antagonistic memes — argumentative tropes that fuse positions on risk with contested visions of the best life. Arising adventitiously, antagonistic memes transform affect and cultural cognition from consensus-generating, truth-convergent influences on information processing into conflictual, identity-protective ones. The paper supports this model with experimental results involving perceptions of the risk of the Zika virus: a general population sample of U.S. subjects, whose members were not polarized when exposed to neutral information, formed culturally polarized affective reactions when exposed to information that was pervaded with antagonistic memes linking Zika to global warming; when exposed to comparable information linking Zika to unlawful immigration, the opposed affective stances of the subjects flipped in direction. Normative and prescriptive implications of these results are discussed.

93 citations

Journal ArticleDOI
TL;DR: The authors examines a remedy for a defect in existing accounts of public risk perceptions: despite their intensity and disruptiveness, such controversies occur less frequently than the affect heuristic and the cultural cognition thesis seem to predict.
Abstract: This paper examines a remedy for a defect in existing accounts of public risk perceptions. The accounts in question feature two dynamics: the affect heuristic, which emphasizes the impact of visceral feelings on information processing; and the cultural cognition thesis, which describes the tendency of individuals to form beliefs that reflect and reinforce their group commitments. The defect is the failure of these two dynamics, when combined, to explain the peculiar selectivity of public risk controversies: despite their intensity and disruptiveness, such controversies occur less frequently than the affect heuristic and the cultural cognition thesis seem to predict. To account for this aspect of public risk perceptions, the paper describes a model that adds the phenomenon of culturally antagonistic memes – argumentative tropes that fuse positions on risk with contested visions of the best life. Arising adventitiously, antagonistic memes transform affect and cultural cognition from consensus-generating, tr...

84 citations

DissertationDOI
01 Sep 2018
TL;DR: In this paper, the authors make the claim that political trust can, and should, lie at the very centre of social rights enforcement by courts and draw on both theoretical and empirical social science scholarship on trust and how it functions in contemporary societies.
Abstract: This thesis addresses the long-debated question of courts’ proper role in enforcing constitutional social rights; and it does so from a new perspective – that of political trust. Its central argument is that the concept of political trust – as it has been conceptualised and theorised in the relevant social science literature – has normative potential for defining such a role for courts. Specifically, I argue that courts, in enforcing constitutional social rights, can, and should, use political trust as an adjudicative tool, employing it to develop a standard to which government, in its provision of social goods and services to the public, can and will be held. To make out this argument, I draw on both theoretical and empirical social science scholarship on trust and how it functions in contemporary societies. I suggest, based on that scholarship, that we can expect constitutional social rights adjudication by courts to be able to impact (and in the right circumstances, to foster) political trust. And following from this impact, in combination with the well-recognised value of political trust by social scientists as well as a host of other principled reasons, I make the claim that political trust can, and should, lie at the very centre of social rights enforcement by courts.

46 citations

References
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Journal ArticleDOI
TL;DR: There is no single positive political theory of congressional decisionmaking as discussed by the authors, and there is no universal formal theory for congressional action that is well suited to be applied in any of these cases, and we doubt that it is well situated to do so in the future.
Abstract: or as applied in any of these cases. We doubt that it is well situated to do so in the future. Leaving such inconveniences aside, the embrace of a universal formal theory of congressional action would be wrongheaded in any event. In our view of the state of political science, no theory of legislative decisionmaking exists that is capable of addressing the issues adequately. For example, positive political theories of legislative politics, which extend well beyond public choice theory of the 1960s and 1970s, have become an important branch of legislative scholarship in political science." 3 Positive political theories treat legislators as instrumentalist and, given a set of assumptions about the rules or institutional setting in which they operate, deduce propositions about legislators' behavior, institutional choices, or policy outcomes. There are a variety of positive theories of legislative politics, however. They differ in assumptions about the political motivations of legislators (policy, reelection, or progressive ambition) and about the identity of other players relevant to goal achievement (the President, interest groups, the electorate, the courts, and so on). They also differ in what they seek to explain (individual voting behavior, the structure of committees and parties, or policy outcomes). Simply stated, there is no single positive political theory of legislative decisionmaking. Rather, a variety of theories have emerged to address various aspects of legislative politics. Our approach reflects this state of affairs in the theory of legislative decisionmaking.' 4 While there is reason to believe that members are at least partly instrumental, it is unwise for us, or the courts, to attribute any particular motivation to members of Congress. There is no basis, as a general rule, to assume that interest groups, the electorate, parties, or any other political actors dominate the legislative process. In the absence of a single theoretical standard for evaluating the Court's treatment of the legislative process, we turn to the more burdensome, but 112. For example, Bill Eskridge's study of instances in which Congress has overridden Supreme Court decisions by statute found that states were among the most successful petitioners for such congressional action, William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 348-49 (1991). 113. See, e.g., Symposium, Positive Political Theory and Public Law, 80 GEO. L.J. 457 (1992). 114. See, e.g., Kenneth A. Shepsle & Barry R. Weingast, Positive Theories of Congressional Institutions, in POSITIVE THEORIES OF CONGRESSIONAL INSTITUTIONS 5 (Kenneth A. Shepsle & Barry R. Weingast eds., 1995). Imaged with the Permission of Yale Law Journal [Vol. Ill: 1707 1730 HeinOnline -111 Yale L.J. 173

41 citations

Journal ArticleDOI
TL;DR: This paper argued that the Court's recent Section 5 jurisprudence suppresses this important dialogue between the judiciary and the popular branches of the federal government, and pointed out that the Constitution is not an exclusively legal document.
Abstract: In Board of Trustees of the University of Alabama v. Garrett, the Court held that Congress can not exercise its power under Section 5 of the Fourteenth Amendment to enact legislation enforcing the provisions of the Fourteenth Amendment unless Congress first identifies a history and pattern of judicially redressible constitutional violations. Garrett rests on the premise that the Constitution is a legal document that speaks only to courts. This essay criticizes this "juricentric" view of the Constitution, which in the years since City of Boerne v. Flores has come increasingly to shape the Court's Section 5 jurisprudence. We argue that the Constitution is not an exclusively legal document. The Constitution also possesses significant political dimensions, because it expresses the nation's understanding of its defining values and commitments. To interpret the Constitution is therefore to exercise both legal and political authority. The Court must exercise what Brandeis called "statesmanship" in order to mediate the tension between these two forms of authority. The Court's recent Section 5 cases overturn more than a generation of such statesmanship, in which the Court crafted doctrine that gave substantial leeway to the political branches of government to interpret constitutional rights without compromising either judicial review or judicial supremacy. Virtually the same Court that decided Cooper v. Aaron also decided Katzenbach v. Morgan, which deferred to congressional efforts to exercise its power under Section 5. In the period between 1964 and 1997, the Court systematically blurred the relationship between statutory and constitutional standards, so that the Court could simultaneously affirm Section 5 legislation without committing itself to any definitive interpretation of Section 1 of the Fourteenth Amendment. In this way, the Court could encourage the participation of the popular branches of the federal government in the creation of constitutional culture, which in turn profoundly influenced the Court's own understandings of the Fourteenth Amendment. The Court's recent Section 5 jurisprudence suppresses this important dialogue between the judiciary and the popular branches of the federal government.

22 citations