As many on this blog know, I rarely respond to criticism of columns that I run in USA Today or other newspapers. As a columnist, I feel that I am given a rare opportunity to express my views and criticism comes with the territory. However, I was taken aback by many of the comments in response to my Sunday column in The Washington Post discussing my proposal for the expansion of the United States Supreme Court. Though the proposal was given serious and supportive reviews by some sites like Forbes, some conservatives immediately assumed that I was a liberal simply upset with the anticipated ruling striking down the individual mandate provision of the health care law. When another law professor and blogger (Ann Althouse) joined this ill-informed and uncivil chorus, I thought I would respond. This blog has always strived to maintain a strict civility rule — distinguishing it from many other blogs by discouraging and sometimes eliminating ad hominem and personal attacks. Yet, I am still surprised by the lack of civility and responsibility by many — particularly fellow lawyers and academics — in responding to such proposals. [Update: Professor Ann Althouse has responded to my call for greater civility with a new blog entitled “Jonathan Turley’s civility bullshit about my calling ‘bullshit’ on his Court-packing plan.” Notably, Professor Althouse does not address the fact that she was completely wrong in claiming that I was motivated by dislike for the anticipated ruling striking down the individual mandate in the health care case. (Apparently both civility and factual accuracy fall into the same “BS” category for Professor Althouse).]
I previously ran the original and longer version of my column to further explain the proposal to expand the Supreme Court to nineteen members. I also have a second column in the Guardian newspaper that further discusses some of these issues.
The column generated a torrent of comments (roughly 1100 on the Post site alone). Many of these comments came from conservatives who immediately assumed that I was a liberal law professor who was just proposing this reform because I expected to the Court to rule against the health care law. Others asked why I did not propose this in the past and just suddenly called for an expansion on the eve of the health care decision.
Just to set the record straight.
First, before the health care law was passed, I spoke on Capitol Hill and expressed my personal opposition to the individual mandate law on federalism grounds though I felt that the Administration would have the advantage in the lower courts due to the current precedent from the Supreme Court. I then wrote and spoke against the individual mandate provision in columns, blog entries, and speeches. I disagreed with academics like Charles Fried on the federalism problems associated with the law. My criticism of the health care law has been quoted by members of Congress and those challenging the law (here and here and here). Indeed, a search of any browser will find hundreds of such references, including criticism of my position from supporters of the law.
Second, I did not just come up with this proposal on the eve of the decision. See, e.g., “Unpacking the Court: The Case for the Expansion of the United States Supreme Court in the Twenty-First Century.” 33 Perspectives on Political Science, no. 3, p. 155 (June 22, 2004). I proposed the expansion of the Supreme Court over ten years ago. I have discussed the reform with members of Congress and it has been debated in prior years.
Third, I have often agreed with the conservatives on the Court in its most controversial decisions. For example, like many in the free speech community, I agreed with the holding in Citizen’s United even though I disagreed with parts of the decision’s analysis and language. I have also said that I felt Arizona has a strong case on the immigration matter in claiming the right to enforce federal laws on illegal status.
Finally, the criticism of these readers and Professor Althouse below appear based on an assumption that the expansion of the Supreme Court would predictably add liberals. There is no reason to make such an assumption since the expansion is spread over a decade. Moreover, the Senate is expected to either continue to be split roughly evenly between the parties or actually go Republican in the next election. There is certainly no reason to assume that the additions to the Supreme Court would include candidates to my liking. Indeed, I criticized Obama’s selections. I do believe that additional justices will add a diversity of experience and viewpoints regardless of philosophical leanings.
After a couple of decades writing as a columnist and doing legal commentary, I have no illusions about people writing anonymously about articles or positions. The Internet often seems to unleash the most vicious side of people who seem to believe that they are relieved of basic decency or civility by anonymity. However, I was surprised by lawyers who made these baseless claims, including claims that are directly contradicted in the article (like the notion that one president would appoint all ten justices or that the number was simply selected arbitrarily). A simple search on the Internet would have shown that I am in fact a critic of the health care law.
That brings us to University of Wisconsin Professor Ann Althouse who ran a blog blasting my column. Althouse makes the point in her headline: “Don’t like the Supreme Court’s decision? Propose a Court-packing plan!” She then states the column pushes for the packing of the court “in anticipation of the Obamacare decision.” She responds to the proposal with “Oh, spare me the bullshit. It’s the same reason. You don’t like the opinions. It was a bad idea then, and it’s a bad idea now.” I must confess that, when one of our regulars sent me this link, I was taken aback. I do not expect such ill-informed and uncivil attacks from a fellow academic. While Althouse writes a conservative blog and has been something of a lightning rod in the past, I would have thought that she would do a little research before going after another professor. In reality, I am calling for the expansion of the Court despite the fact that I would agree with the anticipated decision from the Court striking down the individual mandate. It is precisely the opposite of what is being suggested. Even though I expect to be on the winning side, I still do not believe it should be left to a single swing justice. I understand that some bloggers are given to hyperbole like Althouse asking “If the greatest good is in the greatest number, why not 100? Why not 1000?” — even though the column (and longer original article) addresses this question with reference to how en banc appellate courts work and more importantly the high courts of other countries. (I must confess that I find it odd to see the arbitrarily selected number of 9 defended by objecting that adopting the average size of other top courts is arbitrary). It is the allegation that I am just making this proposal due to my opposition to the expected decision that is beyond the pale in my view. I understand that we cannot always control comments on our blogs (and free speech allows for considerable room of expression), but such attacks from the academic hosts of these blog sites do not present a particularly good model for our students.
In her response to my call for greater civility and responsibility, Althouse responds by calling civility “bullshit” and says that she is “merely passionate and serious.” Rather than simply admit that she was wrong in suggesting that I was motivated by opposition to the expected ruling invalidating the individual mandate provision and a failure to simply confirm my position (which has been widely cited supporting the challengers), she again portrays the column as another example of how the Washington Post publishes columns “from law professors to launder its partisan politics into something with that looks scholarly and thoughtful.” It appears that “passionate and serious” includes falsely stating another professor’s positions on cases as the basis for a personal attack. Indeed, Professor Althouse has yet to inform her readers that she was wrong in suggesting that I disagreed with the conservatives in the health care litigation (and that my proposal was motivated by that opposition). She merely states that “In a later post, I’ll respond to more of Turley’s long, professorly post which denies that his Court-packing plan arises out of a distaste for the Supreme Court’s opinions.” Of course, the obvious suggestion was that the column was timed to anticipate the health care decision — a common theme in comments on her blog. I am not sure what “distaste for the Supreme Court’s opinions” means (though Professor Althouse’s original reference to my dislike for a “decision” is now a distaste for “opinions.”). We all disagree with some of the Court’s decisions — even though I have agreed with the majority of the decisions from this Court. I often side with conservatives on federalism and other areas while disagreeing on other areas like free speech and criminal cases. I disagree with the liberal justices on other cases, but I am not motivated by a desire to pack the Court with libertarians (which is widely cited as closer to my own views on many issues) rather than liberals. It would make no difference to me if this was the Warren Court. It is in my view demonstrably too small. While it may seem highly improbable in today’s rabidly political environment, it is possible to make such a proposal out of principle. Moreover, in a term with a series of 5-4 decisions on major cases and polls showing an increasingly unpopular Supreme Court, the proposal is obviously relevant to the current debate.
I have spent over ten years advocating for the expansion of the Court even though I often agree with the rulings of swing Associate Justice Anthony Kennedy. Putting aside the possibility that my proposal is based on principle rather than partisanship, I have never encountered a law professor advocating for incivility as a type of personal signature (a reaction shared by other leading legal bloggers like Scott Greenfield). I was hoping that raising the issue would result is a bit of self-reflection and possible dialogue on the loss of civility in our national discourse. While I did not expect an apology from Professor Althouse, I did not expect an academic to affirm the value of name calling and incivility — even when the blog is shown to be wrong on critical allegations.
My only point is that the overall commentary following the column shows once again how we have lost the tradition of civil discourse in this country. The tendency today is to personally attack people with whom you disagree and suggest hidden agendas or conspiracies. I am always delighted to see spirited debate following a column, including those with whom I disagree. As in a classroom, I value the debate for its own sake — forcing people to consider alternative views and possibilities. The current tendency to shout down other voices with shrill or sophomoric attacks is degrading our politics and our society.
UPDATE: Professor Althouse has written a long line by line rebuttal to my objections. I encourage you to read it and, I may be missing a subtlety, but I do not expect an apology. You can judge for yourself if it is credible that she now insists that she was not in any way criticizing me personally or suggesting that I am advancing the proposal because of my disagreement with how the Court’s decision. For example, she insists that she was objecting to the Washington Post and not me in a blog where she quotes me in saying that “Roosevelt may have had the right idea for the wrong reason.” Her response to my statement is to say “Oh, spare me the bullshit. It’s the same reason. You don’t like the opinions.” [emphasis add] This follows the title of the blog: “Don’t like the Supreme Court’s decision? Propose a Court-packing plan!” Professor Althouse then goes on, after insisting that she was not questioning my motivations as opposed to the Post, to explore suspicions that I am motivated by my dislike for opinions of the Court — even though I have been advocating for an expansion of the Court for over ten years. In the end, our two statements offer strikingly different views of the need for civility, which Professor Althouse continues to call so much “bullshit.” I obviously do not take that view. We have had valuable exchanges with academics and others (including regulars on this blog) who disagree with my columns. I originally spoke out because of what I viewed to be the uncivil and unprofessional tenor of the blog by Professor Althouse as well as the suggestion of an unprincipled motivation for calling for the expansion of the Court. I confess that I do believe law professors have a higher burden in preserving civility in discourse. We do not always succeed and passions can overcome judgment on occasion. However, as both lawyers and academics, I do not believe that we should not add to the already stifling level of ad hominem attacks on the Internet. You can judge for yourself on the merits of the dispute and everyone can return to the site that most appeals to them.
Jonathan Turley
Now that I think about it a bit more, if anon Frankly would just email Sir Berners-Lee and suggest that he change HTML by removing the link function as it is, adding the new command BLOGCUNT which, like anon suggests, just links to the blog, not a specific page on the blog.
Then add the second command BLOGWHORE which links to a specific page.
Then, after clicking on the command BLOGCUNT people could search like hell for the particular page on the blog, spending more time on the blog than if they had just clicked on the command BLOGWHORE which goes to a specific page.
Damn, that anon has good reason for his/her handle.
Noone knows who the dork really is.
I wish anon would leave links to his/her blog, but in context, not to the whole blog.
To a specific post.
If s/he thinks that is blogwhoring, then change the handle to “prophylactic” so nothing sticky gets on ya.
Ideas are dirty things ya know.
idealist707 1, June 25, 2012 at 5:57 pm
Remember the Bible, Dredd. Remember the Bible.
Seeing ones own failings, the very ones you abuse others for, is try near impossible.
The sins one sees in that fashion here. No names, but they are prominent ones.
====================================
Ok, maybe I get it now. The blogcunt tried to get you to go to his blog while saying if other folks do that they are blogwhores.
Hypocrisy?
Is that what you meant by “Remember the Bible” … ??
idealist707 1, June 25, 2012 at 5:57 pm
Remember the Bible, Dredd. Remember the Bible.
Seeing ones own failings, the very ones you abuse others for, is try near impossible.
The sins one sees in that fashion here. No names, but they are prominent ones.
======================================
The bible?
ID7,
Dredd’s horribly terrible blog is already linked in his name. See that part of the form where WordPress says “Website”. That’s where his blog or a specific post is linked.
The rest of the time should be about giving back. A series of high quality posts that are mostly self-contained, contained 90% of the content, with a nice link to external sources to support your content, or link to external sources otherwise not seen.
To continually spam the blog by posting only links to his own blog is annoying. Furthermore, these are not marked, unless one specifically glances at the status bar of the browser which is not normal behavior, AND IS NOT EVEN POSSIBLE on iPhones, Android devices or many other devices.
And worse, most of his comments are total crap not meant to add to the discussion here, but to drag people to a discussion at his waste of pixels.
This is spam and blogwhoring.
If he wanted to add to this blog AND still link to his manure pool he could make sure each of his posts were pithy, humorous, on target, and link mostly to external sources, and when linking to his own cesspool, clearly mark it like this:
Well anyway, that’s how I feel about self-pleasuring, I’ve written more about this at my blog: Dredd’s pleasure hole here: and then link to it.
Other people do it by saying something like,
“Sorry for the treatise, but it’s something I feel strongly about. You can read more at my blog, link is in the signature above”.
anon 1, June 25, 2012 at 5:57 pm
Dredd, before you divide by zero again,
You’re a blogwhore because all of your links go to your blog, and to nowhere else.
You’re a blogwhore because you don’t tell people that your links are going to your blog.
You’re a blogwhore because most of your commentary is terrible and revolves around sending people to your blog.
This makes you a blogwhore.
Since this this Professor Turley’s blog and he links to many other blogs and articles and images and videos and … he is not a blogwhore.
Please don’t be a blogwhore.
Okay, you may divide by zero again.
============================================
A blogcunt is someone who can’t understand what they find when they go to an HTML link because a blogcunt don’t like what they read because they can’t handle the truth, so they attack the messenger.
It blows their mind.
Anyone who invites people to their blog via legitimate HTML language is like someone who invites people to their homes by giving their address.
A blogcunt is a wretch who has bad ideas they do not want exposed for what they really are.
A blogcunt is someone who manages someone else’s blog without invitation.
Please don’t be a blogcunt.
JT invites people to his blog by listing it when he blogs or writes elsewhere, like thousands of other bloggers do.
It is quite fashionable.
The HTML link mechanism invented by Sir Berners-Lee is the business card and the yellow pages of the language of the Internet.
I bet you see dirty things when you look at inkblots too.
anon 1, June 25, 2012 at 5:57 pm
Dredd, before you divide by zero again,
You’re a blogwhore because all of your links go to your blog, and to nowhere else.
You’re a blogwhore because you don’t tell people that your links are going to your blog.
You’re a blogwhore because most of your commentary is terrible and revolves around sending people to your blog.
This makes you a blogwhore.
Since this this Professor Turley’s blog and he links to many other blogs and articles and images and videos and … he is not a blogwhore.
Please don’t be a blogwhore.
Okay, you may divide by zero again.
============================================
A blogcunt is someone who can’t understand what they find when they go to an HTML link because iA blogcunt don’t like what they read because they can’t handle the truth, so they attack the messenger.
t blows their mind.
Anyone who invites people to their blog via legitimate HTML language is like someone who invites people to their homes by giving their address.
A blogcunt is a wretch who has bad ideas they do not want exposed for what they really are.
A blogcunt is someone who manages someone else’s blog without invitation.
Please don’t be a blogcunt.
JT invites people to his blog by listing it when he blogs or writes elsewhere, like thousands of other bloggers do.
It is quite fashionable.
The HTML link mechanism invented by Sir Berners-Lee is the business card and the yellow pages of the language of the Internet.
I bet you see dirty things when you look at inkblots too.
idealist707 1, June 25, 2012 at 4:41 pm
Dredd,
Don’t kick the NC legislature. Thay can’t do any better. Both houses are repugnants.
Besides, it practical this way. The bridges don’t have to be raised until the cars get wet inside passing.
And the ferries in the sounds do just fine anyway.
========================================
There are two repugnants bloggers here, anon and Frankly.
They are those that do not want anyone to read another blog for any reason between their ears.
That is why they post full articles rather than links to articles.
What are links for except to share other knowlege?
No one mentioned the NC legislature on this blog, so I did, as I do with a lot of subjects and issues they cannot fathom.
I did it in a link.
I use the blogwhore language HTML.
That way one can skip the link or use the link.
Their way is to post 5 or 6 screens of s h i t that torture folks’ eyes as they laboriously scroll down down down.
They need to write Sir Berners-Lee and tell him to take the h.r.e.f. out of HTML.
Then they won’t sweat and swear anytime text changes colors, inviting the pure saints into the red light district.
ANON,
Have you read some of the stuff Dredd links to?
Did you understand it? Were you ever amazed by it?
If not, keep on dividing by infinity.
PS He does not wave it in your face, and if you mark it then you can see where it leads. What more do you want?
He snares, but does not block progress.
Come on, complain about my wordiness instead.
You, who is perfect—–model of a a–hole.
POT vs KETTLE, both black but different shapes.
Dredd, before you divide by zero again,
You’re a blogwhore because all of your links go to your blog, and to nowhere else.
You’re a blogwhore because you don’t tell people that your links are going to your blog.
You’re a blogwhore because most of your commentary is terrible and revolves around sending people to your blog.
This makes you a blogwhore.
Since this this Professor Turley’s blog and he links to many other blogs and articles and images and videos and … he is not a blogwhore.
Please don’t be a blogwhore.
Okay, you may divide by zero again.
Remember the Bible, Dredd. Remember the Bible.
Seeing ones own failings, the very ones you abuse others for, is try near impossible.
The sins one sees in that fashion here. No names, but they are prominent ones.
[youtube http://www.youtube.com/watch?v=cZNJ6s51950&version=3&hl=en_US&rel=0%5D
Gosh JT,
Your commenters here call me a blogwhore because I link to my blog from time to time.
That would mean you are a blogwhore if you tell people about your blog when posting articles or comments wouldn’t it?
Here is what it looks like when commenter anon or Frankly use their blogwhore cognition to brainwash themselves while trying to figure out my links:
David,
Got a book of them?
Dredd,
Don’t kick the NC legislature. Thay can’t do any better. Both houses are repugnants.
Besides, it practical this way. The bridges don’t have to be raised until the cars get wet inside passing.
And the ferries in the sounds do just fine anyway.
“An old Grandfather said to his grandson, who came to him with anger at a friend who had done him an injustice,”Let me tell you a story: I have felt a great hate for those that have taken so much, with no sorrow for what they do. But hate wears you down, and does not hurt your enemy. It is like taking poison and wishing your enemy would die. I have struggled with these feelings many times.”
He continued, “It is as if there are two wolves inside me; one is good and does no harm. He lives in harmony with all around him and does not take offense when no offense was intended. He will only fight when it is right to do so, and in the right way.
But the other wolf, ah! He is full of anger. The littlest thing will send him into a fit of temper. He fights everyone, all the time, for no reason. He cannot think because his anger and hate are so great. It is helpless anger, for his anger will change nothing. Sometimes it is hard to live with these two wolves inside me, for both of them try to dominate my spirit.”
The boy looked intently into his Grandfather’s eyes and asked, “Which one wins, Grandfather?”
The Grandfather smiled and quietly said, “The one I feed.” ”
~ cherokee parable
Woosty,
Thanks. But I am already a monster, and am trying to teach it the limits—daily exercise actually.
I DO agree that we need that “headsup” signal when we are atttacked.
My hope was the one could learn to control that fear reflex (that I get when attacked or feel attacked), so as to maintain in civil situations the capability to think:
“Keep cool. Look at the content. Attack that. Not the person.” But the brain freezes up anyway.
Happened today in the grocery store queue and my raaction (suppresse) was to rip off some skin, verbally speaking.
And you, how do you handle your toes being tranmpled?
PS Does the heat and humidity and the doltery make it more difficult?
anon 1, June 25, 2012 at 11:20 am
Hey Dredd,
—————————-
Frankly 1, June 25, 2012 at 1:31 pm
anon – rule 1 of this blog NEVER
===================
There are no published rules on this blog.
Dorks like you make “duh rules” up as you go.
Like the North Carolina legislature making sea level rise discussions of an amount above 8″ illegal.
You have outlawed HTML, backed by the law of the god of anal cavities.
You are seriously in need of some counsel, so call Yo Momma, the patron saint of the hypocrites.
WARNING: do not read such links unless you are smarter than a 5th grader.
This is not meant to be a critique on Professor Althouse, but if one read her in her early days, it was clear she is not all that enamored of law and would prefer to be a Critic of Popular Culture (in the best sense of the word critic). She finds herself, though, in a tenured position as a law professor and runs with it. So it goes.
She sometimes explains the politics of courts and probably does that more often than explaining the law itself. I find that actually an interesting point of view.
Her popular culture blogs are often insightful as well. Not all of them. Not all of them well written, or accurate, or free of bullshit. But some of them.
In the past year or so, she’s been obsessed with find Saul Alinsky under every rock, because she knows that current liberals get extension credit by taking his online courses and communicating via alinksy.net
Throughout all of this, she often does a good job of pointing out liberal hypocrisy, though rarely seeing it from conservatives. This is what I would expect from her since she is a youstabee that feels kicked out by modern Democrats. (To be honest, I feel sympathetic to this point of view more than I wish I was. Interactions with the regular and more dumbassed of this blog makes it clear that modern liberals ain’t the independent thinkers they boast of and are mainly swarm and pack animals)
Anyway, that’s her oeuvre.
“Interactions with the regular and more dumbassed of this blog makes it clear that modern liberals ain’t the independent thinkers they boast of and are mainly swarm and pack animals”
I’ve heard that said sometimes of misogynists.
I tried to leave the following at Ms. Althouse’s blog, but ot so curiously I was permitted to do so.
“Ms. Althouse presents a poor case for herself as both a Law Professor and as a competent researcher. Were she not so sloppy and actually done some research, rather than writing her personal pre-judgments, she would know that Professor Turley is hardly a “liberal” and actually has agreed with this particular SCOTUS on many issues, both in writing and in speech. My suspicion is that in the ABA vote for best legal opinion blog, her vote was in double digits and Professor Turley’s triple digit vote won. Thus she is jealous and quite probably unsupportedly arrogant. We will see if this blog actually allows free speech, or is censored to keep its author’s intemperate feelings from being ruffled”.