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
“Anon,
you have been here for awhile and guess what nobody has censored your speech. What you suffer from is a case of being able to dish it out but you can’t take it. ”
Oh Mike, you idiot putz. I’ve never accused anyone of censoring my speech, and even commended Professor Turley yesterday for his policies here.
But your favorite trope is to out the Republican trolls. You’ve accused me of it many times, even as you protest you’re not a liberal but an iconoclast. You can’t believe I could disagree with you and still be a liberal. Heavens forfend!
And here I’m clearly pulling your chain, and you get your panties so twisted about it you have to complain I can’t dish it out or take it myself. Very very insightful Mike, as always.
I do admit I find it tragic that several of the examples that Althouse supporters use to demonstrate incivility here at the blog are posts (not comments) made by the guest bloggers.
I am a big fan of Professor Turley, but he’s shown terrible taste and at times terrible judgment in his guest bloggers.
Is MikeS a real person? Did I get everybody’s attention?
Good.
Cuz here is old news and OS is reporting the latest “invasion”. There is a computer award, didn’t it get mentioned here (Dredd?) that is awarded the computer team whose computer program can imitate humans the best.
Now some, at least, 6 months ago, I ran into one person on another site (before here) where I became convinced that it was a computer program. Not only that, it stopped trolling me with it’s stock phrases when I called it on this suspicion.
Coincidently, there was revealed, about that time, that the US DOD had developed systems whereby one operator could control the dialogue being done by up to 25 “persons” on different sites on the net.
To me “massive registrations” does not speak of massive Koch money paying for live people, but massive manipulation by simulated “public opinion”. Ie corruption of the internet’s basic strength. The viral effect, the word of mouth by whatever social site you use.
The questions are how many agencies (public, private, corp, etc. are doing it, how saturated is the net becoming, and what effect is it having???
Is this the ultimate attack on internet and social networking? And the Custer’s last stand for democracy. And we who thought that internet would save us.
Excuse me my DOD computer program needed some downtime for an upgrade. Now I’m back with more liberal talking points so I can support that Libyan Communist Fascist who is running our country.
Anon,
Actually most of the guest bloggers are not real despite the names. We have been created by Professor Turley to make himself look better by comparison and only incidentally to really annoy you.
Chris,
Your assumption I was referring to you was wrong but you blame your mistake on my lack of clarity. My remark was facetious. As for my not addressing your comment, I did and with links to JT ‘s previous articles which you ignored. Let’s explore your premise further though. You say it is not a time when SCOTUS can be discussed without rancor and so assume JT should have expected to be attacked. I suspect he did expect attack, but was surprised at the method of attack used by Althouse, so what was the profundity of your point? I’m sorry that the content of the debate here disappointed someone with your erudition, or at least pretense of same.
In a general sense (I’m not just directing this at you Chris) one of the things that seems to amaze those who drop in here is that just because they comment they are entitled to respectful replies. Sometimes comments are inane and ignored. Other times they are aggressively obnoxious and ridiculed, but we all think we deserve attention don’t we? Many also believe in the false meme of equivalency, best illustrated by those who think ID deserves equality with evolutionary theory. Not only are all ideas not equivalent, but some are so stupid that all they deserve is aspersion. Criticizing JT as a liberal dogmatist is stupid snd deserves derision.
well said, professor
“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.” BS! See, e.g., http://jonathanturley.org/2012/02/12/lying-for-jesus-the-abortionbreast-cancer-link/
Mike Spindell
1, June 26, 2012 at 4:00 pm
It seems we have been invaded by a plethora of unfamiliar persona all using the same talking points. Coincidence? Perhaps, but I doubt it. If they’re being paid for this though, someone is being cheated out of their money.
———————————
Mike,sssssshhhhhhhh…. 😉
“Feel free to let me know what part of my comment @1:04 constitutes a “talking point”.
Pending your reply, I’ll simply say that your thread-cop act doesn’t do much to advance the discourse here.”
Well, I’ve been here for a little while, and in fact it is Mike’s job to point out that if you aren’t using his preferred talking points, you’re most likely a troll.
So though you may think his thread-cop act doesn’t do much to advance the discourse here, I assure you, it is no act.
Mike Spindell said…
It seems we have been invaded by a plethora of unfamiliar persona all using the same talking points.
Feel free to let me know what part of my comment @1:04 constitutes a “talking point”.
Pending your reply, I’ll simply say that your thread-cop act doesn’t do much to advance the discourse here.
Also, I haven’t seen much in the way of defenses of Althouse. But it’s a comfortable narrative, eh?
“Feel free to let me know what part of my comment @1:04 constitutes a “talking point”.”
Chip,
By the same token please let me know what part of my comment was directed at you? Also, the term “thread cop” would imply that somehow I’ve limited yours, or someone else’s right of free speech on this blog, just how have I done that? At Ms. Althouse’s blog as I posted well above I was allowed to make a comment. By the very act of my replying to your comment, it would seem that whatever you wish to say was permitted.
“Well, I’ve been here for a little while, and in fact it is Mike’s job to point out that if you aren’t using his preferred talking points, you’re most likely a troll.”
Anon,
you have been here for awhile and guess what nobody has censored your speech. What you suffer from is a case of being able to dish it out but you can’t take it. By Chip’s seeming hurt feelings I would think he suffers from it too and he didn’t even have my comment directed at him.
“This is not a moment in history when discussions about the optimal size of the Supreme Court are going to be engaged dispassionately. Surely you know that. So perhaps you can understand why people might question your timing.”
Chip,
Which people would that be exactly who would be questioning JT’s timing? This is especially the case since JT has expressed himself on this issue in the past and some of his current critics might be surprised where he’s stood:
http://jonathanturley.org/2010/03/31/is-the-individual-mandate-constitutional/
http://jonathanturley.org/2011/11/14/cert-granted-supreme-court-accepts-health-care-challenge/#more-41597
Professor Turley is a Constitutional Law advocate, who continuously comments on the state of our legal system as he sees it. That some partisans
might attack him should really not be his concern should it, as long has he is consistent in his views. Ms Althouse is a partisan and as indicated by her blog an intemperate one to boot.
However, while I think your point is Not well taken and slightly specious, I thought your comment was a reasonable and civil one to make. That you think I was writing about you reflects your paranoia and little else.
Mike, a number of liberal and progressive sites have had a massive influx of new users in the past few days. Daily Kos had about 4,000 new users register in one day–something that has never happened before. When many of them start making comments, they all seem to be parroting the same right wing talking points. You do not have to be paranoid to believe they are out to get you. One thing that occurs to me is that some of Althouse’s supporters (or students) are trolling sites that might be critical of her.
“Mike, a number of liberal and progressive sites have had a massive influx of new users in the past few days. Daily Kos had about 4,000 new users register in one day–something that has never happened before.”
OS,
That is interesting news I wasn’t aware of but now makes sense of what I am observing here.
It seems we have been invaded by a plethora of unfamiliar persona all using the same talking points. Coincidence? Perhaps, but I doubt it. If they’re being paid for this though, someone is being cheated out of their money.
The ” civility bullshit” reference and tag on Althouse refers to the fact that the left always calls for civility from the right, but does not feel that they are bound by the same constraints. For example : Frankly
1, June 25, 2012 at 9:49 am :”You have to understand, the money for slop buckets like box-wine Annie comes from intentionally misunderstanding earnest thought. A blind adherence to the GOP and its socially retarded agenda is the key to staying on the wingnut welfare train.” Is that what passes for civility on the left?
“the left always calls for civility from the right”
People who use the word “always” in political discussion tend to be childish in perception.
“I reported back to Woosty that I had experienced and noted such an effect in myself.
Asked Wóosty for a remedy as to retaining rational control and resisting the snapping reflex.
Don’t think we arrived at one.”
———————————-
right, and I said, we should acknowledge that point and be careful not to obliterate the intuition that leads to it’s triggering. That said, chances are that if you are experiencing an amydalic shut down that you may well be in unfamiliar territory and/or under attack and getting help is the thing to do. ie; give control over to those who are best capable with handling the attackers…unless you live in the kind of society that values ‘attack’ more than they value ‘society’….
Professor Turley,
Chip S. at 1:04 makes the key point about the timing of the Post’s decision to print your article. It appears that your long held opinion about a larger court was presented by the Post in service of a greater agenda.
Professor Althouse was rude and did not research your history on the size of the court. But I think you owe your readers a defense against the charge that you were used by the Post.
Just saw Prof. Turley’s post.
Congrats to the kids and how ironic, on a post about civility we need to be reminded to be civil.
I remember when the dems confirmed Roberts. They acknowledged he was a conservative but thought he was a person who had integrity and would viote law, not politics.
Dems are naive. Trust in the real world is fine, in politics, not so good.
And I remember when the Dems coined the term “borking” and lynched Thomas. The idea that Dems are naive is naive.
Jonathan Turley – you protest furiously that your are not a liberal and that you are not just writing becuase you dont like the current makeup of the court, but you give away these claims for the BS they are with lines like this one:
>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.
Oh really? The court is more unpopular than it ever was? You mean to say that when the court is more liberal, it was more popular? You’re projecting your own viewpoints. Arrant BS, and Althouse was right to call you out on it.
Moreover, what’s with the multiple “anticiapted ruligtn striking down the individual mandate” language? Again, projecting what you want to see? Who says the cout wont strike down the whole thing?
“Oh really? The court is more unpopular than it ever was? You mean to say that when the court is more liberal, it was more popular? You’re projecting your own viewpoints. Arrant BS, and Althouse was right to call you out on it.”
blllsmith,
You’re an arrogant, ignorant, partisan ass and the entire comment this quote comes from proves it. One would think that a person should be judged by the body of their work, which in Professor Turley’s case is hardly “partisan liberal”. He has stated in writing here that he feels the health care law for instance should be overturned. He has also agreed with this court on many issues, in writing and if you had half a brain, rather than your rote FOXNews opinions you might actually research someone before making accusations. It appears, however, that you are too intellectually lazy and dim to actually find evidence to back up your parroting of others propaganda. This is by the way a strictly ad hominem, attack simply because you deserve little more of my time than to merely point out what a tool you are.
>>rather than your rote FOXNews opinions
Oh, it’s so easy to get lazy, isn’t it?
The point made by Blake is the key to understanding the controversy. Your article did not appear in a vacuum, Prof. Turley, or in a scholarly journal. It was published in the midst of a recent torrent of articles that appear to be “preparing the battlefield” for attacks on the legitimacy of the Court’s decision on the PPACA should the act be struck down in whole or in part. You are perceptive enough to be able to see why this is not a time when your article would merely induce dispassionate, chin-stroking contemplation.
This is not a moment in history when discussions about the optimal size of the Supreme Court are going to be engaged dispassionately. Surely you know that. So perhaps you can understand why people might question your timing.
Well, I’m glad I read that. I got the wrong impression from her and from Glenn Reynolds (Instapundit), who didn’t comment, I don’t think, but just linked.
However, it probably should be noted that while your work is serious and considered, it’s entirely possible that The Post chose this moment as part of the general de-legitimization of the SC in anticipation of the ruling, as is happening in left-leaning circles.
If you are independent and libertarian, you’re of course used to being popular when your opinions align with one side or the other, and reviled when they don’t. Your commentariat today supporting you and bashing the right-wingers they love to demonize will turn on you tomorrow when your opinion goes against their political interests.
The near-irony being Althouse is an Obama-voting center-left type. (It’s only near irony because she’s mostly about her performance art, and that involves throwing bombs where it creates the most buzz.)
A commenter at Althouse’s blog points out that Althouse has frequently grown quite upset with bloggers that misrepresent her point of view.
There was a pretty big blog spat between Althouse and feminists around 2007 concerning Jessica Valenti’s breasts, a photographic pose, and Bill Clinton.
There was a blog spat last year, and this, regarding the Wisconsin Supreme Court, Justice Prosser’s alleged attack on the Chief Justice, and a Wisconsin paper/website known as the Isthmus.
In all of these Althouse excoriates those who misinterpret her.
Today she got into it again with a third post, by rationalizing her attack as just another day on the Internet and refusing to take any responsibility for that. And she promises a fourth post on this as well.
Well, it’s really not earth shattering to discover that lawyers or professors are too arrogant to admit mistake and then take responsibility for that.
I’d ignore Althouse. Her blog is as obnoxious as her ability to teach–aka nonexistent. She may be extraordinarily smart, but as far as law professors go, she’s the worst one in the entire law school. And no, I don’t say that out of malice, but out of unfortunate experience–she’s consistently rated the lowest in the entire school.
Her commenters’ intelligence varies from Sarah Palin-moronic to Glenn Beck-ignorant. Ignore everything.
Prof. Turley, liberals like you are scared to death that the concentration of power in the country will be dispersed away from NYC and the Beltway.