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Proof the Supreme Court Isn’t All About Politics and Ideology
While the battle over the next Supreme Court justice will be fought in the realm of bare-knuckle, high-octane politics, the daily business of the justices is often a good deal less partisan.
On March 16th, President Obama nominated Merrick Garland, a centrist judge, to fill Antonin Scalia’s empty seat on the Supreme Court. Now a firestorm is erupting over whether the Senate should consider him. Senator Charles Grassley of Iowa, chair of the Senate Judiciary Committee, has said he will refuse to hold hearings on any nominee (a position I analyzed at The Economist last week). Democrats respond that this amounts to a dereliction of duty. Richard Posner, a judge on the 7th circuit court of appeals and author of over 40 books, says the rancor from both sides of the aisle is proof that the Supreme Court is a thoroughly ideological institution. It reminds us, he writes,
that the Supreme Court is not an ordinary court but a political court, or more precisely a politicized court, which is to say a court strongly influenced in making its decisions by the political beliefs of the judges.
The view of the Supreme Court as shot through with partisanship has gained credence in the 16 years since five conservative justices installed George W. Bush as president in Bush v. Gore. Today’s justices may be split more neatly along ideological lines than ever before, and the division reflects the priorities of the political parties of the presidents who appointed them. But for all the examples of high-profile Supreme Court decisions featuring closely divided votes on hot-button issues like gun rights, religious liberty, the death penalty and equality for gays and lesbians, there are many more examples of cases in which the justices reach unanimity or line up in ways that do not honor the simplistic image of a left-right split.
In the introduction to my new book, I detail many instances of the justices breaking ranks with their typical voting blocs in last year’s cases. And last week afforded a pair of rulings to add to the list—one involving gay adoption, the other the prison sentence of a child pornographer. Neither case made the front pages, but both constitute a reminder that while the battle over the next Supreme Court justice will be fought in the realm of bare-knuckle, high-octane politics, the daily business of the justices is often a good deal less partisan.
Exhibit A is the pseudonym-filled V.L. v. E.L, a case out of Alabama involving the legitimacy of adoption by same-sex partners. When V.L. and E.L. ended their 17-year-long relationship in 2011, the birth mother of the couple’s three children (E.L.) sought to strip her former partner (V.L.) of joint custody which they had, together, sought and won four years earlier in Georgia. With a barely concealed disdain for the very concept of gay parents, the Alabama Supreme Court used adjudicative contortionism to explain why Georgia’s court had failed to live up to Georgia law and why, therefore, V.L.’s adoption order was invalid in Alabama. The nine justices of the U.S. Supreme Court were unimpressed by the Alabama jurists’ attempt to nullify V.L.’s long-standing parental rights and spoke in a single voice in reversing their ruling. The justices did not even feel the need to hear arguments in the case; in a six-page ruling, they simply reminded the Alabama Supreme Court of the Constitution’s “full faith and credit” clause, which requires states to recognize as binding fellow states’ laws and legal decisions, and restored V.L.’s shared custody of her children. Though three of the Supreme Court justices are deeply opposed to same-sex couples’ constitutional right to wed and are probably not big fans of gay adoption, they joined their fellow five justices in correcting the Alabama judges’ error of law. John Roberts, the chief justice, along with Samuel Alito and Clarence Thomas, stood up for the law and demonstrated that the Supreme Court can indeed function in non-ideological terms even when lower courts do not.
This virtue is reflected in Exhibit B from last week: the Court’s 6-2 decision in Lockhart v. United States. The case involves an unsavory character, Avondale Lockhart, who was convicted of buying child pornography in 2010. He was initially sentenced to 6-8 years in prison, but saw this balloon to a mandatory minimum term of 10 years due to an earlier conviction of attempted rape. The additional time behind bars came courtesy of a federal law requiring longer prison terms for people breaking child pornography laws who had been previously convicted for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”
The issue in Lockhart is whether “involving a minor or ward” modifies each of the three crimes in that list or only the last one. If it applies to all three, Lockhart should not face the longer prison term, because his prior conviction was not for raping “a minor or a ward.” But if the phrase applies to only “abusive sexual conduct,” then sexual abuse against a victim of any age would trigger the longer sentence and Lockhart would have to serve the additional time. I won’t get into the dueling canons of statutory interpretation that fueled the majority and dissenting opinions; if you’re interested, Evan Lee lays them out clearly here. I will only note that Lockhart lost his case and that the six-justice majority coming to that conclusion was made up of the Supreme Court’s farthest-left and farthest-right justices—including Obama-appointee Sonia Sotomayor (who wrote it) and Clarence Thomas (more conservative than the late Antonin Scalia)—while the dissent came from two more moderate liberals (Elena Kagan, the other Obama appointee, and Stephen Breyer, appointed by Clinton). This is an odd patchwork indeed for a Court that is “strongly influenced in making its decisions by the political beliefs of the judges,” as Judge Posner claims.
The Supreme Court’s most controversial decisions often lend fuel to the argument that the justices are hopeless ideologues. But to look more comprehensively at the Court’s docket and the variegated lineups of its decisions is to find a tribunal that defies oversimplification. For all the rulings that reflect the ideological “priors” of the justices, there are many others that fog such a cynical lens on the Supreme Court. The justices do not deliberate in a hermetic bubble separate from politics, but they are certainly less partisan and more driven by the rule of law than are the senators fighting now over who the 113th justice will be, and who gets to nominate him.
Steven V. Mazie is Professor of Political Studies at Bard High School Early College-Manhattan and Supreme Court correspondent for The Economist. He holds an A.B. in Government from Harvard College and a Ph.D. in Political Science from the University of Michigan. He is author, most recently, of American Justice 2015: The Dramatic Tenth Term of the Roberts Court.
Image credit: Erik Cox Photography / Shutterstock.com
Follow Steven Mazie on Twitter: @stevenmazie
How would the ability to genetically customize children change society? Sci-fi author Eugene Clark explores the future on our horizon in Volume I of the "Genetic Pressure" series.
- A new sci-fi book series called "Genetic Pressure" explores the scientific and moral implications of a world with a burgeoning designer baby industry.
- It's currently illegal to implant genetically edited human embryos in most nations, but designer babies may someday become widespread.
- While gene-editing technology could help humans eliminate genetic diseases, some in the scientific community fear it may also usher in a new era of eugenics.
Tribalism and discrimination<p>One question the "Genetic Pressure" series explores: What would tribalism and discrimination look like in a world with designer babies? As designer babies grow up, they could be noticeably different from other people, potentially being smarter, more attractive and healthier. This could breed resentment between the groups—as it does in the series.</p><p>"[Designer babies] slowly find that 'everyone else,' and even their own parents, becomes less and less tolerable," author Eugene Clark told Big Think. "Meanwhile, everyone else slowly feels threatened by the designer babies."</p><p>For example, one character in the series who was born a designer baby faces discrimination and harassment from "normal people"—they call her "soulless" and say she was "made in a factory," a "consumer product." </p><p>Would such divisions emerge in the real world? The answer may depend on who's able to afford designer baby services. If it's only the ultra-wealthy, then it's easy to imagine how being a designer baby could be seen by society as a kind of hyper-privilege, which designer babies would have to reckon with. </p><p>Even if people from all socioeconomic backgrounds can someday afford designer babies, people born designer babies may struggle with tough existential questions: Can they ever take full credit for things they achieve, or were they born with an unfair advantage? To what extent should they spend their lives helping the less fortunate? </p>
Sexuality dilemmas<p>Sexuality presents another set of thorny questions. If a designer baby industry someday allows people to optimize humans for attractiveness, designer babies could grow up to find themselves surrounded by ultra-attractive people. That may not sound like a big problem.</p><p>But consider that, if designer babies someday become the standard way to have children, there'd necessarily be a years-long gap in which only some people are having designer babies. Meanwhile, the rest of society would be having children the old-fashioned way. So, in terms of attractiveness, society could see increasingly apparent disparities in physical appearances between the two groups. "Normal people" could begin to seem increasingly ugly.</p><p>But ultra-attractive people who were born designer babies could face problems, too. One could be the loss of body image. </p><p>When designer babies grow up in the "Genetic Pressure" series, men look like all the other men, and women look like all the other women. This homogeneity of physical appearance occurs because parents of designer babies start following trends, all choosing similar traits for their children: tall, athletic build, olive skin, etc. </p><p>Sure, facial traits remain relatively unique, but everyone's more or less equally attractive. And this causes strange changes to sexual preferences.</p><p>"In a society of sexual equals, they start looking for other differentiators," he said, noting that violet-colored eyes become a rare trait that genetically engineered humans find especially attractive in the series.</p><p>But what about sexual relationships between genetically engineered humans and "normal" people? In the "Genetic Pressure" series, many "normal" people want to have kids with (or at least have sex with) genetically engineered humans. But a minority of engineered humans oppose breeding with "normal" people, and this leads to an ideology that considers engineered humans to be racially supreme. </p>
Regulating designer babies<p>On a policy level, there are many open questions about how governments might legislate a world with designer babies. But it's not totally new territory, considering the West's dark history of eugenics experiments.</p><p>In the 20th century, the U.S. conducted multiple eugenics programs, including immigration restrictions based on genetic inferiority and forced sterilizations. In 1927, for example, the Supreme Court ruled that forcibly sterilizing the mentally handicapped didn't violate the Constitution. Supreme Court Justice Oliver Wendall Holmes wrote, "… three generations of imbeciles are enough." </p><p>After the Holocaust, eugenics programs became increasingly taboo and regulated in the U.S. (though some states continued forced sterilizations <a href="https://www.uvm.edu/~lkaelber/eugenics/" target="_blank">into the 1970s</a>). In recent years, some policymakers and scientists have expressed concerns about how gene-editing technologies could reanimate the eugenics nightmares of the 20th century. </p><p>Currently, the U.S. doesn't explicitly ban human germline genetic editing on the federal level, but a combination of laws effectively render it <a href="https://academic.oup.com/jlb/advance-article/doi/10.1093/jlb/lsaa006/5841599#204481018" target="_blank" rel="noopener noreferrer">illegal to implant a genetically modified embryo</a>. Part of the reason is that scientists still aren't sure of the unintended consequences of new gene-editing technologies. </p><p>But there are also concerns that these technologies could usher in a new era of eugenics. After all, the function of a designer baby industry, like the one in the "Genetic Pressure" series, wouldn't necessarily be limited to eliminating genetic diseases; it could also work to increase the occurrence of "desirable" traits. </p><p>If the industry did that, it'd effectively signal that the <em>opposites of those traits are undesirable. </em>As the International Bioethics Committee <a href="https://academic.oup.com/jlb/advance-article/doi/10.1093/jlb/lsaa006/5841599#204481018" target="_blank" rel="noopener noreferrer">wrote</a>, this would "jeopardize the inherent and therefore equal dignity of all human beings and renew eugenics, disguised as the fulfillment of the wish for a better, improved life."</p><p><em>"Genetic Pressure Volume I: Baby Steps"</em><em> by Eugene Clark is <a href="http://bigth.ink/38VhJn3" target="_blank">available now.</a></em></p>
Astronomers find these five chapters to be a handy way of conceiving the universe's incredibly long lifespan.
- We're in the middle, or thereabouts, of the universe's Stelliferous era.
- If you think there's a lot going on out there now, the first era's drama makes things these days look pretty calm.
- Scientists attempt to understand the past and present by bringing together the last couple of centuries' major schools of thought.
The 5 eras of the universe<p>There are many ways to consider and discuss the past, present, and future of the universe, but one in particular has caught the fancy of many astronomers. First published in 1999 in their book <a href="https://amzn.to/2wFQLiL" target="_blank"><em>The Five Ages of the Universe: Inside the Physics of Eternity</em></a>, <a href="https://en.wikipedia.org/wiki/Fred_Adams" target="_blank">Fred Adams</a> and <a href="https://en.wikipedia.org/wiki/Gregory_P._Laughlin" target="_blank">Gregory Laughlin</a> divided the universe's life story into five eras:</p><ul><li>Primordial era</li><li>Stellferous era</li><li>Degenerate era</li><li>Black Hole Era</li><li>Dark era</li></ul><p>The book was last updated according to current scientific understandings in 2013.</p><p>It's worth noting that not everyone is a subscriber to the book's structure. Popular astrophysics writer <a href="https://www.forbes.com/sites/ethansiegel/#30921c93683e" target="_blank">Ethan C. Siegel</a>, for example, published an article on <a href="https://www.forbes.com/sites/startswithabang/2019/07/26/we-have-already-entered-the-sixth-and-final-era-of-our-universe/#7072d52d4e5d" target="_blank"><em>Medium</em></a> last June called "We Have Already Entered The Sixth And Final Era Of Our Universe." Nonetheless, many astronomers find the quintet a useful way of discuss such an extraordinarily vast amount of time.</p>
The Primordial era<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yMjkwMTEyMi9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTYyNjEzMjY1OX0.PRpvAoa99qwsDNprDme9tBWDim6mS7Mjx6IwF60fSN8/img.jpg?width=980" id="db4eb" class="rm-shortcode" data-rm-shortcode-id="0e568b0cc12ed624bb8d7e5ff45882bd" data-rm-shortcode-name="rebelmouse-image" data-width="1440" data-height="1049" />
Image source: Sagittarius Production/Shutterstock<p> This is where the universe begins, though what came before it and where it came from are certainly still up for discussion. It begins at the Big Bang about 13.8 billion years ago. </p><p> For the first little, and we mean <em>very</em> little, bit of time, spacetime and the laws of physics are thought not yet to have existed. That weird, unknowable interval is the <a href="https://www.universeadventure.org/eras/era1-plankepoch.htm" target="_blank">Planck Epoch</a> that lasted for 10<sup>-44</sup> seconds, or 10 million of a trillion of a trillion of a trillionth of a second. Much of what we currently believe about the Planck Epoch eras is theoretical, based largely on a hybrid of general-relativity and quantum theories called quantum gravity. And it's all subject to revision. </p><p> That having been said, within a second after the Big Bang finished Big Banging, inflation began, a sudden ballooning of the universe into 100 trillion trillion times its original size. </p><p> Within minutes, the plasma began cooling, and subatomic particles began to form and stick together. In the 20 minutes after the Big Bang, atoms started forming in the super-hot, fusion-fired universe. Cooling proceeded apace, leaving us with a universe containing mostly 75% hydrogen and 25% helium, similar to that we see in the Sun today. Electrons gobbled up photons, leaving the universe opaque. </p><p> About 380,000 years after the Big Bang, the universe had cooled enough that the first stable atoms capable of surviving began forming. With electrons thus occupied in atoms, photons were released as the background glow that astronomers detect today as cosmic background radiation. </p><p> Inflation is believed to have happened due to the remarkable overall consistency astronomers measure in cosmic background radiation. Astronomer <a href="https://www.youtube.com/watch?v=IGCVTSQw7WU" target="_blank">Phil Plait</a> suggests that inflation was like pulling on a bedsheet, suddenly pulling the universe's energy smooth. The smaller irregularities that survived eventually enlarged, pooling in denser areas of energy that served as seeds for star formation—their gravity pulled in dark matter and matter that eventually coalesced into the first stars. </p>
The Stelliferous era<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yMjkwMTEzNy9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTYxMjA0OTcwMn0.GVCCFbBSsPdA1kciHivFfWlegOfKfXUfEtFKEF3otQg/img.jpg?width=980" id="bc650" class="rm-shortcode" data-rm-shortcode-id="c8f86bf160ecdea6b330f818447393cd" data-rm-shortcode-name="rebelmouse-image" data-width="481" data-height="720" />
Image source: Casey Horner/unsplash<p>The era we know, the age of stars, in which most matter existing in the universe takes the form of stars and galaxies during this active period. </p><p>A star is formed when a gas pocket becomes denser and denser until it, and matter nearby, collapse in on itself, producing enough heat to trigger nuclear fusion in its core, the source of most of the universe's energy now. The first stars were immense, eventually exploding as supernovas, forming many more, smaller stars. These coalesced, thanks to gravity, into galaxies.</p><p>One axiom of the Stelliferous era is that the bigger the star, the more quickly it burns through its energy, and then dies, typically in just a couple of million years. Smaller stars that consume energy more slowly stay active longer. In any event, stars — and galaxies — are coming and going all the time in this era, burning out and colliding.</p><p>Scientists predict that our Milky Way galaxy, for example, will crash into and combine with the neighboring Andromeda galaxy in about 4 billion years to form a new one astronomers are calling the Milkomeda galaxy.</p><p>Our solar system may actually survive that merger, amazingly, but don't get too complacent. About a billion years later, the Sun will start running out of hydrogen and begin enlarging into its red giant phase, eventually subsuming Earth and its companions, before shrining down to a white dwarf star.</p>
The Degenerate era<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yMjkwMTE1MS9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTYxNTk3NDQyN30.gy4__ALBQrdbdm-byW5gQoaGNvFTuxP5KLYxEMBImNc/img.jpg?width=980" id="77f72" class="rm-shortcode" data-rm-shortcode-id="08bb56ea9fde2cee02d63ed472d79ca3" data-rm-shortcode-name="rebelmouse-image" data-width="1440" data-height="810" />
Image source: Diego Barucco/Shutterstock/Big Think<p>Next up is the Degenerate era, which will begin about 1 quintillion years after the Big Bang, and last until 1 duodecillion after it. This is the period during which the remains of stars we see today will dominate the universe. Were we to look up — we'll assuredly be outta here long before then — we'd see a much darker sky with just a handful of dim pinpoints of light remaining: <a href="https://earthsky.org/space/evaporating-giant-exoplanet-white-dwarf-star" target="_blank">white dwarfs</a>, <a href="https://earthsky.org/space/new-observations-where-stars-end-and-brown-dwarfs-begin" target="_blank">brown dwarfs</a>, and <a href="https://earthsky.org/astronomy-essentials/definition-what-is-a-neutron-star" target="_blank">neutron stars</a>. These"degenerate stars" are much cooler and less light-emitting than what we see up there now. Occasionally, star corpses will pair off into orbital death spirals that result in a brief flash of energy as they collide, and their combined mass may become low-wattage stars that will last for a little while in cosmic-timescale terms. But mostly the skies will be be bereft of light in the visible spectrum.</p><p>During this era, small brown dwarfs will wind up holding most of the available hydrogen, and black holes will grow and grow and grow, fed on stellar remains. With so little hydrogen around for the formation of new stars, the universe will grow duller and duller, colder and colder.</p><p>And then the protons, having been around since the beginning of the universe will start dying off, dissolving matter, leaving behind a universe of subatomic particles, unclaimed radiation…and black holes.</p>
The Black Hole era<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yMjkwMTE2MS9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTYzMjE0OTQ2MX0.ifwOQJgU0uItiSRg9z8IxFD9jmfXlfrw6Jc1y-22FuQ/img.jpg?width=980" id="103ea" class="rm-shortcode" data-rm-shortcode-id="f0e6a71dacf95ee780dd7a1eadde288d" data-rm-shortcode-name="rebelmouse-image" data-width="1400" data-height="787" />
Image source: Vadim Sadovski/Shutterstock/Big Think<p> For a considerable length of time, black holes will dominate the universe, pulling in what mass and energy still remain. </p><p> Eventually, though, black holes evaporate, albeit super-slowly, leaking small bits of their contents as they do. Plait estimates that a small black hole 50 times the mass of the sun would take about 10<sup>68</sup> years to dissipate. A massive one? A 1 followed by 92 zeros. </p><p> When a black hole finally drips to its last drop, a small pop of light occurs letting out some of the only remaining energy in the universe. At that point, at 10<sup>92</sup>, the universe will be pretty much history, containing only low-energy, very weak subatomic particles and photons. </p>
The Dark Era<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yMjkwMTE5NC9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY0Mzg5OTEyMH0.AwiPRGJlGIcQjjSoRLi6V3g5klRYtxQJIpHFgZdZkuo/img.jpg?width=980" id="60c77" class="rm-shortcode" data-rm-shortcode-id="7a857fb7f0d85cf4a248dbb3350a6e1c" data-rm-shortcode-name="rebelmouse-image" data-width="1440" data-height="810" />
Image source: Big Think<p>We can sum this up pretty easily. Lights out. Forever.</p>
A unique exoplanet without clouds or haze was found by astrophysicists from Harvard and Smithsonian.
- Astronomers from Harvard and Smithsonian find a very rare "hot Jupiter" exoplanet without clouds or haze.
- Such planets were formed differently from others and offer unique research opportunities.
- Only one other such exoplanet was found previously.
Munazza Alam – a graduate student at the Center for Astrophysics | Harvard & Smithsonian.
Credit: Jackie Faherty
Jupiter's Colorful Cloud Bands Studied by Spacecraft<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="8a72dfe5b407b584cf867852c36211dc"><iframe type="lazy-iframe" data-runner-src="https://www.youtube.com/embed/GzUzCesfVuw?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span>
Scientists discover burrows of giant predator worms that lived on the seafloor 20 million years ago.
- Scientists in Taiwan find the lair of giant predator worms that inhabited the seafloor 20 million years ago.
- The worm is possibly related to the modern bobbit worm (Eunice aphroditois).
- The creatures can reach several meters in length and famously ambush their pray.
A three-dimensional model of the feeding behavior of Bobbit worms and the proposed formation of Pennichnus formosae.
Credit: Scientific Reports
Beware the Bobbit Worm!<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="1f9918e77851242c91382369581d3aac"><iframe type="lazy-iframe" data-runner-src="https://www.youtube.com/embed/_As1pHhyDHY?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span>
The idea behind the law was simple: make it more difficult for online sex traffickers to find victims.