The Letter of the Law

I was reading this article in The New York Times today about the qualities that President Obama is looking for in a Supreme Court nominee. The focus of the article is on “empathy” and whether it is appropriate for presidents to seek this quality or not. The gist of the concern critics have about “empathy” is that justices should not let their personal biases influence their decisions. “Empathetic” justices, critics maintain, might end up “twisting decisions to reach a desired outcome rather than the one mandated by the letter of the law.”

We are so steeped in myths about the Court that even the Times is suggesting that adherence to “the letter of the law” is a reasonable quality to seek in a Supreme Court nominee. But the idea that case outcomes are “mandated” at the Supreme Court level—or that they can be—is not something that political scientists take very seriously.

This is not to say that Supreme Court justices do not care about legal values, like maintaining consistency in the law or making good legal policy. Certainly justices can exhibit a respect for precedent and make law that harmonizes with the holdings of previous decisions.

The myth is in assuming that the “rule of law” mandates particular case outcomes, at least at the Supreme Court level. At the lower court level, this might be so, but the majority of cases that Supreme Court justices decide have already divided the lower courts. There are rarely “right” answers to these legal questions because the cases present genuine legal uncertainties. In the end, a justice must make a choice.

Instead of worrying about whether justices will maintain the “letter of the law,” we should be asking whether nominees to the Supreme Court will make decisions that reflect our values. Every justice will make choices that have profound policy implications. Now is our opportunity to influence the choices that our justices, inevitably, must make.

Are There Too Many Judges on the Supreme Court?

I want to thank Professor Hendler for his warm welcome and the invitation to post on this blog. It really is an exciting time to be studying the Supreme Court.

I want to elaborate on a few points from my San Francisco Chronicle article, which Professor Hendler posted below. As a political scientist, my primary interest is not so much in who President Obama should be appointing to the Supreme Court, but in what influence different types of nominees are likely to have on the Court.

For example, right now we have an unusual circumstance in which all nine Supreme Court justices (including Justice Stevens) was a sitting federal judge at the time of appointment. As a political scientist, I want to know what happens (if anything) when there is so little diversity in the professional qualifications of the justices. Would it matter if President Obama appointed another sitting federal judge, instead of someone from the political branches of government? In previous decades, presidents used to seriously consider governors, senators, and even former presidents for the Court. Now it has become much less common.

I think there are at least three consequences to this trend. The first two I discuss in the article. I think there is a real problem if justices come to the Court without any sense of what the policy impact of their decisions is likely to be. Without political experience, justices may have no foundation for understanding how their decisions will affect the lives of the people who must abide by their judgments. It surely helped Chief Justice Earl Warren, as the former governor of California, to understand how local school boards were likely to react to Brown v. Board of Education or how local police forces where likely to respond to Miranda v. Arizona. Without this type of practical experience, justices might end up writing decisions that are out of touch with the lives of Americans.

Second, justices who lack political experience might be less skilled at forging the coalitions that are necessary for the Supreme Court to conduct its business. It takes a majority of five justices to reach a decision, and it requires five votes to agree upon a majority rationale. Most federal appellate judges sit on tribunals with no more than two other judges, only occasionally meeting in larger groups. Politicians, however, must routinely work with other actors to make policy. A distressing number of Supreme Court decisions in recent years have had no majority rationale, including the landmark Seattle School District Case, which involved the use of race in school assignments. These are important cases, and we need the Court to be able to speak with one voice. Perhaps the justices would be more capable of doing so if they were skilled at political negotiation.

A third problem, which I do not discuss in my article, relates to research conducted by political scientists Lee Epstein, Jeff Segal, Andrew Martin, and Kevin Quinn (linked here). They find that lower court judges are actually more likely to affirm lower court opinions than judges with other backgrounds. What is more, justices have a particular bias for their home circuit.

In the next few weeks, I look forward to having discussions about these and other topics related to the appointment process. Feel free to email me with any questions that you have (rhume@fordham.edu).

Now blogging on the upcoming Supreme Court nomination and confirmation: Professor Robert Hume

We're very pleased to announce that Professor Robert Hume from Fordham's Political Science Department has kindly agreed to provide us with his insights as President Obama selects a nominee for the seat on the Supreme Court opened up by the imminent retirement of Justice John Paul Stevens, and as the Senate goes through its confirmation process.

Professor Hume is best known to Fordham American Studies students for teaching such popular courses as "Constitutional Law," "Civil Rights and Liberties," and "Law and Society." He has degrees from the College of the Holy Cross (B.A.) and the University of Virginia (M.A., Ph.D.). His teaching and research interests are in the areas of constitutional law, the judicial process, and public administration, with particular emphasis on the implementation of court decisions. Recent projects have focused on the impact of the U.S. Courts of Appeals on the federal bureaucracy, as well as language strategies used by judges to advance implementation goals. His articles have appeared in the Law & Society Review, the Journal of Empirical Legal Studies, and Justice System Journal. His book, How Courts Impact Federal Administrative Behavior, was published by Routledge in 2009.

You can read some of Professor Hume's thoughts on President Obama's criteria for a Supreme Court pick in his recent editorial in the San Francisco Chronicle. To make sure you get his responses to each breaking development, be sure to click "follow" at the top of this blog. And don't forget that you can respond by clicking on "comments" at the bottom of any posting.

American Studies Graduate Programs

On Sunday, I gave tours of Fordham at the school's annual Open House for accepted students. As per usual, I faced many perplexed faces each time I said that I was an American Studies major here. While there was some eye rolling, most families seemed very intrigued by my undergraduate interdisciplinary experience and one family even commented that the American Studies premise seemed very much in line with the Jesuit principles of a well-rounded liberal arts foundation and the development of critical thinking skills.

Speaking with so many students just beginning their Fordham experience made me definitely take a step back to reflect on my own. I came to Fordham as a Communication and Media Studies major with a minor in Political Science and am graduating as an American Studies and Communication and Media Studies double major with a concentration in Power, Politics and Institutions. While the two seem reasonably related, it truly has been the American Studies program that has set my Fordham experience apart from the one I had planned on having. Even though I enjoyed my journalism classes, I feel that my American Studies courses gave me much greater insight into the historical, economical and social issues that journalists have to write about and also sharpened by analytical and writing skills, since the seminars and individual class requirements were dense and writing/reading intensive.

Like many liberal arts majors, American Studies is not a major that leads directly to a specific career (unlike accounting, finance, teaching etc..) and while this is somewhat troubling in this economic climate, it is also very refreshing: the career possibilities are actually much less limiting than our accounting, finance and teaching counterparts. American Studies majors can apply to work at non-profit organizations, in the legal field, in the journalism field, in the publishing field, at political lobbying groups, in government offices, at museums and at many other institutions both in America and abroad.

American Studies is also a great major for those wishing to pursue advanced graduate degrees. A family asked me on Sunday if I would consider going to graduate school for American Studies and my immediate response was that I would not, that I would prefer instead to select a more focused graduate program geared toward my specific career goals. Since providing this response two days ago, however, I have somewhat reconsidered my answer- I do not think myself or any of the other American Studies majors should discount the value of a graduate degree in our undergraduate program. Below I have compiled some notable American Studies graduate programs across the country, each with some very interesting and unique offerings:

Pepperdine University:

http://seaver.pepperdine.edu/humanities/academics/ma-americanstudies.htm

This American Studies masters program is designed primarily to fit the needs of high school teachers in the humanities. The curriculum integrates American literature, history, political science, and economics and includes the following seven core requirements: Literature seminar, Social and Intellectual History of the United States, Private Enterprise and Public Policy, Contemporary American Ideologies, American Moral Traditions, Directed Readings in American Studies.

University of Maryland at College Park:

http://www.amst.umd.edu/

This program is one of the oldest such programs in the United States, operating continuously since 1945. Teaching and research in American Studies at Maryland are shaped by two principal intellectual themes: cultures of everday life and cultural constructions of identity and difference. These themes recur in the areas of ethnography & life writing, literature and society, material culture, popular culture & media studies, cultural landscapes, race and intersectionality, foodways and body & sexuality. Coupled with their commitment to cutting-edge technologies, the themes are also encouraging work in newer directions such as cyberculture and museum studies.

University of Michigan at Ann Arbor

http://www.lsa.umich.edu/ac/grad

The graduate program in American Culture is designed to address specific populations, periods, and disciplines to provide an integrative and intercultural perspective. The program included the Asian/Pacific American, Latino/a, Native American, and the emerging Arab American Studies departments. Among the program's strongest features are its interdisciplinarity (including literature, history, visual arts, psychology, film, and gender studies) and its emphasis on comparative ethnic experiences.

Lehigh University:

http://cas.lehigh.edu/CASWeb/content/default.aspx?pageid=810

This program's core courses are mainly in U.S. and colonial American history and American literature and film, but the program also encourages students to work in political science, religion studies, sociology and anthropology, Africana studies, philosophy, journalism and communications, art history and music. The school specializes in gender and sexuality, Africana studies and Native America, popular culture and electronic media, intellectual history, New York City, early America, science, technology and society.

Brown University:

http://www.brown.edu/Departments/AmCiv/grad/

This Department of American Civilization encourages students to design their own course of study. The primary goal of the graduate program in American Civilization is to train students to become knowledgeable and productive scholars and public humanists who will significantly contribute to the communities in which they work and live. The program produces graduates who are knowledgeable about the changing and complex intellectual landscape of the modern university, originators of new and innovative research across the disciplines and who are part of a new generation of active and committed teachers and public humanists. This unique approach seems to set Brown's program apart.

The American Studies Association Web site has a comprehensive list of all American Studies program organized by region and this complete list can be accessed here:

http://www.theasa.net/publications/grad_programs/region/

Thinking About Health Care

Amanda recently blogged about the health care legislation passed by Congress. Health care is currently a hot topic for debate. Those people and organizations with power in the U.S. (like the American Medical Association) have long been resistant to health care reform and have continuously thwarted efforts for change. Nevertheless, health care reform is necessary for our country.

I have started reading T.R. Reid’s The Healing of America: A Global Quest for Better, Cheaper, and Fairer Health Care. I recommend this book to others interested in health care policy. In this work, Reid evaluates the U.S. health care system, comparing it with other health care systems around the globe. For his comparative analysis, Reid specifically focuses on the health care systems of free-market democracies with similar political and economic structures to the U.S. including Britain, France, Germany and Japan.

Reid questions why the U.S. is the only wealthy, industrialized democracy that does not provide health care for all its citizens at a reasonable cost. The U.S. system of health care is ultimately shaped by the profit motive. We have the most expensive system in the world, leaving many Americans bankrupt or unable to afford care. Some Americans receive superb health care while millions of others receive none. This disparity is unacceptable. Insurance companies often offer health coverage to those who are healthy while denying coverage to the sick in order to save costs. Additionally, although the U.S. has such high technological capability, the quality of medical treatment Americans receive is often inferior to the treatment people receive in other countries. Our medical care is often not as preventative as that of other countries.

Americans tend to have underlying confidence in the private sector and fear “socialized medicine.” However, other countries with more successful health care systems (like Germany and Japan) do not resort to “socialized medicine” but provide universal coverage to their citizens with private doctors, hospitals, and insurance plans. Many Americans also worry that universal health care will be too expensive for the country. Nevertheless, Reid points out how “a better-organized system, covering everybody, would almost certainly cut our health care costs” (25).

Reid points out that we must look at health care as an ethical question. It seems that the U.S has not viewed health care as a fundamental “human right” while other countries have. It is extremely depressing that many Americans die each year due to a lack of access to health care. Rather than considering our nation as superior to others, Americans should look to foreign nations in order to reform. While foreign systems of health care are certainly not perfect, we can use many of their principles to help improve our own system.

A Different Kind of Research: Visual Ethnography

One of my classes this semester in Dublin is "Visualizing Americanization." In the class, we have studied visual ethnography as a research method and as a tool for future projects, like the senior thesis. Because it is visual, it is a kind of research that gleans meaning from an archive of images and the process of creating that archive. An ethnography is defined by one leading practitioner, Sarah Pink, as "a process of creating and representing knowledge based on your experience."

Proponents of visual ethnography argue that cultures worldwide are increasingly more visual than verbal, and so it is not always necessary to translate an archive of photos into textual or "objective" knowledge, as was once the usual project. Rather, verbal knowledge (and other types of knowledge) work alongside visual representations, which are never truly objective, and which we create either through illustration or photography or through our verbal description of people, settings, and events.

In the first half of the semester, we researched well-known visual ethnographies (such as a popular photo spread in Oprah Magazine and the "Family of Man" photography exhibit from the Cold War era). In this second half of the semester, Alex and I are each using a blog to create and build our own visual ethnographies about how we perceive life in Dublin. It is an interesting project because we are newcomers to this city, and yet it has been a really powerful way to view a new place by focusing on a particular attribute and creating a photographic archive which we will later analyze and present in the last week of the semester (unbelievably, only two weeks away!)

The ongoing nature of the project is also liberating because it allows our conclusions to change on a much more frequent basis; if we see something one week that contradicts what we saw the week before, we are encouraged to post and analyze these contradictions, rather than attempt to meld them into one coherent conclusion. Alex's blog (Growing Up Dublin) is a collection of photographs that capture what it is like to be a child in the urban setting of Dublin, based around different themes such as using the city as a playground. Mine (Dublin In Motion) is focused on Dublin's urban transportation system, especially as it factors into Dublin's identity as an increasingly global city.

While American Studies' interdisciplinary nature allows for studies of topics like photography, and its vital role in our perception of the nation and the world, this course has taught me much more about the relationship of visual material to other kinds of knowledge. Images as a language of their own is a new concept for me. I have learned to look more critically at things like how a photo is captioned, or the fluidity of categories like artistic photography, travel photography, and personal archives. Some of my favorite examples from the course can be found on Mediastorm, which focuses on multimedia storytelling and what they call "cinematic narratives for distribution across a variety of platforms."