The Lincoln Plawg - the blog with footnotes
Monday, December 06, 2004
Recent history and secular reality: those activist judges again
I'm sure I've related before - but can't find - a minor anecdote on the subject: around 1970, somewhere in the francophone Sahel, some NGO got exercised by a pair of photos of the landscape: the first, from the 1940s, showed an oasis in fine condition, luxuriant palm-trees - the usual. The second, recent, photo of the same place showed desert. Slam-dunk proof of the advance of the Sahara, of global warming, and similar gloom and doom.
Then someone found a third photo of the same spot, from around 1910: lush oasis. Seems that the edge of the desert migrates cyclically north and south.
The fault - no doubt born of a particular ideological mental template - lay in assuming that the recent past, living memory, was representative of the past as a whole (or, at least, for a considerable span of time).
Whereas, as often as not, the recent past is, in statistical jargon, an outlier: if there is a trend, it forms no part of the trend-line. Or, as with the Sahel example, it is on the trend-line, but the trend is not a linear one.
The phenomenon is apparent, as I certainly have mentioned before, in the idea that, in journalism, the era of the early 1970s, of the Pentagon Papers and Watergate, was a norm from which today's era of Fox News and the Bush media machine has suffered some kind of ejection from Eden.
And Jeffrey Rosen's piece today in the NYT Mag reminds us of similar fallacy at work in relation to the US Federal judiciary, notably the US Supreme Court.
His message is, Don't rely on the Federal courts as a bastion against the march of conservatism. Mr Dooley's famous aphorism  applies.
He says that even what, in popular history, goes down as an iconoclastic decision, Brown v Board of Education, was supported at the time by a majority of Americans .
And suggests that
Throughout American history, the people most fervently devoted to judicial supremacy have been political losers -- from the conservative Federalists of the 1790's to the Democrats of the Civil War era to conservative Republicans during the New Deal.
The difficulty with the analysis seems to be to ascertain just what Dooley's election returns might be in the current context: for instance, on the subject of abortion, polling is notoriously variable even on the up-and-down question, according to the precise formula used by the pollsters. And, of course, as we've seen with Laci and Conner's Law and partial birth abortion, the current anti-abortion strategy is sideline the up-and-down question in favour of a death by a thousand cuts.
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