The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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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 [1] 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 [2].

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.

  1. Rosen cites the expression without attribution to Mr Dooley: is it too famous, or is Rosen being lazy? The spelling I have (there are numerous variations online) is
    th' supreme coort follows th' iliction returns.
    Damn dialect fiction!

  2. I can't trace any polling - which isn't saying much.

    The grossly misleading nature of the story arc popularly attributed to the process of desegregation I've mentioned before in the case of Rosa Parks.

    There is an interesting (though statistical!) paper (PDF) FDR's Court Packing Plan in the Court of Public Opinion based on polling done by Gallup during the controversy in 1937. Frustratingly, it doesn't give the basic numbers, for and against; but it does say that the plan, and its failure, didn't seem to have much effect on the level of support for Roosevelt.

    (My theory is that the plan was intended to fail, to estalish an anti-New Deal coalition in Congress (or in the Senate, at least) sufficient to block future administration proposals that were at all radical. Thus, FDR would have an excuse ready for the judgement of posterity, or in case he ran for a third term, for his inaction in the face of the Roosevelt Recession of 1937 and the general failure of the New Deal to return the US to anything like full employment.)

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