Great post. My happy thought might be that people, having realized how intensively parties produce nonsense and fracture, we are generally as a species starting to reject them. The intense partisanship might be the Qaddafiesque rear guard effort by people accustomed to power to claim relevance.

But my dour and paternal reaction is that this is a price of too much government. When the state becomes the endorser of behavior, ethics and religion as well as 40% of all checks by volume, it really matters a whole lot that the folks you trust have as much power as possible. It shouldn't be surprising that in cases like this, tribalism replaces other forms of reason.

My happiest thought of all, though, is that I doubt more than 20% of the people actually really believe in their parties. We ought to be able to exile that many, or at least cram them into prison camps for re-education.

It's awfully hard to judge the amount of current vs. past political polarization. It's certainly been pretty bad for my entire adult voting life. To review the central political events since my first votes as far as I've perceived them: the Clinton impeachment proceedings, Bush v. Gore, swiftboating John Kerry, Iraq (invasion and 04-07 anomie), Obama's election, Obamacare, and the Tea Party. I'm sure I'm missing quite a bit, but this is what sticks in my mind.

The Supreme Court had its hands in the mix for Bush v. Gore (probably top of the list for partisan court decisions of the past half-century), and looks set to decide the fate of the ACA ("Obamacare" for those who insist on using "Democrat" as an adjective) as well. I predict 5-4 against the ACA and some more Democratic (actually, the small d works there too) weeping about partisanship in the courts. Ugh. Well this post is just going to make me sad all day.

American politics increasingly resembles a kind of total war in which each party mobilizes every conceivable asset at its disposal against the other. Most governors were once conscientious objectors in that struggle. No more."

What?! Where do people dream up this stuff?

I didn't this behavior when the governor of Montana (D) and Indiana (R) were on PBS Newshour.

http://www.pbs.org/newshour/bb/politics/jan-june11/governors_02-25.html
---

I guess the more idiotic the writer, the more attention paid.
No wonder our country is going down the tubes.

Regards

You mean the court system has become corrupt and perverse? You shit me not!

I agree with doug, when the government is a leviathan of immense importance, economically(taxes, pensions, wages, benefits), and morally(gay marriage, transfats, global warming). there's no choice left but to become mere vessels screaming for our morals to be abided by, or our economic interests to be listened to.

maybe that's what will be done with all our technology and labor saving devices. everyone will just become a political activist trying to collect rent from the government and pass laws telling their neighbors what to do. a beautiful utopia of perfect democracy scratching and clawing each other's eyes out.

"I blame the media."
-M.S.

don't worry M.S., I blame you too.

As the rich become more insulated by their money the world over, bending government to their wishes, the common man has to scream louder and louder just to be heard.

Of course, in a time of 10% unemployment you can find plenty of people that will yell really loud for a buck. So who do you listen to? No one, and let the gravy train keep on rollin'...

Maybe what I'm describing here is just democratic politics as it's always been. I can't bring any rigour to the comparison.

And yet, that didn't stop you from writing this post.

MS, don't worry so much.

In particular don't have fears about the judicial branch. The Supreme Court is generally excellent. The lower courts are doing their best with what the Supreme Court gives them. There's opportunism here and there in lower courts, but not too much. As an institution, it is quite remarkably strong and well-respected.

Given your concern though, it would seem you should chide Ezra Klein and Dahlia Lithwick for sitting on the side of the room that wants courts to be more political. I know WW is on that side of the room too based on his recent posts.

Anyway, MS, why do you think Ezra Klein writes what he writes? Answer: If it's already happening (by the other guys), it's okay (for us) to do it too. A little bit juvenile way of thinking, but that's not a first for Mr. Klein and there it is. I wouldn't take that home to the bank as fact like you do, MS. I'd take it home to the laboratory to figure out what I'm being sold. Are you aware Mr. Klein is what could be called partisan?

Think of it this way MS. When reading the excerpt you selected, recall that progressive legal theories and all that call for the judicial branch to move away from the more typical/technical role of interpreting words, and to be involved in more active ways, even out in front of legislatures, sending signals and warnings. There's a academic name for it I just forget what it is. That's not the purpose of a court, but wink and nod and the fact they actually can do it is the reasoning. Plus judges are typically very smart, so what's the harm, is also sometimes said. Here, Klein adds: they bad guys are doing it anyway, so we should do it too. I could see his follow up line being: let's just be real, the practical fact is judges have this power.

But as you properly point out, if they abuse it, for how long will they have it? Since the Supreme Court has decades of responsibly exercising power, I think they could get away with it for quite some time. I mean, they have for pete's sake.

People who don't have an iota of understanding of how federal courts work should really not be commenting about their politics, lest they look like fools. With regards to the ACA challenge, it's really quite simple:

1) There is currently no precedent for the lower courts to work with regarding the federal government regulating inaction.
2) Commerce Clause jurisprudence has always been a controversial subject area because everyone agrees the Federal government's powers under that clause have expanded gradually and significantly since Gibbons v. Ogden (1821), and this, of course, bothers the more conservative judges who prefer an originalist jurisprudence.

So rather than this being about health care, the conservative judges voting against the legislation view it as a referendum on whether there are any practical limits to the Commerce clause. This is a view that has been mainstream conservative (amongst judges anyway) for at least half a century, if not longer.

To hopefully paraphrase Ortega y Gasset correctly (as he described the rise of totalitarianism - fascist or communist - in Europe, in The Revolt of the Masses): we are witnessing the rise of a man who feels no need to persuade or give reasons, who is satisfied to impose his worldview on others through raw power.

I am always skeptical about claims of heightened polarization. The 20th Century consisted of nearly constant ideological warfare, for the world and for the U.S. At home, the U.S. has been ideologically polarized for centuries. We even fought a Civil War that one time.

Really, in your post you highlight the more important element that turns the political landscape into a mere tribal battle: when the existing system of government basically loses its legitimacy, and people no longer feel compelled to play by the old rules. The only rule is Power, and that end justifies any means. We may be approaching that point, but I think it is a distinct issue from ideological polarization itself.

ccusa,
Is the academic name you are thinking of Critical Jurisprudence? That's what comes to my mind.

Well, or Legal Realism, although I can't remember whether it was meant as a descriptive theory or a normative one. Probably a little of both.

"I blame the media."

There are two ways that statement can be taken; both have a grain of truth.

There was a time when the news media was Walter Cronkite and his ilk. They reported the news - "this is what happened".

But Vietnam got us more into investigative journalism - not just events, but why are the events happening the way they are. It was more subjective, more prone to bias.

The response to the issue of bias was to tell both sides. But that gave us "he said, she said" over and over, with no judgment as to who was telling the truth.

The result is that we went from certainty to doubt, from reporting facts about events to reporting who said what and how loudly. (You can argue that we weren't certain before, or what we were certain of was not necessarily the truth. That's not my point. My point is that we went from reporting facts about events to reporting people's statements and viewpoints, as if all of them were equal. So now people see that they just have to state their viewpoint loudly and publicly, and the loudness and public-ness will get reported as if they somehow validated the viewpoint.)

The other way in which it is somewhat reasonable to blame the media is that we now have many more media options. We no longer have just the three TV networks and AP and UPI. Now we also have Fox, CNN, The Drudge Report, Jon Stewart, YouTube, Facebook, and Twitter. Anyone can throw up a web site for an "organization" fronting for their own personal view, or for an astroturf organization. There are many more voices, and because of this, certainty is being lost. (That's not a bad thing; the "certainty" was sometimes wrong.)

I think both these points come down to this: We had gatekeepers, whose job was to find out the truth and tell it to us. But the gatekeepers stopped doing that job and, instead of telling us the truth, started merely telling us things that were true. The truth then became not an objective reality, but merely a matter of what you could make stick in the public discourse. This leads to polarization, because there is no objective truth with which to confront extreme positions. All you can use is an opposite extreme position.

Bernardo, I think I remember a time when parties were collections of individuals who agreed on some stuff but not other stuff. Still probably annoying, and almost certainly with a strong element of stupidity, but not so militant that even they didn't know what they were saying. Now I think Republicans actually don't understand, for the most part, their own complaints against government is and I doubt Democrats know what they want it to do. Everyone just sounds put out.

Never trust what liberals say about what conservatives are thinking. In this case it's a liberal (MS) citing a liberal (Ezra Klein) citing a liberal (Dahlia Lithwick) citing a liberal (Lee Epstein) talking about what conservatives told him.

Nobody ever thought you'd get a 7-2 Supreme Court decision upholding ObamaCare. 8-1 is at least conceivable but 7-2? Who would join Thomas in dissent?

Yes, and regardless of their political persuasions, Law Professors and Reality don't necessarily intersect at any point. That's why I belong in the profession.

Since I'm busy procrastinating, I'll also do what Doug neglected to do:

POLITICS, n.
A strife of interests masquerading as a contest of principles. The conduct of public affairs for private advantage.

POLITICIAN, n.
An eel in the fundamental mud upon which the superstructure of organized society is reared. When he wriggles he mistakes the agitation of his tail for the trembling of the edifice. As compared with the statesman, he suffers the disadvantage of being alive.

- Ambrose Bierce

As for partisanship, I don't think we're any more ideologically partisan than we once were but the partisanship has become more pervasive, if that makes any sense. In the past, we were partisan about abortion, unionism, welfare, civil rights, military intervention, and slavery. In other words, real issues. Today, we argue about our elected representatives' birth certificates, past witch activity, and sex lives. Blaming the media is a bit off the mark. Technology is the real culprit. Every word a politician utters, every step they take, and every dollar they spend is followed by someone who posts it online. Politicians today not only have to represent a general ideology, they have to live it perfectly. Can't we all just give our politicians a break and return to the good ol days of calling each other baby killers or woman haters for actually voting one way or another on a bill?

"To counter Cleveland's image of purity, his opponents reported that Cleveland had fathered an illegitimate child while he was a lawyer in Buffalo. The derisive phrase 'Ma, Ma, where's my Pa?' rose as an unofficial campaign slogan for those who opposed him. When confronted with the emerging scandal, Cleveland's instructions to his campaign staff were: 'Tell the truth.' Cleveland admitted to paying child support in 1874 to Maria Crofts Halpin, the woman who claimed he fathered her child named Oscar Folsom Cleveland. Halpin was involved with several men at the time, including Cleveland's friend and law partner, Oscar Folsom, for whom the child was also named. Cleveland did not know which man was the father, and is believed to have assumed responsibility because he was the only bachelor among them."

http://en.wikipedia.org/wiki/Grover_Cleveland#Campaign_against_Blaine

rewt66,

I worked in the media and I think the first part of your analysis is correct. I seem to remember the times when fact was much more separated from opinion - the opinion of the reporter, and the opinion(s) of people who were quoted. But fact-seeking is time consuming, expensive and gives often nuanced, less than spectacular results. Obtaining an objective description of reality is hard, harvesting a few one-liners is easy. Even in the good ol' days there was bias in the media, but you knew that newspaper X was conservative and Y was left-leaning, and after reading a couple of them, you had enough facts to know what was happening.

Now you get tons of opinions, but after five days, you still don't know what's happening. We've arrived at a point where all opinions are equally valid - if you interview a scientist, why not interview a creationist as well and present these interviews as equally valid 'opinions', you know, just to add a bit of spice and make the report a bit more interesting? Why not interview The Man in the Street? After all, we're doing this for Him!

The internet made this tendency much worse, of course.

In the late nineties some toxic substances were found in chicken meat in the country where I live. We interviewed some guy, who explained that this would cause between 7 and 70,000 cancers in the future. I tried to explain to the other reporters in the newsroom that a statistical uncertainty of this magnitude (4 orders of magnitude, to be correct) means that, basically, you can't tell anything about future cancers. I also pointed out that the substance was toxic indeed, but only in extremely high doses. Even if you ate a ton of chicken meat every day for a year, you would stay under the limit. I suggested that perhaps we could avoid a food scare by giving the public this information, while, of course, stressing that there clearly was a problem with our Food Safety Agency.

I was told by the chief editor: "Perhaps you're right, but I don't care. What you're telling me isn't hot at the moment." It was not a friendly conversation. I was a traitor to the profession.

A food scare we had. People became ill, although it never became clear what their illness was. Some girls fainted after drinking Coke. It's been more than ten years now, and nobody ever discovered a measurable negative effect of this 'food poisoning'.