32

(Not sure if this should be on the Law.SE. I'm guessing the answer is more political than legal, hence I'm asking it here.)

Example

WILMINGTON, Del. (AP) — A difficult political atmosphere for President Joe Biden may have become even more treacherous with the acquittal of Kyle Rittenhouse.

Biden was already facing sliding poll numbers with an electorate worn down by the coronavirus pandemic and increasing inflation. Now, the president finds himself caught between outraged Democrats — some of whom were already stewing over Biden’s inability to land police reform and voting rights legislation — and Republicans looking to use the Rittenhouse case to exploit the national divide over matters of grievance and race.

[Biden] responded carefully following Friday’s verdict, expressing respect for the jury’s decision. He later added in a written statement that, like many Americans, he was “angry and concerned” with the jury acquittal of Rittenhouse.

This makes no sense to me because these issues don't seem to have any relevance with the case. The article spends almost no time discussing the facts of the case or the law and how the jury interpreted the law, which makes it sound like they just don't like the verdict. In other words by taking issue with the verdict (but not the law/facts of the case) they are indirectly accusing the jury of bias. But if that is the case, then surely there are legal protections in place: one can request a juror recuse. Besides, the time to complain about that would be before the verdict, not after.

The same issue has showed up even in the US Senate, where the decision to appoint Amy Coney Barrett to the supreme court focused on all sorts of issues except the one that seems most relevant: whether or not she is capable of doing the job (i.e. whether she has the legal credentials / health / language skills / etc.).

It feels like the US perceives the law as "Republican" or "Democrat", and whenever the verdict goes against one's desires, it is something one's political party needs to address. That's even though the law is a priori apolitical and Ex post-facto laws are prohibited in the US.

I do not understand this. Why do some people in the US perceive the law as political? Why is it that, in situations like the Kyle Rittenhouse verdict, the focus never seems to be on whether the evidence to meet the legal standard of proof was present, or whether the law needs to be changed?

3
  • 6
    @Allure I think that there is a degree of ambiguity in your question. You might be asking why decisions made by the legal system are made for political rather than proper legal reasons (to the extent, if any, that they are) or you might be asking why politicians make public statements about individual court cases - even live court cases (which they do) when that seems an improper thing to do. Or you might be asking both (and maybe they are connected) but it is not entirely clear (to me).
    – Nemo
    Nov 23 at 15:34
  • @Nemo If this were in the law.SE I would think the question is focused on the decisions and legal aspect. Here, with how the question is phrased, it appears that the question is probing at the commentary surrounding legal processes and decisions. The premise of the question being that the law is devoid of politics where the decisions of the law are, what should be apolitical are being questioned in a political manner.
    – David S
    Nov 23 at 20:47
  • 4
    Related: politics.stackexchange.com/q/34257/130
    – gerrit
    Nov 23 at 22:24
62

When you study law and policy, you lose the illusion that there is some apolitical, impartial "Law" that brings about justice - let alone that such a thing exists inside courtrooms. If you've been raised on a steady diet of American-flavor neoclassical philosophy, this is a heartbreaking process as it challenges your default moral assumptions about humanity, about society, and about what hope you have to make a difference in the world.

You're correct that Samara Rice is challenging the verdict itself - but more than that, she is decrying the entire societal structure that led to that moment in the courtroom where 12 people decided that what Rittenhouse did was self-defense, when every military expert I have ever known and/or heard from on the matter unanimously agree that he was, instead:

a willing combatant.

Regardless of whether or not you agree with her/their interpretation of the facts. It's a legitimate grievance against the government.

Why do some people in the US perceive the law as political? Why is it that, in situations like the Kyle Rittenhouse verdict, the focus never seems to be on whether the evidence to meet the legal standard of proof was present, or whether the law needs to be changed?

Because the standard of proof is beside the point. It is a matter of empirical fact that the law does not treat white and Black people the same.

14.2% of the United States population is Black. While variance is a thing, a fair system would closely approximate the population in the errors it commits.

  1. But 49% of proven false convictions (where proven means the courts exonerated the convicted) since 1973 were Black defendants.
  2. From this study by the University of Michigan:

The convictions that led to murder exonerations with black defendants were 22% more likely to include misconduct by police officers than those with white defendants. In addition, on average black murder exonerees spent three years longer in prison before release than white murder exonerees, and those sentenced to death spent four years longer

  1. Of unarmed people killed by police roughly 33% are Black.

  2. Black defendants receive harsher punishments than do white defendants.

So when you look at this case and see a, perhaps flawed but ultimately impartial, criminal proceeding in a court of law, that is reflective of what you would expect to receive, yourself.

By and large, however, this is not what Black people in America see; they see a system that punishes them harshly, convicts them falsely at far greater rates, and condemns them for things like "using a gun in self defense." Even before we get to the shenanigans this particular judge was up to (which apparently he's notorious for).

The law is not immune to bias, nor malfeasance, nonfeasance, and other errors. It is not immune to the personal feelings of judges, which is why (though the evidence is hardly watertight) judges become more likely to say "no" as lunchtime approaches, and then reset to saying "yes" as much as they had at the start of the day. (This effect is well known to poker players, who understand that a major disruption at the table will often completely reset the table's dynamic - it's called the New Year's Effect, IIRC.)

Judges are political beings, much as we might like to imagine otherwise. But the source of your confusion as to why other people see what they see has to do with the fact that for them, the Rittenhouse case is not occurring in a vacuum. The people Rittenhouse shot and killed were out protesting the shooting of a Black man by police. That fact is very much in view for Samara Rice, as is the history of how the law (through the human agents who execute it) de facto treats Rittenhouse differently than it would a similarly situated Black defendant. That is why she holds the verdict to be incorrect, and why she holds the system of government that produces it to be tyrannical and worthy of being "overthrown."

4
  • 74
    What "military experts"? And "willing combatant" doesn't make it not self-defense.
    – RWW
    Nov 23 at 17:11
  • 16
    @RWW Roughly a dozen veterans, mostly Marines, one Navy, one Air Force, couple whose branches I don't know. And that's just my personal contacts. See my response to Jamesqf regarding self-defense jurisprudence. Nov 23 at 17:15
  • Comments are not for extended discussion; this conversation has been moved to chat.
    – JJJ
    Nov 23 at 23:19
  • 2
    Please respect the move to chat.
    – Philipp
    Nov 25 at 8:17
61

There are 2 separate issues in your question, and I'll address them separately.

First: why do people comment on legal cases outside a discussion of the law?

Because law and justice are related, but distinct, concepts. You won't find many people seriously arguing that the Rittenhouse jury ruled incorrectly as a matter of Wisconsin state law. The standard for self-defense is so loose, that it's hard to see how they could have found him guilty of first-degree murder:

Under Wisconsin law, you can kill people in self-defense if you reasonably believe that doing so is necessary to spare yourself or others from imminent bodily harm or death. This belief need not be accurate. Nor must it be reasonable from an objective perspective. It only needs to be reasonable from the subjective point of view of the shooter in the moment he or she pulls the trigger.

That the jury found his actions to be legal, is a very different thing from saying the decision was Just or morally correct. That's not a rare thing: many legal things are immoral, and many moral things are illegal – that's just how the law works in our imperfect world. In the US during the 20's and 30's, for example, selling alcohol was illegal. If your friend was sentenced to prison for running a bar, would you shrug and say "Well, they was correctly found guilty in violation of the Volstead Act and the 18th Amendment", or would you be upset that they're facing punishment for breaking what you consider a stupid, unjust law?

The anger (at least the part with a rational basis – since humans are involved, we can't ignore how this case became a culture war symbol) over the Rittenhouse decision isn't over whether or not the jury correctly interpreted the facts of the case or Wisconsin law, it's over: 1) whether the expansive self-defense protections encourage vigilantism and gun violence, and 2) whether these laws are applied in a just and even way.

You say: "Why is it that ... the focus never seems to be on ... whether the law needs to be changed". That's ultimately what this is: an ordinary person (without a political or legal background) will say "That's not right", not "section X of the Wisconsin state code should be modified to take into account Y". People generally think in terms of right and wrong, and one of the jobs of politics is to convert those sentiments into written laws that can, hopefully, be applied fairly and justly.

Second: why discuss political issues during the Supreme Court confirmation hearings?

Because, as much as people may deny it, the Supreme Court is a political body that makes political decisions, or at least decisions with major political effects. Supreme Court justices, through the power of judicial review, have the unique power to change, eliminate, or even create laws, which makes them political actors.

Just a few examples: the Supreme Court legalized abortion, banned school segregation, created an affirmative right to own a gun, eliminated the core enforcement mechanism of the Voting Rights Act, eliminated the taxes for not having health insurance that were part of the ACA, and legalized gay marriage. In all these cases, laws passed by legislatures were changed or eliminated, or new requirements were added to the laws, by the court. These decisions, whether we agree with them or not, are absolutely political, and while the Court exercises that power, it would be foolish not to think of them as political actors.

In Justice Barrett's case, there's the added factor that President Trump made his promise to nominate strident and committed conservatives from a list assembled by the right-wing groups the Federalist Society and the Heritage Foundation, was a key campaign issue and, arguably, a major factor in his victory. Justice Barrett (and Justices Kavanaugh and Gorsuch before her) had that explicit politicization (not just the quiet, implicit politicization that accompanied most other nominations) hanging over their heads from the campaign.

4
  • Comments are not for extended discussion; this conversation has been moved to chat.
    – JJJ
    Nov 24 at 4:25
  • 9
    An important point to consider as well is that, while Supreme Court judges are appointed by the President and reviewed by the Senate before approval to the bench, in 39 states, judges are elected - which means their existence in their position was inherently political. With the intended goal of electing judges is to ensure public accountability of said elected judges. Nov 25 at 5:02
  • 4
    This answer implies that the Rittenhouse decision wasn’t fair. It would be much better if it was edited to be neutral. Nov 25 at 8:26
  • 12
    @JonathanReez - it doesn't say the decision wasn't fair, it says that a lot of people don't consider it fair. If people considered it fair, then there wouldn't be an outcry.
    – Glen O
    Nov 26 at 1:43
21

The vast majority of U.S. court decisions aren't politicized, just as is the case in most countries (or at least most countries that don't use criminal law as a tool to suppress political dissidents.)

Why some become politicized varies from one case to another. In this particular case, several elements of what occurred struck issues on which there are major current political debates and disagreements in American society, especially race, rights to gun ownership, rights to self-defense, police brutality and bias (because of the context of the demonstrations during which the events took place,) vigilantism, etc.

Because people feel very strongly about these issues, they will view the events in the context of their own perceptions of those issues, bringing their biases with them.

Furthermore, as media biases have increased in recent decades, people increasingly get their news of these cases filtered through the lens of the bias of their chosen news sources, which very frequently resemble their own biases. This serves only to create an echo chamber in which those biases are reinforced without being challenged with differing viewpoints. For example, people who usually get their news from MSNBC or Fox News will undoubtedly have received their information on this case through very different filters, each reflecting the biases of those outlets. This most often takes place in the form of selective presentation of the facts, though it also frequently includes outright fabrication (and not just on one side or the other.)

As an a somewhat-extreme example of how this effect can play out, even to this day, the "Hands up, Don't shoot!" slogan is still repeated from the Michael Brown case back in 2014. Obviously, virtually everyone would agree that shooting someone with their hands raised in a surrendering position would be murder. The problem, though, is that that never actually happened in that case. Yet, despite it being an easily-verifiable fact that it almost certainly did not happen, the myth remains commonly believed today simply because it was repeated by so many media outlets and public figures (including at least multiple members of Congress) at the time. Clearly, had that indeed been the case, then the shooting would have been unjust, so it's not at all surprising why so many people viewed the acquittal as such in light of their perception of what happened.

So, when different political sides have vastly different views of even the basic facts of what happened in a case that are influenced largely by their own preconceived notions and the self-selected media filters through which they are receiving their information, it should not be at all surprising that the cases will become heavily politicized in public discourse.

However, I would note that this typically doesn't affect the case itself nearly as heavily as it affects public discourse and public perception of the case. There are exceptions and no judge, juror, prosecutor, or defense is perfect and all have their own biases. But typically the jury selection process and the thorough presentation of evidence at trial dramatically reduce the effects of these biases on the actual ultimate verdicts delivered. The trial itself is much more likely than the public perception of it to be decided on law and the facts of the case - as it should be.

1
  • 4
    And even the court that receives the most attention in the US--the Supreme Court--routinely issues rulings that draw no comment at all, because in these rulings nobody's political ox is getting gored.
    – EvilSnack
    Nov 25 at 4:24
10

the one that seems most relevant: whether or not she is capable of doing the job

Is this more relevant than whether or not she intends to do the job?

The job is to use judicial power to uphold the law, so if a nominee's intent is instead to use judicial power to promote a political agenda, then her capability to do the job as she is supposed to seems less important than her intent not to. So a major reason for Democrats to ask questions unrelated to her competence, is that they don't trust the Republicans to nominate someone who has proper intentions.

So that's my answer: things are more politicised in the US because people don't trust the intentions of those who have the power to make decisions which affect them. To some extent the lack of trust stems from negative campaigning (both by political campaigns and the media), but part of it also stems from the fact that the powerful often do use their power for improper purposes.

It feels like the US perceives the law as "Republican" or "Democrat"

When a law's effect is to promote one party's agenda against the interests of the other party's agenda - and especially when the law's apparent intent is to do so (see discussions about some examples here and here) - then the perception of such a law as "Republican" or "Democrat" is not only understandable, it is arguably an accurate way to explain to voters what you think is wrong with the law when you are campaigning to change it.

And a major reason that such a campaign message might be effective, is that voters are willing to believe that the other party passes laws for improper political purposes, because they don't (and arguably can't) trust the other party not to do that.

9

Because (and I realize this is hardly the first time I've beaten this particular drum on this site) the minute a topic is tied to an existing political narrative it is hijacked to denote tribal affiliation. Details are only tangentially relevant because politics is the mind-killer.

"Do you agree with the Rittenhouse verdict?" is code-speak now for "are you a Democrat or a Republican?" and, crucially, nothing else.

Don't get me wrong, plenty of individual people are discussing the details of the case and are genuinely concerned with whether or not justice was served. But that's not what's driving it's effect on Biden's approval rating (or really any of the media discussion at this point). "Support for Rittenhouse" (see substitution above) is taken as a sign Biden's 'team' is losing ground in the sportsball game.

The worst sort of rookie mistake (mea culpa mea culpa) in discussing politics is to assume people mean the literal words they say. They say them, and if asked they'll say they mean them, but if you start pointing out details that don't fit the narrative they'll look at you like you un-ironically gave Swift's Modest Proposal.

And I realize a couple of other answers have already mentioned this angle using terms like "culture war" and "echo chamber" but I don't think those quite capture the view I'm arguing for here, which is that tribal affiliation litmus tests are the primary function of any story tied to a broader political narrative. It's not just that the details are misreported or misremembered: they are actively ignored as irrelevant to the point of the story, which is to say "rah team yay!" for the appropriate side.

The most telling thing about national politics is how it immediately confuses people in other countries (or people who generally eschew political discussion): unless they can tie what's happening in the foreign country to some existing political narrative in their own they start asking questions about the details which again by that point could only matter to observers not already wearing a jersey.

0
7

It is part of the general long-term trend to make everything that is even slightly political a federal political issue that the executive (i.e., the president rather than Congress) should do something about. You are right, it is non-sensical, the laws Rittenhouse was tried under are state laws and President can't make laws, only Congress can.

There are many reasons for this trend and it is not unique to the US. Some reasons are:

(By natural I mean the usual or common thing, that can be seen in several countries and/or times.)

There is a natural drift in any political body towards greater centralisation. The central power (e.g., Brussels, London, Washington, Ottawa) has the ability to add powers to itself that regional powers cannot. The federal US government has many more departments than 75 years ago. Hence, its laws affect people far more than they used to, which in turn causes greater federalization of politics.

News outlets, papers, TV, websites, have become more national-based rather than regional based. Their reporters thus give the news a national slant rather than a regional one. The state news probably saw the trial differently.

When something goes wrong people have a natural tendency to appeal to the highest power, in this case the President.

Voters generally want quicker solutions than law-makers can provide. While many things in the world have sped up in the last 50 years, law-making hasn't. If anything it has got slower. The natural result of this is that voters look to by-pass the legislators and go straight to the courts and/or the executive.

The tribalization of US politics means a trial verdict like this can be framed as Democrat versus Republican event for political gain. (See Jared Smith's answer). Any event that is seen as wrong by your side but preferred by the other side can be used to excite your side's voters (to fundraise, etc.). So the author is probably wrong, the political benefit here is for Biden. It is more useful to have an issue to rail against than a verdict your side likes. (An example from the UK is when Boris Johnson was unable to prorogue parliament due to the courts deciding against him, this probably helped him win votes in the subsequent election a few weeks later. Technically (or legally) the court's decision had nothing to do with Brexit, but that is not how the voters saw it.)

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .