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The Vast Right Wing Conspiracy Revisited:
Congratulation to the People for the American Way for getting their entire collection of John Roberts talking points into a single "news" article in the Legal Times.
aslanfan (mail):
And now they're criticizing his written responses to the Senate Kabukiary Committee for being "lawyerly." It's one thing to call him a radical extremist. But calling him lawyerly is really hitting below the belt.
8.3.2005 12:11am
Jim Rhoads (mail):
Amazing. The man is CONSERVATIVE imagine that!!!!

I'm sure those Democrats are shocked, shocked that a conservative Republican President would appoint a CONSERVATIVE for Supreme Court Justice.
8.3.2005 12:40am
Buck Turgidson (mail):
getting their entire collection of John Roberts talking points into a single "news" article

AH... not quite. There are two Law.com articles on the subject.

http://www.law.com/jsp/article.jsp?id=1122627917320
8.3.2005 12:47am
T. More (www):
Perhaps the most devious part of the plan was winning all those Presidential elections. And, how conservatives glory in the Revolution that has brought us Kelo, Casey, Stenberg, Lawrence, Grutter &Gratz, BMW v. Gore--ooh, what a conservative court this is.

It is truly hard to know what planet many self-styled "progressives" live on, imagining that this Court has been conservative. Didn't even Linda Greenhouse notice this recently? It has been less outrageously liberal than the Warren Court, without a Marshall or a Brennan. But the Warren Court, having blessed us with robust substantive due process and fundamental privacy, did all the heavy lifting. Now "conservatives" like Justice Kennedy can find evolving standards to rewrite the 8th Amendment, invent quasi-fundamental rights to define the meaning of existence, the universe, and sex, and allow the government to fill in the "public use" blank any ol' way it pleases. It is hard to know what has been conservative about that.
8.3.2005 1:19am
Drewsil (mail):
Maybe I've been reading this site too long, but the linked article seemed more egregious for its lack of factual accuracy about the current court, rather than the partisan slant given to the discussion of Roberts. The later is understandable in that there is a dearth of material on which to base an opinion about what kind of judge Roberts would be. With such a lack one could be forgiven for coming to incorrect conclusions about how he would act as a supreme court justice. Alternatively, there is plenty of evidence that the current supreme court did not do all the things attributed to them (such as a huge reinterpretation of the commerce clause, restoration of individual rights on a large scale etc.)
8.3.2005 2:02am
Buck Turgidson (mail):
T.More,
You are confusing "conservative" with "libertarian". Besides, sometimes a cigar is just a cigar and a law is just a law--not conservative or liberal, but just a law. Why should a "conservative court" always end up with decisions that only please the most conservative element in the population (and it's not even clear if that would be the case if any of those decisions came out the other way!).

Can one of the True Believers please explain to me why nothing is ever "conservative enough" to you? Don't you ever face difficult decisions that could go either way, irrespectively of your conservative principles? Don't you ever compromise for the greater good? And don't assume that I am asking this from a liberal perspective--I would ask the ultra-liberals the same questions, if they had an opportunity to behave the same way. But they are not the ones who are behaving like spoiled brats in the candy isle right now.
8.3.2005 2:12am
Jerome C. Austriaco (mail) (www):
Conservatives desiring to appoint conservatives is like spoiled brats in the candy aisle?

Oh.
8.3.2005 2:27am
jgshapiro (mail):
T. More:

The decisions you list are generally liberal (except for BMW v. Gore, which is not generally thought to be a 'liberal' decision), but were decided by 5-4 or 6-3 votes. Not quite the same as back in the Warren Court or Burger Court eras. Moreover, you ignore all of the conservative decisions also made by the current court.

Virtually all of its criminal law, habeus, 11th amendment, state co-option, and most of its commerce clause cases (excepting Raich) and property rights cases (excepting Kelo) have been politically conservative in ends, if not in means.

Moreover, the Court has studiously avoided getting involved in new substantive due process crusades which do not command a general consensus of popular opinion behind them. Compare Lawrence, where there is pretty much a national consensus against imprisoning people for consensual sodomy (5-4 on DPC grounds), with Glucksberg, where there is nothing even close to a national consensus (unanimous). What are the odds that Glucksberg would have come out the same way in 1965 or 1975?

And then there is Bush v. Gore, which is virtually impossible to explain except as a means to a conservative end. It certainly was not a conservative application of equal protection doctrine or of state deference.

I don't think the conservatives have done all that badly under the Rehnquist Court.
8.3.2005 3:23am
larryzz (mail) (www):
Did you really think that this post would inspire serious discussion, or just bait the politicos ?
8.3.2005 8:56am
Gary McGath (www):
The reference to the "reined in commerce clause" clearly demonstrates that we're accessing a transdimensional link to the WWW of a universe in which Raich was decided differently.
8.3.2005 9:40am
Daniel Chapman (mail):
"Compare Lawrence, where there is pretty much a national consensus against imprisoning people for consensual sodomy"

Obviously there wasn't in Texas. But as Justice Thomas said, "I think this is an extraordinarily silly law, and I would encourage the Texas legislature to repeal it. However, it is not the place of this court to substitute our opinion for theirs." ... or something along those lines.
8.3.2005 10:07am
Knox Harrington (mail):
Who is acting like a "spoiled child in the candy aisle"? It would seem that when Ginsburg gets confirmed with 93% of the votes in the Senate and fails to answer questions she is being treated fairly but when Roberts does the same he is evasive, etc. It would seem that progressives are going to be hoist on their own petard. But seriously, does anyone think this is anything but fundraising fodder for hacks - on both sides? I am sure that Federalist Society numbers will increase short term and that People for the American Way will also gain. Just an aside, but does Ralph Neas creep anybody else out? Whew!
8.3.2005 10:49am
Duncan Frissell (mail):

Don't you ever face difficult decisions that could go either way, irrespectively of your conservative principles?

Not really. The purpose of having an ideology (or, say, a theology) instead of making everything up as one goes along is efficiency. Just as modern production techniques produce more goods for less labor than primitive pre-specialization and pre-trade economies, the adoption of an ideology saves the individual time and effort and allows one to have answers readilty at hand even for questions one has never before encountered. The answers may not be perfect, but they'll be fast and "good enough" (if one's ideology or theology is good enough). There do continue to be problms "at the margins" but one is able to vastly reduce the amount of work one has to do.
8.3.2005 10:59am
T. More (www):
Buck &JG,

I don't disagree that there have been some conservative decisions from this Court. But I chose the opinions I did, and could have thrown in more (like Raich) to show that it has hardly wrought a "revolution" as is often claimed. Morrisson and Lopez are the favorite examples of the generally liberal professoriate, as somehow signalling a "revolution" in federalism. Hardly, as Raich demonstrates even an acknowledged conservative like Scalia is not interested in seriously revising the meaning or reach of the commerce clause. Thus, Morrisson and Lopez are outliers, if not overturned then also not indicative of a robust future of moving more toward the original meaning of the commerce clause.

The reason I would put BMW v. Gore on the list is that it embraces, at least implicitly, the 14th Amendment as a repository of secret rights, as the Scalia/Thomas dissent suggests. That's not a conservative decision, even if it favored business interests.

I did not try to suggest that this court is particularly liberal, just that the framework it inherited had so entrenched a liberal approach to law that even a hitherto conservative like Kennedy is now working within that framework to opine about the "transcendent" dimensions of liberty which require, apparently, the muddle that is Lawrence v. Texas.

JG--where in the Constitution are judges instructed to apply such doctrines as Substantive Due Process when they discern that the "general consensus of popular opinion" is with them? It's hard to know what to make of that as a legal argument about the role of an unelected judiciary in our system.

I do not castigate Justice Ginsburg for her votes. I think she casts them in good faith in accord with a view of the law which, while I reject it, is maintained by many smart, goodwilled and patriotic people. Were I a Senator I would have voted to confirm her, despite my rejection of her judicial philosophy and despite her refusal to answer questions that will now be asked of Judge Roberts. But she is a liberal, and she is very often in the majority on this court, and it is silly to imagine that the court on which she has sat has by and large been a radically conservative court. It has not been radically anything, and many of its signal decisions have been squarely within a liberal tradition, both in terms of their results and their jurisprudence. This is really beyond dispute.

My objection to the article linked, as well as to a lot of the commentary from Professors like Cass Sunstein who really know better, is that it is quite strange to suggest that the rules that applied to then Judge Ginsburg about answering questions or having a "mainstream philosophy" should now be changed for Judge Roberts.

As to Bush v. Gore, I think most of they hysterical commenary is quite overblown. If you look at Henry Paul Monaghan's article on Supreme Court Review of State Court Determinations of State Law and Bush v. Gore, you'll see that it is easy to situate that decision in a long and uncontroversial tradition of reviewing State Supreme court determinations of even state law when they are (more or less) threshold questions to federal rights. Do I think the partisan breakdown of the Court was unfortunate? Sure. But 7 Justices on the court thought there was a federal Equal Protection issue at stake. We should not be too surprised that, on what was clearly a hard decision for the Court, both the liberals and the conservatives tended to filter the evidence as we all do at the margins, being human: in accordance with other preferences they likely hold. The Court has ever operated thus. That's why we put 9 people on the Court.
8.3.2005 11:15am
David M. Nieporent (www):
I agree with what T.More writes, but I'd add that the thoughtful members of the "liberal professoriate" who are discussing a federalism revolution should be, and are, focusing more on the 11th amendment line of cases rather than the two isolated commerce clause cases.

That having been said, the eleventh amendment cases are clearly just tinkering at the margins also, as Lane and Hibbs demonstrate.
8.3.2005 1:31pm
Shelby (mail):
T. More: The reason I would put BMW v. Gore on the list is that it embraces, at least implicitly, the 14th Amendment as a repository of secret rights, as the Scalia/Thomas dissent suggests.

I don't have the opinion in front of me, but it always seemed a fairly straightforward 8th Amendment case; the 14th was relevant mostly to make it apply to the state. "...nor excessive fines imposed..."
8.3.2005 2:02pm
Shelby (mail):
OK, never mind, misremembered the case.
8.3.2005 2:04pm
T. More (www):
For the record, I quite agree that the 11th Amendment cases are the most difficult to reconcile with my own reading of the Constitution's text, structure and history. I am still a law student, but I have read the relevant cases and the arguments and I regard them as a stretch.

As I say, the court has done some "conservative" as things defined by result, some "conservative" things (the ones I support) as defined by jurisprudence (come what may, like Scalia's opinion in Hamdi), and some "liberal" things under both heads as well. I would put the state sovereign immunity cases into the conservative by result more than by method category, and I find them hard to support as a result.
8.3.2005 2:45pm
Fern R (mail):

"Compare Lawrence, where there is pretty much a national consensus against imprisoning people for consensual sodomy"

Obviously there wasn't in Texas. But as Justice Thomas said, "I think this is an extraordinarily silly law, and I would encourage the Texas legislature to repeal it. However, it is not the place of this court to substitute our opinion for theirs." ... or something along those lines.

I believe the quote is "[T]he law before the Court today is … uncommonly silly. If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources." (citations omitted)

Anyway, I don't understand how you came to the conclusion that there isn't a consensus in Texas that prohibiting sodomy between consenting adults is stupid? The law in question was enacted a long time ago and was never enforced. There was an interesting article in Legal Affairs suggesting that the case was entirely staged to challenge an old, stupid law.
8.3.2005 5:24pm
jgshapiro (mail):
T. More:

I am asserting that the national consensus argument is what can rationalize the Court's DPC decisions (apart from Roe) for the past few decades. On that theory, you can leave almost all of them alone, since they can all be said to (at least now) enjoy a consensus of support as fundamental rights.

If you don't try to make sense of those decisions and apply some principle to them, you are left with the choice of (A) overruling all of them that do not rest upon the Bill of Rights or what was considered fundamental at the time that the 14th amendment was adopted, (B) saying "this far and no farther" -- i.e., we will allow the DPC decisions up to now to stand but will not extend the doctrine, or (C) deciding that there are no limits to what may be found in the DPC.

I don't think the nation would stand for the first option, since rights favored by most have been found to be guaranteed by the DPC: rights to contraception, home-schooling, etc. It's too late to put the genie back in the DPC bottle. The second option is unenforceable as it applies to the Court: there is no reason why a future majority would not simply ignore any suspension of DPC doctrine. The third option is a recipe for rule by judges, at least on social issues.

Surely there must be some principle that can cabin the reach of the DPC without overruling every DPC decision since 1940 that went beyond incorporation.

Unfortunately, we do not start with a blank slate and neither the legal system nor the Supreme Court can withstand the consequences of trying to undo every poorly thought-out judicial doctrine that has been entrenched for decades.
8.3.2005 10:11pm
T. More (www):
JG,

That's a perfectly reasonable affirmation of my overall point: to claim that the jurisprudence of this court is overall conservative makes no sense, given the entrenchment of liberal principles they inherited.

The options you lay out may or may not be exhaustive, however. Moreover, it is not at all obvious why normal principles of stare decisis wouldnot apply, so point A makes no sense to me. Substantive due process, being literally oxymoronic and utterly non-textual, can surely be allowed to survive in some places and knocked out in others. Is there a reason to overturn Griswold? Surely not. There was no reason to bring it in the first place, as it knocked out a deadletter law. On the other hand, there are lots of good reasons for overturning Roe, occasionally even advanced by pro-choice folks like Jeffrey Rosen and The New Republic, for example.

Further, it is not clear why the national consensus argument is not an argument for rule by judges, since it trusts them to do what they are not trained or paid to do normally, namely identify and codify previously unidentiefied and uncodified points of national consensus.

In any event, the entire discussion is quite far from a conservative revolution, no? Which was my point.
8.3.2005 11:52pm
T. More (www):
JG,

That's a perfectly reasonable affirmation of my overall point: to claim that the jurisprudence of this court is overall conservative makes no sense, given the entrenchment of liberal principles they inherited.

The options you lay out may or may not be exhaustive, however. Moreover, it is not at all obvious why normal principles of stare decisis wouldnot apply, so point A makes no sense to me. Substantive due process, being literally oxymoronic and utterly non-textual, can surely be allowed to survive in some places and knocked out in others. Is there a reason to overturn Griswold? Surely not. There was no reason to bring it in the first place, as it knocked out a deadletter law. On the other hand, there are lots of good reasons for overturning Roe, occasionally even advanced by pro-choice folks like Jeffrey Rosen and The New Republic, for example.

Further, it is not clear why the national consensus argument is not an argument for rule by judges, since it trusts them to do what they are not trained or paid to do normally, namely identify and codify previously unidentiefied and uncodified points of national consensus.

In any event, the entire discussion is quite far from a conservative revolution, no? Which was my point.
8.3.2005 11:52pm
Daniel Chapman (mail):
"I don't understand how you came to the conclusion that there [was]n't a consensus in Texas that prohibiting sodomy between consenting adults is stupid?"

The law existed when there was an easy, constitutional method of removing it if the majority wanted. Seems simple to me, honestly. But if that's not enough... this took me 5 seconds in google:

http://www.worldpeaceformayorofhouston.com/m030905b.html

Hardly looks like people in Texas were jumping for joy after 5 people in Washington DC finally helped them get rid of this pesky law that just refused to go away...
8.4.2005 10:47am