Sunstein on the Direction of the Supreme Court:
Over at the The New Republic's Open University blog, Cass Sunstein has an interesting post about the future direction of the Supreme Court.

  I think there's a key distinction underlying Sunstein's post that needs to be brought out here: the difference between the relative political orientation of the Justices and the relative political orientation of the law. They are related, but they are not the same. To see the difference, consider a very highly stylized example. Imagine in Year 0 a majority of the Court is very far to the left, and and as a result key areas of law are pushed quickly to the left. Now imagine that ten years later, a majority of the Court is only moderately to the left, and that now the law is being pushed only slowly to the left.

  So is the new Court "conservative" or not? It depends how you look at it. The net effect of the new Court is still to move the law to the left in key areas, just more slowly than before. At the same time, the political orientation of the Justices will have moved to the right: the new Court will be much more conservative than in the old days of Year 0. The result would be a Supreme Court that people call "conservative" even if the effect of the Court's decision is to move the law to the left. (To be clear, I'm not saying that this is exactly what happened with the Warren Court, and no, I'm not trying to endorse such a political view of the law; this is just an illustration to show the distinction.)

  I wonder if this distinction explains why the public perception is different from what Sunstein suggests: my sense is that Cass is focused on the changing orientation of the Justices, whereas the common critique is more focused on the changing positions of the law.
Laura S. (www):
Surely this is just an example of anachronistic thinking. e.g., Miranda was once a hard-left position. Now supporting Miranda is centrist.

I think there is a flaw in orienting yourself with respect to specific holdings. Instead I would draw your attention to several paradigms.

e.g., does the "footnote 4" philosophy guide the judge's interpretation of rights

Randy Barnett's "Lost Constitution" argued a paradigm based on whether the government bore the burden of proof under heighten scrutiny that a law was within the enumerated powers. In this sense, Breyer is by no means moderate and would not have been seen as such even in 1940.
7.13.2007 8:59pm
More to the point, isn't this the point of elections? If Americans keep electing right wing Presidents, one presumes the Supreme Court SHOULD move to the right. The only surprise is that it has not done so more considering how often the Republicans have held the white house.
7.14.2007 3:12am
Poorly written post Kerr. B-.
7.14.2007 10:02am
Simon Dodd (mail) (www):
I would be interested to read a cohesive, well-supported and well-reasoned argument that the four members of the court's liberal bloc are not, in fact, as liberal as their predecessors, but Cass' post isn't it. It merely asserts that they are to the right of their predecessors and reasons from that assumption. I'm left with a feeling of "that's it?"
7.14.2007 11:49pm
EricRasmusen (mail) (www):
The first comment raises the important point. Miranda was a hard-left Warren Court decision. The Court of recent years has moved to the left of Miranda, making it constitutional instead of statutory. Should we say that the current Court is to the Left of the Warren Court?

Yes, I would say. It is to the left of the Warren Court, after all. What Commentor 1 is thinking, I suppose, is that lawyers and perhaps society generally are so far to the left now that the current Supreme Court is no longer to the left of the current society.
7.15.2007 12:04am