Supreme Court

Geoffrey Stone Cuts Through Judicial Stereotypes

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University of Chicago law professor Geoffrey Stone is sick of stereotypes about conservative judges, who supposedly "apply the law," and liberal judges, who supposedly "make up the law." Writing in today's New York Times, Stone calls this simplistic view "highly misleading." The truth, he says, is that conservative judges "tend to exercise the power of judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society." Their aim is to "protect the powerful rather than the powerless." Liberal judges, by contrast, "have tended to exercise the power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority." This approach, Stone avers, "fits much more naturally with the concerns and intentions of people like Madison who forged the American constitutional system."

In my column today, I note that progressives and conservatives are both capable of standing up for the rights of the little guy, though neither group does so consistently.

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  1. I read it this morning.

    Kelo, Kelo, Kelo.

    1. Oh yeah, almost forgot –
      Citizens United (free speech), Citizens United, Citizens United.

      1. Liberal judges only like to invalidate those laws that disadvantage liberal political dissenters.

    2. None of this should be construed as an endorsment of the “conservative” wing of the court.

      Fifth Amendment,Fifth Amendment, Fifth Amendment.

    3. Exactly. Notice he talks about “racial and religious minorities, political dissenters, people accused of crimes”, but nowhere does he talk about property or contract rights. The reason that “stereotypes about conservative judges, who supposedly ‘apply the law,’ and liberal judges, who supposedly ‘make up the law.'” exist is because they are generally true.

  2. I think Geoffrey Stone’s stereotypes are much better.

  3. Hmm. How about judges who are both “conservative” and “liberal” who make rulings that increase the power of the state at the expense of the individual? Where do they fit in his non-simplistic analysis? Like, say, the Raich decision?

    Methinks the good professor needs to quit smoking crack.

  4. Hush now, T, you’ll confuse Tony and Scotch with your idea that there can be more than two points of view on a political issue.

    1. I know, I know, the internets aren’t for nuance. I’ll be good now.

  5. Conservatives judges tend to exercise the power of judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society . . . protect the powerful rather than the powerless.

    Liberal judges
    tended to exercise the power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority.

    Did he really state those Manichean bullet points while criticizing others for being ‘simplistic?’

    As mentioned, Kelo (cough), Kelo.

    1. Beat me to it. Wow, look how he re-framed TEAM RED TEAM BLUE! It’s slightly different, except it’s not! Awesome!

    2. No shit. I thought the same thing.

      That piece is an example of overly simplistic well poisoning worthy of MNG or Tony. Sheesh.

    3. “Did he really state those Manichean bullet points while criticizing others for being ‘simplistic?'”

      QFMFT

    4. no wonder most lawyers and judges can’t fucking reason their way out of a paper bag.

  6. The truth, he says, is that conservative judges “tend to exercise the power of judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society. increase the power of the state.” …” Liberal judges, by contrast, “have tended to exercise the power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority. increase the power of the state.”

    Just to make the distinction a little clearer.

  7. I note that progressives and conservatives are both capable of standing up for the rights of the little guy, though neither group does so consistently.

    So neither conservative or progressive judge stands up for the rights of individuals regardless if they are rich or poor or powerful or powerless all the time….what is the name of that kind of Judge?

    1. I believe it’s “conserberal.”

      1. There were once two-headed judges who guarded the gates to Hades?

    2. I believe “extinct” is the word you are looking for. Or maybe “mythical”.

  8. why are liberals so incapable of seeing the government as a powerful interest group in and of itself? And why are they so willing to entrust the lives of poor people (and the rest of us) in the hands of governments that they fully recognize, perhaps more so than is actually correct, are controlled by powerful interests and lobbyists? I just don’t get it.

    1. Government is controlled by lobbyists because “small government” champions made it possible while they were running things. Why can’t libertarians see that a small, weak government is one that is easily manipulated?

      1. Government is controlled by lobbyists because “small government” champions made it possible while they were running things. Why can’t libertarians see that a small, weak government is one that is easily manipulated?

        Errr…uhmm….no.

        As a liberal myself, I can’t get behind this sentiment.

        I will freely admit that I agree with libertarians when they espouse the belief that a limited government is one that can do less damage and is less corruptable.

        The reason why lobbyists spend so much money to try and control government is because they are involved in EVERYTHING.

        If the government were limited (and is size were properly limited by the courts when they over-reach rather than the amount of deference given to the politicians) than the lobbyists would not waste their energy and time lobbying an entity that wasn’t empowered to help them.

        A smaller limited government has a better resistance to corruption because it isn’t powerful enough to be worth corrupting.

        Now where I disagree with libertarians is on how small the gov’t should be and which areas they should be limited to. But a smaller more restricted government is, I believe superior to what we are seeing today.

        1. As a liberal myself, I can’t get behind this sentiment.

          Tony just plays a liberal on H&R

        2. If the government were limited (and is size were properly limited by the courts when they over-reach rather than the amount of deference given to the politicians) than the lobbyists would not waste their energy and time lobbying an entity that wasn’t empowered to help them.

          A smaller limited government has a better resistance to corruption because it isn’t powerful enough to be worth corrupting.

          Now where I disagree with libertarians is on how small the gov’t should be and which areas they should be limited to. But a smaller more restricted government is, I believe superior to what we are seeing today.

          ——————-

          Fine points – you are exactly right as to the persistence of lobbyists being a symptom rather than the actual disease.

          Congress has appropriated an ever growing amount of authority for itself, spurred in no small part by the income tax, the 17th Amendment, and a compliant judiciary, and that itself is the problem.

          And your conclusion is well-thought and civil, too. Thank you.

      2. Why can’t libertarians see that a small, weak government is one that is easily manipulated?

        Why can’t statists see that every government is easily manipulated, but the inevitable manipulation of a small, weak government matters less?

    2. I can only guess it’s that if we just elect the right philosopher-king, why the government would walk n the side of angels.

  9. So, if they’re on my team, they’re standing up for the little guys, but if they’re on the other team, they’re supporting the man.

    Just wanted to make sure I understood clearly Stone’s pedestrian analysis of the SCOTUS…

  10. After reading that steaming pile of crap I’m glad I went to Northwestern instead of the U of C. Of course, NU does employ Bernardine Dohrn but I figure she’s counterbalanced by the Center on Wrongful Convictions.

    1. Bernardine Dohrn should head up the Center on Wrongful acquittals.

      1. Bernadine’s my girl!!

  11. Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment,

    What part of “Congress shall make no law” is so hard to understand?

    … that the Second Amendment prohibits the regulation of guns,

    The supreme court did no such thing and I suspect Geoffrey Stone knows it.

    that affirmative action is unconstitutional,

    Which it is.

    that the equal protection clause mandated the election of George W. Bush

    Totally fucked up decision. They should have let the whole game play out. GWB would still have won Florida.

    and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.

    which, as a private organization, they do. They do not have the right for preferred use of public facilities or to receive government grants.

  12. what is the name of that kind of Judge?

    Mike.

  13. Note that his analysis, as is typical of the lefty law professoriat, makes no mention of the underlying principles that might drive the results.

    After all, “invalidat[ing] laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society” might actually be the right result when applying a Constitution of limited enumerated powers, when the laws overturned exceeded those powers.

    To someone looking for a neo-Marxian explanation (and projecting their own tendencies toward deciding cases so the “right” people win), the answer is obvious – the right-wingers are in the pocket of the oligopoly.

    Of course, contra Stone, invalidating laws because they exceed Constitutional powers or intrude on Constitutionally protected property, association, and free speech rights, does indeed “fit much more naturally with the concerns and intentions of people like Madison who forged the American constitutional system,” regardless of whether the immediate beneficiaries are the rich and powerful.

    1. Right, Scalia is just applying the law as written when he rules for the unfettered rights of corporations to engage in electioneering but against people’s right to privacy when they’re having sex.

      1. While I have plenty of problems with Scalia, there’s one small detail that distinguishes Lawrence v. Texas from Citizens United. There’s an amendment (the First) that protects free speech. There’s no amendment that protects privacy.

        For the record, I would (in theory, at least) be in favor of an amendment that creates a constitutional right to privacy. However, until that happens I won’t read one into the Constitution even though I’d like it to be there.

        1. I think equating electioneering with free speech is at least as much of a stretch.

          1. “Congress shall make no law” really is hard for some of you to comprehend, ain’t it?

            1. “It defines our most fundamental rights and protections in open-ended terms: “freedom of speech,” for example, and “equal protection of the laws,” “due process of law,” “unreasonable searches and seizures,” “free exercise” of religion and “cruel and unusual punishment.” These terms are not self-defining; they did not have clear meanings even to the people who drafted them.”

              Well that is a common failure in Tony’s ideological circles. Saying that the Constitution does not really mean anything at all is how you can justify a “tu quoque” fallacy that the conservatives on the Court are just making up stuff as they go along just as much as the liberals.

          2. Tony|4.14.10 @ 5:55PM|#
            “I think…”

            Obviously not.

          3. What the fuck is the point of having free speech if political speech is not considered speech?!?!

            What are we going to talk about during an election year? Sports, cooking recipes?

            Are you retarded?

            1. It’s sort of like banning cruel and unusual punishment unless the defendant is guilty of something reeeeeally bad.

          4. What exactly do you think electioneering is, if not speechifying with the point supporting candidate’s election?

            1. MJ|4.14.10 @ 6:45PM|#
              “What exactly do you think electioneering is,…”

              It’s Chony’s attempt at re-naming speech s/he doesn’t like with a pejorative in the juvenile hope no one would notice.
              Emoting, rather than thinking.

          5. You’re such a shitty troll.

      2. Right, Scalia is just applying the law as written when he rules for the unfettered rights of corporations to engage in electioneering

        Corporations like the New York times Co.?

        Did they have the right to publish the Pentagon papers?

  14. So, the title of this post, “Geoffrey Stone Cuts Through Judicial Stereotypes” – is it supposed to be ironic, half-true, or just not at all true? Because srsly, I’ve heard pollack jokes that cut through more stereotypes than this.

    1. After only a year in Canada, a Polish man got married to a nice Canadian girl. They got along quite well until the day he rushed into his lawyer’s office and begged him to arrange a quick divorce. The lawyer said, “What are the circumstances? Have you any grounds?” And the Polish immigrant replied, “Ja, ja, ve’ve got an acre and a half with a nice little house.” “No, I mean, what is the foundation of your case?” “It’s made of concrete.” “Does either of you have a grudge?” “No, but we have a big carport.” “I mean, what are your relations like?” “All my relations are in Poland.” “Is there any infidelity in your marriage?” “Yes, we have high fidelity stereo and a CD player.” “No, I mean, does your wife beat you up? “No, I get up before her.” “Is your wife a nagger?” “What? No, she’s white.” “Why do you want this divorce anyway?” “She’s gonna kill me. She’s going to poison me.” “Really? What makes you think so?” “I’ve got proof.” “What kind of proof?” “She brought home a bottle from the drug store that says, ‘Polish Remover!'”

      LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL

      1. Is that a true story, Warty?

  15. Sigh. Will no one ever take my work seriously? Or I am doomed to ever be a stereotype?

    1. You’re certainly doomed to misspell your last name, Mr. Pollock.

    2. I don’t appreciate the ethnic slur, and for the record, I wasn’t even Polish. My dad was born a McCoy but took the surname of his neighbors, who adopted him after his own parents had died within a year of one another.

      1. Nice switch from first to third, schizo.

        1. No, the third person sentences refer to Pollock’s father.

          1. I always could count on the Slut to have my back…

  16. Clarence Thomas still has the best quote addressing the most crucial issue behind the idea of limiting government intervention in the economy and public and private life in general- (talking about Congress using the Commerce Clause to regulate pot) “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the Federal Government is no longer one of limited and enumerated powers?”

    How can this be construed as meaning that Thomas “tend(s) to exercise the power of judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society.” I mean, how can this be, unless you’re an idiot?

    Occams razor and Kelo say Stone is an idiot.

  17. “As the list of rulings above shows, they tend to exercise the power of judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society. They employ judicial review to protect the powerful rather than the powerless.”

    That a terrible category error on Stone’s part. The purpose of the law is not to protect the so-called powerless at the expense of all other considerations. It is to judge who is in the objective right, regardless of what the subjective power relations are between the litigants. That’s why Justice is depicted as blindfolded. What Stone wants in a jurist is a corruption of justice.

    Good Lord, but these progressives scare the piss out of me, sometimes. How does someone even start thinking like that?

    1. Agreed. WTF? That is some scary motherfucking thinking there.

  18. What gets me about this is that she frames the issue in the context of how it affects “powerful” or “powerless” people.

    Shouldn’t the proper context be equal justice under law? What does it matter how the law affects minorities or corporations? What matters is does the law treat everyone equally.

    To suggest that justices should consider the privilidged or unpriviliedge status of the groups it affect is to say that justice should not be blind.

    1. Stone encapsulates the “progressive” mindset that permeates American law schools. Law in general, and the Constitution in general, are not neutral governing principles that apply equally to all. Rather, they are simply tools by which “deserving” people (the “disadvantaged” or “downtrodden”) are to be rewarded with rights, and “bad” people (bosses, landlords, property owners, corporations), are to be punished with obligations and regulations. They call it “using law as a tool of social change.” Those who speak of equal justice, or of justice being blind, are dismissed as naive, ignorant, racist, or all three.

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