The "Conservative" Supreme Court


Earlier this week, New York Times Supreme Court correspondent Adam Liptak had a long piece arguing that under the leadership of Chief Justice John Roberts, today's Court had become "the most conservative one in living memory." Cato Institute legal scholar Ilya Shapiro says Liptak's analysis is both simplistic and wrong:

First, the claim that "all" (or even most) judicial decisions can be assigned an ideological value is simply laughable.  Are all decisions favoring criminal defendants, unions, and people claiming discrimination or civil rights violations "liberal" while those favoring prosecutors, employers, and the government "conservative" (as the scholars who maintain the database maintain)?  What about union members suing unions or large corporations suing each other?  What if the criminal defendant is a Fortune 500 CEO (like Conrad Black and Jeffrey Skilling in this past term's "honest services fraud" cases)? What about "reverse" racial discrimination claims like those at issue in Ricci v. DeStefano (the New Haven firefighters case)?  What about an oil company suing the EPA?  A financial services company suing the SEC (or vice-versa)?…

While we're at it, look at the First Amendment.  How do you account for the leading pro-free speech justices the last 20 years being Kennedy, Thomas, and Souter?  Is a vote allowing a statute that criminalizes certain kinds of disfavored speech "liberal" or "conservative"?  (If you have a ready answer, contrast what you think about hate speech laws with what you think about anti-pornography laws.)

Read the whole thing here.

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  1. To me the term “conservative” means upholding the status quo. In that sense the Court is not fairly conservative. It is not like that much has changed. A court that re-interpreted the Commerce Clause, now that would be a radical Court.

    1. No! The Commerce Clause is sacrosanct! It must NEVER be re-interpreted! It is The Holy Word!

    2. It seems that liberal/conservative is being used as a fuzzy analog for left/right, when really it’s just a soi-disant way of saying “the goals that I, the author, what to say that Democrats possess vs. the goals of Republicans that my bias assumes.”

      This is just Team Red/Team Blue shift-keying.

      1. Yeah. The art of reporting the news has devolved into a simplistic routine of left vs. right, red vs. blue, liberal vs. conservative. It’s intellectual laziness, what the news bosses assume we the ignorant can handle without expending too much energy in actually thinking for ourselves.

        1. It is not that they assume we are stupid. It is that reporters are that stupid. They don’t understand anything beyond Red team versus Blue team reporting. If you don’t believe me, read the journolist e-mails. None of those allegedly “top minds in journalism” showed any understanding of any issue beyond “our side good, their side bad, how can we make this look good for our side”.

          1. As a former TV news weasel, I concur.

            Most people working in newsrooms are quite ignorant about anything to do with math, statistics or political philosophy… which explains why election coverage fails so miserably on so many levels.

          2. reporters are that stupid

            Can’t argue with you there. And because they are a priesthood, everyone is afraid to state the obvious. Their livelihoods depend on keeping the inside joke a secret, and hoping We The Ignorant don’t notice. And why not? They’ve been getting away with it for years.

      2. It’s even more incoherent than that, because these goals shift depending on who is in power; if Bush were in power, any ruling favoring wiretapping, etc. would be “conservative”, but with their guy in charge, it’s not any more.

        Essentially, this shit is meaningless. It’s not TEAM RED TEAM BLUE shift-keying; it’s TEAM RED TEAM BLUE masturbation.

      3. +1

        No shit. SRSLY.

  2. Didn’t you get the memo?

    Anything that serves some perverted sense of social justice, puts the beat down on big bidness and places the supreme power of state over the individual, spun only in the proud tradition of Orwellian doublespeak, is “liberal.”

    Anything icky, that makes puppies cry and whatever Roberts, Scalia and Thomas vote for is “conservative.”

    Lather, rinse, repeat.

  3. Once a kangaroo court, always a kangaroo court LOL


    1. Indeed.

  4. Bogeyman! Booggeeyymannn!! Run, he’s gonna get you!!!

  5. One of the few life-lessons learned in law school is that nearly all mainstream media reporting on legal matters is bullshit–the reporters just don’t know enough about the legal system to convey it accuately.

    I imagine people with a background in the hard sciences come to the same conclusion even earlier with regard to their discipline.

    1. I imagine people with a background in the hard sciences come to the same conclusion even earlier with regard to their discipline.

      I did. Many reporters fall back on “a little inexactitude saves a ton of explanation” to cover their glassy-eyed asses.

    2. Yeah – and for those of us with a background in hard science AND a law degree, it’s maddening.

      1. For those of us who know everything, it’s unbearable.

        1. Yer damn skippy. Those of you who think you know everything are extremely annoying to those of us who do.

    3. It’s not just law or hard science. If you know any subject well enough, media reporting on it is bullshit.

      1. But they can be fun to manipulate.

        I had a friend who was a case manager at a home for homeless kids back in about 2004. They were having funding problems in part, because a major donation was being put on hold due to the Homeland Security Act of 2003. Apparently there was some question about the doner.

        So I notified — via email — all the major media outlets in the Twin Cities simply stating that due to the HSA, homeless kids would be forced back onto the street.

        I knew that the local liberal media would jump at the chance to cast the HSA as a heartless extention of George W. Bush and sure enough, within an hour, there were reporters and cameras at the home all clamering to get the story.

        It made the news and a lot of people who saw / read it donated a bunch of money. Some even offered to take the kids in, which turned out to be unneccessary. The people that ran the home were floored by all of the media attention.

        I never told my friend that I had anything to do with it. Funny thing, thier outside PR people took credit for it.

      2. If you know any subject well enough, media reporting on it is bullshit.

        Amen. I’ll see law and hard science and raise you firearms. Try talking to most reporters about gun rights or teaching people to shoot.

        Early this summer the Texas Capital installed metal detectors at the entrances. There’s a line for concealed handgun licensees to bypass the lines of schoolkids and such. So all the Austin reporters took the class to get their CHLs. Hilarity ensued.

    4. One of the few life lessons I learned in law school is that Supreme Court judges have their biases like all of us. They decide for the outcome they want and then use whatever legal theory justifies a particular decision.

      1. I doubt that legal realism is all it’s cracked up to be.

        I’ve worked for judges, not on the supreme court level, but who nonetheless ruled in favor of litigants they hated because the legal case was in their favor.

    5. “the reporters just don’t know enough about the legal system to convey it accuately.”

      Thats not unique to law. The media has no idea how to cover my field either.

      1. Are you Lindsey Lohan? Because that media coverage is totally unfair.

  6. Adam Liptak ? generally a sharp and honest broker

    Stopped there. That’s a lie. No one could believe that. Not even an ass-licker from Cato.

    1. People tend to be more civil when they have to put their own name to what they write in a public space instead of sitting anonymously behind a keyboard.

      Rick Romero with more at 11.

    2. Try reading an Orin Kerr or Eugene Volokh post over at VC. Those two are slaves to this type of sycophantic bootlicking.

  7. Conservative Court

    Oogaboogaaaaah! Guns everywhere! Slavery! No more CHOICE! No more handicapped parking spaces!


  8. This is just Team Red/Team Blue shift-keying.

    Is this some sort of masturbation reference?

    1. I’m going to hold you personally responsible for any recursive spirals you create.

    2. I’m taking my talents to the Supreme Court

  9. I try to limit my recursive spiraling to once or twice a day. I’m not getting any younger, you know.

  10. And as far too many lefty/progressives fail to grasp, Both Justices O’Connor, who some would categorize as conservative (but who in reality was kind of unpredictable as to where she would come down in any given case) and Clarence Thomas, a/k/a “that awful right-winger”, a/k/a “Uncle Tom”, a/k/a/ “race betrayer,” dissented in Gonzales v. Raich – i.e., sided with the individuals who wanted to grow pot plants for their own use.

    But they did so not because they have some belief that people ought to be able to grow pot, but because of their understanding of the limits on Congressional power versus state power. But of course, far too many people have no ability to grasp that distinction or those concepts, and instead think that any vote on that basis simply reflects the person’s policy preferences.

    1. But, but, actually interpreting the Constitution, which is just interpreting a manual on limitations of the federal government, has no place in a world where we need to get things done and ban stuff we don’t like!

  11. Shorter Liptak:

    Our political tribes are, for the most part, intellectually, morally, and ideologically incoherent. It should come as no surprise that attempts by tribes people to project their incoherence onto the Supreme Court are also incoherent.

  12. First, the claim that “all” (or even most) judicial decisions can be assigned an ideological value is simply laughable.

    In Progressive Land, that would be a feature, not a bug. In essence, Liptak and people like him want more ideological decisions. Because he’s not getting the ideological decisions he wants, the court is merely “bent” the opposite way.

    Because Liptak undoubtedly believes in the Living Constitution, constitutional law is, as he sees it, just another political racket to be dominated by the party in power.

  13. I’m pretty much convinced that the only part of the media who understand the subject that they cover with any depth or in any detail are sports writers.

    Not coincidentally, that is the part of the paper which is keeping the rest of the newspaper business alive, by and large.

    1. I’m pretty much convinced that the only part of the media who understand the subject that they cover with any depth or in any detail are sports writers.

      Only if you limit it to the politically correct sports the media covers. Ask a reporter about the National Matches sometime and watch for the blank look. Or pretty much any other shooting sport.

  14. You’d be amused how the local liberal-leaning rag covers any story involving firearms. One thing they know for sure is guns are icky, even the “Klock” pistol a citizen recently used to defend himself.

    1. I’ve seen news accounts in which “the gun went off” (translation: the idiot had his finger in the trigger instead of alongside), and one in which a person shot another using a “9 caliber pistol” or a “22 mm handgun”, etc.

      I also recall an NPR story a few years back, about the AWB, in which the reporter visited a firearms dealer, who demonstrated an AR-15 for him at the dealer’s indoor range. The reporter described the shooting (while a tape of it played in the background) by saying the guy fired the gun “so fast you couldn’t count” how many round he fired, and how the gun was so powerful “you could shoot someone through a wall without even aiming”. Which, of course, is true for just about any handgun and even a lowly .22 bolt-action rifle.

      1. A 22 mm handgun would be one hell of a weapon.

  15. Is a vote allowing a statute that criminalizes certain kinds of disfavored speech “liberal” or “conservative”?

    Both of the above.

    1. Whose speech is being criminalized?

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