Supreme Court

Simplifying the Supreme Court

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Yesterday I noted an unfortunate column by Slate's Dahlia Lithwick and NYU's Barry Friedman which claimed that Supreme Court Chief Justice John Roberts is a master "illusionist" who has hoodwinked the rubes with his uncanny legal tricks. I should have spent the same time reading UC Irvine law school dean Erwin Chemerinksy, who avoided silly metaphors and instead made the provocative and straightforward argument in the L.A. Times that "this is the most conservative court since the mid-1930s." That's a claim worth thinking about. Here is Chemerinsky's big assertion:

During the first years of the Roberts court, it has consistently ruled in favor of corporate power, such as in holding that corporations have the 1st Amendment right to spend unlimited amounts in independent political campaigns. For the first time in American history, the high court has struck down laws regulating firearms as violations of the 2nd Amendment and held that the Constitution protects a right of individuals to possess guns. It has dramatically cut back on the rights of criminal defendants, especially as to the exclusion of evidence gained through illegal searches and seizures under the 4th Amendment and the protections of the 5th Amendment's privilege against self-incrimination. It has greatly limited the ability of the government to formulate remedies for the segregation of public schools. It has significantly expanded the power of the government to regulate abortions.

Some of the decisions he's referring to clearly count as conservative, but do they all? Remember that the ACLU sided with the activist group Citizens United in its landmark case, arguing that the First Amendment right to political speech trumps so-called campaign finance reform. Plenty of liberals still think Citizens United v. FEC came out wrong, of course, but it certainly means something when a liberal heavyweight such as the ACLU says the decision came out right.

As for the Second Amendment cases, a very impressive list of liberal legal scholars lined up behind the winning propositions that the Second Amendment protects an individual right to keep and bear arms (District of Columbia v. Heller) and that the 14th Amendment applies that right to the states (McDonald v. Chicago). Again, some liberals were unhappy with those decisions. Guess what? Some very high-profile legal conservatives were unhappy with them too. In fact, Justice Clarence Thomas filed a separate concurrence in McDonald in order to make a principled originalist argument that also served as a none-too-subtle critique of the majority opinion filed by his fellow conservatives.

In other words, there are divisions on the legal right that are just as important as those separating conservatives from liberals, and the same holds true for divisions on the legal left. None of that makes for simplistic op-eds painting the chief justice as an evil magician, nor does it allow for overly broad characterizations of the Supreme Court as a conservative (or liberal) monolith, but it does have the virtue of being useful information if you want to understand what's actually going on in the courts.

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  1. is this the same motherfucker who reason had an article about several weeks ago regarding the commerce clause? what a fucking crosseyed, limp dicked, lisped speaking hack that guy is.

  2. “‘Illusions,’ Michael. A “trick” is something a whore does for money… or candy.”

  3. Saying “an unfortunate column by Dalia Lithwick” is almost a tautology.

    1. Fortunate name, though. It enabled a classic limerick:

      There was a young man from Australia
      Who painted his ass like a dahlia.
      The shape was just fine,
      And the colors divine.
      But the smell–ah, that was a failure.

  4. Let’s see: the left currently controls the Presidency and both houses of Congress, and just nominated two Supreme Court judges, but the conservative boogeyman is still ascendant?

    Methinks some folks see a bloodbath approaching on the horizon in a few weeks…

    1. The whole nation is racist as long as one guy with a mullet, in a trailer in montana whispers the n-word in the dark of night.

    2. Obama’s SCOTUS nominees were replacing liberals. Bush at least got to replace one moderate in O’Connor. Chances are the next justice to step down will be Ginsburg, so that’s unlikely to change anything either.

      If you want to see a Washington catfight, wait till Kennedy retires. That’s going to be interesting.

    3. Epi, the right-wing conspiracy is vast. Vaaaaaaaaaaaaaaaast, I tell you.

      1. I’d say the court from the arrival of Roberts and Alito to the arrival of Sotomayor was the most conservative at least since the 50s and probably the 40s. It’s not apparent to me that that is still true.

  5. Strange how people who are for states rights embrace the Constitution, considering its entire reason for being was to reign in all the power the states got in the Articles of Confederation.

    1. You sure jack off funny.

      1. Dude, I’m flattered – but I’m not gay.
        Remember, regardless of how much you get bullied, it gets better.

    2. “[A]ll the power”? You’ll be glad to know that adult education classes are offered at most local high schools, and that American history is usually one of the classes available. Please turn in your book report after you’ve read the Federalist Papers.

      1. Thanks for making my point for me.
        I’m stunned, STUNNED I SAY, to hear a libertardian doesn’t understand the Constitution.

        1. Classes usually begin at 7 p.m. and end at 9. So you can still watch Dancing with the Stars.

          1. She strikes me more as a Survivor woman.

    3. This is one of the dumbest things I’ve ever read. It’s a close second to “the rich should pay more taxes because they benefit more from the gov’t” bullshit that someone posted last week.

      1. I suppose the truth would sound stupid to an idiot.
        It’s not my fault your understanding of American history is limited to “the Constitution is fucking awesome”.

        1. Watch where you’re aiming that thing, will ya? Nobody wants to get hit with any stray spooge.

          1. What is it with libertardians and arguing with porn language? I mean, I know this whole site is one big circle jerk, but please…

        2. This new troll is a gift that keeps on giving. Like herpes.

          1. You would know.

            1. !!!111!!!1

    4. Okay, porn metaphors aside, let me see if I understand your argument… The Articles of Confederation had an incredibly weak federal government. Given the problems with said weak federal government, a new Constitution was drafted–albeit one that still placed limits on federal power (just not as many limits as did the AoC).

      Now, because the Constitution delegated more powers to the federal government than did the AoC, it is somehow hypocritical to champion the limits imposed by the Constitution.

      If that is not your argument, please let me know where I’ve misrepresented your claims.

      1. Believe me, this guy lost you at “Okay”.

        1. He had me at ‘hello’.

      2. And it runs away once a real discussion starts.

    5. Where did you get the states rights thing from? We just celebrated the overturning of state gun laws. Yes we support states rights, but we support individual rights first.

    6. I don’t give two fucking shits about “states rights”. States don’t have rights. Individuals have rights. The constitution as written doesn’t go far enough to protect individual rights, either.

    7. its entire reason for being was to reign in all the power the states got in the Articles of Confederation

      LOL! Understanding of U.S. History fail!!

  6. struck down laws regulating firearms

    Not regulating, banning firearms. You illetaret twat. A wholesale ban on handguns for citizens. Unless, of course, you were politically connected.

    The Court made no ruling whatsoever on “regulating” firearms. It just said that the ability to own them is a right. What comes next is an even more drawn-out and contentious legal fight over what constitutes “reasonable regulation.”

    1. As Randy Barnett has pointed out, the proper definition of “regulate” is “to make regular”: to say that if something is to be done, it should be done a certain way. For instance, if you want to drive, you have to be on the right side of the yellow line. There is a big difference between that and banning driving.

      Of course Citizens United v. FEC and McDonald v. Chicago were conservative rulings. Left-libertarians just do not get that the right is more consistently pro-freedom. The Nolan Chart idea that conservatives are always against social/political rights is just wrong. This is the most conservative court we’ve had in a couple of generations. Thank God.

      1. It seems to me that under the second amendment, it would be constitutional for the government to require that firearms be obtained from government arsenals as a method of regulating the militia. They would have to allow all citizens (except for felons, mental patients, children, and some other special cases) to be able to get such weapons.

  7. “During the first years of the Roberts court, it has consistently ruled in favor of corporate power, such as in holding that corporations have the 1st Amendment right to spend unlimited amounts in independent political campaigns.”

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances, dipshit.

  8. During the first years of the Roberts court, it has consistently ruled in favor of corporate power, such as in holding that corporations have the 1st Amendment right to spend unlimited amounts in independent political campaigns.

    Everytime I read this, I want to strangle kittens.

    No, you fuckwit, what it ruled was that individuals have the right to assemble, pool their resources and leverage their speech.

    Fucking progressives. Their view of ‘Congress shall make no law’ is that the principle only applies to the use of my unamplified voice in a public square of the government’s choosing.

    1. All you have to do is read Libertardian’s post above to see what their view of the Constitution is. It “gives” rights, and it “takes” rights.

      1. DERP

        1. !!!!11!!!!1

    2. How many months has it been now since the decision? They still haven’t shut up about it.

    3. How many months has it been now since the decision? They still haven’t shut up about it.

      1. You can say that again.

      2. Could we not say the same about Roe v Wade?

        We’re working on 4 decades, and conservatards still haven’t shut up about that one.

  9. During the first years of the Roberts court, it has consistently ruled in favor of corporate power, such as in holding that corporations have the 1st Amendment right to spend unlimited amounts in independent political campaigns.

    And the ACLU has been hijacked by neocons… or something.

  10. “Yesterday I noted an unfortunate column by Slate’s Dahlia Lithwick and NYU’s Barry Friedman which claimed that Supreme Court Chief Justice John Roberts is a master “illusionist” who has hoodwinked the rubes with his uncanny legal tricks.”

    Now you see the tripe I have to put up with every three months when I get the NYU Law alumni magazine. And why they do not get any $$ from me.

  11. Someone else, I see, who determines whether a court decision is liberal or conservative as follows:

    Liberal decision – the side I like won.

    Conservative decision – the side I didn’t like won.

    1. Yes, increasingly left wing thought among the chattering classes is that being seen as anti-corporation is more important than anything else. They will betray any principle as long as they can say they stood up to powerful private interests.

      1. Unless those private interests own a newspaper or something. Then it’s ok.

        1. Wait – which newspaper? Are talking NYT or LAT? Then OK. WSJ? Washington Times? Hmm…. mebbe not so much.

  12. Erwin knows him some constitutional law, but when he starts talking about politics he forgets it all and starts babbling incoherently. Like Krugman and economics, really.

    1. Gov’t interference in gun ownership = good; gov’t interference in campaign-related speech = good; gov’t interference in neighborhood based school assignment = good; gov’t interference in abortion = bad. It’s not incoherent if you understand the penumbras of the Constitution!

      1. It’s all so clear now.

      2. …and let’s not forget the “emanations”

    2. Erwin knows him some constitutional law

      Based on Erwin’s statements, I’m beginning to disagree.

      1. He knows very well what the SCOTUS has said about various aspects of the Constitution, and can cite, quote and explain very well the current state of the jurisprudence – i.e., what the SCOTUS says certain parts of the Constitution mean.

        So yeah, he does have extensive knowledge of that body of law.

        His understanding or, perhaps more accurately, his belief in, adherence to or advocacy of the more fundamental principles underlying the creation of the Constitution itself – maybe not so much.

  13. It has dramatically cut back on the rights of criminal defendants, especially as to the exclusion of evidence gained through illegal searches and seizures under the 4th Amendment and the protections of the 5th Amendment’s privilege against self-incrimination.

    Except for the reaffirmed and expanded rights of defendents to confront witnesses, and the right to a jury trial (Sixth Amendment), and the right to not be handcuffed and then have your car searched, and the right to not have your car searched when it’s sitting in your driveway, why, there’s hardly any such rulings at all!

    Of course, any rights for defendents where Justices Scalia and Thomas rule for the defendents have to be discounted by Erwin here.

    1. Were any of those cases covered well in the press? Those sound like interesting precedents — especially the one about being handcuffed while your car is searched. Is the idea that a search of your car is not sufficient grounds for handcuffing you?

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