Supreme Court

Testifying on "What's Wrong with the Supreme Court: The Big Money Assault on Our Judiciary"

Presenting an alternative view as a minority witness before the Senate Judiciary Committee.


Tomorrow I will be testifying before the Senate Judiciary Committee's  Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights. The hearing, called by subcommittee chair Senator Sheldon Whitehouse will address the question "What's Wrong with the Supreme Court?" and posit the answer: "Big money." As readers might expect, I will be offering a contrary view.

The majority witnesses—Harvard law professor Michael Klarman, Lisa Graves of the Center for Media and Democracy, and Ben Jealous of People for the American Way—will paint a picture of an out-of-control, activist Supreme Court beholden to big business and moneyed interests. This report on "Captured Courts" from the Democratic Policy & Communications Committee will give you an idea, as will this white paper Senator Whitehouse wrote for the American Constitution Society.

I am one of two witnesses called by the minority. The other will be Scott Walter of the Capital Research Center. My testimony focuses on the substance of the Roberts Court's decisions. Walter's testimony will highlight the progressive "dark money" deployed to influence judicial nominations and decisions.

My testimony seeks to make three points with which regular readers of this blog should be familiar.  First, the pattern of the Roberts Court's decisions are inconsistent with the hypothesis that the justices are in sway or unduly solicitous to business interests.Among other things, this hypothesis cannot explain why the Court rules in favor of business groups in some cases but not in others, nor can it account for why the pattern of business victories does not correlate with the stakes in individual cases. The Court may decide in favor of the outcome favored by the Chamber of Commerce or other business groups more often than not, but the Roberts Court has ruled against business groups in some of the most important and significant business cases it has heard, such as Massachusetts v. EPA, Wyeth v. Levine, and Chamber of Commerce v. Whiting.

If fealty to corporate interests or big money does not explain the pattern of the Court's decisions, what does? The justices particular doctrinal and jurisprudential commitments. This explains why the conservative justices, in particular, rule against innovative theories advanced by entrepreneurial plaintiffs' lawyers, but do not embrace the business community's call for broad federal preemption. The justices interest in statutory text and precedent further explains why employment law cases, among others, have been a decidedly mixed bag for business groups. And the justices individual judicial philosophies explain why, for instance, Justice Kavanaugh joined the liberal justices in a major antitrust case, and Justice Kavanaugh and the Chief Justice embraced a broad interpretation of the Clean Water Act in County of Maui v. Hawaii Wildlife Federation.

Another point I make in my testimony is that, by standard measures, the Roberts Court (thus far) has been the least activist Supreme Court of the post-war period. The Court holds federal laws unconstitutional and overturns its own prior precedents at a significantly lower rate than the did the Warren Court, Burger Court and Rehnquist Courts. In other words, the Roberts Court is, more than anything else, a status quo court, at least in comparison to its predecessors. Further, when the Court does strike down federal laws or overturn prior precedents, it does not do so in a uniformly conservative direction, as cases such as Windsor (invalidating DOMA) and Obergefell (overturning Baker v. Nelson) illustrate.

Finally, my testimony will observe that insofar as Senators are concerned about "dark money" and efforts by outside groups to influence the Supreme Court, they misdiagnose the problem. Outside economic and political interest groups are willing to invest so much in trying to influence the composition, orientation, and actions of the federal judiciary because so much is at stake. The only way to reverse this trend is to make the Court's less important. Put another way, so long as major policy questions are resolved, on a national level, in the federal courts, interest groups will act accordingly.

Insofar as it is a status quo court, reluctant to overturn prior precedents or to invalidate federal laws on constitutional grounds, the Roberts Court is actually helping to lower the stakes. The Court's shrinking docket, whatever its other faults, further serves to make the Court's composition and orientation less significant. Congress's failure to legislate with greater frequency and particularity, on the other hand, leaves more in the hands of the courts, as does the executive branch's propensity to go it alone on major policy initiatives.

I end my testimony noting my support for greater Court transparency, and encouraging the Court to make itself more accessible to the American public. I suspect most such reforms will need to come from the Court itself, however, as I am not sure how far much Congress can impose such reforms unilaterally.

The hearing is at 3pm Wednesday, and should be available at this link.

NEXT: Comparing the Impeachment Process under the United States Constitution (1788) and the New York State Constitution (1894)

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  1. While I agree with much of what you say there are points I would add.

    Roberts is the only CJ I can remember who goes out of his way (both in how he votes and his public statements) to claim the SC is not political. Not to mention the court in general seems to be ducking what are important and political issues.

    Maybe the biggest failing I see in the Roberts court is ducking any case that would clear up 2A rights. While others may choose another issue the SC is ducking there does seem to be agreement that there are important issues the SC address with the splits in lower courts.

    The one area the SC seems to be in total agreement on is expanding government control over individuals. Back when I was taking classes on takings Euclid against Ambler was the canonical case. Today the court seems to be hell bent on expanding Kelo and similar powers for the government to take things.

    One thing lots of pols, lawyers, and judges seem to ignore is a lot of their dictates don’t really sit well with the general public. As an example I wonder what the SC docket would look like if it was determined by a national vote as opposed to the SC justices.

    1. Judge Kosinski persuaded of the wisdom of Kelo. The government takes a house and puts highway on it. Who uses the highway? Private profit making trucking firms. Not much different from Kelo.

      I also see the potential of Kelo to save 50000 lives a year. It only refers to property, never to real property. Chattel are subject to Kelo. Organs should be seized under Kelo to transplant into waiting list patients instead of going to the worms.

      1. “Who uses the highway? Private profit making trucking firms. Not much different from Kelo.”

        Who uses the highway? Everyone. Very different from Kelo.

    2. “The one area the SC seems to be in total agreement on is expanding government control over individuals.”

      This is why it’s a joke to say that the Court is a “status quo” Court, just because it hardly ever strikes down federal laws. That would only make it a ‘status quo’ Court if federal law weren’t expanding.

      Rather, it’s a “decline to maintain the status quo” Court. When the federal government grabs more power, the Court lets it, rather than maintaining the status quo.

      1. Yes. The Federal government should stick to regulating printing presses and horses & carriages, and keep its nose out of the Internet and the car industry!

        1. Per the 1st amendment, it shouldn’t be regulating printing presses.

          1. OK, so health & safety regulation is also out. Good to know!

            1. I’m a purist when it comes to limitations on federal power. I don’t accept as legitimate the sophistries that have been used to expand it.

              The federal government was given regulatory authority over commerce which crosses state borders.

              A printing press sitting within a state isn’t commerce crossing state borders, and so is beyond that regulatory reach.

              Printing presses couldn’t be specifically regulated anyway thanks to the 1st amendment, they could only be subject to general regulations.

              So, Congress could issue a regulation prohibiting interstate commerce in machinery which had unguarded moving parts, say, and it would be as applicable to printing presses as it would be to stamping presses.

              But it would only be applicable to them while they were an article in interstate commerce. You could be required to place guards on a printing press you were shipping from one state to another. But not to one you were shipping from one place within a state to another, and even if you shipped across state lines, YOU’D be engaged in interstate commerce, but the end user wouldn’t.

              What of it? You don’t suppose states have no interest in the safety of their citizens?

            2. They could always try for a constitutional amendment for that.

            3. I don’t see health and safety, in the enumerated powers of the Federal govt.

    3. ragebot, if election money is corrupting politics, what makes you suppose an election to determine the SC docket would escape that same corruption? Couldn’t some liberal multi-billionaire spend a few hundred million to spread lies about what your 2A case would do, and thus keep it out of the Court?

      1. Yes. I think it’s safe to say something like California’s Proposition 22 campaign should have cured any dreams a sane person might have had about direct democracy as a safeguard against kleptocrats.

      2. You seemed to have missed my point which was (with or without big money pressure) the public has a much different idea of what cases the SC should take than the SC itself.

        As an example I understand the legal argument that burning an American flag is protected by the 1A but I am not convinced the majority of the US population (especially when the cases were first being contested) agreed with it. Same goes for many of the 1A NAZI free speech cases.

        Some current 2A laws are the result of high profile but isolated crime sprees (often located in large cities) during the depression that are hard to defend given the language of the constitution. I doubt anyone seriously thinks the founding fathers would have thought any restrictions on any type of firearm was reasonable. The thing is while during the depression some criminals were able to out gun LEOs (BARs and Thompson machine guns verses six shot revolvers) today this has been turned upside down with LEOs having a huge advantage.

        But my bigger point was that the SC for as long as I can remember has expanded federal power when the intent of the founding fathers was less federal power and more local power.

        1. They say that no man should be the judge in his own case. Nominating and confirming the judge in his own case is not much better: It’s a fundamental flaw built into the heart of the Constitution, and once they realized they could render the Constitution toothless by selecting the right judges, it stopped being a real constraint on federal power.

          1. This is one of the reasons RBG said the US Constitution is not the best model for a constitution. There is a school of thought that the reason the US was as successful as it has been is the peeps who were running it were good men able to overcome the flaws of the Constitution.

            I am reminded of the de Tocqueville analysis that the US would only last till voters realized they could vote themselves things they could not pay for.

            1. “I am reminded of the de Tocqueville analysis that the US would only last till voters realized they could vote themselves things they could not pay for.”

              So, we can expect the US federal government to collapse in the next decade?

              1. That would be preferable to voters realising how much they could pay for if they cut miitary spending and taxed the wealthy, apparently.

            2. Except of course that, in the US system, they can’t, because voters hardly ever vote anyone out of (Federal) elected office. Last year’s election was a particular embarrassment in that regard, with only a handful of seats changing colour.

              So I’d say Tocqueville has nothing to worry about, at least until voters figure out how they can actually take over the country. 2016 was a nice attempt, but choosing a president no one wants doesn’t do you any good unless you also choose enough Congresscritters to match.

  2. Start with their being Ivy indoctrinated lawyers. They believe in big government run by Ivy indoctrinated lawyers. Move them to Washington area. That is the rent seeking capital of the nation. They conform with that culture in a short time, no matter how conservative. The bias of the Supreme Court is in favor of big government. Their second allegiance is to lawyer rent seeking, and to lawyer job generation.

    They do not speak the high school English of the constitution. Only the Congress may make a law. Judicial review is in insurrection against the constitution.

    In order to get into an Ivy law school, you have to have a 4.0 GPA. To do that, you have to study 80 hours a week. You therefore have no life outside of books to be memorized for examinations. You know nothing about life. Never mind, you know nothing about the difficult technical subjects in the cases before the Court. You know shit about shit. Yet, you get to make national policy on complex technical subjects. The chances are high for hideous unintended consequences, and for devastativing effects on the economy and on the social fabric of the nation.

    If the Supreme Court is to make law, let its size be a legislature size, like 500 Justices. The number of Justices should be an even number to avoid horrifying 5-4 decision. Exclude anyone who has passed 1L from the Court. That person is beyond redemption, and is gone to us. Recruit Justices from random members of the jury pool. Move it away from Washington, to the middle of the nation, like Wichita, KS, or some other place in real America.

    Make the Justices investigators of facts. End the appellate limitation to errors of law. Severely punish nitpicking, and pettifoggery.

    Begin to impeach these Justices for their decisions, not for collateral corruptions. The biggest damage to the nation is from their horrible, always wrong decisions. They are always wrong due to their biases, and due to their limited intellectual abilities. Fire them for their mistakes.

  3. As part of the severe intellectual disability of the Supreme Court, they often deny self evident reality. The privileges of marriage are to promote reproduction. Homosexuals will never be more than friends, no matter what the lawyer traitors on the Supreme Court say.

    Ironic. If you hate homosexuals, then legalize their marriages to make suffer untold agonies over years. They have an extraordinary high divorce rate. That generates lawyer jobs for the moribund Family Law business. It is moribund because the lawyer destroyed marriage. Even whites have a bastardy rate of over 50%. Divorce is very painful, and torments the parties for years. Such pain is profitable for the lawyer profession. Homosexuals are richer than average. So they are good targets for lawyers. They are also smart. Very few have fallen for this obvious lawyer trap.

    1. Just not throwing them in jail was a major advancement, and one most of us are old enough to remember.

      A wise man once said “Rights don’t need beta testing.”

      1. Only if you start from the premise that there’s a “right” to erupt in another man’s tuchis in the first place.

        1. For an allegedly heterosexual male, you sure like to talk about anal sex.

          1. I’m not the one who went running to the Supreme Court to get it declared a “fundamental human right,” you people were.

            1. Even granting that, your obsession with the subject is remarkable. I’ll bet there are gay men who spend less time talking about anal sex than you do.

              1. Krychek. Stop insulting people. You are violating the Fallacy of Irrelevance.

                1. Daivd, your very existence constitutes the fallacy of irrelevance.

                2. Moar like the phallacy of irrelevance.

                  1. You guys made me laugh. Thank you.

            2. The Supreme Court has been a major factor in the AIDS epidemic. It killed 20 million people, cost $trillion. Contact tracing of this sexually transmitted disease was made a crime, with prison time for doctors asking about it. Thank the lawyer for the AIDS epidemic. In Cuba, they quarantined the infected, an established remedy since the 14th Century. Cuba was spared the AIDS epidemic.

              1. It would have been a lot easier to just tell homosexual men that they had two choices, stay celibate or be put in detention camps.

                1. Complete with pink triangles?

                  1. Castro detained the infected. He saved the lives of the homosexuals in Cuba.

                    1. It also spared numerous children from molestation.

  4. I’m wondering what some of Adler’s ideas might be, as he put it, to “make the Court’s less important”.

    Or to put it another way, as Adler has, how could major policy questions NOT be resolved, on a national level, in the federal courts? How would Adler suggest people be prevented from running to the supreme court? Would he just let most circuit splits lie, and say that is a good thing? An example of laboratories of experimentation?

    1. Shrink government. As long as government defines its own limits, it will always expand. The more it expands, the more it intrudes into people’s lives, the more it pays people to weaponize government rather than literally mind their own business, and the more courts get involved with people’s daily lives.

      The only way to get courts out of people’s daily lives is to shrink government, and that will never happen as long as government defines its own limits through its own courts.

  5. Ben Jealous, lol. He is so far to the left he lost in a landslide to Hogan, in Maryland – a state where D outnumber R 3:1. lol.

    Democrats would be very wise to listen to Jealous if they want to be decimated in 2022.

  6. Big money is the problem with the Supreme Court??? Really? Their salaries are less than $250K per year! And no big “productivity bonuses” or anything like that. Comfortable, sure, but hardly “big money”. Clarence Thomas’ wife probably earns more than he does.

    1. Nah, they share the loot.

      1. . . . And the lifting required to collect that loot.

    2. I don’t think mentioning Virginia Thomas is such a great way to argue that the Supreme Court is not in the pocket of big business…

      1. You are not among this blog’s target audience.

    3. As I understood the point it was not so much big money going to the SC justices but massive money going to the pols (and ads aimed at voters electing those pols) who nominate and confirm SC justices.

  7. Indeed, it seems there are a number of decisions that are rather disappointing to business groups because … ok, in some cases it was principled (though I disagree with it), in others, like would Chamber of Commerce v. Whiting have gone the way it did if it wasn’t about Immigration? I doubt it. And Gonzales vs. Raich, are we suggesting if it wasn’t about drugs …

    So maybe, if principles say prevent you from uploading dormant commerce clause cases even when businesses (and a lot of other people, even left of center) would like the dormant commerce clause to be more of a thing, fine. Originalism is designed to dictate certain outcomes, so if it prevents a judge from favoring this group that is good, even if I’d wish it go the other way.

    After all, even someone who supports regulation generally could see that the regulations implicated in dormant commerce clause cases are often … really stupid. And there is zero justification for outright discrimination between in state vs out of state.

    But in others, I mean, if screwing over immigrants and upholding drugs laws cause you to vote against business interests, that’s not principled. And its rather disappointing from the perspective of businesses.

    So it seems to me the issue is a mix of both principle and originalism not being as pro-business as some conservatives would like, and this stupid conservative impulse to have the most toxic aspects of its ideology dominate everything else (seen both at the Supreme Court and in Congress too. Having spoken to many friends who are descendants of immigrants, if the Republican party would change that viewpoint they would join in a heartbeat.)

    1. Not to single out conservatives, very really this has been true of liberalism as well, all through in my view its been true of conservatives for longer.

    2. Yeah, the problem is that you can be a good person but continued immigration of you and your peers can be a good thing. If someone thinks “I was given the opportunity to immigrate, and therefore, everyone who wants to come to America should be given that opportunity too,” he’s not a good American. It’s that ismple.

  8. Sorry, but I think the premise is crazy. I really don’t see the same problem with SCOTUS that Senator Whitehouse sees.

    Legislators (state and federal) put us into this fix by refusing to address questions that are properly in their purview. They punted to the Courts. Social and political questions belong in the political domain, not the legal domain. Our elected representatives should decide these questions, not unelected judges.

    1. Commenter_XY, the notion on the other side is that corporate money used to buy bi-partisan influence in politics makes the re-ordering you suggest impossible. In the public auction for legislative attention, legislators with conspicuous support from corporate dollars put the penniless public last. The political science case for that is strong. Widespread public cynicism to that effect aligns with the data.

      What you can say for that is that it provides a valid-looking explanation for your otherwise unsupported conjecture that, “Legislators (state and federal) put us into this fix by refusing to address questions that are properly in their purview.”

      1. Your premise is wrong also = the notion on the other side is that corporate money used to buy bi-partisan influence in politics [made] re-ordering

        Lathrop, it is not rocket science. It is all about the proper role of SCOTUS, and how that has been perverted over time, quite independent of money. SCOTUS would not be so important were it not deciding social and political questions, both of which are firmly outside their scope of authority. On difficult and protracted political and social questions, I want our elected representatives making those decisions; not unelected judges. We have gotten away from that basic idea, and we are suffering grievously for that.

  9. “Further, when the Court does strike down federal laws or overturn prior precedents, it does not do so in a uniformly conservative direction, as cases such as Windsor (invalidating DOMA) and Obergefell (overturning Baker v. Nelson) illustrate.”

    I don’t think this helps your thesis. I had the impression that Obergefell was supported by many large corporations. A search confirms this:

    “Almost 400 leading companies signed the amicus brief to the Supreme Court in Obergefell v Hodges. Without support like that in the marriage equality fight, would we [gays, etc.] have won?”

    Though this probably isn’t what Sen. Whitehouse had in mind by corporate influence. He probably meant the *wrong* kind of influence.

    1. As for Bostock, the statutory case, 206 businesses supported the pro-regulatory (and “pro-LGBTQ”) result:

      “The 206 businesses that join this brief as amici collectively employ over 7 million employees, and comprise over $5 trillion in revenue. These businesses—which range across a wide variety of industries (and some of which are even competitors)—share a common interest in equality” etc.

      1. Actual businessmen are often some of the worst enemies of a free market, as Adam Smith would tell you. Free market capitalism describes a system that’s good for society, not for individual businessmen. Them it puts in a Red Queen’s race, and they don’t like that.

        1. Brett, your premise that free market capitalism is good for society is sometimes true, sometimes not. I assume you’re familiar with the tragedy of the commons. Also, you haven’t defined society. If free market capitalism allows those at the top to live lavishly while those at the bottom barely avoid starvation from one day to another, is that good for society or isn’t it? Depends on how you define society.

          1. What you are describing is not free market capitalism, but crony capitalism.

            1. How is the tragedy of the commons crony capitalism? How is an unregulated market that allows the rich to get richer while the poor get poorer crony capitalism? I don’t doubt that sometimes cronyism may be involved, but I don’t see cronyism as essential to either of those things.

              1. The rich has gotten richer largely due to their ability to flood America with cheap labor, suppress interest rates to keep asset prices high, and other things that flow to the capital class. That’s not capitalism.

                1. Sure it is. Reducing your costs through any legal means is one of the hallmarks of capitalism. You just don’t like that that’s an available way to reduce costs.

          2. ” I assume you’re familiar with the tragedy of the commons.”

            Sure: The tragedy is that people keep insisting on having commons, anyway.

            1. If your position is that the air we breathe should all be private property, then we just disagree. If that’s not your position, then you agree that at least some things need to be commons, even if you would have less of them than I would.

              1. Obviously the atmosphere would have to be regulated more along the lines of riparian rights than rights in ordinary property. But having property rights in the air blowing across your property would normally imply somebody upwind of you couldn’t pollute it, just as riparian rights precluded people upstream rendering a river unusable by people downstream.

                1. The problem is I then have to prove in court who polluted my air. It’s far simpler just to have regulations reducing air pollution.

                  1. I’d solve the commons problem by private property, you’d solve it by making air the government’s property. Still property either way.

                    1. No, it’s not the government’s property. It’s the government making rules about how something that belongs to everyone can be used, so that everyone gets to enjoy it.

                    2. The difference between “getting to make the rules” about something and “owning” something look a bit cosmetic to me.

                    3. And that’s why technically the government owns all cars.

        2. The post suggests a debate between Sen. Whitehouse and libertarians, with the Senator alleging a libertarian corporate cabal to get anti-regulatory decisions out of the Supreme Court and the prof defending the Court against those accusations.

          We should think outside these categories. That is, an “anti-conservative” or anti-libertarian decision doesn’t rebut the idea of corporate influence, because the big corporations aren’t consistently pressing the Court for libertarian or conservative outcomes, to put it mildly.

        3. Government policy should foster an environment in which the Red Queen’s race is the status quo for capitalists.

  10. The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.

    That, from Citizens United, proves Adler wrong. It is indispensable to the Court’s theory of the case. It is a statement of supposed fact.
    It is unsupported by anything. It is so ridiculously mistaken you have to wonder what it is doing in the decision.

    My guess is that it is in there to armor plate strict scrutiny in the lower courts. There is an acknowledged compelling government interest in preserving faith in democracy. Public belief to the contrary is overwhelming, and readily confirmed by evidence from political science. Without the Court’s bald-faced denial of reality, lower court plaintiffs could muster evidence of actual public opinion to the contrary, and thus get past strict scrutiny to demand Citizen’s United be overturned as wrongly decided.

    1. In reality, appearances are irrelevant to the proper constitutional analysis.

      “Congress shall make no law… abridging the freedom of speech, or of the press;”

      Where does it say anything about appearances or faith? You only start inquiring into crap like that after you decide it isn’t all that important to uphold the amendment as written.

      1. Where does it say anything about defamation? Or obscenity?

        1. It doesn’t. Defamation and obscenity laws are constitutionally dubious.

          Note that we have no federal defamation laws, and never have. Nor did the early federal government have obscenity laws. (The first one I’m aware of was the Comstock act, after the Civil war.) Both were state matters. Until the 1st amendment was incorporated, there wasn’t any occasion for them to come into conflict with it.

          So there wasn’t any basis for claiming the original meaning of the 1st amendment incorporated any exception for defamation or obscenity!

    2. I looked for the context of that quote, and it includes this: ‘The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the electorate will refuse “ ‘to take part in democratic governance’ ” because of additional political speech made by a corporation or any other speaker.’

      In any case, part of citizen distrust of “our democracy” comes from the actions of *media* corporations, which are given special treatment in “campaign finance” laws, and I don’t see how a law allowing special communications privileges to some mega-corporations rather than others is going to alleviate public cynicism.

  11. Most of the so-called liberal activist decisions that the right hates so much were in fact decided by bi-partisan majorities on the court, which tells me that they in fact are mainstream jurisprudence. Justices appointed by Eisenhower and Nixon joined those appointed by Kennedy and Johnson.

    This resulted in a 50 year campaign by the right to pack the courts with ideological extremists, which now appears to finally have borne fruit. It’s as if the creation research institute had been working for years to put its people in the Harvard Biology Department and finally succeeded.

    1. “Most of the so-called liberal activist decisions that the right hates so much were in fact decided by bi-partisan majorities on the court, which tells me that they in fact are mainstream jurisprudence.”

      This is exactly true, but the real question is, what mainstream?

      I’d argue the problem here was that the Court was implementing ‘mainstream’ opinion, but not the general population mainstream, the federal officeholder mainstream. THAT is the opinion they’re responsive to.

      And the federal officeholder mainstream has been diverging more and more from the general population mainstream, as our political class have become more and more entrenched and insular, becoming less “representative” than a self-perpetuating class distinct from the general population.

      As it happens, the federal officeholder mainstream is rather closer to the Democratic party than the Republican party on a lot of issues. So this doesn’t trouble Democrats as much as it does Republicans. YOU get faithfully represented for the most part, WE don’t. That’s why “RINO is a common epithet in Republican politics, but what’s the counterpart in Democratic politics? Do you have a “DINO” problem? Not so much.

      1. Unless the federal officeholders are legal scholars, their mainstream is irrelevant to this discussion. I was referring to the mainstream of legal scholarship. Even today, I suspect more legal scholars would generally find themselves in agreement with the Warren Court than not, though obviously not entirely.

        1. The mainstream of legal scholarship is downstream of the mainstream of (federal) politics, because legal scholarship is all about what works before the courts the politicians staff.

    2. “bi-partisan majorities on the court”

      The bipartisanship argument cuts both ways. Byron White was a Democrat put on the court by John F. Kennedy, and he dissented in the Miranda decision (and the Roe decision of the Burger court).

      Baker v. Nelson, which said that not only was there no right to same-sex marriage but the argument in favor of same-sex marriage presented no substantial federal question, was a bipartisan decision.

      Yet these are the people you would put outside the legal mainstream.

      1. For that matter, Hugo Black was a New Deal Democrat appointed by FDR, and he dissented in the sacrosanct Griswold case. Out of the mainstream?

        1. There’s not going to be 100% agreement on all issues even by everyone in the mainstream. You can always find individual cases in which the breakdown is not what one would expect.

          However, in general, bipartisan majorities existed for far more of those leftist activist decisions than not.

          1. Were Justices White and Black mainstream?

            1. “Mainstream” is a continuum; it’s not an either/or. I would say they are within “mainstream” on the continuum. That doesn’t mean there’s no room for reasonable minds to disagree on specific cases.

              Justice Gorsuch wrote the majority opinion in Bostock. Is he not a conservative? If you look at his record as a whole, he certainly is.

              1. OK, so mainstream justices can disagree with Miranda (as White did), with Griswold (as Black did), with Griswold’s progeny (like Roe and Obergefell), with Tinker (as Black did)…would you agree? Or not?

                Meanwhile, let’s take a look at this bipartisan opinion from 1959, authored by Justice Douglas:

                “1. A state may, consistently with the Fourteenth and Seventeenth Amendments, apply a literacy test to all voters irrespective of race or color. Guinn v. United States, 238 U.S. 347 . Pp. 50-53.

                “2. The North Carolina requirement here involved, which is applicable to members of all races and requires that the prospective voter “be able to read and write any section of the Constitution of North Carolina in the English language,” does not on its face violate the Fifteenth Amendment. Pp. 53-54.”


                (NOTE: I think that the discriminatory intent would make that particular law unconstitutional, but what do I know, I’m not in the mainstream like Justice Douglas)

                1. And here’s another bipartisan Warren Court decision, later overruled in 1986:

                  “In a 6-3 decision, the Supreme Court affirmed the decision of the Alabama Supreme Court, holding that neither the racial disparity in jury pools nor the decade-long absence of any black juror to serve at trial presented evidence sufficient to “make out a prima facie case of invidious discrimination under the Fourteenth Amendment.””


                  1. You’re misunderstanding my premise. A mainstream justice can occasionally sign on to an extremist decision because mainstream means his record taken as a whole. So the fact that you can match justices I would consider mainstream to occasional opinions I would not doesn’t mean that the justice in question isn’t mainstream. Any more than the existence of an occasional rainy day in the desert doesn’t change its status as a desert.

                    And what is mainstream is also a function of the times in which a justice lives. John Marshall and Roger Taney held views that were mainstream for their time, which would be considered radical today. (I’m not sure either of them would be confirmable by the Senate today.) The two opinions you cite are from an era when what is mainstream was in a state of flux.

                    None of which discredits my underlying point, which is that most legal scholars, both at the time and also now, would consider the Warren Court to generally be within the mainstream of legal thinking.

                    1. Maybe the Warren Court justices were mainstream for their time, but interpreted in light of evolving experience etc. etc. they should not be regarded with filiopietistic awe and it should be recognized that their doctrines evolve, etc. etc.

                    2. Oh, I’m not claiming their opinions were sacred writ. But if your position is that the cases I’ve cited aren’t considered now, today, by the majority of scholars as being mainstream, then we just disagree.

                    3. I don’t know which faction has captured the most scholars, so I’ll have to defer to you that the faction which generally supports the Warren Court has a majority of scholars on its side.

                      I do know that (to go a bit after the Warren Court) scholars of a “prochoice” disposition (or whatever the term is now) often work on alternative rationales to the *Roe* opinion, almost as if they don’t like the rationale no matter how much they support the result. So the best we can say about that opinion is that the *result* is mainstream, there’s just a slight difference of opinion as to why the result is right.

                    4. I agree with Roe’s bottom line that a flat ban on abortion is unconstitutional. I think Roe was a very poorly reasoned decision, and there are far better arguments for that bottom line than the ones Harry Blackmun came up with.

                      But for purposes of this discussion, I am more concerned about results. Suppose the Brown v. Board of Education Court had decided the case on Ninth Amendment grounds rather than Fourteenth Amendment grounds. I would say that they got the result right, and also that there was a far cleaner way of doing so than the Ninth Amendment.

                    5. In the case of Brown you had an arguably on point amendment, it wasn’t hard to argue it applied.

                      In the case of Roe you had nothing, so they did a lot of hand waving.

              2. “Justice Gorsuch wrote the majority opinion in Bostock. Is he not a conservative? If you look at his record as a whole, he certainly is.”

                I don’t subscribe to your premises about the special status of bipartisan opinions, so I don’t see how this helps you.

                1. But feel free to answer the question regardless of whether you think it helps me.

                  1. Sorry, I don’t understand what premises you are assuming I accept. Gorsuch is generally conservative, and he’s also wrong on this issue.

                    1. OK, so you accept that it’s acceptable to view a justice’s record as a whole and not define him by one or two specific opinions.

                    2. My definition of Gorsuch would have to take into account that he’s the kind of Justice who supports Bostock. That will probably be a big part of his legacy, for good (as you think) or for ill (as I think). But I don’t claim that Bostock is some kind of one-off which one can ignore in assessing Gorsuch’s record.

                    3. I don’t ignore it; I just don’t think it defines him, especially when his overall voting record is otherwise so far to the right.

                    4. I don’t think Bostock is “rain in the desert” for Gorsuch, I think it indicates significant things about his philosophy.

                    5. Yes and no. I am informed by people who actually know Gorsuch that he is personally pro-gay and very comfortable with homosexuals. That, however, does not necessarily translate into thinking Title VII, as written, protects sexual orientation. Further, it would have been theoretically possible for a justice to be personally homophobic and yet believe that Title VII, as written, does protect sexual orientation, in which case he holds his nose and votes with the majority in Bostock.

                      If there are future Bostocks in which Gorsuch applies an expansive approach to statutory interpretation, you may have a point. But I don’t think that one case, standing alone, tells us a whole lot. It may simply be that his philosophy entertains outliers.

              3. “That doesn’t mean there’s no room for reasonable minds to disagree on specific cases.”

                OK, what are the mainstream decisions which only a creationist [to use your metaphor] would disagree with?

                1. Miranda. Brown v. Board. Loving. Roe v. Wade. Griswold v. Connecticut. Pierce v. Society of Sisters. The flag salute case from 1943 the name of which currently escapes me. More recently, the cases striking down sodomy statutes and bans on gay marriage. Others, but those will do for a start.

                  1. OK, but the “creationists” you criticize haven’t rejected Brown, Griswold, Pierce, or Barnett [sp?].

                    That leaves us with Miranda, which elicited a dissent from White (Kennedy appointee), Roe (White also dissented), Griswold (dissent from Black).

                    It keeps raining in the desert, so often that I question your premise that it’s a desert.

                    1. (Black is more radical than the “creationists” because he dissented from Griswold, hence necessarily rejects its progeny)

                    2. The creationists haven’t rejected Loving, either.

                    3. They haven’t rejected them yet. One of the things that concerns me about the right wing radicals on today’s Court is that I’m not at all confidant that if Brown, Griswold, Pierce or Barnett, or Miranda, came up again, that they wouldn’t overrule them. Maybe not. But don’t forget the conservative 4th Circuit did in fact try to overturn Miranda. And the only way to find out for sure would be for those issues to go up there again.

                      I have no doubt that there are currently five votes to overturn Roe v. Wade. However, I think the Democratic Congress is about to preempt the issue by enacting Roe into statute.

                      And again, you can cite White’s dissents, but I don’t think that proves anything more than Gorsuch’s authorship of Bostock, which is simply that people occasionally take positions out of character with what one understood to be their overall premises. I have voted Republican exactly one time since 1976, but that doesn’t mean that overall I’m anything other than a Democrat.

                    4. “However, I think the Democratic Congress is about to preempt the issue by enacting Roe into statute.”

                      What’s the constitutional basis for that? None immediately comes to mind.

                    5. Interstate commerce. Not only are the tools used to perform abortions manufactured and transported in interstate commerce, but interstate commerce is impacted by the addition or subtraction of millions of births that will or won’t happen if abortion is legal or illegal.

                      Women’s rights under the equal protection clause and the privileges and immunities clause.

                      Ninth Amendment.

                      Probably others but those are the most obvious.

                    6. Bill of Attainder Clause?

                    7. Yeah, that’s not interstate commerce, except in the sense that the rain and the tides are interstate commerce.

                      Half the aborted ARE women.

                      9th amendment protects existing rights that weren’t enumerated, it’s not a blank check to turn crimes into ‘rights’.

                      But, yeah, they’d probably use one of those as a basis, and not care that it wasn’t a legitimate basis so long as they could intimidate the courts into pretending otherwise.

  12. I love how a politician is complaining about the judiciary being bought off! At least the judges try to be neutral.
    If he really wanted to fix the problem he would not take any campaign donation over $100. That would be a serious start to fixing anything wrong with the courts.

    1. Ironically, the latest concern in campaign ‘reform’ circles is the discovery that small donations disproportionately go to non-establishment candidates, and have the effect of negating efforts by corporate donors to defund ‘extremists’.

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