Justice Sotomayor Gets Judicial "Courage" Backwards

Judicial courage is defined by casting a vote "under fire," knowing that it will be unpopular.

Justice Sotomayor's dissent in Whole Woman's Health v. Jackson concludes with this passage:

In its finest moments, this Court has ensured that constitutional rights "can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes . . . whether attempted 'ingeniously or ingenuously.' " Cooper v. Aaron, 358 U. S. 1, 17 (1958) (quoting Smith v. Texas, 311 U. S. 128, 132 (1940)). Today's fractured Court evinces no such courage.

Justice Sotomayor does not explain why the Cooper Court was courageous. Nor does she explain why the Jackson Court was not courageous. She assumes that the reader will find these conclusions self-evident. I disagree. For some time, I have been working on an essay about judicial courage for the Texas Review of Law & Politics. Here, I will give a preview of my work.

I don't think judicial courage can be defined with regard to any particular legal ruling. Deciding a case in favor of X is not necessarily courageous. Rather, the essence of judicial courage is casting a vote, knowing that it will be unpopular. Unpopular with your colleagues. Unpopular with judges on other courts. Unpopular with politicians. Unpopular with the people. Unpopular with academics. And so on.

Cooper v. Aaron, for all its flaws, was a courageous decision. At the time, "Impeach Earl Warren" billboards littered the South. The Southern Manifesto advocated resistance of the Warren Court. Indeed, many federal judges who presided over desegregation cases faced regular death threats, and required security details. The nine Justices who ruled in Cooper knew their decision would be extremely unpopular throughout the country. All nine signatures were affixed to the opinion to demonstrate solidarity. They also likely knew that the decision would be resisted, but issued it anyway.

Today, we live in a very different world. The greatest threat to judicial independence comes not from odious segregationists, but from progressive elites. I am grateful the prospects of Court-Packing have faded for now, but it has gained a currency on the left that I never fathomed was possible. And make no mistake. The specter of Court-Packing is a transparent effort to pressure the Justices to reach results progressives favor. Senator Whitehouse's amicus brief made this threat explicitly.

Today, judicial courage is casting a vote in spite of these forces. Today, judicial courage is saying, "I don't care what you will do to my Court. I am going to follow the law." Today, judicial courage is saying, "Let the Constitution be neutral on this issue, and return it to the democratic process." Today, judicial courage is saying, "I will not distort a century of federal courts jurisprudence in order to create yet another epicycle for abortion." Today, judicial courage is saying, "I am willing to be denied entry to elite circles, so be it." Today, there is nothing courageous about ruling in favor of abortion rights. Chief Justice Roberts was feted by progressives elites for his skeletal dissent, as were Justices Kennedy, O'Connor, and Souter, before him. Today, courage is casting a vote, knowing that progressive elites will object.

Justice Sotomayor gets judicial courage entirely backwards. And Casey got judicial courage entirely backwards. The ability to rule "under fire" is precisely the reason why federal judges have life-tenure. Standing firm means ignoring the political consequences of a ruling. I am grateful the Jackson Court exhibited fortitude, come what may.

Comments

[captcrisis]

She was talking about the courage of the Court, not the courage of individual judges. And it indeed would be courageous to strike down a statute that has been put into law by the second largest state, with a number of other states eager to follow. If, say, every Republican-controlled state passed such statutes, there would be incredible resistance, perhaps on a January 6, 2021 level, and at the very least the institutional independence of the Court would be threatened.

[Brett Bellmore]

“She was talking about the courage of the Court, not the courage of individual judges.”

Seriously, I wouldn’t insult her that way. She talks about a lot of things I disagree with, but she’s not usually spewing incoherent nonsense.

The Court is a group, and not even a large group, of people. It has no courage or cowardice, no initiative or sloth, it’s just 9 people who work together.

Those people might be courageous or cowardly, they might be smart or stupid, they might be diligent or lazy, they’re real people with the real attributes of people. The Court is just an abstraction, it doesn’t have any of that.

And it’s small enough that there’s not even any particular utility in pretending otherwise, because you can see who’s doing what most of the time, and she knows that more of the time than we do.

[captcrisis]

“Hang together or hang separately.”

[Enrique]

Either way, Aaron v Cooper was not a “courageous” decision — it was decided a year AFTER President Eisenhower had sent in paratroopers to enforce the orders of the lower court — more here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3317895

[WuzYoungOnceToo]

And it indeed would be courageous to strike down a statute that has been put into law by the second largest state, with a number of other states eager to follow.

Yet another example of the left redefining words into meaninglessness.

[Gilmore]

“Judicial courage is when the Supreme Court does something that is unpopular*” – Josh Blackman

*As long as the decision aligns with my personally held political beliefs.

[Doug Heffernan]

Bingo! The blackman kid probably doesn’t realize it, but his blather in this piece is an argument for judicial supremacy. It’s just a particular kind of judicial supremacy, one that is exercised for owning the libs.

Just change the issue, and suddenly the blackman kid would say that courage means for the court to be exercising a lot more non-neutral power, and not returning the issue to the democratic process. When the court should or shouldn’t be neutral is just the same old disagreement of judicial philosophy and ideology that is as old as dirt. With courage or not, every justice believes “I am going to follow the law.”

The blackman kid doesn’t want the court to actually have less potential power when needed. He is not actually against judicial supremacy of the type where the court couldn’t wield supreme power. He just wants that type of power exercised as he sees fit, but he doesn’t want it to go away.

Reading this piece reminded me of arguments made in defense of judicial supremacy, particularly one from a few years ago made by Erwin Chemerinsky; https://scholarship.law.wm.edu/wmlr/vol58/iss5/3/

The difference with the blackman kid’s version is that he wants a judicial supremacy that wields power only for conservative issues, and that wielding of power may include, and may even be exercised in its strongest form, through claimed neutrality in just telling the libs to go away.

[Lee Moore]

I’m struggling to see how your view aligns with the fact that the example of judicial courage that he cites – Cooper v Aaron – is one that he never ceases to abuse as a terrible decision.

[WPHDM]

Re: “Judicial courage is when the Supreme Court does something that is unpopular” and attribution of pro-life views to Josh NonBlackMan.

The validity (or otherwise) of the proposition does not depend on the identity of a particular individual articulating it. Popularity/unpopularity (intensity and distribution of attitutes in defined groups of elite-status people, say law professors, institutionalized academics, attorneys, or Beltway dwellers) may be difficult to measure on any particular issue or court ruling, but that doesn’t change the fact that it is an empirical concept. As for the plebs-at-large, we have public opinion polling as a well-honed method to measure it, at least by way of approximation based on more or less representative samples.

It’s also a general proposition in that the “unpopularity” qua concept is content neutral as to the subject matter. No necessary nexus to personal views on abortion rights or wrongs, or any other contentious issues.

[MollyGodiva]

The idea of sending the right not to carry a pregnancy to term, or any other rights “back to the states” or “return to the democratic process” is insane. People do not get to vote to take away rights from others.

It is also infuriating to see those who care so much about having issue being democratically decided are also so against the concept of democracy and wholeheartedly support single party rule cemented by gerrymandering and voter suppression.

[Armchair Lawyer]

” cemented by gerrymandering ”

Guessing you haven’t looked at the new maps out of Illinois and Maryland lately.

[Brett Bellmore]

I hear a lot of complaints on the left that they didn’t finish the job in Maryland, and gerrymander away the last Republican district. Apparently it wasn’t out of a sense of shame, though; Just one extremely left wing Rep not wanting his district contaminated with right-wingers.

[SimonP]

You need to quit with this disingenuous bullshit.

If conservatives really cared about gerrymandering on the left, they’d agree to federal legislation limiting political gerrymandering. But the truth is they see a net advantage by preserving the practice, so they complain about a few states where the left is less than committed to playing fair while pushing through skewed maps all over the place in the south and the midwest.

It’s very hard, on the left, to maintain that we should abide by non-partisan redistricting commission maps, which will put limits on Democratic power, while no one on the right is interested in doing the same. The partisans on the left recognize, rightly, that as long as the right are playing dirty, we have to play dirty too.

[Brett Bellmore]

“If conservatives really cared about gerrymandering on the left, they’d agree to federal legislation limiting political gerrymandering.”

Can’t do that while the Democrats are in the majority, because they’re insisting on a tendentious definition of “gerrymandering” that shields all but the most egregious Democratic gerrymanders, while making totally ignoring politics into a “gerrymander” if voters aren’t distributed in a way favorable to Democrats.

NC’s new maps may be ‘race blind,’ but they still hurt minority voters

They’re literally complaining that failing to engage in gerrymandering to create extra black, (And thus, given black voting percentages, Democratic.) districts, would be gerrymandering.

[bernard11]

“If conservatives really cared about gerrymandering on the left, they’d agree to federal legislation limiting political gerrymandering.”

They also wouldn’t applaud the ludicrous, innumerate, babble that Roberts produced in Rucho.

[Lee Moore]

they’re insisting on a tendentious definition of “gerrymandering” that shields all but the most egregious Democratic gerrymanders

To be fair to the Dems, {geography / where folk choose} to live is not their friend.

Gerrymandering refers to the weird salamandery like shapes that people draw to scoop up the right voters into the right district. If you used a perfectly blind algorithm to draw the districts to minimise the weird shapes and wiggles – say “minimise the aggregate distance of all the district lines in the State” – that would favor the Rs bigly because of Democrat self-packing in cities.

See the difference between the R “gerrymander” of North Carolina and the D “gerrymander” of Illinois. There’s no lizards of any description in NC – they are not required. Whereas in Illinois you can barely move without stepping on one.

What Dems really mean by “gerrtymandering” is failing to put the necessary weirdness and wiggles into the basic geography to achieve a “fair” result. Some Democrats have :

fair = whatever elects the most Democrats

but I’m pretty sure that the majority of them would be quite happy with

fair = whatever delivers Congresscritturs at a roughly equal crittur-per-vote rate

Hence the Dem idea of not gerrymandering = gerrymandering to achieve a proportional result. And it’s hard to say that they don’t have a reasonable complaint about the effect of not-gerrymandering delivering a non proportional result.

[Brett Bellmore]

They have a reasonable complaint, but it’s not a complaint about gerrymandering.

They’ve done such a fantastic job of optimizing their party to appeal to people living in urban centers, that they get 70, 80, 90, and sometimes 100% of the vote there.

The flip side is doing badly everywhere else. And under a first past the post system, getting anything more than 51% of the vote is a waste.

Personally, I’m an advocate of proportional representation. But it’s hardly criminal to not have it. And it’s certainly not gerrymandering to refrain from drawing a map to sort of replicate what the results of PR would have been.

[Armchair Lawyer]

” cemented by gerrymandering ”

Guessing you haven’t looked at the new maps out of Illinois and Maryland lately.

[David Nieporent]

The idea of sending the right not to carry a pregnancy to term, or any other rights “back to the states” or “return to the democratic process” is insane. People do not get to vote to take away rights from others.

You’re begging the question. And check out West Coast Hotel v. Parrish for a counterexample.

[The Turtle Dove]

C.P. Snow (who in addition to writing novels, as a highly placed civil servant, recruited most of the British nuclear project staff) said that there were two types of people when a crisis arose: those whose faces turned pale, and those whose faces flushed. (Noticeable in all skin tones, actually.) When recruiting for important and consequential positions, he was partial to the first type. Wise fellow.

Mr. D.

[benji]

You pretty much just did the same thing you’re accusing Sotomayor of doing.

Also I’m not sure that “progressive elites may say negative things about me” is good evidence of courage. It’s funny that you compared it to literal death threats though.

[Cal Cetín]

Yo, I got yer judicial courage right here!

https://www.nbcnews.com/news/world/italian-judge-killed-mafia-put-road-sainthood-catholic-church-n1266789

[bernard11]

This is insanity. It presumes that what the conservative justices care about is being accepted by what Blackman calls “elite circles.”

What bullshit. The RW Justices have led their lives, and built their careers, in conservative legal and political circles. Those are the people they “grew up with,” who supported their nominations, who praised their conservative decisions.

Those people, not “progressive elites,” are the ones they want to please, if they want to please anyone, with their decisions. Does Blackman think Clarence Thomas gives two shits what the NYT editorial page says about him? He doesn’t. OTOH, he probably really enjoys going to Federalist Society events and the like, and might even care if the WSJ criticized him. Conservative Catholics are going to sing the praises of Barrett for this decision, but hey, it took “courage.” What balderdash.

Look, these people were nominated explicitly to reject abortion rights. They voted just like their sponsors, and the people they have spent their careers aoound, wanted them to. To call that “courageous” is fucking idiotic.

[Roman Moroni]

I agree with you that I don’t find anything they did here particularly courageous. But I don’t disagree with Blackman’s claim that Sotomayor’s proclaimed path to courage is extremely flawed as well.

Killing SB 8 at this point, if they genuinely believed they had constitutional grounds to do so, would not have been particularly courageous. Not only would they have been cheered by the elites, the media, and most of the general public, they wouldn’t have gotten themselves in trouble with conservatives either. I can’t believe that strategic conservatives view SB 8 as anything more a temporary means of flexing power to illicit liberal panic, as well as another way to keep abortion at the forefront of the conversation, especially for the purposes of fund raising and heating up the blood of the (legally and strategically) ignorant base.

But the Federalist Society types? They might not have rejoiced particular loudly in public at the demise of SB 8, but the conservative SC justices would remain more than welcome at parties where anyone with at least half a brain cell would be whispering in the justices’ ears how relieved they are that SB 8 type precedent as a constitutional workaround was nipped in the bud before similar laws could be enacted to restrict constitutional rights that they care about.

Plus these conservative justices have the opportunity to display what you would could consider to be a total lack of courage by overturning Roe if they want to. Then SB 8 has bugs but no features.

[Brett Bellmore]

“to restrict constitutional rights that they care about.”

Try to remember that people who want Roe overturned don’t agree that abortion IS a constitutional right. That’s a good deal of why we think it would be overturned: It’s a Court created ‘right’, and the Supreme court isn’t entitled to pull constitutional rights out of their collective ass. We want this one stuffed back into that ass, where it belongs.

I’m trying to think of a constitutional right, a real, enumerated right, that I don’t care about. I’m coming up blank.

There are some rights I think would fit in well with the ones actually in the Constitution, that I care about. But, regrettably, they’re not constitutional rights, and no action by the Supreme court could make them into such.

[Sarcastr0]

Yes, people rationalize around the rights they don’t care for; this is not news.

You see it for the 2A, no doubt. And I see it for the right to privace.

Certainly a lot of police don’t much like the 4A as currently operated. But then neither do those living in heavily policed areas.

And who can forget what happened to the 8th Amendment after 9-11?

[Brett Bellmore]

I see it for the right to privacy, too. Third party doctrine is BS, and they’re pretty casual about allowing warrantless searches of private property for all sorts of purposes.

“Certainly a lot of police don’t much like the 4A as currently operated. But then neither do those living in heavily policed areas.”

I’d note that polls of “heavily policed areas” demonstrate that the people living there WANT to be “heavily policed”, and if anything want to be more “heavily policed”. Don’t mistake noisy protesters for public opinion.

[Sarcastr0]

I don’t disagree, though I think there are plenty of ways to lower crime than what the police currently do.

And I do think you and I agree that high crime rates don’t change the 4A, and don’t let you ignore how the 4A been distorted by the war on drugs.

[Brett Bellmore]

It’s not just the war on drugs. It’s victimless crime laws in general, of which the war on drugs is just a more prominent example.

Abuses are utterly inherent in victimless crime enforcement: Because law enforcement is vitally dependent on victims informing the police that a crime has occurred, in the case of victimless crimes the police have nowhere to start, no way to know the crime even took place.

Since effective enforcement is impossible while respecting civil liberties, the police must either throw up their hands and refuse to enforce the law, (Which opens the door to selective enforcement as a form of harassment!) or resort to abusive practices. Entrapment. Warrantless searches. Planting of evidence. And ramping up penalties, formally and informally, to compensate for the low probability of successful enforcement by raising the consequences of getting caught.

No country that is making a real effort to enforce victimless crime laws will be reasonably free of abusive police practices.

Note that gun control laws are victimless crime laws. And are as subject to this dynamic as laws against drugs or prostitution.

[Lee Moore]

I think there are plenty of ways to lower crime than what the police currently do.

They could go back to the old system of simply arresting the usual suspects and fabricating the necessary evidence. No doubt they still do that to some extent, but rather less than in the good old days.

Whether this would be an improvement depends on your point of view – not least on whether you are one of the usual suspects. Though as Brett says re Roe and judicial asses, playing by the rules is generally more important than winning the particular game.

But I’m eager for you to run for Police Commissioner, Sarcastro, so you can put your insights to the test.

[Sarcastr0]

Thanks for making up what alternative to current policing I was thinking of.

Weird I used a plural there.

But you did wreck that strawman.

[Lee Moore]

Your skin seems especially thin this afternoon.

In fact I was not suggesting that back to the old days was your chosen policy – I’d be much more confident that you’d reject any pre-1960s policy on anything sight unseen.

I was pointing out that people – some honestly, some less so – have been proposing unnumbered new policies to combat crime for at least a hundred and fifty years, and the results are, er, mixed. Typically because almost everything you can come up with has a cost, whether in dollars, or suspect’s rights, or surveilling the innocent along with the guilty, or whatever.

While many successes are claimed, few can be backed up with solid evidence.

On the whole, keeping poor aggressive young men off the streets, until they’re 30 or so, seems to be the only strong runner – whether that be achieved by having fewer of them (starting families later, more abortion) or putting them in jail for eyewateringly unfair terms when they commit a few minoer offenses as teenagers.

But since I’m sure that’s not your own plan, I am, as I say, eager for you to have a go at putting your own ideas into practice. Though preferably not in a city near me.

[SimonP]

I’d note that polls of “heavily policed areas” demonstrate that the people living there WANT to be “heavily policed”, and if anything want to be more “heavily policed”.

No, what those polls show is a more nuanced view on policing than either you or the “Defund the Police” slogan gives them credit for. They value policing and want it to do something to fight crime in their communities, but they also agree that there are abuses that need to be addressed and strategies for policing that would be more productive than those commonly relied upon.

Black and brown communities in NYC voted for Adams, who’s in favor of bringing back a modified form of stop and frisk. It’s not because they want to be racially profiled by the NYPD again. It’s because they want the NYPD to catch the people bringing violence and drug crimes to their neighborhoods.

[bernard11]

the essence of judicial courage is casting a vote, knowing that it will be unpopular. Unpopular with your colleagues. Unpopular with judges on other courts. Unpopular with politicians. Unpopular with the people. Unpopular with academics.

And this decision will be popular with all the members of those groups that the conservatives care about pleasing.

[benji]

The only group of those he mentions where it might upset more than half the people (for arguments sake I’m roughly granting a 50/50 split on abortion) is the academics. Not academics Josh probably knows, but just, in general.

[Lee Moore]

The only group of those he mentions where it might upset more than half the people

Really ?

“your colleagues” – looks like a 4-4 tie among “your colleagues”

“judges on other courts” – GOP appointees are in a modest majority in the Appeal Courts, but not all Republican appointees are anti-abortion, and not all are comfortable with SB8. On the evidence of SCOTUS one sixth of Republican appointees oppose the decision, which would be plenty to tip majority judicial opinion against the judgement. Assuming, as I do, that approximately 100% of Dem appointees are both pro-choice and appalled by SB8.

politicians

Remind me – which party currently has the federal trifecta ?

Unpopular with the people

Not much polling evidence for the popularity of SB8. Even in Texas.

academics

So what sort of a pro-choice percentage do we have here ? 90% ? 95% ?

[benji]

Why are you talking about SR8 when this is about Roe/Casey/Dobbs? Being pro-life and vehemently opposing SR8 aren’t mutually exclusive positions.

And you basically backed up my point with your fisking. And on the one you didn’t, Democrats may have the trifecta but barely (pro-lifers are a majority in the Senate) and they lost two of the three prior elections and might lose the next one.

Academia is the only one where a clear supermajority of people are going to be outraged if Roe/Casey is completely overturned and abortion returned to the states. It’s not very courageous to be unpopular in academia as a Justice appointed for life.

[Lee Moore]

Why are you talking about SR8 when this is about Roe/Casey/Dobbs?

Er, cos that is what Blackman’s article is about, and where the reference to judicial courage comes from.

Justice Sotomayor’s dissent in Whole Woman’s Health v. Jackson concludes with this passage:

” In its finest moments, this Court has ensured that constitutional rights “can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes . . . whether attempted ‘ingeniously or ingenuously.’ ” Cooper v. Aaron, 358 U. S. 1, 17 (1958) (quoting Smith v. Texas, 311 U. S. 128, 132 (1940)). Today’s fractured Court evinces no such courage.”

[Lee Moore]

I agree with your analysis that what matters is unpopularity with the sort of people whose opinion matters to you. Which might be your fellow conservative jurists, but it might also be people who might feel the need to shoot you, or lynch you; or people who may say, or do, nasty things to your kids in school.

It’s not necessary for a majority of people in any particular category to hate you. Even a minority can intimidate.

[bernard11]

Which might be your fellow conservative jurists, but it might also be people who might feel the need to shoot you, or lynch you; or people who may say, or do, nasty things to your kids in school.

And is there evidence these people exist? How many Supreme Court justices have been lynched or shot, or had their kids beat up in school?

I think you are making things up.

[Brett Bellmore]

Well, the number of Supreme court justices is fairly small, so you could have a reasonably high chance of that happening, and still not have had it happen yet.

Members of Congress have been physically attacked in the last few years, sometimes put in the hospital.

Enraged mobs have attacked Supreme court confirmation hearings, and literally clawed at the doors of the Supreme court building.

And you have this, which certainly serves as a reminder that they know where you live.

How much of a leap, really, is it from personally getting death threats and protesters showing up at your home, to somebody attempting to carry out one of those threats, when you’ve already seen it happen to other people?

[Sarcastr0]

You need to stop mixing up protest and violence. You said above there is no right you don’t care about, and yet here you are making the case that protesting at someone’s house is a threat.

[Brett Bellmore]

What I said was that it was a reminder that their home addresses are publicly known. Yes, THAT protest wasn’t particularly violent. The one at the Supreme court chambers and breaking into the Senate building during the confirmation hearings were, though.

But people showing up on your front lawn, when you’re already getting death threats, is not the most reassuring thing in the world.

So far most of the violence is headed towards members of Congress, and the occasional lower court judge. Can you explain why the Supreme court justices would assume they’re immune to it?

[Sarcastr0]

Don’t exclude the middle.

Thinking you’re immune from violence is a long way from altering your opinions due to fear of violence.

[Brett Bellmore]

Not altering your actions due to fear of violence is courage, which was the topic of the day. Notably, courage requires a threat to demonstrate, and I’m pointing out the Court does not actually lack for such threats.

[Sarcastr0]

That is a very low bar for what courage is. Not being too concerned is not the same as courage.

[bernard11]

Your paranoia is showing.

And pardon me if I don’t take your concerns about “enraged mobs” remotely seriously, given your attitude towards actual mobs attempting an insurrection on Jan. 6.

[Brett Bellmore]

Report: Federal judge says assailant who attacked her family had dossier on Justice Sonia Sotomayor

[Sarcastr0]

Those kind of background crazies are going to target justices and judges no matter what they rule.

[Brett Bellmore]

Individual crazies have their own particular motivations, but, yes, there are a mix of crazies out there.

Point is, the justices know damned well that they’re getting death threats, and that not all of them are just people blowing off steam. So there is a certain “would I be killed over this ruling” factor in play, though it’s somewhat bipartisan.

[WPHDM]

Scaremongering. How is the risk of getting killed in a traffic accident not greater, or being mugged just for a little hard cash in your pocket? Or of natural causes and/or old age? Also, why would you agree to become a judge if you are scared of being assassinated for how you rule? Life isn’t risk free proposition, and many occupational hazards are much worse.

[Lee Moore]

the risk of getting killed in a traffic accident affects the way you drive – at least once you’re past 21 or so.

[Lee Moore]

As Brett says, there are few SCOTUS Justices. Indeed there have only been 115, ever.

Meanwhile there are 435 members of the House of Representatives and 24 of them have been shot at, by a politically motivated shooter, within the past 5 years.

Meanwhile, 4 out of 46 Presidents have been assassinated, and two more hit by assassin’s bullets, and at least half of these were politically motivated.

Frankly, if you’re a SCOTUS Justice and you don’t worry about getting shot by someone who doesn’t approve of your opinions, you’re not paying attention.

[QuantumBoxCat]

Chief Justice Taney clearly exemplified judicial courage in Dred Scott.

At least according to Josh.

[Alpheus W Drinkwater]

You could accuse Roger Taney of a lot of things, but cowardice would not be one of them.

[Lee Moore]

Which reminds me of a good line from The Prime of Miss Jean Brodie. Sandy (17 year old schoolgirl) is having an affair with the art teacher Teddy Lloyd in 1930s Edinburgh :

Sandy : “How much longer are you going to be tempted by this firm, young flesh?”
Teddy : “Until you’re 18 and over the hill.
Sandy “Hey, Teddy, take me dancing.”
Teddy : “Certainly not. ”
Sandy : “What a coward !”
Teddy : “A man with a wife and six children plus a schoolgirl for a mistress can be called any number of rude names, but “coward” is not one of them.”

[dwb68]

Sotomayor jumped the shark with this dissent. I am officially putting her on resign-in-protest-watch. She will always be in the minority in this court, she is increasingly shrill and unpersuasive, and reinforcements are not on the way. Do zombie justices know they are dead?

[Sarcastr0]

Shrill, eh?

[Brett Bellmore]

“Shrill” literally refers to the pitch of one’s voice, so I suppose it’s hardly surprising that a female justice would be more likely to be described as shrill than a male.

[Sarcastr0]

Just like only women can be bitches.

[Brett Bellmore]

True. Men would be “curs”.

[Sarcastr0]

Doesn’t it mean something how one is vastly more common than the other?

[Brett Bellmore]

I suppose it means something, but I’m not enough of an etymologist to say what.

[dwb68]

Not quite. Both shrill and strident can refer to rhetoric. Plenty of examples of (male) politicians being called shrill.

[Sarcastr0]

Like who?

[David Nieporent]

Paul Krugman was routinely called shrill back when people listened to Paul Krugman. (Not a politician, but in the political arena.)

[Brett Bellmore]

Well, yes, both shrill and strident can refer to rhetoric. My point is that because shrill also refers to the pitch of one’s voice, and women’s voices are naturally higher pitched than men’s, it’s somewhat to be expected that women would more often be accused of being “shrill”, and men “strident”.

[dwb68]

My takeway here: no one is defending Sotomayor’s obnoxious and hyperbolic dissent. They are complaining I should have used words like “strident” and “discordant.”

Merriam Webster’s Recent Examples on the Web: “Beijing’s public response to the accord has been reflexively shrill, threatening, and disingenuous—with no acknowledgement that China’s behavior might be expected to prompt greater cohesion among its adversaries. — Jonathan Stevenson, The New York Review of Books, 13 Oct. 2021”
https://www.merriam-webster.com/dictionary/shrill

– An example which has the advantage of being racist AND sexist, apparently.

Whatever. There a ton of synonyms, insert whatever you like to describe her poorly reasoned, hyperbolic, obnoxious, grating, obstreperous dissent.

[Sarcastr0]

As has been noted, there have been plenty of opinions by those you agree with over the years striking about the same tone. That this is the one that really gets to you says more about your wandering standards than Sotomayor.

[Ed Grinberg]

This is the one that really gets to me:
https://en.wikipedia.org/wiki/Ricci_v._DeStefano

[WPHDM]

I’d vote for “obstreperous”. Sounds pleasantly nonunctuous.
“Contumacious conduct unbecoming a gentleperson of the Court” anyone?

[dwb68]

Shrill: Betraying some strong emotion or attitude in an exaggerated amount, as antagonism or defensiveness.

Yes, her opinions are becoming increasingly shrill, lacking logic, and unpersuasive.

[Alpheus W Drinkwater]

Her dissents don’t even touch the stridency of a Scalia dissent. But I guess since she’s female, she isn’t as emotionally stable as a man would be.

[dwb68]

Since strident and shrill are synonyms, you are overthinking it.

[Joe_dallas]

Similar to Sotomayer dissent in Shuttee v Bamm –

where she basically opined in dissent that it is unconstitutional for the electrorate of the state of michigan to pass a state constitutional amendment requiring compliance with the 14th amendment of the US constitution (joined in dissent by Ginsburg)

[Rev. Arthur L. Kirkland]

How many American law schools, among roughly 200 that are ranked, are considered worse than South Texas College Of Law Houston?

__ one
__ two
__ three
__ four
__ five or more

Prof. Blackman continues to do his best to maintain his school’s ranking.

[Kleppe]

If you can’t attack the message, attack the messenger! Rev’s a one trick pony.

[Rev. Arthur L. Kirkland]

If one is limited to one trick, mocking bigots is a great choice.

Right-wing bigots will disagree, of course, but as the liberal-libertarian mainstream demonstrated throughout a half-century of American progress: ‘Who cares what no-count clingers think?’

[WPHDM]

Another argumentum ad-scholam. It’s getting tiresome, Kirklander.

Face it: Josh NonBlackMan is a borderline genious whether institutionalized in South Texas or not, and you can’t hold a candle to outshine his brilliance or productivity. Doesn’t mean you have to agree with him on the content of specific arguments or contentions.

[bernard11]

He’s a borderline something, but “genius” is not the word you’re looking for.

[Rev. Arthur L. Kirkland]

” Face it: Josh NonBlackMan is a borderline genious ”

Nominations for “Best Comment of 2021” are closed.

[WPHDM]

Ha, ha, expecting a “SIC” on the scrivener’s error and condescending correction, amusement instead. Hail to hilarity!

Anyhow, the South Texas Genie has escaped from the bottle and won’t be squeezed back in. You can go play with the cork and try to rescrew it. Where is the Hexemeister when you need him.

More magic (broomstick subgenre) here:
https://www.babelmatrix.org/works/de/Goethe%2C_Johann_Wolfgang_von/Der_Zauberlehrling/en/5462-The_Sorcerer_s_Apprentice

[fafalone]

How many pieces have you written recently about how upholding Roe would be a complete betrayal of the conservative legal movement, how the Justices would be perceived as traitors to that movement and to originalism, and how the entire movement would turn their back on them? And you have the nerve to suggest judicial independence faces no threat from conservative elites? When the Court is essentially McConnell’s personal achievement he smashed all notion of norms to get?

You’re delusional.

Also, it takes more courage to make a ruling unpopular with your friends, than it does with your enemies. A ruling striking down Roe would not take courage, indeed all their friends and ideological allies would celebrate them. We can see courage in Gorsuch and Roberts in a case like Bostock/Harris Funeral Homes.

[Life of Brian]

Damn, dude… decaf.

A ruling striking down Roe would not take courage

Sorta depends on whether they take the “oh, my bad, I’m from Brooklyn” death threats seriously, eh?

[benji]

You think Schumer was making death threats against the Justices?

[Brett Bellmore]

I think calling it specifically a death threat is a stretch. It was absolutely a threat, though.

When you suffer from resting evil face, though, people tend to assume your threats are all death threats.

[Sarcastr0]

The liberals are always so threatening to Brett.

[Michael P]

And to Supreme Court justices. And to various police and federal buildings. And to people who don’t want others to be waving their meat-and-two-veg around inside a women’s spa. And to people who think all lives matter.

Why ARE leftists so inclined to both threats and actual violence?

[Sarcastr0]

Oh, dear, someone forgot about Jan 06.

And seeing an unsolicited wang isn’t great, but it’s not in the really in the same ballpark here. Telling you’d go there.

[Brett Bellmore]

Oh, dear, somebody forgot about the selfies, and capitol cops posing with the ‘insurectionists’.

The protesters who broke into the Kavanaugh hearings weren’t any less violent than the ones who broke into the EC count.

[Sarcastr0]

Brett, you continue to ignore all the confessions, charging documents, videos, social media posts.

You’re going to have to work harder and harder at that as more comes out.

[Rev. Arthur L. Kirkland]

“The protesters who broke into the Kavanaugh hearings weren’t any less violent than the ones who broke into the EC count.”

On one side of this, the record.

On the other, the claims of a bigoted, disaffected, delusional, autistic, right-wing loser.

[Jason Cavanaugh]

It’s amazing how authoritatively you try to speak on the issue of January 6th, when it’s abundantly clear that you’ve never bothered to examine the evidence.

Start with the 2nd impeachment trial of your former bestie.

[Michael P]

How many government buildings were burned down in DC on Jan 6th? How many “autonomous zones” were established? How many mortar fireworks were fired at federal protective agents, and how many of those agents were intentionally blinded by lasers?

Give it up, Gaslight0, Jan 6th does not even hold a candle to leftist insurrections.

[LawTalkingGuy]

People forced their way into
Congress to get them to stop a key moment in the transfer of political power in support of the clear loser of an election through intimidation.

If that happened in another country you’d call it a coup attempt without even thinking.

[Michael P]

It’s pretty telling that your argument is premised entirely on what you imagine I would say in an imaginary situation.

In actual history, however: https://www.usatoday.com/story/news/2018/09/28/brett-kavanaugh-hearing-protesters-christine-blasey-ford/1453524002/

Somehow, the many people arrested then were not denounced as insurrectionists or subjected to long-term pre-trial detention.

[bernard11]

A threat of what, Brett? What was Schumer going to do, call them names?

Don’t be ridiculous.

[Sarcastr0]

Blackman is really an example of how self absorption can really blind you and let you make a fool out of yourself.

[Life of Brian]

Whereas just joining in the mob and piling on to a perceived unpopular target without saying a shred of substance yourself is… the epitome of courageous intellectualism?

[Sarcastr0]

Good point, LoB.

I have no unpopular views, and post here because everyone agrees with me.

[bernard11]

Not to mention ambition.

The guy is really desperate for a career move, but it looks like even the wingnuts don’t have a use for him.

[Stephen Lathrop]

There is always a future, and when you manage a project you have to keep that in mind. The list of bloggers on the VC matters to the future of the VC. That list is bound to change over time. How many top-quality conservative legal thinkers will want to publish their stuff among a welter of Blackman, “contributions?”

[BenMK]

Something tells me he would be less sanguine about, for instance, letting the Constitution be neutral about firearms regulation and returning it to DC and California.

[Brett Bellmore]

The obvious difference is that the Constitution actually has something to say about firearms regulation.

There’s a much better case for constitutional neutrality on topics the Constitution doesn’t actually say something about, compared to neutrality that requires actively ignoring explicit Constitutional text.

[Sarcastr0]

Your pinched jurisprudence and broad reading of the 2A is your own, not that of America, thank goodness.

[Da5id]

I’m not in the least bit a gun enthusiast, but I’m not sure you are entirely correct about how America interprets 2A. Gun ownership is quite widespread. Support for at least some rights to own a gun is broad — though many do want restrictions on some aspects like magazine size etc. The argument that hemming in gun rights is legit but in any way hindering abortion rights (with waiting periods, medical regulations, or whatnot) is terribly unconstitutional always seemed like motivated reasoning (or dare I say “brave?”) to me rather than in any way principled. And FWIW I’m quite strongly pro-choice (and for that matter pro-abortion situationally).

And I think Josh is very one note, here and elsewhere. I also think the whole “brave” thing is rather weak in this context. Is Justice Sotomayor’s stand “brave”, when the media/left/her social circle will laud her for her position? Was Justice Roberts brave when he saved ACA? Seems like “brave” mostly means “created the outcome I wanted regardless of what the constitution may say”.

All that said, I hope that the courts at some level can find a legitimate way to knock down SB 8. I don’t like the thrust of the specific law, and don’t like the paradigm and where it will lead in other contexts. But I’m not looking for “brave” judges to make things up to achieve those ends while further snarling our overcomplicated and (to laypersons like me) largely incomprehensible constitutional legal system.

[Sarcastr0]

Good thing I’m not making the argument that gun restrictions are all fine and abortion restrictions are all bad!

My point is more that Brett makes himself arbiter of legitimacy of Congressional rights, which he very much is not.

[Brett Bellmore]

I make the Constitution the arbiter of the legitimacy of purportedly constitutional rights. It actually says some things, and not others.

I’m rather pissed that the Supreme court blows off that “all” in the 6th amendment, or that $20 in the 7th.

The double jeopardy clause has practically been read out of the Constitution by allowing federal AND state prosecutions for the same acts.

Hardly any of our explicit constitutional rights get the respect the ought to.

That a ‘right’ nowhere to be found in the Constitution can get you from enactment of burdening legislation to a Supreme court hearing so fast you get a vapor trail, while the Court can go a decade or more ignoring 2nd amendment circuit splits, just underscores how little respect the judiciary give rights they didn’t invent themselves.

[Sarcastr0]

The Constitution as you see it. I know you think your common sense take is the objective truth, but it’s not.

I have my point of view, but I don’t for a moment forget that this is a dialogue, and I could be wrong even if I think I’m right.

But for you, the truth is the exact same as your analysis.

[Brett Bellmore]

I broadly read pretty much anything that’s actually IN the Constitution, but it’s pretty hard to have anything other than a pinched reading of text that doesn’t actually exist to read.

[Sarcastr0]

Yes, I know you use an idiosyncratic understanding of originalism and your own brand of textualism (that aligns with your policy goals, natch).

And that you think anyone who disagrees with you is a legal realist at best and probably lying to the American People about how much they know you’re right about the Constitution’s requirements.

You have no humility.

[WPHDM]

Right to Bare Arms & Channelling Rosie the Riveter

Why can’t the Court just rule that the right to bear arms was a “scrivener’s error”; — venerable ancestor of the typo.

In a more serious vein, shouldn’t firearms regulation be a policy matter for the political branches and their subdivisions, rather than being lorded over by the National Council on Abortion sitting as the National Council on Gun Regulation? And shouldn’t it be recognized that the severity of risk and levels of threat are variable and contingent, and that the views of the founders have no bearing on the risk posed by modern hand-held weaponry that facilitates mass casualty events in a matter of seconds.

[Longtobefree]

“The greatest threat to judicial independence comes not from odious segregationists, but from progressive elites.”

Just curious; why “odious” for segregationists, but not for progressive elites?
In particular when saying that the latter are the greatest threat?

[David Nieporent]

Shorter longtobefree: “Why criticize segregation?”

[Michael P]

Borrowing a page out of Gaslight0’s book, I see. You don’t want to admit that the construction of the sentence was intentionally biased, so you fabricate a quote instead.

[David Nieporent]

I’ll put you down on the pro-segregation side, too.

[WPHDM]

Re: “The greatest threat to judicial independence”

Judicial independence is about the functional separation of powers. The greatest threat comes from one branch centralizing all power and subduing the others. The other threat is a serious weakening of the vertical separation of powers, i.e. federalism being replaced with central control by the national government, whether that be the executive, legislative, or judicial branch, or some combination thereof.

[Childhood reader of SCOTUS opinions, really]

Certain justices think that being lawful must command a change of conscience. Eg Abortion or homosexual marriage. Now that it is law I must approve. But that was the old “Let’s keep Slavery” Argument which Lincoln eviscerated in his Cooper Union address

“Demanding what they do, and for the reason they do, they can voluntarily stop nowhere short of this consummation. Holding, as they do, that slavery is morally right, and socially elevating, they cannot cease to demand a full national recognition of it, as a legal right, and a social blessing.”

Masterpiece Cake and the 311 case merely stated that if conscience has any meaning it must mean that some things are immmoral and wrong FOR ME so I MUST not do them