For Legal Conservatives, Six Decades Of Folding, Followed By Sixteen Years To Draw A Full House

On the plus side, we had Rehnquist, Scalia, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. On the down side, we had Roberts, Souter, Kennedy, O'Connor, Powell, Blackmun, Burger, Stewart, Whittaker, Brennan, and Warren.

We are now roughly one month from Dobbs. I still cannot believe it happened. Indeed, I still can't believe the Court overruled Roe and Casey, expanded the Second Amendment, "abandoned" Lemon, and so much more--in the span of a week! It is worthwhile to reflect on all the things that had to go right over the past sixteen years for this moment to happen. But it is also useful to keep stock how many blunders were made over the prior sixty years. Ed Whelan and Ilya Shapiro flagged many of the high points and low points. Here is the relevant chronology from my perspective.

For judicial conservatives, there were sixty decades of famine, followed by sixteen years of feast.

President Eisenhower

Let's start with the bad times, which stretch all the way back to the Eisenhower administration--the first opportunity for a Republican President to remake the New Deal Court:

• 1953 - After the sudden death of Chief Justice Fred Vinson, President Eisenhower recess-appoints California Governor Earl Warren as Chief Justice. One year later, the Senate confirms Warren. Eisenhower would later describe Warren's appointment as the biggest mistake he ever made.
• 1956 - Shortly before the election, President Eisenhower made a recess appointment of New Jersey Supreme Court Justice William Brennan. He was confirmed the following year. Apparently, Eisenhower appreciated Brennan's Catholicism. If Warren was Eisenhower's biggest mistake, then Brennan must be a close second.
• 1957 - Most people have never heard of Justice Charles Whittaker. He only served for five years. Meanwhile, Brennan served for three decades.
• Eisenhower's other two nominees were conservative enough, at least for the day: Justices John Marshall Harlan II and Potter Stewart. But none would rival the influence of Warren and Brennan.

President Nixon

After eight years of democratic administrations, President Nixon comes to the White House with a golden opportunity to reshape the Court, that he largely wastes.

• 1969 - As President Johnson's term drew to a close, Chief Justice Warren recognized that Richard Nixon may win. So Warren announced that he would step down upon the confirmation of his successor. President Johnson tried to nominate his crony, Justice Abe Fortas, as Chief Justice, but that selection blew up for many reasons. And the Democrats did not try to squeeze in another candidate before the election. (If only Mitch McConnell was their leader!) President Nixon was handed a miracle: the chance to replace the great Earl Warren. Who did he pick? Another Warren. Warren Burger to be precise. Burger turned out to be relatively uninfluential, and outside the area of criminal law, was not particularly conservative.
• 1970 - Once Fortas's chicaneries became public, he resigned. And, Nixon had the chance to flip another seat. Who did he pick? The Minnesota Twin, Harry Blackmun, who would write Roe v. Wade, and become a solid liberal.
• 1971 - The Black and Harlan seats became vacant. Nixon appointed Powell for the former vacancy who would turn out to be the new "swing" vote. And Harlan was replaced by Rehnquist, the only solid conservative Nixon would appoint.
• In the span of three years, Nixon made four Supreme Court nominations. He batted about .250.

President Ford

President Ford, the accidental President, was in office for a short period. He would have one Supreme Court to show for it.

• 1975 - Justice Douglas finally retired, and President Ford selected Judge John Paul Stevens. Like Harry Blackmun, Stevens would become a leader of the left-wing of the Court. Though, Ford would always defend his lone pick to the Supreme Court.

President Reagan

President Reagan tried to turn the tide on the Supreme Court. He did better than his predecessors, but still had a mixed record.

• 1981 - President Reagan selected Sandra Day O'Connor to replace Justice Stewart. Like Justice Powell, O'Connor would become something of a swing vote. She marginally pushed the Court to the right in a few areas, like federalism.
• 1986 - Chief Justice Burger stepped down, and Reagan made two excellent nominations: Rehnquist for Chief Justice and Scalia to fill the Associate Justice seat. Both were confirmed, and both were very successful. But had Reagan nominated Bork in 1985, he likely would have gotten through.
• 1987 - Justice Powell announced he would step down. What happened next is the stuff of legends. Bork was borked. Ginsburg was never formally nominated. Instead, we got Justice Kennedy, who would be yet another swing vote.

President George H.W. Bush

The first President Bush was given two nominees his first term. He batted .500.

• 1990 - Justice Brennan could hold no longer, and stepped down. Given the chance, Bush passed over his fellow Houstonian, Edith Jones, and selected David Souter. This pick is quite possibly the worst selection in modern Supreme Court history.
• 1991 - One year later, Bush was given the chance to fill the seat of Justice Thurgood Marshall. To Bush's credit, he picked Clarence Thomas. Though I am convinced if Bush knew quite how conservative Thomas was, he would have picked someone else.

The six decades of famine would come to an end in 2005.

President George W. Bush

Bush had no Supreme Court nominations his first term in office, but got two in rapid succession during his second term.

• 2005 -  First, Justice Sandra Day O'Connor announced her retirement. Second, Chief Justice Rehnquist suddenly passed away. According to reports, the top three candidates for the first seat were John Roberts, Mike Luttig, and J. Harvie Wilkinson. And we got Roberts. For many years, conservatives said "if only we had Luttig," but those voices have quieted since Trump left office.
• 2006 - The bigger shift came with the second seat. Initially, President Bush nominated Harriet Miers, his White House Counsel, to fill Justice O'Connor's vacancy. (If he wanted a woman, Edith Jones was still available, but like father, like son). The conservative legal movement rebelled, and Bush selected Samuel Alito. Sixteen years later, Alito would write the majority opinion in Dobbs. We do not know how Miers would have voted in that case.

President Donald Trump

The tide would decisively turn between 2016 and 2020.

• After Justice Scalia's death, Senate Republicans refused to consider whoever President Obama would have nominated. This was a momentous decision that altered the course of the Supreme Court's history.
• But that strategy would only pay off if a Republican won the election. Had Clinton prevailed, someone far to the left of Garland would have been confirmed.
• Trump was able to seize the nomination, in large part, by assuring conservatives that he could be trusted to fill the Scalia seat.
• Against all odds, Trump prevailed. And he would nominate Neil Gorsuch for the seat.
• The Democrats waged a quixotic filibuster against Gorsuch. At the time, the Republicans had enough votes to nuke the filibuster for Supreme Court nominations.
• Each of the steps were essential to save the Scalia seat. And none of these steps were political certainties.
• Justice Kennedy stepped down, and President Trump nominated a Kennedy clerk to fill the seat. Coincidence? I'll let you decide.
• After Justice Kavanaugh's second confirmation hearing, there was every call for him to step down. But he refused.
• After the hearings concluded, Kavanaugh's vote count was very much in doubt. Had the Democrats not wasted a filibuster against Gorsuch, I doubt Kavanaugh could have made it through. But, in the end, Kavanaugh was narrowly confirmed.
• At this point, there was a solid five-member conservative Court. Yet, in June Medical (2019), Roberts stood by Roe. At the time, we thought Roberts's vote was perhaps limited to that case, where the question of overruling Roe was not squarely presented. But in hindsight, after Dobbs, Roberts was never prepared to take that step. One more vote was needed
• Justice Ginsburg died in September 2020, and President Trump quickly nominated Judge Amy Coney Barrett. She was confirmed a few days before the election. Had Ginsburg passed even a few weeks later, it would likely have been impossible to complete the process before the election. And, with hindsight, the period after the election was a complete mess. Could a Supreme Court hearing have even been held and completed in that period?

To get to Dobbs, the conservative legal movement had to draw a full house over the course of sixteen years. And that winning hand--three of a kind and two of a kind--was preceded by six decades of simply folding. What a remarkable turn of events.

Comments

[John F. Carr]

On Thomas' surprising conservatism: One of the things presidents learned from the Bork debacle was to watch out for a paper trail. With less evidence to base a decision on we can expect surprises. I do wonder whether Miers, the ultimate mystery, would have made a good justice.

[Krayt]

Iirc at the time, a lot of complaint against Miers was pure competancy, not ideological.

[John F. Carr]

I had no idea if she was competent. It was fair for critics to demand evidence that she was competent, but I had no reason to think she was not. Or that she was. A mystery wrapped in attorney-client privilege wrapped in executive privilege.

[Bob from Ohio]

"a lot of complaint against Miers was pure competancy"

No, almost all complaints were classist, she wasn't Double Ivy and a former federal court clerk.

[myself]

No. The complaints were nepotism (only reason she was nominated is because Bush was personally working with her) and competence (the senators who interviewed her didn't think she understood constitutional law).

[Bob from Ohio]

Both of those were just smokescreens for the fact that she was not an establishment legal figure. From Texas and no Ivy or clerk background and a mere woman too.

It worked out great because Sam got the slot but she got a raw deal.

[Frank Drackman]

Sammy "The Knife" my second favorite Surpreme second only to Clarence "Frogman" Thomas, who absolutely knows the difference between an XX and an XY...
Had high hopes for the "Brig Brain on " Brett K, but he's making the old mistake of trying to get the other side to like him......

Frank

[Brett Bellmore]

I suspect that what happened with Thomas is that his confirmation hearing was such a nightmare due to Democrats' determination to prevent the confirmation of a black Republican nominee, that he had every bit of concern for what people thought about him burnt out of him.

[TW]

Kavanaugh probably feels pretty much the same after the attempted character assassination that he went through at his confirmation hearing and the actual assassination attempt at his home several weeks ago.

[Kazinski]

It's pretty clear that Kavenaugh is a lot less conservative than Thomas, in fact much closer to Roberts, though obviously in the Right side.

I don't see much evididence his confirmation hearing pushed him to the right, although it's possible he's less self conscious about it.

[momo]

No, Kavanaugh clearly feels more desire to have his good name restored and "the right people" to think highly of him.

Expect Kavanaugh to become more liberal and establishment over time.

[Sarcastr0]

That's a pretty low opinion you have of Thomas, Brett.

[not guilty]

Clarence Thomas apparently thinks that affirmative action is a really crappy idea for anyone whose first name is not Clarence or whose last name is not Thomas.

[Frank Drackman]

Yes, because every Afro-Amurican who succeeds is due to Affirmative Action?? and I'M the Race-ist????, (Me, who voted for (the Very Wrong) Reverend Sharpton in 04' (yes, as a goof), Herbert Cain (write in) in 0-12, Ben Carson in 0-16 Primary, and most recently #34 in GA, (nobody in GA calls him by that "other" name)

Frank "Color Blind" (No really, I'm Color Blind)

[Brett Bellmore]

I don't think so. I think it's a sad source for integrity, (No one wants to be put through that sort of purifying fire.) but it's integrity none the less. Some of the Justices let public opinion, or their perception of it, sway them. Thomas doesn't, he goes with his legal logic, regardless.

I don't always agree with him, but I think of the Justices he is the most true to his profession.

[Sarcastr0]

Spite cannot give rise to principle.
But I see why you'd be confused, since the principle you believe Thomas hews to is 'always against the liberals.' Which is not actually a principle, it's just being an empty reactionary.

I've actually been impressed with how professional Thomas has been - he has a huuuge chip on his shoulder, but his opinions nor his relationship with his colleagues give a hint of it.

[Brett Bellmore]

"since the principle you believe Thomas hews to is 'always against the liberals.'"

No, I think he just goes where the legal logic leads, regardless of what people will think about it. For instance, he never stops pointing out that substantive due process is a crock, and that rights were supposed to be incorporated via the P&I clause.

[Sarcastr0]

If that's the case, hating liberals would seem to interfere with that logic.

Being a partisan doesn't seem to comport with having ability to talk about how there is only One True Answer that everyone should see about the Constitution.

Though I suppose it does go alongside finding virtue in putting humility aside and ignoring all past Justices and reliance interests because your view is so clearly correct.

[Dan Schiavetta]

Thomas's conservatism wasn't surprising. It was well publicized that he turned the EEOC into a stone wall against seeking redress for sexual and racial discrimination and he had made on-the-record speeches making his views clear, including one where he called his own sister a welfare leech.

[Frank Drackman]

was she?

[Joe_dallas]

Obama picked sotomayer, who has proven to be one of the least qualified to sit on the SC. Ricci alone should have been enough to prevent her nomination.

[Sarcastr0]

How dare Obama appoint someone without the only qualification that matters - Joe_dallas can't think they're super-duper wrong!

[John F. Carr]

I think she's pretty bad, but the article is about Republican nominees. God created Republican presidents to turn the court in the direction Blackman wants it to turn, and for a long time they failed.

[Noscitur a sociis]

Obama picked sotomayer, who has proven to be one of the least qualified to sit on the SC.

How so?

She certainly disagrees with me the most of any justice in recent memory, but that's not typically considered a qualification.

[bernard11]

So "Separate but equal looks fine to me" Rehnquist was an "excellent" appointment?

No, thanks.

What happened next is the stuff of legends. Bork was borked.

I don't know about legends. There certainly has been a lot of myth-making, which is to say lies told, on the right about how unfairly Bork was supposedly treated - being voted down and all that.

[Nick Gillespie's Jacket]

Come on, Bernie. You know that “Bork” didn’t become a verb simply because his nomination vote was unsuccessful. Talk about myth making!

[bernard11]

Nick,

Kennedy said some unpleasant things about Bork.

So big deal. "Borked" became a verb because Republicans didn't like that, and the publicity it got.

Bork also is on record as saying the 1st Amendment protects only political speech. That's enough to disqualify him, IMO.

[Alpheus W Drinkwater]

Kennedy said some unpleasant things - directly to Bork in a public hearing. Even Ted Kennedy had more guts than today's Republican senators.

[Brett Bellmore]

Bork was rejected 58-42, but it needs to be remembered that, while Democrats had enough votes for him to have narrowly been defeated even if Republicans had liked him, six Republicans also voted against him. He would have been defeated even if Republicans had held the majority, the opinion that he was a lousy choice was bipartisan.

[Brett Bellmore]

Personally, he lost me when he declared the 9th amendment to be an "inkblot"; Nobody who regards the meaning of part of the Bill of Rights as unfathomable ought to be on the Court.

[Mr. Bumble]

He never referred to the 9th as an inkblot. Rather he was referring to his uncertainty as to its meaning.

Honesty got him nowhere.

If everything in the Constitution were fathomable we wouldn't need a SC.

[Brett Bellmore]

He didn't *call* it an inkblot, he declared it as incapable of interpretation as one. Same effect: He declared that there was no way to tell what it meant.

I'll agree that he might have gotten further if he'd lied about his view of it.

[JasonT20]

He never referred to the 9th as an inkblot. Rather he was referring to his uncertainty as to its meaning.

I don't see how someone with his education in law could have gotten that far and not had some idea about what it means. It seems pretty straightforward to me. "Don't argue that a right doesn't exist unless the Constitution specifically says so. Don't argue that rights not mentioned are less protected than ones that are."

The history of how the 9th Amendment came about is pretty easy to follow as well. Some Federalists didn't want a Bill of Rights specifically because someone might later argue that only the listed rights were protected. I'm too lazy to look it up again, but I've read from the debates over the Bill of Rights where Madison says that this was as reasonable a criticism for having a Bill of Rights as there could be, and explains the 9th Amendment as being a way to put it down on paper to forestall anyone making that kind of argument.

In my opinion, Bork was not being honest in that answer. He knew what he was really being asked about ("privacy" rights like abortion, contraception, etc.). To even acknowledge that the Supreme Court had to find some way to determine what unenumerated rights were protected by the Constitution meant that Justices might end up protecting rights he didn't want people to have.

[Brett Bellmore]

I think that nicely sums it up: The 9th amendment was to prevent existing rights from being extinguished on account of not being enumerated. Bork's refusal to give it any meaning committed the exact offense it was ratified to forbid.

[Martinned]

So basically the lesson here is that the US has a weird kind of tricameral system whereby the third branch of the legislature isn't directly elected, and can veto anything done not only by the rest of the legislature, but also the executive, state authorities, etc.

I guess the closest thing this reminds me of are the tribuni plebis in the Roman Republic. I guess that makes 2022 your Gracchi moment.

[Life of Brian]

So basically the lesson here is that the US has a weird kind of tricameral system whereby the third branch of the legislature isn't directly elected, and can veto anything done not only by the rest of the legislature, but also the executive, state authorities, etc.

Hi, you must be new here. Oh wait.

[Martinned]

The point of my comment is that usually when the Supreme Court legislates from the bench in a way that the speaker likes, they at least have the decency to be embarrassed about it.

[Life of Brian]

usually when the Supreme Court legislates from the bench in a way that the speaker likes, they at least have the decency to be embarrassed about it

What a strange thing to say. I've seen nary a twinge of embarrassment by liberals over Roe/Casey/Lawrence/Obergefell over the course of my lifetime -- generally more along the lines of smug chest thumping. What did you really mean?

[Martinned]

"Smug chest thumping" in the sense of "this was the right interpretation of the constitution all along", not "Yay! I managed to get enough people from my political party appointed to the Supreme Court so they changed the meaning of the constitution!"

The former is pretending that the Court doesn't legislate, as is traditional. The latter is what the OP is doing.

[Life of Brian]

"this was the right interpretation of the constitution all along", not "Yay! I managed to get enough people from my political party appointed to the Supreme Court so they changed the meaning of the constitution!"

If you truly think pro-lifers believe Roe/Casey were the "right interpretation of the Constitution all along" and that Dobbs "changed the meaning of the Constitution" from that "right interpretation," you really do need to diversify your real-life social circle a bit.

[Joe_dallas]

Martinned
July.25.2022 at 9:09 am
Flag Comment Mute User
"So basically the lesson here is that the US has a weird kind of tricameral system whereby the third branch of the legislature isn't directly elected, and can veto anything done not only by the rest of the legislature, but also the executive, state authorities, etc."

So basically you are unfamiliar with Article 1, article 2 and article 3 of the US constitution.

[Martinned]

Familiar enough to know that, under article III, the Federal courts are supposed to be deciding cases or controversies, not rewriting the law wholesale.

[Kazinski]

I agree they shouldn't rewrite the law, just strike it when it doesn't conform to the constitution.

And regulations? They should strike all regulations that have the force of law.

[Nick Gillespie's Jacket]

That probably sounded more clever in your head. But in “print,” it is hackneyed and lazy. (With respect.)

[Martinned]

I'm sorry to hear you didn't like my comment. Please call 502-626-1790 to get your money back.

[Don Nico]

Martin,
You don't understand the genius of the American constitution.
I'll leave it to you to contemplate the Italian, Israeli and British parliamentary systems to decide if they are any better.

[Martinned]

Yes.

[Kazinski]

It's not like European courts aren't just as interventionist, probably more, but they push to the left so you are blind to it.

European courts overriding centuries of British law is one of the main factors leading to Brexit, you remember that don't you?

[Martinned]

I remember that myths about what European courts do were among the factors leading to Brexit, sure.

The point isn't that courts shouldn't be interventionist, or that Dobbs is unusual in that regard. It's that the OP is unusual in that it doesn't even pretend that the Court didn't just rewrite the law for political reasons.

[Darth Buckeye]

The leaders of the Republican party are not all that different from the leaders of the Democratic party. Both sets of leaders side with the would-be elites that look down on most of the American public.
Regarding Souter, John Sununu would later laugh that he was able to pull one over on GHW Bush; the president expected a conservative and he got a liberal instead. Another example of how the elite leadership in the party scorned the conservatives that made up the party's rank and file.
I was in law school from 1982 to 1985 and my professors, most of whom were very liberal, expected Roe to be overturned soon. The fact that it took almost 50 years was because the graduates of the Harvard, Yale, and Stanford law schools are almost uniformly members (or wannabe members) of our nation's elite.

[bernard11]

I have a hard time seeing Sununu as a liberal.

[Don Nico]

He was a technocrat, and effective at it.

[Kazinski]

I have a tough time seeing Bush as a conservative.

[Neophyte]

Roberts was mostly conservative pre 2018. The only major cases I can think of from 2005-2018 where Roberts flipped were the Obamacare cases. But after Kavanaugh was confirmed, it's as if Roberts felt obligated to pick up the mantle of Anthony Kennedy. Thank God Brett Kavanaugh has more principle.

[juris imprudent]

"For judicial conservatives, there were sixty decades of famine, followed by sixteen years of feast."

Truly a biblical timespan.

[Frank Drackman]

Amazing that the most effective "R" at picking Judges to do what "R"s have been saying they want done for almost 50 years was the least politically experienced. Even that E-ville Genius Milhouse whifffed on 3/4 when it came to "Life" (did get 4/4 with the "Death" case in 1972) Ironic, (Dontcha Think?) the Same court outlaws "Death" for Killers, Legalizes "Death" for the Unborn (future Killers or not) DemoKKKrat Surpremes just go to work every day, doing what they're supposed to (I know, "Reverend", they're my "Betters") Even though Kentanji doesn't know an XX from an XY, she'll vote the "Correct" way every time

Frank "I-ANAL"

[Brett Bellmore]

There's no substitute for actually WANTING got get something done. The earlier Republican Presidents could have found nominees who'd have been reliable on the topic if they'd actually been trying to find them.

[Dan Schiavetta]

What a lack of historical perspective this post shows. Everything is viewed through a 2022 lens.

For one thing, leaving out Democratic Presidents leaves out the fact that over the past 70 years Republican Presidents, either by chance or gamesmanship, have appointed more than two-thirds of the Court. And there hasn't been a Democratic-appointed Chief Justice since 1953. That's 69 years.

For another, the only Republican picks that turned out to be unexpectedly liberal were the early ones of Warren and Brennan. The rest were either mainstream Republicans or hard-right ideologues.

[Mr. Bumble]

Mainstream Republicans? More like finger in the wind Republicans.

[Brett Bellmore]

No, he's right, if by "mainstream", you mean the mainstream of Republican federal officeholders, rather than the mainstream of Republican voters. It took a long while for Republican voters to reduce the disconnect between their own views and those of the people nominally representing them in Washington.

The job still isn't finished.

[Mr. Bumble]

...and yet we still have the likes of Mitch McConnel, Lindsay Graham, Susan Collins, Lisa Murkowski, Mitt Romney ... presented as mainstream Republicans.

[bernard11]

Well, they keep getting elected, all except Collins from pretty red states, so maybe Republican voters like them, even if Brett doesn't.

[Brett Bellmore]

Judging by the reelection rate for incumbents, it could just be that they're too entrenched to get rid of. It is REALLY hard to displace an incumbent member of Congress.

[Kazinski]

What Brett, a lot of Republicans, and almost all Democrats don't realize is Independents still decide most elections, even in states like Kentucky. After all Kentucky has a Democratic governor, so getting a Democrat elected there isn't impossible.

I'd certainly prefer a more conservative candidate in a deep red state like Alaska, but the most important thing is a workable majority not an idealogically pure minority.

[JasonT20]

I'd certainly prefer a more conservative candidate in a deep red state like Alaska, but the most important thing is a workable majority not an idealogically pure minority.

Exactly. "True" conservatives and Republicans (that aren't what the most strident call RINOs) are probably not a majority of voters in any state, let alone the whole country. (Same with progressive/liberal/Democrats) If you only ever appeal to the base of your party, you'll win very few elections. If you try and fool independents into thinking you'll compromise, but then govern only with your base in mind, they'll figure it out eventually. At least, you'd hope they would.

It is supposed to be difficult to get and maintain a majority coalition. It is supposed to involve compromises that everyone part of that majority coalition can live with. If you don't have a majority entirely on your side on some particular issue, then you are not supposed to get entirely your way.

[Bob from Ohio]

"only Republican picks that turned out to be unexpectedly liberal were the early ones of Warren and Brennan"

Speaking of "lack of historical perspective". Blackmun wrote Roe, then Stevens and finally Souter existed.

[Dan Schiavetta]

Except for Catholics, conservatives were mostly pro-choice when Roe was decided.

[Frank Drackman]

there's even a Nixon tape from the day Row came out where he talks about abortion being needed for certain situations, life of the mother, rape, interracial pregnancies....

[JasonT20]

That's a good point. White, Protestant evangelicals were not anti-abortion when Roe was decided. They considered it a Catholic thing. Randall Balmer, a professor of religion (and ordained Episcopal priest), has some interesting things to say about the history of the anti-abortion movement.

[Kazinski]

I don't know what that has to do with the constitution.

Liberals just don't seem to get you can be pro-choice and still think Roe was a lousy decision with no basis in the constitution.

[Alpheus W Drinkwater]

Except for all the liberals who have written that exact same thing for years.

[Kazinski]

But still think Roe should be defended to the death because they like the result.

I really don't see anyone on the left that concedes Dobbs had it right, that Roe as constitutional doctrine was so wrong it had to be reversed.

[Randal]

Well, there's a difference between thinking Roe was a lousy decision and thinking that there's no constitutional basis for a right to abortion.

The constitutional basis for a right to abortion is quite strong and need not emanate from penumbras. It's comes from the same place as the rights to contraception and sodomy. It's hard to argue that Roe was so wrong it had to be reversed, but Griswold and Lawrence are a-ok.

[Ed Grinberg]

It comes from the same place as the rights to contraception and sodomy.

Well, yes. From the ether. Depending on what the judge had for lunch that day. Great approach to jurisprudence!

[Randal]

So, your position is that Roe, Casey, Griswold, and Lawrence are all Egregiously Wrong?

[BMS]

It's uncharitable to President Nixon not to mention that he nominated Harry Blackmun only after the Senate rejected two of his segregationist nominees.

[Rev. Arthur L. Kirkland]

" It's uncharitable to President Nixon not to mention that he nominated Harry Blackmun only after the Senate rejected two of his segregationist nominees. "

The bigots who frequent this blog don't like to discuss their bigotry, or the Republican Party's bigotry, or conservatives' multifaceted bigotry, or anyone else's bigotry.

They prefer -- as cowards and losers of the culture war -- to hide behind euphemisms such as "traditional values," "conservative values," "family values," "colorblind," "libertarianish," "often libertarian," and "heartland." But they're still just bigots, destined for replacement as America continues to improve.

But, yeah, let's not forget that Nixon nominated two guys who used vice racial slurs just like this white, male, right-wing blog continues to do.

[Frank Drackman]

Bitter Much? "Reverend"
and find me another POTUS using the "N-word" like Barry Hussein does in this Oldy but Goody https://www.youtube.com/watch?v=IR6UwAez8Ko

[Mr. Bumble]

In other Court news:

Via Scott Johnson at Powerline:

The status of the investigation ordered by Chief Justice Roberts following the leak of Justice Alito’s Dobbs opinion to Politico remains shrouded in mystery. The AP reports that the Supreme Court is resting on its right to remain silent:

The Supreme Court won’t say whether it’s still investigating.

The court also won’t say whether the leaker has been identified or whether anyone has been disciplined.

Or whether an outside law firm or the FBI has been called in.

Or whether the court will ever offer an accounting of what transpired.

Or whether it has taken steps to try to prevent a repeat.

To these and other emailed questions, Supreme Court spokeswoman Patricia McCabe said by email: “The Court has no comment.”

Just in case you were wondering.

[John F. Carr]

I don't mind. I am not among those calling for the leaker to be hanged or canonized. I am not likely to accidentally hire the leaker.

[Rev. Arthur L. Kirkland]

" I am not likely to accidentally hire the leaker. "

Why not? Ginni Thomas seems to be available to any movement conservative looking to purchase influence, and you seem to be a strident right-winger.

Do you not have any money?

[Frank Drackman]

Reverend Arthur/Jerry Sandusky has gone
10 YEARS, 1 MONTH, 15 DAYS

without buggering any young men,

*as far as we know, https://www.cor.pa.gov/Facilities/StatePrisons/Pages/Greene.aspx

[Frank Drackman]

I thought cartons of smokes were what you used for "money"

[Mr. Bumble]

Sounds like the same attitude so many Germans had when Hitler was seizing power.

"He doesn't seem so bad and none of this effects me".

[Michael D]

Re: “Or whether an outside law firm or the FBI has been called in.”

I feel strongly but obviously cannot be certain, the court will NOT request the assistance of the executive branch in this matter.

[Frank Drackman]

Like to see more "Leaks" it was obviously so effective at changing the decision....

[Sarcastr0]

Buncha no comments.

Holy wow what a scoop!

[SRG]

Prof Blackman may think that Souter was a terrible choice, but he was nonetheless a better choice than Edith "Freisler" Jones.

And Bork should never have been considered, after his involvement in the Watergate cover-up - and that nomination was no doubt a reward for that involvement.

[Bob from Ohio]

Edith Jones would have been a grand slam choice. No gay marriage for one thing and Roe killed a generation earlier.

[Rev. Arthur L. Kirkland]

You're a bigot, Bob from Ohio, mired in America's cast-aside gutter.

You and this blog deserve each other. Enjoy this peak clinger moment at the Court while you can.

[Frank Drackman]

Reverend Arthur/Jerry Sandusky has gone
10 YEARS, 1 MONTH, 15 DAYS

without buggering any young men,

*as far as we know, https://www.cor.pa.gov/Facilities/StatePrisons/Pages/Greene.aspx

[SRG]

Right, so you overlook everything else about her.

[David Nieporent]

Justice Ginsburg died in September 2020, and President Trump quickly nominated Judge Amy Coney Barrett. She was confirmed a few days before the election. Had Ginsburg passed even a few weeks later, it would likely have been impossible to complete the process before the election. And, with hindsight, the period after the election was a complete mess. Could a Supreme Court hearing have even been held and completed in that period?

Why is Blackman pretending that McConnell is a good faith senate leader? Not enough time? If RBG had died on January 2, McConnell would have brought the Senate back later that day to confirm ACB. He would have announced that ACB had recently been confirmed to the Seventh Circuit, and therefore hearings were unnecessary and it would be unfair to let a new senate fill a vacancy that arose in the previous senate.

[Frank Drackman]

Give "The Turtle" credit, he plays to win

[Mr. Bumble]

"Why is Blackman pretending that McConnell is a good faith senate leader? "

Where does he say that?

Politics is a hardball sport but you don't like it when Republicans finally decide to play hard.

Elections have consequences.

[Jimmy the Dane]

All Americans should be thankful that the current political prisoner prosecutor in chief is not on the Supreme Court.

[Stephen Lathrop]

Best poker play I ever made was in draw poker. I was dealt a pat full house, kings up. The draw and the betting made plain that there were at least three pat hands including mine. That initially made me very happy. But it later disclosed a high likelihood that I was beaten by at least two players who each held 4 of a kind. I had a good seat, which let me see by the betting what I was up against after the draw. I folded, and saved myself one of the biggest losses I might ever have suffered.

There is nothing more dangerous in poker than a powerful hand, when someone else has a better one. Blackman's metaphor is pure idiocy.

The judicial overreach he celebrates now will one day be overturned by a more powerful political hand. When that happens, the comprehensiveness of the loss right wingers will suffer will shock them with its cost. No one will forget that the right wingers stacked the deck to get the win.

I suspect to this day that is what happened in that hand which made me fold kings full. Also at the table were a straight, two flushes, and two hands with four-of-a-kind. I don't think that happens unless someone is cheating. I certainly don't forget it.

[Mr. Bumble]

Some crowd you play cards with.

[bernard11]

Also at the table were a straight, two flushes, and two hands with four-of-a-kind.

I'd get out of that game quickly.

[Don Nico]

Thank you for my morning laugh.
SL got what he deserved. But at least he avoided temptation.

[Frank Drackman]

Good Poker Story, was better on that episode of "Gomer Pyle" Crooked Dealer deals 4 pat hands, leaving himself 4 Aces on top fo the neck, never imagining Gomer will want 4 cards as his 4 Kings isn't the "best you can get"

Frank

[MonitorsMost]

This is a bananas post. Warren Burger wasn’t conservative? Powell replacing Hugo Black, Blackman replacing Fortas and and Stevens replacing William O Douglas were huge shifts to the right. The conservative legal movement barely even existed at that point. Where exactly were you going to find more Rehnquists?

Republicans have had some whiffs from a pure idealogical standpoint, including Warren and Brennan (both of whom were political picks instead of ideology picks), and Souter. But there was a slow and steady shift from from the Warren court to the Robert’s court. And we’ll see a similar backlash in response. People are going to be passed when you can’t hold government accountable.

[Jimmy the Dane]

I always thought the Left hated Nixon more so because he was an effective Republican then anything else. That guy knew how to keep a list of his enemies and actually do something about them.

[Randal]

Love that your definition of an effective Republican isn't policy related or anything, but just "knowing how to keep a list of enemies and actually do something about them." Accurate!

[Jimmy the Dane]

If you think politics is actually about policy then you are greatly misunderstood. Most of the exercise if about the application use of power. The policy stuff is ancillary.

[Randal]

Spoken like a true Republican cultist.

[Jimmy the Dane]

No just someone who understand how politics works and won't lie to your face.

[Randal]

If politics is just about power, why not skip the foreplay and get straight on to the violence?

[Jimmy the Dane]

What do you think the Brandon administration is doing by sending out his goon squad to arrest political prisoners? Or Soros DA's do when they turn their back on leftist agitators and agents who riots, loot, and kill?

[Randal]

1. Evenhandedly enforcing the law 2. This is only happening in your imagination

[Randal]

On the other hand, Trump's DoJ really did reach into states to charge BLM protesters with silly stuff like interfering with interstate commerce and terrorism.

Attorney General Bill Barr is targeting protesters with harsh, federal prosecutions for civil disturbances that potentially carry decades in prison.

https://www.vice.com/en/article/dyzdgv/trumps-justice-department-is-targeting-black-lives-matter-demonstrators-as-domestic-terrorists

[Jimmy the Dane]

Vice......'nuff said.

[Randal]

You can't escape the facts.

https://amp-theguardian-com.cdn.ampproject.org/v/s/amp.theguardian.com/us-news/2020/oct/27/americas-protest-crackdown-five-months-after-george-floyd-hundreds-face-trials-and-prison?amp_gsa=1&amp_js_v=a9&usqp=mq331AQKKAFQArABIIACAw%3D%3D#amp_tf=From%20%251%24s&aoh=16588183547867&referrer=https%3A%2F%2Fwww.google.com&ampshare=https%3A%2F%2Fwww.theguardian.com%2Fus-news%2F2020%2Foct%2F27%2Famericas-protest-crackdown-five-months-after-george-floyd-hundreds-face-trials-and-prison

[Randal]

https://thehill.com/changing-america/respect/equality/523416-the-aftermath-of-the-black-lives-matter-protests-where-do/

[Randal]

https://theintercept.com/2020/10/30/federal-prosecutors-protests-pretrial-detention/

[Randal]

https://revealnews.org/article/federal-prosecutors-hold-protesters-for-months-pretrial/

[Randal]

https://apnews.com/article/records-rebut-claims-jan-6-rioters-55adf4d46aff57b91af2fdd3345dace8

[Randal]

Once again you reveal you view of the court as being 100% partisan.

There's no point in a partisan court. We should just have a third house of Congress if that's all it is. (That's certainly how it's behaving, anyway.)

[SRG]

How can the court not be partisan? When you only nominate justices from a Federalist Society shortlist, what will you end up with?

But it goes back to one major deficiency in the US Constitution, that it took no account of the rise of political parties and the resultant effect on judicial nominations.

[Jimmy the Dane]

"When you only nominate justices from a Federalist Society shortlist"

Don't pretend the left hasn't played the same game with the ABA, Roe litmus tests, and their vetting infrastructure....

[Sarcastr0]

No, the left has nothing like the Federalist Society.

[Jimmy the Dane]

Now you are just gaslighting....

[Brett Bellmore]

That's true, the Federalist society actually invites opposing viewpoints to speak at its events.

[Jimmy the Dane]

The Federalist Society is also a non-profit funded by private individuals.

The ABA is a mob like organization that fleeces its members for its funding and also shakes down the taxpayer. Much like many other leftist institutional vetters like public universities.

[Rev. Arthur L. Kirkland]

The commenters at this blog have come to resemble the current roster of active Conspirators.

Mostly disaffected, antisocial, at-the-fringe losers, railing at the mainstream, modern America, and progress.

[Jimmy the Dane]

OK Groomer.

[Frank Drackman]

Reverend Arthur/Jerry Sandusky has gone
10 YEARS, 1 MONTH, 15 DAYS

without buggering any young men,

*as far as we know, https://www.cor.pa.gov/Facilities/StatePrisons/Pages/Greene.aspx

[Randal]

Most of your posts are about penises conjoined with butts. What do you expect us to conclude from that fact?

Your so-called name, Frank Drackman, or "man with unattractive penis," being yet another clue.

[Alpheus W Drinkwater]

"That's true, the Federalist society actually invites opposing viewpoints to speak at its events."

Local chapters of FedSoc do this at some schools. The national leadership is partisanly conservative with no interest in opposing viewpoints.

[Jimmy the Dane]

There is nothing wrong with either.

[SRG]

I did not pretend. However, the most recent crop of justices were Federalistas. I am unaware of any left-wing or moderate group who produced a shortlist of candidates with the full expectation that the president would choose just from that list.

But the more important part of my post you didn't disagree with, so there's that.

[Jimmy the Dane]

You are nothing but an old fashion player-hater. Hate the game, not the player.

[Sarcastr0]

Above you said I was lying; here you acknowledge it.

Maybe stay consistent, lest you be taken as unserious.

[Jimmy the Dane]

No I said you were gaslighting (which is your standard argumentation style for some reason). There is a difference from trying to convince people that the left does not have some kind of Supreme Court vetting machine and institution. Technically, I guess you were correct in some weird kind of exacting legal standard might be right in that the ABA is not exactly like Fed Soc. Still....

Then you continue to gaslight by trying to accuse me of lying when I called out your gaslighting.

[Alpheus W Drinkwater]

You really need to do some research on what gaslighting actually is, lest you be taken as unserious.

[Jimmy the Dane]

"manipulate (someone) by psychological means into questioning their own sanity"

Like saying someone was calling another a liar when they clearly did not?

Like through generalized omission making someone think reality is that Fed Soc has a complete grasp on some illegitimate scheme to vet judges?

Sounds like gaslighting.

[Randal]

You guys all fretting about Sarcastr0 "gaslighting" you by presenting you with logic and reason is one of my favorite parts of this blog.

You know you're in a cult when you think that logical, factual statements are attempts to manipulate you by psychological means into questioning your own sanity.

It's true that if your entire sense of self is premised on faith in a cult, and if presenting arguments counts as an attempt to manipulate by psychological means, then logical arguments really are gaslighting.

[ReaderY]

If Reagan had nominated Bork instead of Scalia in 1985, Bork might have gotten confirmed. But would Scalia have gotten confirmed in 1987? Whether Roe would be reversed or not in future cases would still depend on who was confirmed. And the Democrats still had a majority.

[Joe_dallas]

Ricci ,

Shuttee was especially egregious - Basically stating in her dissent that a state constitutional amendment requiring compliance with the 14th amendment of the US constitution was unconstitutional.

[Sarcastr0]

Calling out a group for special requirement to not get special rights is unconstitutional - Romer v. Evans.

You can disagree, but that dissent is hardly egregious as an application of current jurisprudence.

[Brett Bellmore]

"Calling out a group for special requirement to not get special rights is unconstitutional - Romer v. Evans."

As the 9th circuit said, "The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits." Giving out special rights on the basis of race was exactly what the 14th amendment set out to prohibit, it's hardly unconstitutional to have decided to stop the practice.

[Brett Bellmore]

Anyway, I'll note that I lived in Michigan at the time, and voted for the initiative in question. It did NOT "call out a group for a special requirement"; It said, "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."

Note that "any individual or group"? That's the categorical opposite of calling out a group, it applied regardless of what group you might be a member of.

[Sarcastr0]

That's your take. Fine. Whatever.

But you don't get to call Sotomayor 'one of the least qualified to sit on the SC' because she disagrees with your take in a way many many other people, including Justices current and past, also disagree with you on.

Wrong, fine. But unqualified?! GTFO.

[Brett Bellmore]

And the law in question didn't impose any disadvantage, it merely forbade handing out advantages.

[Mr. Bumble]

OCD is treatable.

[Joe_dallas]

Sarcastr0
July.25.2022 at 11:32 am
Flag Comment Mute User
"That's your take. Fine. Whatever.

But you don't get to call Sotomayor 'one of the least qualified to sit on the SC' because she disagrees with your take in a way many many other people, including Justices current and past, also disagree with you on.

Wrong, fine. But unqualified?! GTFO."

Ricci - very good example of lack of judicial temperament .
Your failure to see the lack of judicial temperament and her opposition to 14A ......

[Brett Bellmore]

Yeah, people say stupid stuff all the time. So?

Again, the proposal banned what the 14th amendment already banned, but had perversely been interpreted to barely allow: Official racial discrimination.

[Brett Bellmore]

I suppose for the same reason liberalism has people like the Rev. Every group has its nutcases, we just tend to notice those on the other side more.

[Frank Drackman]

Well, they said Manson was crazy too!!!
I mean Einstein,

Frank "Helter = MC Skelter"

[Noscitur a sociis]

What aspect of Rocco shows a lack of judicial temperament? Sotomayor was gravely wrong, of course, but that seems like a very different complaint.

[Sarcastr0]

Sure, but a functional approach makes it pretty clear who that is directed at; don't blow smoke.

Maybe the law must be blind to such things, but I don't think it the end of the world to pick up what the politics are laying down.

[Brett Bellmore]

And I'll say it again: People say all sorts of stupid things.

Making everybody have to meet the same qualifications is not imposing a discriminatory "disadvantage" on some particular group, even if they do happen to disproportionately fail to meet the qualifications. You're basically attempting, as BAMN did in Michigan, to define refusing to racially discriminate as itself being racial discrimination.

[Joe_dallas]

Queen almathea
July.25.2022 at 12:07 pm
Flag Comment Mute User
Since you didn’t address it in any meaningful way I’ll repeat: Not recognizing disadvantages can be said to advantage those not under them.

He did address the point - you are simply unable to grasp it.

[Joe_dallas]

Noscitur a sociis
July.25.2022 at 12:08 pm
Flag Comment Mute User
What aspect of Rocco shows a lack of judicial temperament? Sotomayor was gravely wrong, of course, but that seems like a very different complaint."

She and her two collegues tried to bury the claims . See CA2 opinion.

Read carbanes dissent from denial of en banc - details the efforts to hide/bury the claim and the shenanigans pulled Sotomayer and her to other circuit judges.
https://casetext.com/case/ricci-v-destefano-4

[Brett Bellmore]

Yes, yes, we all know that the racial quotas at U of M Prop 2 forbade happened to be mandating discrimination in favor of blacks. The fact remains the proposal didn't "call out" anybody. Words have meanings, don't they?

You wrote "called out" because you intended to imply that the proposal treated blacks, specifically, differently than other groups. Whereas the truth is the precise opposite: It just generally forbade treating ANY group differently from any other. It was the precise opposite of discriminatory!

A ballot proposal that forbids racial discrimination may be many things, but racially discriminatory is not one of them.

[Kazinski]

It's modeled after the same law in California, and was just reaffirmed by the voters there.

Are California voters racists too?

Maybe the best way to stop discrimination on the basis of race is to ban discrimination on the basis of race.

[Joe_dallas]

Queen - see Carbanes dissent from denial - it doesnt present a pretty picture of judicial temperament.

Yes 4 SC justices did embrace blatant discrimination.

Yes I do have bias and I do exhibit that Bias - My bias is adherence to the constitution as written, not to the constitution that doesnt exists - the one that endorses discrimination which you appear to have pledged allegiance to with your comments.

[Brett Bellmore]

Each nutcase is a precious flower, unique in it's own way. The Rev is fond of raving about "betters", and implied threats of oral rape, which I guess is different from Frank, but is that really a point against Frank?

[Sarcastr0]

You know how you hate it when the left calls you a racist for trivial reasons?

That's you right now.

Insisting you have an inside line to the Constitution, and those who who disagree with your take is racist, and hates the Constitution, and is the worst Justice ever.

[Joe_dallas]

Sarcastr0
July.25.2022 at 1:38 pm
Flag Comment Mute User
You know how you hate it when the left calls you a racist for trivial reasons?"

In the eyes of Sarcastro - All men (and women) are created equal is now racist.

Progressives racists now - racism forever

[Sarcastr0]

Read better.

I did not call you racist, I called you out for calling Queen racist. You are acting like people who do exactly what you just assumed I was doing.

[Joe_dallas]

Sarcastr0
July.25.2022 at 1:38 pm
Flag Comment Mute User
"You know how you hate it when the left calls you a racist for trivial reasons?

That's you right now."

Sacastro calls someone a racist - then denies he called someone a racist -

[Sarcastr0]

Try and read it one more time. The thing you just quoted. Consider if 'that' could refer to 'the left.'

[Joe_dallas]

Sarcastro - read you second sentence

[Sarcastr0]

You mean the one with 'that' in it?

[Sarcastr0]

Kennedy disagreed.

[Sarcastr0]

I didn't call anyone racist.

I'm making a parallel to Romer v. Evans.

And I am not offering the parallel for the truth of the Constitutional insight, but rather the fact that such an argument is not incompetent on it's face.

Because too many here equate disagreeing with them with being either evil/stupid, whichever they feel that day.

[Kazinski]

I'd say such an argument is aconstitutional on it's face. It's not the argument of an incompetent, its the argument of someone that reads the 14th Amendment as guaranteeing "equity protection of the laws" not "equal protection".

[Sarcastr0]

You can say whatever you want. But any jurisprudence that results in a certainty that a bunch of Supreme Court Justices are either stupid or liars seems more hubris than method.