The Non-Radicalism of Diane Wood’s Church and State Jurisprudence
This Charlie Savage article about the politics of Obama’s Supreme Court nominations starts off by reminding us that attempting to preempt conservative claims that a Supreme Court nominee is a radical “judicial activist” is a waste of time, since anybody to the left of Sam Alito will be portrayed as a radical judicial activist. He then gives us another example of the extremely weak tea the right is brewing should Diane Wood be nominated:
Judge Wood could also find herself attacked as hostile to religion. She voted to allow people to challenge a Bush administration program that gave taxpayer money to religious groups and the Indiana House of Representatives’ practice of opening sessions with sectarian prayers.
These cases aren’t even decisions on the merits, but simply involved holdings that plaintiffs had the standing to sue over what were clearly potential violations of the establishment clause. The first of these involved a majority opinion by a 3-member 7th Circuit panel that was ultimately reversed by the Supreme Court. (Joining her in the majority, once again, was noted Maoist Richard Posner, who completely shredded the Supreme Court’s ultimate reasoning in advance.)
As some of you know, the precedent that was being applied in this case was Flast v. Cohen, which had granted standing to taxpayers to sue in a similar church and state case. However, as Justice Souter pointed out in dissent, Justice Alito managed to distinguish the precedent in a sort of parody of minimalist reasoning:
Here, the controlling, plurality opinion declares that Flast does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent…
So the argument here would seem to be that Diane Wood is a radical because she (along with the most influential conservative federal circuit court judge in the country) failed to anticipate that a plurality of the Supreme Court would discover a farcically specious distinction that would enable it not to apply its own precedent to the case in question. If that makes one a radical judicial activist, well…I think we’re back to the initial point.
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the most influential conservative federal circuit court judge in the country
I think it’s an interesting question, actually, whether today’s Republicans would line up behind Posner for the Court (setting aside his age, etc.) Frankly, I think they would see him as too unreliable a conservative vote, too independent and unpredictable a thinker. (Mind you, I don’t like Posner’s law-and-economics-uber-alles bent, but he is at least consistent in it.)
Right, to clarify I don’t mean to suggest that he’s currently the most influential among conservative Republicans per se, just that he’s (on balance) conservative and highly influential.
You may have put your finger on something significant there– the fact that Posner is probably not the most influential jurist on the right suggests that the right’s anti-intellectualism is moving the jurisprudence of the right in a direction that is less and less truly conservative, and increasingly reactionary and activist.
I’d pay in blood to have Posner on the SCOTUS in place of Alito. And not a small namby-pamby ‘here’s a cookie and a sticker’ amount of blood. Real blood.
I realize that we’re getting a tad off-point here, but … yes, I’ve had some respect for Posner ever since he argued in favor of an interpretation of the Age Discrimination in Employment Act that would have permitted employers (not just individual supervisors) to be held liable — an interpretation the Court later rejected (natch). He didn’t necessarily think highly of ADEA, but nonetheless concluded that it must apply to employer-entities in order to motivate them to discourage discriminatory conduct. Trying to ensure that social legislation has the power to accomplish its goals! He is a conservative with at least some respect for our laws.
But that’s what makes him unacceptable to “real Americans”, isn’t it?
Greenwald makes the case for Diane Wood, and highlights her record on religious freedom cases:
Dude, you know that “religious freedom” only applies to the Jebus fan clubs. The guy Judge Wood ruled in favor of was Jewish. Do I have to rootless cosmopolitan spell it out for you?
I’m actually writing an article that emphasizes the Bloch case too…it’s pretty amazing!
Commie’s point is a strong argument in favor of Wood not only because she appears reasonable but more importantly, the next justice should have the ability to pull one or more of the conservatives to his or her side.
Slightly OT but the “Founders” clearly did not consider corporations or Trusts as they would call them to have anywhere near the same rights as people. The Roberts Court in their Citizen United decision must have been channeling the minds of the plutocrat friendly 1890′s Court by mistake. Whoops! They should have their wayback mind-reading machine calibrated before they accidentally apply the original intent of the Brennon Court and get all pro defendants’ rights and shit.