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You Are the Sucker: Roberts Court Edition

[ 15 ] July 2, 2008 |

Jeffrey Rosen continues to claim that liberals “dodged a bullet” when Roberts and Alito were appointed. I continue to find this as unpersuasive as it was a year ago. Some of what he mentions — such as the rhetoric in dissenting opinions becoming less acerbic — is completely irrelevant to the impact of the Court. The central problem with the more important arguments can be found here:

In particular, Roberts has been more willing than his predecessor to assign plurality (rather than majority) opinions. In these cases, Roberts begins with the three center-right conservatives (himself, Anthony Kennedy, and Samuel Alito) and tries to attract liberal justices to a narrowly reasoned decision, while letting the hard-line conservatives (Thomas and Antonin Scalia) write separate, more extreme concurrences.

To put Alito and Roberts on the “center right” with Kennedy rather than just on the “right” with Scalia and Thomas is, of course, just transparently erroneous. Kennedy is a legitimate moderate; on two of the three cases the term will be remembered for he cast decisive votes with the Court’s four more liberal members, and he has done this in many landmark cases. Rosen can’t cite any example of Alito and Roberts doing the same thing, for the obvious reason that there isn’t any example of this happening in a major case. Moreover, there are examples of Scalia and Thomas casting decisive votes with a more liberal majority. (Roberts and Alito did make 5-4 majorities 7-2 on a couple occasions, but so what?) Roberts and Alito are simply doctrinaire conservatives, not Kennedy-style moderates.

The key here is that Rosen mistakes some disagreements about how to characterize precedents and about what the rule will mean going forward as substantive disagreements. But most of these distinctions are without any substantive difference. (On this term’s Voter ID case, for example, the theoretical possibility of a future successful lawsuit is worth pretty much nothing, since the standards the case set for assessing the ban would make it almost impossible for the suit to succeed. Any any Court that would plausibly find a similar law unconstitutional could just overturn or distinguish a superficially less favorable precedent anyway.) The formal differences between Bush’s appointments and the Court’s two other conservatives are vastly less consequential than their overwhelming substantive agreement.

To exaggerate these differences, Rosen relies on a strawman:

Instead of siding with conservative extremists like Clarence Thomas, who are eager to press the limits of the so-called Constitution in Exile, resurrecting limits on federal power whenever possible, Roberts prefers narrow opinions that can attract support from the center. Liberals ought to applaud this instinct because, even if Barack Obama gets to appoint the next justice or two, it’s the only thing standing between them and a Court eager to roll back progressive reforms.

Fears of a “Constitution in Exile” reappearing are vastly, vastly overblown. Rosen is greatly underestimating the political constraints on the Court; an attempt to seriously challenge the New Deal regulatory state is highly unlikely, and if they tried it wouldn’t endure because it would work out about as well for the Republican Party as it did in 1935. The Court certainly could challenge a unified Democratic government on some marginal issues — but nothing in their records suggests that Alito and Roberts wouldn’t vote with Thomas and Scalia in such cases. More importantly, there’s no necessary connection between a justice’s “minimalism” and how far they’re willing to take the “new federalism”: Rehnquist and the arch-minimalist Sandra Day O’Connor showed considerably more enthusiasm for the project than the maximalist Scalia. We should remember as well Alito’s words from Rybar: “Was United States v. Lopez, a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?” How Rosen can conclude that Alito is less likely to find limits on federal power than a justice who concurred in Raich is beyond me.

Liberals dodged nothing: Alito and Roberts were home runs for judicial conservatives, and nothing in the first terms of the Roberts Court suggests otherwise.

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Dumbest. Scandal. Ever.

[ 3 ] July 2, 2008 |

Pathetic. (See also.) Wealthy people with excellent financial prospects and little debt get favorable treatement from banks? Fetch me the smelling salts!

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Nothing New

[ 0 ] July 2, 2008 |

To add to a point made by a couple of commenters, there’s nothing remotely new about Democrats giving money to religious groups for secular purposes.

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Shocking

[ 1 ] July 2, 2008 |

Wow, it’s almost as if projecting performance among various demographic groups in a general election based on results from a primary election is completely illogical! The next thing you know, you’ll see polls indicating that Obama will win California and New York against McCain even though he didn’t carry them against Clinton!

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Faith

[ 14 ] July 2, 2008 |

On the question bean raised below, I pretty much agree with the Great Sky-Blue Satan. As long as 1)religious organizations adhere to civil rights, civil service, and other government regulations when performing secular functions, 2)the money is for a truly secular and important public purpose, 3)religious organizations cannot discriminate against people who are otherwise eligible for services, and 4)money is fairly available to secular organizations who perform similar functions, I don’t have any objection to them in principle. (I also don’t think that availability can be purely nominal; I don’t support the typical voucher program, for example, which is formally neutral but in practice is designed so that virtually all of the money goes to parochial schools.) And I therefore don’t have any objection to what Obama is saying, but of course everything will depend on exactly what’s on the table and how it’s designed.

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Hm.

Obama wants to expand the role of faith-based organizations in American public life.

Maybe there is a lot of good to be said about this — particularly in poor, religious communities where the church (or mosque or synagogue) is the center of the community.

But after 8 years of Bush policies where investment in faith-based organizations has meant more money for “crisis pregnancy centers” and abstinence only programs, I’m a bit uneasy.

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Amendment?

[ 0 ] July 1, 2008 |

I’ll probably have more to say about this post later, but one thing I would say is that I don’t see why you would need a constitutional amendment to change the voting rules of the federal courts. Nothing in Article III establishes a voting rule, and Congress has the statutory authority to regulate the courts. If it wanted to, I don’t see why Congress couldn’t require a supermajority to overrule lower courts (although I agree with Matt that definitional problems would arise from limiting this to constitutional cases, as what seem to be constitutional cases can often be turned into nominally statutory cases.) At the very least, such a regulation would have a very strong constitutional argument on its behalf.

This won’t happen, though, partly for the reasons suggested by the fact that most judicial power in the United States derives from statute and the acquiescence of the other branches: judicial power frequently serves the interests of political actors.

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On Attempts to Restore the Arbitrary Denial of Marriage Rights in California

[ 3 ] July 1, 2008 |

Obama opposes a rollback of same-sex marriage rights in California; McCain supports it.

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"Hey, this is the only paper in America that’s not afraid to tell the truth: that everything is just fine!"

[ 18 ] July 1, 2008 |

Shorter Jonah Goldberg: Obama’s “patriotism problem” is that he isn’t a complacent reactionary like me. Exactly the kind of logic that led to the National Review‘s “patriotic” defense of apartheid. Certainly, we couldn’t consider that “patriotism” could consist of comparing a country’s stated ideals with some of its contemporary practices!

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No-Facts

[ 0 ] July 1, 2008 |

In addition to his politically convenient mind reading, there’s also the fact that Novak is just making stuff up. Obama, of course, said (unwisely) that people were clinging to guns, not “the Second Amendment.” Hence, the alleged contradiction vanishes entirely. The fact that people may (in some people’s judgment) overvalue some constitutional rights or exercise them in ways others consider unwise does not abrogate the existence of said rights.

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Holy Land Trivia of the Day

[ 25 ] July 1, 2008 |


Where does one find Scriptural support for this dress code?

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Return from Exile

[ 4 ] July 1, 2008 |


With luck, we’ll be home before noon tomorrow.

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