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Report: Earl Warren still dead


Republicans have controlled the median vote on the Supreme Court since 1970, ending the 7-year period which was the only time in its mostly ignominious history in which the Supreme Court had a median vote that could be reasonably described as consistently progressive. Despite this, there is an entire industrial complex of moderate and liberal legal scholars and Court watchers who want to cling to the idea that the Warren Court is the norm rather than a highly unusual anomaly, and who also believe that the Supreme Court is entitled to some fixed level of institutional legitimacy irrespective of how it actually acts. So as the Court lurches to the right as the fiercely partisan representative of the party that has one the popular vote one (1) time in the last 8 presidential elections, the apologists will be John Roberts’s ideal marks, cherry picking unexpected but minor liberal victories or the loss of particularly loony wingnut lawsuits to try to sell the idea that everything is really OK.

Leah Litman has a good antidote to this:

Because of the cross-ideological lineup of Supreme Court justices in the majority of several high-profile decisions, as well as the perceived narrowness of those decisions, the Roberts court has been depicted as exemplifying moderation and restraint. That narrative is a mistake. Over the course of the session that just wrapped up, several lower-profile decisions featured more traditional partisan divisions — and those decisions are likely to be extremely consequential.

For example, June’s 6-3 decision in Cedar Point Nursery v. Hassid invalidated a longstanding California labor regulation that made it easier for migrant agricultural workers to unionize. In doing so, it continued the Roberts court’s attacks on workers’ ability to organize, providing a powerful tool in the conservative legal project’s deregulatory agenda. And the decision this past week in Brnovich v. Democratic National Committee further weakens the protections of the Voting Rights Act, while Americans for Prosperity Foundation v. Bonta facilitates dark money contributions that enable the minority political rule of the Republican Party.

These sharply split decisions, and their reasoning, are better indications of the ideological slant of the Roberts court than California v. Texas, which dismissed a challenge to the Affordable Care Act in a 7-2 decision in which all the liberal justices joined, or Mahanoy Area School District v. B.L., in which all but conservative Justice Clarence Thomas voted to uphold a teenager’s free speech rights outside of school. While these decisions leaned more liberal in their outcomes and judicial makeup, they were ultimately too narrow to set wide precedents.

Instead, the decisions this term in which the court divided along partisan lines were more legally momentous rulings. In Jones v. Mississippi, the court’s six conservatives made it more difficult for juveniles to challenge life-without-parole sentences. (The court declined to require judges to find — or even assess — whether juveniles were permanently incorrigible before sentencing them to life without the possibility of release.) In Edwards v. Vannoy, the conservative supermajority concluded that individuals who were previously wrongfully convicted by nonunanimous juries couldn’t challenge their convictions.

This ideological orientation was even clearer in decisions on issues that are core to the Republican Party’s agenda today: protecting the interests of the wealthy and business as well as eroding voting rights, including Cedar Point Nursery and Brnovich. While the precise implications of the court’s decision in Cedar Point Nursery will turn on how the judiciary applies its newly fashioned legal test for what constitutes a property taking, it marks a significant shift in property rights jurisprudence — and a significant blow to unions.

Labor unions, employees, consumers, voters of color — these are the among the groups whose rights you must ignore if you want to assert that the Roberts Court really isn’t that bad.

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