Who said anything about that?
In just over 30 days we will have something none of us ever dreamed, a 6-3 conservative Supreme Court.
Has Larry been paying attention to Roberts? I'll take a solid 5-4 though. Bring on the 2A cases.
Even Gorsuch and Kavanaugh are already, selectively going squishy.
But yeah, an argument that they are all corrupt ao we can’t enforce the law against any of them is pire capitulation to our having only a farce and facade of a republic at all.
I see it as 5.5 originalist to 3.5 creative.
I’ll take it.
Has Larry been paying attention to Roberts? I'll take a solid 5-4 though. Bring on the 2A cases.In just over 30 days we will have something none of us ever dreamed, a 6-3 conservative Supreme Court.
Yes, but Thomas will retire some day, and . . .Thomas is the best person on the court. We need Barrett to replace him.
Roberts is the median justice, like Kennedy was after O’Connor retired - always with the winning side, in 5-4 votes defining the winning side.
And as Chief Justice he gets to decide who writes the opinion for any majority of which he is a part. He wants to be in the majority, and he prefers more unanimity than 5-4 decisions imply. Put Barrett on the court, and Roberts’ position changes. If originalists have 5 reliable votes, his default will be to go along with them, and use his position to soften the opinion with his choice of opinion author, or even by writing the opinion himself.
It does give him preeminence, but not the preponderance he enjoyed before RBG left the court. He can only steer the opinion to the median of the court, and if the fifth justice is more conservative than he likes, he has to either go along with him (presuming it won’t be Barrett) or let the majority select its own opinion author by joining the minority.
As to what precedent is in the most pressing need for reversal, there is Wade of course - but IMHO New York Times Co. v. Sullivan is also crucial. And if possible, overturning it would be a heavier lift than overturning Roe. Sullivan is an even older (1964) Warren Court decision, and it was unanimous with enthusiastic concurrences.
Sullivan is IMHO the linchpin of “the media” in its present, ever-more-tendentious form. By preventing Republican politicians from suing for libel (Democrats never need to), Sullivan allows wire service journalism (that is, ideologically homogenous journalism) to detach itself from reality. Thus, overturning Sullivan definitely requires 5 solid originalist justices - probably 6 of them - plus concurrence by Roberts.
Thomas currently advocates for a review of Sullivan, and Scalia also did. Scalia’s explanation is that Sullivan stands or falls on its assertion that
". . . libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment”. . . and yet the claim that 1A touches libel law at all was novel in 1964. For the very good reason that the Federalists who wrote 1A and got it ratified were, provably, not trying to change anyones rights. At all.And you know the history: the Federalists didn’t include a bill of rights in the Constitution, but were forced by opponents of their greatest desire - replacement of the Articles of Confederation with the Constitution - to promise a bill of rights by amendment. But as the Federalsts knew, attempting a comprehensive enumeration of rights which came down in history as an inchoate conglomeration of court precedents - was a fool’s errand. So in fact they didn’t even seriously attempt it. What they did was pass the first eight amendments, which enumerate rights which had historically been abused by tyrants - and then to pass both
and
- Amendment 9
- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- Amendment 10
- The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
But notice the wording of the First Amendment: 1A does not refer simply to “freedom of the press” but to “the freedom of the press.” Scalia noted that freedom of the existed at the time of the composition of the Constitution - and so did the right to sue for compensation for libel.
Had the First Amendment referred to " freedom of the press” in the abstract, it would arguably have extinguished both the right of the people to sue for libel and the rights of governments to enforce anti pornography laws. And that would have been controversial - could have been the poison pill which would have subverted the entire Bill of Rights project to solidify consensus around the new Constitution. Instead 1A refers to “the” freedom - freedom within limits - of the press as traditionally understood.
The conclusion, Scalia asserted, is that the First Amendment was crafted to not touch the law of libel. And given the Christian cultural milieu in which the Federalists were immersed,
The conceit that “this is not a Christian nation” flies in the face ofallowing the violation of the Ninth CommandmentArticle I Section 7: If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.. . . which might be said to treat every Sunday (not the Jewish Sabbath but the Christian “first day of the week”) as a holiday.Thou shalt not bear false witness against thy neighbour. Exod 20: 16on an industrial scale - libel - would have been an extremely heavy lift even had they wished (a fact not in evidence) to undertake it.No originalist can have any respect for Sullivan as good precedent.