The Supreme Court is about to get a lot more interesting

CBS News ^ | December 31, 2018 | AP

[be-baw]

The Supreme Court began its term with the tumultuous confirmation of Justice Brett Kavanaugh. It was followed by a studied avoidance of drama on the high court bench — especially anything that would divide the five conservatives and four liberals.

...

When they gather in private on Jan. 4 to consider new cases for arguments in April and into next term, the justices will confront a raft of high-profile appeals.

Abortion restrictions, workplace discrimination against LGBT people and partisan gerrymandering are on the agenda. Close behind are appeals from the Trump administration seeking to have the court allow it to end an Obama-era program that shields young immigrants from deportation and to put in place restrictive rules for transgender troops.

...

In recent weeks, three conservative justices accused the court of ducking its job of deciding important cases, especially when lower courts have disagreed on the outcome. Their criticism, written by Justice Clarence Thomas and joined by Justices Samuel Alito and Neil Gorsuch, came after a recent decision to avoid a case involving funding for Planned Parenthood.

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But Lawrence Solum, a professor of constitutional law at Georgetown University's law school, said Roberts seems to have two reasons to limit the court's involvement in hot-button cases: his preference for taking small steps in the law and his concern for the court's reputation.

[conservatism_IS_compassion]

Do you mean that Sullivan should essentially be re-argued in front of the court? If so, what sort of scenario would be required to have this happen?

Yes and no. Sullivan was a unanimous decision with strong concurrences; you could not present SCOTUS with the same facts and get a different answer.

OTOH the facts of Sullivan are not typical. Mr. Sullivan was a Southern Democrat, a species now virtually extinct and not all that popular nationally even in 1964. His complaint was about an advertisement, not normal editorial content. And in 1964 there was a lot less criticism of “bias in the media” (not none at all; Barry Goldwater complained about “referees” being on the other side after losing the election that year).

IMHO the prime fact to be brought before the Court is that there are no grounds to assume that the nation’s presses are independent or objective. The reality is that the wire services are virtual meetings of “people of the same trade” - and that Adam Smith would have been only too accurate in predicting that the result would be “a conspiracy against the public.”

It has to be an antitrust case first, and a libel case second. It needs the Republican Party as plaintiff, because individually the libels of Republicans might not seem to require a change of perspective on behalf of the Court. But over the course of time, there is an easily documented pattern of Establishment journalism functioning as the propaganda arm of the Democrat Party. If a politician get caught with his hand in the cookie jar, does his party affiliation get emphasized in the lede, or buried in the middle of the story if printed at all? There is a consistent pattern; if the pol is a Republican that will be emphasized but if he’s a Democrat that will not be prominently mentioned. But I need not belabor that sort of thing on FR.

The Sullivan decision says that judges are not immune to criticism in the press, but in 1964 SCOTUS had no experience of the Thomas or the Kavanaugh hearings, and didn’t know how glad they were of it. The central character in the Kavanaugh hearing - and this is not unique in the treatment of Republicans - is actually off stage. Because the complainant testified to a “recovered” memory - and “recovered” memories are usually the result of psychoanalysis. The psychoanalyst does not accord rights of rebuttal to the target of the memory. That is, the woman who complains is a very persuasive and sympathetic figure who has been seduced into a belief which she cannot distinguish from a memory but whose memory has been modified in a process that must never be tolerated in a courtroom. IOW, “recovered” memory is the real “high tech lynching.” And it had never been an issue in 1964. SCOTUS should institute regulations which very severely restrict or ban that sort of testimony, in court - including reliance upon such in defense of a libel action.

Which presumes, of course, that such libel action is allowed in the first place; SCOTUS should allow the plaintiff to rely on the statute of limitations to “prove” his case. Nobody should have to prove a negative at a three-decade remove, so the default assumption should be that the charges are false and therefore libelous.