Posted on 11/14/2014 5:45:28 AM PST by Petrosius
Under Chief Justice John Roberts, the Supreme Court has emerged as one of the most ideologically aggressive in decades, and its rightward trajectory is usually attributed to this simple fact: a majority of the justices are very conservative. Today’s Court contains, according to one study, four of the five most conservative justices to sit on the bench since FDR; Anthony Kennedy, the putative swing vote, is in the top ten.
But having covered the Court for 15 years, I’ve come to believe that what we’re seeing goes beyond ideology. Because ideology alone would not propel the justices to effect such massive shifts upon the constitutional landscape, inventing rights for corporations while gutting protections for women, minorities, and workers. No, the real problem, I think, is that the Court as a whole has gotten too smart for our own good.
The current justices are intellectually qualified in ways we have never seen. Compared with the political operators, philanderers, and alcoholics of bygone eras, they are almost completely devoid of bad habits or scandalous secrets. This is, of course, not a bad thing in itself. But the Court has become worryingly cloistered, even for a famously cloistered institution. Every justice is unavoidably subjected to “public deference” when they ascend to the bench, as I heard Sonia Sotomayor describe it at a conference last June. Now, on top of that, today’s justices filter out anything that might challenge their perspectives. Antonin Scalia won’t read newspapers that conflict with his views and claims to often get very little from amicus briefs. John Roberts has said that he doesn’t believe that most law-review articles—where legal scholars advance new thinking on contemporary problems—are relevant to the justices’ work. Ruth Bader Ginsburg, Scalia’s opera-going buddy, increasingly seems to revel in, rather than downplay, her status as a liberal icon. Kennedy spends recesses guest-teaching law school courses in Salzburg.
Before the Affordable Care Act cases were heard in 2012, aspiring spectators lined up for days (mostly in vain, because seats are so limited). Meanwhile, this Court goes to considerable lengths to keep itself at oracular remove. The texts of many of the justices’ speeches are not publicized. Cameras and recording devices remain barred from oral arguments, and protesters may not even approach the spotless white plaza outside. But the most symbolically potent move came in 2010, when the justices closed off the giant bronze doors at the front of the building, above which the words EQUAL JUSTICE UNDER LAW are engraved. Today, the public must enter the building from the side, beneath the marble staircase, through dark, narrow entrances feeding into metal detectors. It is a fitting setup for a Court that seems to want neither to be seen nor to really see us.
Paradoxically, the Court that has gutted minority voting rights in Shelby County and limited women’s access to birth control in Hobby Lobby has never looked more like the country whose disputes it adjudicates. It includes three women, an African American, the first Hispanic, two Italian Americans, six Catholics, and three Jews. On the federal bench, President Obama has appointed more women, minorities, and openly gay judges than any president in history.
But while we have gained diversity of background, we haven’t gained diversity of experience. A study released in February revealed that 71 percent of Obama’s nominees had practiced primarily for corporate or business clients. The Supreme Court is even more homogeneous, because the modern confirmation gauntlet only lets one kind of person through. Post-Robert Bork, a nominee must not have too obvious an ideological agenda, as some judges and almost all elected officials do. Post-Harriet Miers, a prospective justice must possess not just a stellar résumé but also a track record of judicial rulings and legal writings from which future decisions can be confidently deduced.
The result has been what Professor Akhil Reed Amar of Yale Law School calls the “Judicialization of the Judiciary,” a selection process that discourages political or advocacy experience and reduces the path to the Supreme Court to a funnel: elite schools beget elite judicial clerkships beget elite federal judgeships. Rinse, repeat. All nine sitting justices attended either Yale or Harvard law schools. (Ginsburg started her studies in Cambridge but graduated from Columbia.) Eight once sat on a federal appellate court; five have done stints as full-time law school professors. There is not a single justice “from the heartland,” as Clarence Thomas has complained. There are no war veterans (like John Paul Stevens), former Cabinet officials (like Robert Jackson), or capital defense attorneys. The Supreme Court that decided Brown v. Board of Education had five members who had served in elected office. The Roberts Court has none. What we have instead are nine perfect judicial thoroughbreds who have spent their entire adulthoods on the same lofty, narrow trajectory.
A Supreme Court built this way is going to have blind spots. But right-wing legal and political groups—who are much better at the confirmation game than their equivalents on the left—have added a final criteria that ensures the Court leans strongly in their favor. They have succeeded in setting the definition of the consummate judge: a humble, objective, nearly mechanical umpire who merely calls “balls and strikes,” in Roberts’s insincere but politically deft phrasing. This lets conservatives sell nominees who are far more conservative than liberal nominees are liberal. A Democratic-appointed justice makes the short list by having her heart in the right place, but will be disqualified for heeding it too much.
And so we have a Supreme Court that, for all its credentials, produces some truly confounding opinions. One sub-genre of these is typified by the split decision in Citizens United, which runs to 183 pages of intricate legal arguments. (The Brown v. Board ruling took only ten pages to declare, in a clarion voice, that “separate but equal” hurts schoolchildren.) Kennedy’s majority opinion is a beautiful work of abstract reasoning, but it seems to suggest that only something akin to blatant bribery fosters corruption or the appearance of it. On the ground, where actual campaigns occur, that simply is not true. Then there are cases like McCullen v. Coakley, which challenged a Massachusetts law imposing buffer zones around abortion clinics. The measure, enacted years after two fatal clinic shootings, was designed as protection from violence and verbal abuse. But the buffer zones also applied to pro-life “sidewalk counselors,” who challenged the law on free-speech grounds. However much women might be affected by doing away with the safeguard, the doctrine was clear: The Court struck down the Massachusetts law, nine-zero.
Perhaps the strongest and scariest signal that this Court has no use for real life came late last spring, when Sotomayor broke from the Court’s current operating procedure during an important case about affirmative action in Michigan. Sotomayor, a onetime prosecutor and a graduate of Princeton and Yale Law School, is as thoroughbred as they come. But when the majority opinion invalidating the program devolved into a highly abstracted discussion about voter preferences, the first Latina justice attempted to puncture the force field of hyper-legalism. From the bench, she read aloud from a passionate dissent that described in deeply personal terms “the slights, the snickers” that remind her that racism remains very alive. Roberts, in response, called her out for elevating “policy preferences” over rigorous doctrine.
Thurgood Marshall used to talk about race, too. But his colleagues listened. Sandra Day O’Connor famously explained in an essay that his stories about the Jim Crow South changed how she and several of her colleagues approached the law. “Justice Marshall imparted not only his legal acumen, but also his life experiences,” O’Connor wrote, “constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.” They don’t talk about “life experience” at the Roberts Court, much less “moral truth.” Personal narrative of any sort has been downgraded to sloppy sentimentality, rather than something that might enrich the justices’ thinking.
In the coming months and years, this group of Ivy-trained Washington insiders will have to decide whether Texas voters who don’t have driver’s licenses and are required to take three buses across town to pay $30 for a voter ID have effectively been disenfranchised. They will determine whether women who need to travel 300 miles to procure an abortion (women who may lack cars, or paid time off, or money to spend on hotels) face an “undue burden.” But some of the same justices who will bar empathy from those considerations forget that they do evince empathy when they side with those beleaguered “sidewalk counselors,” or multimillionaire campaign donors, or the owner of a mega-chain of craft stores who believes his religious freedoms have been impinged. All of us import our values and experiences into our decision-making. The double-whammy at the current Court is that the justices are no longer allowed to acknowledge it, and that the pool of those with whom they unavoidably identify is so dangerously small and privileged.
When the next court vacancy occurs, there will be lists of brilliant, Yale- and Harvard-trained jurists to choose from. But there will also be many accomplished lawyers toiling in elected office and legal-aid clinics and state-school faculties. Progressives need to identify those prospects and to push them forward. The alternative is ceding the court to ever-more dazzling minds, while seeing less of our own realities in its jurisprudence.
Today’s Court contains four of the most liberal justices to sit on the Court ever. Two were Obama appointments and Obama will almost certainly get to replace the other two with much younger and even more radical justices before he leaves office.
Obama’s appointments will be legislating from the bench for the next 30 years.
She and Gruber should partner on a book about STOOPID liberals ...
Anything remotely connected to odumbo scares the hell out of me. He still has time to pile more “garbage” onto his already “stinking pile” before he is put out to pasture.
I still believe there should be term limits for those court positions.
“Paradoxically, the Court that has gutted minority voting rights in Shelby County and limited women’s access to birth control in Hobby Lobby “
Here is a writer giving an opinion on the Supreme Court and she just doesn’t get it.
Women’s access to birth control WAS NOT LIMITED.
The stupidity astonishes me.
.
.
The author is smoking crack.
The fact that they're employed by the same body whose tyranny you're expected to appeal to them?
Under Chief Justice John Roberts, the Supreme Court has emerged as one of the most ideologically aggressive in decades, and its rightward trajectory is usually attributed to this simple fact: a majority of the justices are very conservative.
[eyeroll] Yeah, these guys are real right-wingers. Not only do they lay down for authoritarian leftist tyranny with great reliability, I'm not aware of any recent cases where they've upheld any authoritarian laws with a conservative bent. You know, the kind the left used to be able to protest with a little actual legitimacy. Raich would probably be the most recent. Kelo maybe, but I bet most leftards have become so corrupted they actually LIKE Kelo now that they're in charge. Besides, none of those examples I can think of are Roberts Court decisions anyway, which is what this moron is bemoaning.
“
It would be nice if Dahlia Lickchick, or whatever her name is, would provide some EVIDENCE of these assertions.”
There is ample evidence that women who work for hobby lobby are banned from entering Wal-Mart and thus are prevented from buying a $9 dollar box of contraceptives
Wow! I did not know that.
I stand corrected...
;-)
What worries ME most is these Libturds (Hagal) want to "Revamp our Nuclear Deterrent!"
The obummer administration is FULL of spies, thieves, liars, damned fools and outright commie traders and we are going to let them remake our nuclear arsenal....
Ain't that just peachy....
This clueless Canadian liberal, Dahlia Dicklick....Lithwick....whatever the hell her name is....should go back to Canada.
We have more than enough homegrown moonbats here in America.
IOW, what she fears most is that the Supreme Court will rule against her moonbat, progressive agenda.
I am not aware that women, who work at Hobby Lobby can’t buy birth control by law.
I like her contention that liberals can’t get a fair hearing anymore because of the lack of drunks and scoundrels on the Supreme Court. She probably has a valid point there.
When a flaming Lib is scared of the make up of the USSC, I get a “thrill up my leg”.
Does she agree with me that the homosexuals on the court should recuse themselves in a hearing regarding homosexual “rights”?
Liberals just lie in their writings. Liberals are totally fine with lying to make a point.
Every failed SC nomination since 1970:
While disagreeing that we need more social workers on the bench, she has a point. Like other “elite” institutions the recent appointments to the SC have been from the same shallow gene pool (the Ivies) as the mandarins of government, banking, academia etc. I’d agree with the author to that extent, but rather than going for pro bono social justice types, how about some good country lawyers or judges with level heads? How about a non-lawyer or two even. Nothing says you have to be one of the priesthood to get in there.
I can boil this opinion piece down to a simple statement:
“Justices that support the law rather than the current and future leftist agenda are ‘extremists’.”
This is seen increasingly among leftist agitators. Forcing extreme ideological experiments on the people, then declaring that those who resist their bad and harmful ideas are “extremists”.
Obamacare is just the latest example of this. Created in bad faith, with the idea of forcing socialized medicine on the public, because socialized medicine is an article of faith with the left, though it has *never* worked, *anywhere*.
And yet, done exclusively with leftist politicians, with not a single Republican supporter, they now accuse those who want to tear it down because it has hurt tens of millions of people, as “extremists”.
The truly frightening parts of this are first, they are so bound up in their fanatical faith-based philosophy, that they either don’t *care* that tens of millions of people have been harmed, with prospects to harm tens of millions *more* people. Or they actually *want* all those people to be hurt, and even killed. Hell, some of them adore the idea of slaughtering 9 out of 10 people on Earth. All for “the cause”.
That is, the left would justify the most inhuman and murderous things imaginable the same way. They are more than willing to do everything the Nazis did, and more.
Genocide? No problem for the left.
Taking children from their parents to forcibly indoctrinate them? Of course, say the leftists, this is what ‘any’ “good government” should do.
Opening up our nation to nuclear attack and invasion? No problem, as long as it moves the goal of “internationalism” along in a “progressive” manner.
There is no legitimacy or grace or sense in anything they have ever done, so there should be no hesitation in tearing it down and burning it into ash.
Those they have turned into dependents need to be gently moved to a place of safety, while minimizing the harm that could come to them while privatizing their support. But the dependency of government must end, like any addiction to harmful substances.
Yes, her point about the detachment of an overly Ivy League court is valid, but her contention that they are overly conservative because of it is ludicrous.
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