Regarding this exquisitely annoying Cass Sunstein piece, which makes the case that the current Supreme Court isn't ideologically balanced but wildly, wildly right-wing - because, you see, it's considerably more conservative than it was when Cass Sunstein was a Supreme Court clerk, in the halcyon year of 1980, against which all other years must be judged - well, what Megan said.
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So I guess the new conservative cri de coeur would be to "stand athwart the course of history, and shout, 'Hurry up! The court is too liberal!'" 
This is a pretty fair interpretation of what Sunstein is getting at.
Perhaps instead of just engaging in snark, you could enlighten as to how, exactly, this court is not deeply conservative. What aspects of their jurisprudence suggest that they aren't very conservative? Which decisions have they made that demonstrates that they aren't deeply conservative? Is there some evidence from their prior appointments that would lead us to believe the more conservative members of the court are in fact less right-wing than we assume? On what issues could we reliably expect this court to side on the more liberal position? Sure wish there was someone around here willing to discuss those questions. Sometimes, the conventional wisdom is conventional because it's true. And the conventional wisdom, among people who know a lot more about the court than you or I, is that this is a very, very conservative court. It's fine for you to disagree with that notion. But surely, you should provide a little evidence for that claim.
I second Freddie that any discussion about the conservatism or otherwise of the Supreme Court is in desperate need of specifics and context. Ross's remark sounds like a caricature of Sunstein's argument. Anybody can do caricature (just ask MoeLarryAndJesus).
Roberts, Alito, Thomas, and Scalia are a Murderer's Row of ultra-right wing crazies. We're one wingnut away from having a Supreme Court which would probably back indentured servitude for debtors. A toad like Alito would pop his eyeballs out of his head and swallow them before he'd vote against corporate interests. There isn't a single Republican running who wouldn't nominate exactly that kind of wingnut, either.
I concede that Sunstein's lark through the Court of 1980 is sort of annoying. But Sunstein does not claim that the current court is "wildly, wildly right-wing." He says Scalia and Thomas are. That's correct. His point is that the current court consists of (1) moderates (Stevens, Souter, Ginsburg, Breyer); (2) conservatives (Kennedy, arguably Alito and Roberts); and (3) hard-core conservatives (Scalia and Thomas). Which part of this scheme does Ross disagree with?
Which part of this scheme does Ross disagree with? Wild guess. The part about Stevens and Souter, Ginsberg and Breyer being "moderates." (I love how Souter is a liberal now, because he turned out to be such a rotten peanut for Bush I.)
Face it, everyone to the left of Scalia is now George McGovern.
As long as the Democrats align themselves with the hard left on national security, abortion, homosexual marriage, and liberal immigration, the Republicans will likely win most future national elections and such whiners as Sunstein will be left in the cold when it comes to Supreme Court appointments. The 2006 Democratic surge will prove ephemeral.
One wonders if the Peter Leavitts of the world ever come out of their caves. The reality is that the Democrats are aligned with BUSH on immigration, they're opposed to gay marriage, they're allowing Bush's insane war in Iraq to continue, and most Americans support the availability of early-term abortions - it's hardly a "hard left" position. The Repiglicans will get another well-deserved asskicking in 2008, and I hope it makes the Leavitts cry like little girls.
Actually, the Democratic candidates, despite a bit of rhetoric to the contrary in the hinterlands, are essentially in bed with Daily Kos et al. Hillary Clinton has abandoned Bill Clinton's winning strategy of aligning with Democratic Leadership Council's centrist stance. The American people, far from being stupid, will figure this out.
Peter makes a good point against Ross. The right can easily smear Democrats for being 'hard left' rather than good moderates, yet can also easily pretend that the good moderates are crazy out-of-touch marxists.
What the American people have figured out, Petey, is that Dumbya Bush is the most incompetent president we have ever had, and that the Iraq war is a catastrophic joke. Combine that with a serious housing decline and a probable recession in 2008, and we have a perfect storm of Repiglican destruction. It's going to be fun. Just take a look at all of the Repiggies who have decided not to run again. They see the writing on the wall, and I'm not talking about Larry Craig's stall.
Thomas writes: "The right can easily smear Democrats for being 'hard left' rather than good moderates, yet can also easily pretend that the good moderates are crazy out-of-touch marxists." The right is good at pretending. What it sucks at is governing. The voters are tired of incompetence and stupidity and won't elect anyone who is still pretending in 2008 that Bush has been any sort of success.
Scalia voted with the majority in Texas v Johnson - the flag burning case - and with Stevens on the Gitmo case involving the guy with claims to US citizenship (I forget which one it was - Hamdan or Handi). for that matter read any Scalia opinion re the confrontation clause. Thomas is more dependably "right wing", but he voted to permit calif to do its thing with med marijuana - hardly a standard right wing stance. Sustein misses the key point. Since 1980, the GOP has won 5 of 7 presidential elections, and so the right to nominate most of the sitting justices. The fact that these justices usually fall in line with conservative judicial philosophy just reflects the results of those elections.
The court is not divided along left-right political lines. It's divided between two different jurisprudential philosophies. Scalia and Thomas (and perhaps also Roberts and Alito) are textualists: they interpret the Constitution according to its plain meaning as written. They are therefore concerned primarily with by what authority a law has been enacted or applied, rather than whether the law is good or bad, fair or unfair. A bad law, even a really bad law, may be completely Constitutional; the proper remedy for bad law is, in most cases, electing new public officials who will change it -- not having justices strike it down without input from the democratic process. Ginsberg, Breyer, Souter, Kennedy, and Stevens are each interested chiefly in the substantive results of the cases before them (despite their pious declarations to the contrary). None of them has anything close to a coherent judicial philosophy.
Moe: Dumbya Bush is the most incompetent president we have ever had... The Repiglicans... Bless your soul afflicted with an acute case of Bush Derangement Syndrome. I have friends who have been suffering from this since the Fall of 2000 and are presently basket cases. A cold shower might help, or, perhaps, some therapy along with a dispassionate study of Karl Rove's realpolitik.
Ginsburg is not a moderate by any reasonable measure. That she was confirmed with lots of votes seems like a rather peculiar measure of this, when Scalia was confirmed with (gasp) lots of votes, and nobody writes silly articles claiming _he_ is a moderate. Scalia, Thomas, and company do not always produce results that appear consistent or in keeping with their stated philosophy -- the interactions of various principles, and the fluctuations from principle of mortal men are various and many. Sunstein's larger point is correct -- the current court is somewhat less prone to naked imposition of political will without even the faintest grounding in some kind of constitutional argument than his heroes. That's a good thing, and he doesn't like it. Let us all pull out our violins. President Clinton II will probably have a chance to avoid moving the balance any more back to something akin to the rule of law rather than the rule of lawyers.
Scalia and Thomas (and perhaps also Roberts and Alito) are textualists: they interpret the Constitution according to its plain meaning as written. They are therefore concerned primarily with by what authority a law has been enacted or applied, rather than whether the law is good or bad, fair or unfair. A bad law, even a really bad law, may be completely Constitutional; the proper remedy for bad law is, in most cases, electing new public officials who will change it -- not having justices strike it down without input from the democratic process. Ginsberg, Breyer, Souter, Kennedy, and Stevens are each interested chiefly in the substantive results of the cases before them (despite their pious declarations to the contrary). None of them has anything close to a coherent judicial philosophy. Wow, what an unbiased take...
Peter Leavitt writes: "A cold shower might help, or, perhaps, some therapy along with a dispassionate study of Karl Rove's realpolitik." You mean the realpolitik that led poor Karl to think the Repiglicans would keep the House and Senate in 2006? It's been discredited. And you can keep on saving your pennies for the trip to the opening of Baghdad Disney in 2010, but guess what? The bird of paradise shat on that pipedream, too.
Freddie, it's not unbiased but it is, in fact, as a rough approximation, true. Not completely true -- Ginsburg has some kind of philosophy, as does Souter, and Breyer -- but they are philosophies through which much mischief of preferred outcomes can be derived. Except in cases where there is little disagreement among members of the court, you will typically see more about the _bad effects_ of a law from the liberal wing, and less about the constitutionality itself. It is at least atypical to see a case where, say, Ginsburg upholds a law, though stating that it is a bad law, but quite consitutional -- while Scalia offers weak constitutional reasons to use judicial review to strike down the law, but goes on at length about its pernicious effects on the poor, the oppressed, or even the rich and white and wealthy.
"what Megan said." You mean, you don't think they had touch-tone phones in 1980, either? Weird. I guess we were just ahead of the curve, early adopters in Texas.
Perhaps instead of just engaging in snark, you could enlighten as to how, exactly, this court is not deeply conservative. What aspects of their jurisprudence suggest that they aren't very conservative? Which decisions have they made that demonstrates that they aren't deeply conservative? Is there some evidence from their prior appointments that would lead us to believe the more conservative members of the court are in fact less right-wing than we assume? On what issues could we reliably expect this court to side on the more liberal position? I suggest these questions should be properly posed about legislatures and administrative agencies, not the judiciary. The Court should be deferential to democratic choice unless there is a clear conflict between statutory law and constitutional language. Courts that issue decisions such as Roe v. Wade and Goodrich v. Massachusetts are usurping prerogatives belonging to elected officials. Prior to 1954, politicians and lawyers of a social-democratic bent tended to be the more skeptical of judicial review. One of the curios of our political culture is that that strand of opinion came to be so odd in the succeeding years, adhered to by Raoul Berger, "Mickey" Kaus, and a scatter of others.
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I guess looking back at a never-happened Golden Age is only okay when conservatives do it.
In 1980 Saint Reagan was elected, and everything has been hunky-dory since. Except for when that dratted bastard Clinton stopped the Fascist Express for a while.
Habeas corpus? What's that, daddy?
Posted by MoeLarryAndJesus | September 20, 2007 12:01 AM