July 1, 2007

"This was a more conservative court, sometimes muscularly so..."

".... sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small." Linda Greenhouse sums up the Supreme Court's 2006 Term:
Of the ideological cases decided this term, the conservative majority... prevailed in 13. The court’s increasingly marginalized liberals... prevailed in only six, including the four Texas death penalty cases.

The difference depended on how Justice Anthony M. Kennedy voted. Remarkably, he was in the majority in all 24 of the 5-to-4 cases....
So what were the 2 "ideological cases" that were not Texas death penalty cases but that the liberal side won? Here's a chart that displays the significant 5-to-4 decisions. One was Massachusetts v. Environmental Protection Agency, where the Court found the state had standing to sue the EPA over its decision that it should not regulate greenhouse gases. The other was apparently not significant enough to go on the chart, and I can't call to mind what it was.

And here's Edward Lazarus, summing things up for the Washington Post and not mincing words:
This term at the Supreme Court was a nearly unmitigated disaster for progressives. By 5-to-4 votes, the justices upheld limits on abortion, dealt a staggering blow to school desegregation, lacerated campaign finance reform, made it harder for women to sue for equal pay, curtailed the free speech rights of students, loosened various legal restrictions on business and greased the skids for convictions in death penalty cases.
No mitigation in that global warming case? Those four Texas death penalty cases did nothing about all that grease on the skids? And how about all the times Scalia and Thomas demanded a stark overruling and the moderate conservatives resisted? A "staggering blow to school desegregation"? Come on, that could only have been "unmitigated" if Kennedy had joined the Roberts plurality. His concurrence is the very definition of mitigation. I'm having trouble taking Lazarus seriously enough to get beyond the first paragraph.

But, for you, dear readers, I will force myself:
Progressives are shell-shocked. They believe that the Roberts court has transformed the branch of government singularly devoted to the protection of our rights and liberties into a facilitator of discrimination and a guardian of powerful political and moneyed interests.
Eh, I can't go on. This is the same kind of hysteria about the Court I've read for as long as I've been studying law (since 1978). It's always just this last year that everything went to hell. For 30 years. Talk to me when you've settled down.

ADDED: Patterico calls David Savage a drama queen.

21 comments:

Tim said...

Yep. Democrats, er, "progressives," aren't emotional enough in their appeal to voters.

Bah. They've long ago mastered demagoguery; it just doesn't sell as well as they wish.

Kirby Olson said...

The sky is falling tactic only works once. When the sky doesn't actually fall, the listener turns up the iPod.

Internet Ronin said...

The sky is falling! The sky is falling! Film at 11.

The Drill SGT said...

Me thinks Linda was creative in her stats. So there were 24 5-4 decisons and she credits conservative majority for hijacking of 13 them then only lists 8. That means of course that there were 11 of 24 that weren't based on that voting block.

I think the hysteria is a bit overblown.

vet66 said...

The democrats are rapidly retiring to the assisted living arena where "bong hits" will ultimately mean for them a good nights sleep in the embrace of a sedative and a fresh depends to shut them up.

Internet Ronin said...

Drill Sgt: True, but the name of the game is "Rally your base!" And Greenhouse is doing her best to do so.

reneviht said...

They believe that the Roberts court has transformed the branch of government singularly devoted to the protection of our rights and liberties into a facilitator of discrimination and a guardian of powerful political and moneyed interests.

I thought the Judiciary was devoted to determining if breaches of the law occurred and applying written laws to real situations.

Wasn't it the legislature that passed the Bill of Rights?

Trumpit said...

This blog has become a dust magnet for right-wing reactionaries who have a lot of time on their muscular-dystrophied hands. I only read the comments before lunch or before a bowel movement.

I think the sky will have officially fallen when the wicked creatures on the court overturn Roe. Then the fireworks will be greater than any 4th of July in history.

blake said...

All civilization before Roe was a facade, not really civilization at all, but an enslavement of half the population to their wombs. It is only through Roe that we have a meager right to exist at all.

Apparently.

Dave said...

Even most liberal Con Law profs seem to think that Roe ranks only behind Dred Scott and Plessy v Ferguson as bad SCOTUS decisions.

And I'm old enough to remember when the Right Wing loons thought the Sky was falling due to Gideon, Miranda, Mapp, et al.

As always, the prospect of losing one's grip on an unopposable power is very disturbing to those who believed they had such a grip.

One of the very best things you can say about our system of government is that very little power is ever very stably grasped for very long.

And if it's that bad, I suggest emigration to the better place of your choice. [I keep expecting, somehow, that given how awful people here like trumpit think the situation is, I can expect to see them in innertubes floating toward Cuba. But it never happens.]

Internet Ronin said...

And if it's that bad, I suggest emigration to the better place of your choice.

That might be tough. The last time I heard any details, almost every industrialized nation had stricter rules with regard to abortion than the United States. Unlike the US, most provide no exceptions that one could drive a Mack truck through after 12 weeks, for example. Perhaps that has changed.

hdhouse said...

this will pass. we an look forward to years and years of democratic party rule, and after this fiasco, trust me, it will be rule....and that simply means that some of the gop toddies will eventually move off the court and be replaced by thinkers, not ideologues.

pendulums swing both ways, not just to the right. as bad as these recent decisions have been, there will come a time when we can regain our nation.

and trust me dear rightwingers, that time, you know, when the pendulum moves back toward to left side, will simply be a living hell for all of you as the bush years have been for us.

Paco Wové said...

"...and trust me dear rightwingers, that time, you know, when the pendulum moves back toward to left side, will simply be a living hell for all of you as the bush years have been for us."

Some days hdhouse sounds kinda normal, but then the mask slips, again.

Simon said...

reneviht said...
"Wasn't it the legislature that passed the Bill of Rights?"

In a manner of speaking; Congress proposed the Bill of Rights, in its capacity as an Article V actor, not passed it as an Article I actor. The authority of the bill of rights springs from the act of ratification by the people, not the act of proposition by Congress, which is why it trumps other legislative enactments as part of the Constitution.

hdhouse said...

I love how the GOP wails about judges who legislate from the bench. Their solution is, however, to appoint judges who will legislate from the bench. Isn't irony odd? Isn't the GOP odd? Isn't the GOP ironic?

Simon said...

Harry, it would only be ironic if it were true. It is not. Just because you don't agree with a ruling doesn't make it judicial activism or "legislating from the bench."

Simon said...

BTW, Harry, if you want to attack this court as an activist court, I would think you'd want to use Leegin as exhibit A. If you want a good place to start criticizing the court, start by building an effective critique of Leegin.

Revenant said...

That was a very long article with very little to say. Case in point:

By the time the Roberts court ended its first full term on Thursday, the picture was clear. This was a more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small.

With the exception of the bolded phrase, everything in those two sentences is fluff.

Revenant said...

we an look forward to years and years of democratic party rule

Given that polls indicate (a) that the Democratic-led Congress is even less popular than the Republican-led one and (b) that any of the likely Republican Presidential candidates defeat any of the likely Democratic ones, I wouldn't start gloating about your impending "rule" just yet.

pendulums swing both ways, not just to the right.

The problem with the "pendulum" metaphor is that we've had several generations of a left-leaning Supreme Court followed by one year of a right-leaning one. If a pendulum effect is at work here you'll probably be dead of old age before the court turns left-wing again -- it has a LONG way to go before becoming as far Right as it was Left during most of the last century, and then it'll have to swing back the other way.

Emy L. Nosti said...

its majority sometimes differing on methodology but agreeing on the outcome in cases big and small

So, considering I know squat about Constitutional law other than a few decisions I read through (plus oral agruments/amici curiae/secondary source analysis)...I'm curious as to how important that statement is? From my pinhole perspective, it seemed as though the actual reasoning and extrapolation of the Constitution in the decision had far broader consequences, especially in often-pivotal future SC cases than the decision itself--even if they only seemed tenuously linked. This is what about half of my senior thesis was on (regarding a certain set of cases, at least)...so I'm genuinely curious about any of your expert opinions.

Simon said...

Emy - the case is only about the case, but the principle on which the case is decided is about all similar cases. So after a fashion, the rule of law announced is more important, in the long run, to everyone except the litigants.