Hmmm. How can 4 Supreme Court justices be an unbreakable phalanx? Isn't the phalanx broken by the mere whim of Anthony Kennedy? Some phalanx!
By the way, a phalanx is "ancient Greek formation of infantry":
The soldiers were arrayed in rows (8 or 16), with arms at the ready, making a solid block that could sweep bristling through the more dispersed ranks of the enemy. Originally employed by the Spartans, it was developed by Epaminondas of Thebes (d. 362 B.C.). Use of the phalanx reached its apex when Philip II and Alexander the Great used the great Macedonian phalanx (16 deep and armed with the sarissa, a spear c.13 ft/4 m long) to conquer all Greece and the Middle East. Later, the Macedonian phalanx deteriorated and had few Macedonians in it; it was defeated in several battles with the Romans who conquered (168 B.C.) the Macedonians at Pydna. Thereafter the phalanx was obsolete. Because it lacked tactical flexilibity [sic], the phalanx was a better defensive than offensive formation.Anyway, Dworkin, armed not with a sarissa but with a sharpened quill pen dipped in his deep well of purple ink, anguishes over the approaching ultra-right-wing phalanx.
The phalanx is attacking doctrines. Doctrines aimed at all sorts of things: "reducing racial isolation and division, recapturing democracy from big money, establishing reasonable dimensions for freedom of conscience and speech, protecting a woman's right to abortion while recognizing social concerns about how that right is exercised, and establishing a criminal process that is fair as well as effective."
Don't worry. In Dworkinworld, when doctrines -- liberal doctrines -- are "aimed" they shoot goodness. The reduction, recapture, protection, and establishment of good things for us. But look out! The ultra-right-wing phalanx is on the march, "proceeding with breathtaking impatience," "Jacobin in its disdain for tradition and precedent," "guided by no judicial or political principle at all."
Go read the article and see if you think he supports his view. He discusses a few cases from last Term: the school integration case, "Bong Hits 4 Jesus," the campaign finance case, etc. With each, he expresses strong support for the dissenting position and strains to show that the conservative majority is not just wrong, but outside of any respectable form of constitutional analysis. He stresses the "virtue" of "integrity" in constitutional analysis, and the ultra-right-wing phalanx (of course) doesn't have it.
Take Hein v. Freedom From Religion, the case in which the Court said that a taxpayer lacked standing to raise an Establishment Clause challenge to spending on White House conferences that helped religious groups apply for federal grants (part of the Faith-Based and Community Initiative). Long ago, in Flast, the Supreme Court devised a doctrine that makes it possible for taxpayers to assert Establishment Clause claims, and this doctrine is noticeably out of synch with the rest of standing doctrine. Ordinarily, taxpayers can't sue over the way the federal government spends tax money. In Hein, the Court faced a new situation -- executive spending rather than statutory law -- and the question was whether to treat it in accord with the general standing doctrine or to include it in the Flast doctrine. I won't further expand this post with more of my own analysis -- which is already set out back here -- or more of Dworkin's -- which you can also read. My point is: You can rail about the incoherence of Alito's decision. The dissenting liberal justices did, and so did Justice Scalia (joined by Thomas) in a [phalanx-breaking] concurring opinion that said Flast should be overruled. But that incoherence comes from an attempt to respect and work with precedent rather than to go back and build clear doctrine from the constitutional text. It doesn't seem quite fair to criticize that as lacking "integrity," especially in a big attack about how the phalanx is overruling things. Dworkin seems to realize he's being incoherent here, because he takes the trouble to assert that "[i]n effect, the majority overruled Flast in pretending to distinguish it." But no, what Alito did (joined by Roberts and Kennedy) was to make a great effort to preserve Flast.
In their Senate confirmation hearings Roberts and Alito both declared their reverence for precedent; they might be reluctant openly to admit that they deceived the Senate and the people. It is therefore not absurd to suppose that this series of odd decisions covertly overruling important precedents is part of a strategy to create the right conditions for overruling them explicitly later.And another not absurd thing to suppose is that they testified honestly. But go ahead, smear their honor. You believe they are ultra-right wingers, and you are Ronald Dworkin, writing in The New York Review of Books, so you might as well suppose and suspect up a storm.