In the past 10 years, however, justices have hardly ever voted against the ideology of the president who appointed them. Only Justice Kennedy, named to the court by Ronald Reagan, did so with any regularity. That is why with his replacement on the court an ideologically committed Republican justice, it will become impossible to regard the court as anything but a partisan institution....The headline is cagey, with the use of the adjective "nakedly" and the verb "is." Consider the alternative "If the Supreme Court Is Completely Political and Looks Exactly Like What It Is, Can It Be Just?"?
Republicans still can’t forgive President Reagan for appointing two moderates, Justices O’Connor and Kennedy, and President George H. W. Bush for appointing Justice Souter, who veered left.... Assaults on judicial independence are made easier when the public comes to view the judiciary as a political body. This risk, and not just the identity of the next justice, should be at the center of public attention.
With that change, which I've done to separate out independent propositions, the final clause doesn't work anymore. There's no musing over the meaning of justice worth doing. I'd want to change it to "If the Supreme Court Is Completely Political and Looks Exactly Like What It Is, Will the People Accept Its Exercise of Power?"
Epstein and Posner are concerned that when the Supreme Court splits 5-4, we will now, without Kennedy, always know who the 5 and the 4 are. Kennedy preserved a little mystery. He was the skimpy string bikini on the otherwise naked Supreme Court. But if this nudism analogy is any good, the Court will be less sexy when completely naked. That's what I've heard about nudist colonies. The skimpy bikini gets the mind churning away about the last little bits of unrevealed skin.
Without Kennedy, the political grouping of the Justices — appointed by a Democrat and appointed by a Republican — may feel quite dull and predictable. It won't be that these judges are just reaching policy outcomes and lying to us about law. Not all opinions will be 5-4, but when they are, it's because they're complicated enough to go either way, and intuitions about where the right answers are affect reasoning that is still creditably legal, especially to observers who want and need the Court to be a functioning part of our system of separated powers.
The naked Court will be political in a way that's as unremarkable as 9 middle-aged nudists sunning on lounge chairs by the pool.
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73 comments:
the skimpy string bikini that was Anthony Kennedy
oh shit I'm giggling
Why don’t the Dems ever flip? Same deal with Congress. Dems vote in a block. Blind faith. No independent thinking. Obey or get shunned and punished,
Statistics are like bikinis: What they show is important, but what they conceal is vital. Who takes the blame for the solid-block Lefties on the Court?
I'm looking forward to SC vulva pics in my inbox.
The thing I like about TSCOTUS is that they are more infallible than the Pope. If they dump the Second Amendment, they are right. If they keep it they are right. There is no one who can say nay to the Court. Becoming a completely political entity is an inevitable outcome of a system that has no checks and balances on the Court. If you don’t like the politization, you will have to change the Constitution.
The difference is conservative justices want to honor the words of the Constitution and the intentions of the men who wrote it and the people who ratified it.
Liberal justices want to create rights and twist and torture the meaning of the words in order to justify their goals.
I for one would accept Stormey Daniels appointment to be the first naked Justice, especially if she replaces RBG. The SCOTUS will need to get its new Black Robes from Victoria's Secret.
They're just now questioning the legitimacy of the Court, decades after it began usurping the powers of the elected branches?
Micro bikinis conceal nothing but put on a pretense of concealment so it remains in clothing-mysterious mode. It combats the boring nudist problem.
For the court, say, keep meeting schedules absolutely secret but openly vote your party.
Is it a yellow polka dot bikini?
The Supreme Court has always been viewed as political, since Jefferson raged at John Marshall's decisions.
These professors just didn't seem to mind it when the Court was populated by Brennan, Marshall, et al.
Also: When four justices vote that the president can't do what the last President could because they think this one is a big meanie, I'd say we're at conveniently placed fronds and not bikinis when it comes to nakedness.
Darrell said...
Who takes the blame for the solid-block Lefties on the Court?
Lefty justices who vote consistently as a block are people standing by deeply help principles. Righty justices who vote as a block are partisan hacks. A formerly righty justice who starts voting with the leftists has "grown in office". There is no similar phrase to describe a lefty who starts voting with the righties because that almost never happens. Why the difference? Shut up, they explained.
I guess if a court defers matters which lie outside its authority and competence to political institutions you could say it’s being “political.”
For the first time, with the imminent demise of RBG, they are going to be on the 'wrong' (read powerless) side of the Supreme Court.
And to this I say 'Welcome to the party, pal!'
Some small number of high profile cases can go 'either way'. Gore v Bush. The issue was foggy enough that it could go either way.
But what about that Hawaiian case v. Trump? It is not enough to satisfy the lawyers that justice is done. It must be displayed to the masses to preserve faith in the Judiciary. That should have been, at worst, a 7-2 decision.
It wasn't.
These two legal clowns are minions of #TheResistance. They are trying to delegitimize Trumps picks AND give a fig leaf of legal blather to states (California) who wish to ignore laws and rulings they don't like.
Law is a mutually agreed upon illusion. And to quote Varys: what do you have when you stop believing in the illusion, as the Dems are constantly pushing?
This is very dangerous ground. For DECADES, Republicans had to live with being the minority and living under liberal courts.
How pathetic are the Dems that they can't countanence losing because of self inflicted ideology?
In my lifetime, no Democrat appointee goes against contemporary progressive sensibilities. They are always there for the party. Republican appointees go wobbly at least a third of the time and turn Democrat. Chief Justice Roberts tortured the law to save Obamacare and he is considered a “conservative”. It is reasonable for conservatives to worry about wobblies and Democrats to worry they are losing a primary means of forcing change on an unwilling populace.
Now me, I do not like "separate out."
In order to save the non-partisan image of the Court, the "liberal" justices should start voting with the "conservatives."
"See, I'm not political. I hate guns but I vote to enforce the Second Amendment."
I heard these pageant events were doing away with the bikinis.
Stop, stop I say!! All this did was put an image of Kagan in a skimpy bikini in my mind and I can't get it out!..Terrible for the blood pressure of a 75 year old..
In the presidential election an 11 pt ( 5/9 vs 4/9) victory would be considered a mandate.
Some people like parsing,some like numbers.
"But since the mid-twentieth century, the federal courts have become, in essence, our nation's moral umpire ....., removing decisions from the masses and placing them in the hands of educated elites".
As Joshua said " as for me and my family, we will dwell in the house of the Lord forever"
Apparently, Schumer WANTS it even more blatantly political, asking to dispense with the polite fiction that nominees not discuss legal hot button issues.
Funny how no one thought that should be the case with Democrat nominees.
If the Democrats lose the Court, they will have to rely on elections to get their way.
Oh wait....
"with his replacement on the court an ideologically committed Republican justice, it will become impossible to regard the court as anything but a partisan institution"
OK, so they are acknowledging hat progs had been nakedly partisan all along.
If the standard is sticking by the ideology of the president who appointed you, then progs have been more partisan all along.
Apart from Kennedy deviating with regularity, several non-progs deviated in key cases--e.g., Roberts on Obamacare.
It may be true that court is becoming more partisan. Fortunately, one side is now partisan to the Constitution as written.
without the skimpy string bikini
It's difficult to imagine a Supreme Court with no Bikini Atoll.
"If the Supreme Court Is Completely Political and Looks Exactly Like What It Is, Can It Be Just?"
I'll take questions never asked when a Democrat is in the White House for $1 billion, Alex.
Althouse, you asked such a beautiful question... and then supplied no answer of your own!
You don't have to answer, of course. You might well be fostering better (or at least freer) commenting by not supplying your own answer. I think I know your answer. Can I goad you into saying what your view is, by saying that I think I know?
Yesterday, I heard a wonderful question asked on NPR; it was a kind of rhetorical question along the lines of whether the Republicans in the Senate would have gone to the "nuclear" option (majority-vote rules) for the confirmation of Justice Gorsuch, if Senate Democrats hadn't already done it for lower-court nominees in 2013. The conclusion was that Mitch McConnell probably would not have done it, but for the Democrats starting down that path.
And the related question was whether the Senate Republicans would have started down that very path back in 2013 if the parties' positions had been reversed, and again the answer was no.
To me, there is an essential quality with Democrats that they view the federal judiciary as belonging to them, or more correctly said that they view the federal judiciary as properly being the province of "the law-profession culture" that Scalia talked about in his Lawrence dissent: "Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."
And so, by objecting to that culture and trying to change it, we are left with the situation that I think that you have rather beautifully illustrated with this post, Althouse.
For my part, I think it is tremendously regrettable. I think that the natural authority of the federal courts is diminished, by politics.
I never was for any unilateral disarmament. I have backed every conservative nominee to the SCOTUS and the lower federal courts, since Bork. I have supported Republicans up and down the line. I know that you have not done that, Althouse, but in the context of this issue I forgive you and it should not matter. I expect that on this discrete notion of where this 5-4 split will leave the Court, we are in agreement.
What is the real pity in all of this, is the way that the one side (Republicans) is seen as political and self-interested hacks, but the liberal judges and justices (Democrat-nominees) are seen as wise lawgivers. What we have needed all along is a better discussion, based on theory and principle and ideology and carefully articulated. And not what we see in the era of Trump. That is, dumb low-grade talk about Muslim bans and Mexican drug dealers and "Mexican judges" (!) and promises of an "automatic" overruling of Roe v. Wade. That sort of talk really does degrade the federal courts and fouls up the needed defense against a determined progressivist legal culture taking over the courts.
“OK, so they are acknowledging hat progs had been nakedly partisan all along.”
What the Left accepts as given becomes as real as the ground under their feet, and is longer open to debate or examination. They will genuinely lose the the ability to think critically about it at all. It’s an amazing thing to witness.
It's all well and good to raise questions about partisanship and politics and justice on the Supreme Court, but also irrelevant.
These penumbrae of emanations from politics or jurisprudential theory don't matter to progs.
They want what they want. They'll bitch anyway they want when they don't get what they want. But nothing matters as argument. Results matter. Power matters. Nothing else.
Of course, I despise the dishonesty when they pretend to use arguments or offer a theory in justification, and the wreckage of prog jurisprudence foisted on us, and the very power of our judicial overlords. But, much as I would like to have a different world, in a way I do respect the complete and and unvarnished focus, of leading national but also my local progs, strictly and exclusively on outcomes.
The "law profession culture" is a narrow view of the problem.
This is a general cultural-hegemonic tribal culture of the upper caste of American society, the outcome of Gransci's process. The Law is just one category suffering from the infection, the disease is general.
Persons in the legal profession are often blinkered, I find, and unable to see the whole. A lack of perspective seems to be a common fault.
When LBJ left office in January 1969, the Supreme Court included Earl Warren, Hugo Black, William O. Douglas, William Brennan, Abe Fortas, and Thurgood Marshall. The Court's non-liberals (moderate conservative/conservative moderates) were down to just John Harlan, Potter Stewart, and Byron White. So, there was a pretty clear 6-3 liberal majority, and yet none of the hysteria we're currently witnessing as the Court teeters on the brink of tilting somewhat to the right.
That sort of talk really does degrade the federal courts
It sometimes helps highlight leftist hypocrisy. It's also fighting back in a way that people notice who otherwise wouldn't.
Politics is not about legal processes or legal argument.
Politics is about power. Power comes first, and the law always follows.
The law follows realities, it is a civic ritual that makes the exercise of power acceptable. One just needs to apply historical perspective to the question.
"In the past 10 years, however, justices have hardly ever voted against the ideology of the president who appointed them."
But why limit the time frame to ten years? To make the narrative work, that's why. Otherwise, you would have to include David Souter at the top of the list. And before that, Earl Warren, William Brennan and Harry Blackmun.
So, there was a pretty clear 6-3 liberal majority, and yet none of the hysteria we're currently witnessing as the Court teeters on the brink of tilting somewhat to the right.
If Michigan and Pennsylvania had listened to Life Long Republicans like George Will, we'd have a 5-4 Liberal court heading into a 6-3 liberal court; plus the keepers of the reanimated corpse of Ruth Bader Ginsburg would have it retired, so there be a liberal court for the rest of my life.
LLR's like George Will openly admit That THAT IS WHAT THEY WANTED TO HAPPEN; yet, they Still claim to be Life Long Republicans. Life's funny that way :)
The Left is still peeved that McConnell "stole" their SCOTUS seat. They tend to ignore Harry Reid's abolishing the filibuster for lower court judges, they totally forget their prior filibuster of Miguel Estrada, they tend to ignore their losing the Senate in 2014, they tend to forget their losing the presidency in 2016.
If you add the general dislike of right-wing, Federal Society judges, and the specific fear of Roe being overturned, voila, you have a lotta Dems acting out like wild children.
It is amazing that a supposedly intelligent person can watch the blatant partisanship of the left side of the court and write this.
gilbar said...
"So, there was a pretty clear 6-3 liberal majority, and yet none of the hysteria we're currently witnessing as the Court teeters on the brink of tilting somewhat to the right."
If Michigan and Pennsylvania had listened to Life Long Republicans like George Will, we'd have a 5-4 Liberal court heading into a 6-3 liberal court; plus the keepers of the reanimated corpse of Ruth Bader Ginsburg would have it retired, so there be a liberal court for the rest of my life.
LLR's like George Will openly admit That THAT IS WHAT THEY WANTED TO HAPPEN; yet, they Still claim to be Life Long Republicans. Life's funny that way :)
I submit; you just described why Trump won (so narrowly). In the end, after having withheld support in polling, et cetera, from Trump, lots of life long Republicans turned in the end and voted for Trump and his Federalist Society-crafted list of judicial candidates. We held our noses, and voted for a candidate we found to be profoundly flawed but better than the alternative. With the future of the Supreme Court leading the way as the prime deciding issue for me.
I've made it as clear as I can; I loathe Trump as much as George Will ever has, but my own course of action in response was different; I voted for Trump whereas Will would not.
That sort of talk really does degrade the federal courts and fouls up the needed defense against a determined progressivist legal culture taking over the courts.
Yeah, that dumb talk that ordinary (non-lawyer) people understand.
I see you ignore the second clause of the "Muslim Ban" talk. "Until we figure out what to do."
We had just had a number of mass murders by Muslim radicals.
Now we have hysteria on the left when the prospect of a conservative majority on the Court for the first time since 1935 is possible.
Abe Fortas and Felix Frankfurter, leftist heroes, were political operators before being nominated and confirmed to the court.
Hugo Black, former KKK member and officer, was convinced by Abe Fortas, Lyndon Johnson's lawyer, to let Johnson steal the 1948 Senate election in Texas by open vote fraud.
Fortas was finally too much even for the Senate in 1968 when there was still a Democrat majority.
Chuck: What we have needed all along is a better discussion, based on theory and principle and ideology and carefully articulated. And not what we see in the era of Trump. That is, dumb low-grade talk about Muslim bans and Mexican drug dealers and "Mexican judges" (!) and promises of an "automatic" overruling of Roe v. Wade. That sort of talk really does degrade the federal courts and fouls up the needed defense against a determined progressivist legal culture taking over the courts.
A "determined progressivist legal culture" already took over the courts, on the watch of prattling eunuch "conservatives" like you. The time for "defense" passed a long time ago.
What is needed is a nimble, aggressive, and relentless *offense* against an already deeply entrenched and tenacious progressivist legal culture, and it sure as hell ain't gonna be provided by "conservatives" like you. Though I'm sure the LLR brigade will be front and center taking credit for any successful opposition that might form in the space hacked out of the wilderness by the "dumb low-grade" men whose defeat you cheered for at every turn. (That is, when it's not hysterically opposed to everything the opposition attempts.)
"In my lifetime, no Democrat appointee goes against contemporary progressive sensibilities."
I must be a little older than you. There was only ONE Democrat SCOTUS appointee who evolved into a more conservative constitutionalist: Byron "Whizzer" White, appointed by JFK.
I'm not so sure that graph in the piece represents the variables necessary to consider. There are lower courts involved in determining what gets presented to SCOTUS as well as standing...and cultural norms that shape what gets litigated to begin with. Another element to factor in is degree that SCOTUS is viewed as pseudo-legislative body (tax vs penalty)
FWIW Ginsberg was shooting her mouth off about Trump during an election, bringing up code of conduct questions.
https://www.washingtonpost.com/opinions/justice-ginsburg-has-some-explaining-to-do/2017/12/06/224d8f0e-da0c-11e7-b859-fb0995360725_story.html?utm_term=.b75b6c619b0c
Michael K said...
"That sort of talk really does degrade the federal courts and fouls up the needed defense against a determined progressivist legal culture taking over the courts."
Yeah, that dumb talk that ordinary (non-lawyer) people understand.
I see you ignore the second clause of the "Muslim Ban" talk. "Until we figure out what to do."
Yeah, well that doesn't even matter, you ignorant non-lawyer.
It's like saying, "We only need to lock up Americans of Japanese heritage until this war is over."
It was a dumbass thing for Trump to say. It wasn't a legally tolerable idea, and it was so bad that it was never, ever, going to be put into law or even an Executive Order. After Trump got elected, and brought in competent lawyers to help him manage such things, they wrote an order, and then another order, and finally a "proclamation" that got farther and farther away from anything like a "shutdown... of Muslims entering the United States." And the main reason that there was such difficulty in defending that non-Muslim ban in court was precisely because of all the stupid and pointless shit that Trump had said earlier.
And in the end it was all a mostly-pointless gesture anyway; a temporary crackdown on travel restrictions from some countries that have their own security-apparatus failures. Not a bad idea; but also not terribly critical to our own counter-terrorism measures. We're seeing more Americans killed in schools by suburban teenaged gunmen, than by Muslim terrorists.
As has been said, Democrats have never made any "mistakes" in this situation and the idea that Republicans won't, is somehow wrong. Yep its nakedly political, that's why you should nominate good presidential candidates, not entitled, inevitable Chardonnay drinkers who don't want to campaign in Grand Rapids, Its pretty obvious.
The Twilight Amendment including denying human evolution and life deemed unworthy was political.
The born unPlanned penalty, borrowing from granny, and shifting costs to the middle class Act a.k.a. Obamacare was political.
Political congruence ("=") or selective exclusion was political.
Immigration reform at the expense of civil (e.g. democratic disenfranchisement) and human (e.g. trail of tears) rights was political.
Redistributive change including gerrymandered districts and asset inflation was political.
Diversity or "color" judgments that deny individual dignity including racism and sexism was political.
Wars are won by the sort of speech Julius Caesar used in front of his legions, not that which he used in the Senate.
After all, he ended up killing most of his audience in the latter case. And the survivors didn't bother arguing with him either.
As an aside about the string bikini, I remember many years ago when the late Louis Rukeyser was interviewing the CEO of a Big Three accounting firm. Rukeyser asked about the information contained in annual corporate reports and the CEO replied: "Lou, accounting is like a string bikini. What it reveals is interesting, but what it conceals is vital."
Sounds as though this could apply to SCOTUS in the Anthony Kennedy era.
Does this mean I was supposed to be fantasizing about having sex with the Supreme Court? They say that everything is a fetish for someone, but pondering if the Justices go commando under the robes or prefer G-strings was not high on my list of desires. When it comes to politics, I think most people stop at Stormy Daniels (duh), Sarah Palin, Scott Brown, and the myriad adventures of Bill Clinton and JFK. That and banging the blonde Fox News talent.
SCOTUS has been "nakedly political" for all of living memory at least. Lefties are noticing now because it may no longer be a body they control.
The difference is conservative justices want to honor the words of the Constitution and the intentions of the men who wrote it and the people who ratified it.
It's not about honoring anybody's intentions. It's about keeping the meaning of the document static until changes are made through legitimate methods. Once your penumbras start emanating, you may as well not have a written document at all.
Without the skimpy bikini of Kennedy the Court will have five who try to follow the law and four who doggedly follow the DNC’s best interests.
Shorter Epstein/Posner:
We don't like it being nakedly political the wrong way.
Seriously, could you imagine these same authors writing this essay if Kennedy were being replaced with Laurence Tribe?
Yeah, well that doesn't even matter, you ignorant non-lawyer.
chuck is going to be making more campaign ads for Trump just like this one.
I can hardly wait.
Thanks, chuck.
What is the factual basis for the claim here "Justices have hardly ever voted against the ideology of the president who appointed them."?
Here's a quote (which is easily found by googling) from a cato institute report https://www.cato.org/publications/commentary/obama-has-lost-supreme-court-more-any-modern-president
"This term, the federal government argued an incredible 10 cases without gaining a single vote, not even that of one of President Obama’s own nominees, Sonia Sotomayor and Elena Kagan. That brings his total to 44 unanimous losses. For comparison, George W. Bush suffered 30 unanimous losses, while Bill Clinton withstood 31. In other words, Obama has lost unanimously 50 percent more than his two immediate predecessors."
THis article looks like really sloppy scholarship (or perhaps because it was a NYT op ed piece it wasn't intended as scholarship by advocacy.
h,
Most unanimous cases are particularly non-political/non-ideological issues, even if the federal government is one of the petitioners. The executive is often obligated to defend a law or action even if the President doesn't have an opinion one way or another.
"Nakedly Political" means actually reading and interpreting the constitution and the intent of the founders.
To the leftists who want to destroy our country.
They have lost and they know it.
Chuck,
LLR's like George Will openly admit That THAT IS WHAT THEY WANTED TO HAPPEN; yet, they Still claim to be Life Long Republicans. Life's funny that way :)
I submit; you just described why Trump won (so narrowly).
You know, an observation you never make, is that, unlike you (right?!?) George Will is NOT, in fact, a lifelong Republican. Max Boot. Charles Krauthammer, many others, are defectors as it were.
George Will is NOT, in fact, a lifelong Republican. Max Boot. Charles Krauthammer, many others, are defectors as it were.
Minor correction. They are "neocons." Krauthammer was a speech writer for Mondale.
They were interested (except perhaps Will) in conquering the Arb countries in the Middle East and converting them to democracies.
That didn't work. At the time, I thought it was worth a try to see if ANY Arab country could rule itself without tyrants.
When Bush appointed Bremer, who promptly disbanded the Iraqi Army, I knew it would fail.
The attempts to prop up the country were, at times, relatively successful but I think it would have been much better to let the generals take over and warn them that we would come back and kick some ass if they got ideas toward their neighbors again.
Chuck said...
Yeah, well that doesn't even matter, you ignorant non-lawyer.
Lawyers are glorified grammar nazi's.
Chuck steps out again to show us all that lawyers in general just aren't as smart as they think they are.
There are some smart lawyers. But law school doesn't select for smart. It selects for memorization and argumentative myopia.
Celebration of the picayune.
Trump is smarter than you are Chuck. Much smarter.
The musings of Jewish law professors. They were so concerned with 6 Catholics on the Court. Not the least concerned with 3 Jews on the Court. The over-representation of Jews in various professions, industries, and universities never concerns these Jews.
"Yeah, well that doesn't even matter, you ignorant non-lawyer."
Coming from Chuckles, I would take that as a compliment.
Yes. Many of us non-lawyers are ignorant of the duplicitous nature of leftist legal training and thinking.
As an aside, I was at a community meeting of about 400 people last night. Two lawyers representing a golf course that wants us to subsidize it were the feature speakers. The ignorant non-lawyers in the community were angry when the lawyers were caught dodging questions in Clintonian fashion. Yeah. We are just ignorant hicks.
Yancey Ward: Thanks for the reply to my earlier comment. BUt:
"In Sackett v. EPA (2012), the government denied property owners the right to contest an order to stop building their house. The court ruled that access to courts is the least the government can provide in response to “the strong-arming of regulated parties.
In Noel Canning v. National Labor Relations Board (2014), the court invalidated President Obama’s National Labor Relations Board appointments essentially because the Senate had not declared a recess when he made them.
in McDonnell v. United States(2016), the court reversed the conviction of a former Virginia governor because meetings with constituents who seek the favor of elected officials are not the kinds of “official acts” that can be prosecuted under public-corruption statutes."
These all in 2016: I'd say these are all ideological. I suppose you can argue no true scotsman.
It reads as "The game is no longer rigged in our favor ... no fairsies!!"
Ruth Bader Ginsburg was the lead counsel for the ACLU. Yet was confirmed, despite her obvious political biases. We have suffered her biases in her votes on cases and written decisions for decades now.
Tell me again about how the Supreme Court just now became nakedly political, I could use a laugh.
There was a time the ACLU wasn't just another left-wing organization, but an actual champion of free speech, politics be damned.
Itsy bitsy, teenie weenie, magenta polkadot bikini.
Chicken and egg.
Do Supremes side with the presidents who appointed them, or do presidents appoint Supremes who have similar beliefs as they?
The liberals believed Trump's action of incarcerating illegal aliens was the same as FDR's incarcerating American citizens. Even those who don't have a law degree know the liberal justices, not the conservatives, are political. Where in the Constitution says illegal immigrants have the same constitutional rights as citizens?
Imagine all 9 SCOTUS in the nude is the biggest boner killer of all time.
A "living" Constitution, which replaced the need to amend the Constitution via democratic means with consent of 5 of 9 unelected judges, made the SCOTUS political. Republican-appointed justices like Souter, O'Conner and Kennedy voting with Democrat-appointed justices in cases amending the Constitution to create rights to abortion or gay marriage, strike down death penalty, etc., provided a useful fig leaf to cover the nakedly political nature of judicial action. No Democrat-appointed justice since Frankfurter has ever swung the other way on a Constitutional question of import.
What these gentlemen of the Left are complaining about is the removal of that fig leaf.
On any substantive issue- everyone always knew how the 4 liberals would vote. Always. And their decisions would or could rely on many arguments, but never any that constituted the words the words in the U.S. Constitution. Notorious RBG is on record as praising the South African Constitution as superior to ours. As if other countries and their judges and legislatures actually paid attention to their constitutions. The USSR's Constitution guaranteed freedom of speech and freedom of religion after all. Of course there was this little disclaimer often overlooked- Enjoyment by citizens of their rights and freedoms must not be to the detriment of the interests of society or the state, or infringe the rights of other citizens. Who decides what's detrimental to the state? The state... In the state lies power, the rest of that constitution with that clause is meaningless words.
I swear to uphold the Constitution of the United States
*under breath*
...but, because it's way OLD and written by dead white guys, I don't feel the need to follow the actual WORDS of the Constitution....
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