Just a line from Tom Cotton I wanted to memorialize, quoted at Fox News.
It's of a piece with the sort of rhetoric about judges I've been reading for the last 50 years and more. I can't remember a time when I was able to understand anything about the Supreme Court when there wasn't a notion that what they are really doing is politics. And I saw "Impeach Earl Warren" billboards when I was first learning to read — back when I had no idea what "impeach" meant (something about a peach?) or who Earl Warren was.
So it's an old, old theme. But it plays well, and I think Tom Cotton found a spiffy way to do the phrasing. Instead of calling Roberts unprincipled, he points to the other justices — "the principled justices" — and imagines them finding the Chief's "views" "strange" and uncompelling. That's a nice variation on the theme.
And you've got to give Cotton credit for complexity. He addresses the Chief Justice and invites him to do something he's obviously not going to do, though it's more realistic and respectful than the common insults that tell people to do things — like go to hell or kiss my ass — that they're not going to do. "Invite" is polite, and running for President is very grand. But the idea is that if you ran for President with your agenda, you would lose. Cotton predicts the loss in an elegant comparison of voters to "principled justices," who, he suspects, would have the same low opinion of the Chief's ideas.
Now, the so-called "principled justices" oppose the Chief because he's finding something in the law that actually belongs in the political decisionmaking process, and if the Chief were to run for President, he would be taking these ideas to the place where the "principled justices" say they belong. So if the voters rejected these ideas, it would not be for the same reason the "principled justices" rejected them.
Ah! Now, I see the little flaw in Cotton's rhetoric! The only way the voters and the so-called "principled justices" could share the same opinion of the Chief Justice's "strange views" would be if the "principled justices" were thinking in political terms — in which case, they would be no more principled than the Chief Justice.
But if Tom Cotton is reading this — hi, Tom! — I know you already know how to get off that hook. You only said the voters and the "principled justices" would find the Chief's views to be equivalently compelling. It can still be the case that these views are not compelling in court, because they are not law but merely political, and that they are not compelling in the political arena, because people just don't like them.
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Cotton has begun the 2024 primary campaign.
If Thomas Jefferson was brought here in a time machine, he would marvel at how twisted the Constitution had become.
Then he would go back to watching interracial porn on that intriguing small window machine.
I am Laslo.
I can't remember a time when I was able to understand anything about the Supreme Court when there wasn't a notion that what they are really doing is politics.
If you’re trying to argue that they aren’t doing politics in the DACA case then next you’re going to try to sell me a bridge. Not interested in buying either one.
That one really stunk. He is pleasing his Establishment masters. Not that they are ever truly pleased. He will die in frustration because he will know his efforts were pointless and he will wonder what compelled him to do some of those things. Like this one.
You do love your rhetoric.
I was always more a fan of actions than words.
So when girls no longer have any hope of winning at sports, I will rest easy knowing I was correct all the while.
And the bathroom rapes and invasions will only matter to the victims, one supposes, because Roberts is a failure as a thinker.
----Ah! Now, I see the little flaw in Cotton's rhetoric! The only way the voters and the so-called "principled justices" could share the same opinion of the Chief Justice's "strange views" would be if the "principled justices" were thinking in political terms — in which case, they no more principled than the Chief Justice. [AA]
I don't think that's an error; it misreads his meaning. He thinks the conservative judges were trying to rule on principle, and their effort was thwarted by Roberts' playing politics. He also believes Roberts' politics are losing politics, hence the invite to run for elective office on them. It doesn't in any way imply that the other justices are not principled. He doesn't specify which justices he considers principled, as far as I can see in the story, but it is unlikely that Tom Cotton thinks the liberal justices are principled.
That's not getting off the hook, it's the original point.
You only said the voters and the "principled justices" would find the Chief's views to equivalently compelling.
I don't get that part.
Birkel with the anti trans hysteria again.
Didn't I just read that more republican politicians have been arrested for bathroom shenanigans in the last couple decades than granny's have been?
Keep banging the drum of hate, but don't wonder why your side loses 11/3 on that message.
The principled justices are not objecting to the political outcome of Roberts' decision. They are objecting to the lack of principle that led the Chief Justice to legislate from the bench.
Didn't I just read that more republican politicians have been arrested for bathroom shenanigans in the last couple decades than granny's have been?
No doubt in that reliable source, the DailyKos, lefty Mark.
Walter Jenkins was not a Republican, by the way.
Please explain Professor how the Court can agree that DACA was unconstitutionally originated, but still holds the weight of constitutionally enacted programs, or more accurately, that for an administration to reverse an unconstitutional action by a previous administration, they must take into account "impact"?
Silly me. I thought "unconstitutional" meant "null and void".
> So it's an old, old theme. But it plays well
Because its true.
Roberts is Obama's Injustice.
All Trump did was pull back the curtain on the deep state, media, and liberal activist outcome oriented judiciary we are all learning to hate and disrespect.
F 'Em now.
I read the DACA decision and Justice Thomas’s dissent. I firmly believe Justice Thomas is correct in his opinion.
"when there wasn't a notion that what they are really doing is politics"
Which they do. The end.
You aren't trying to imply that we are dealing with "law" here, are you? Like, cruelly neutral and everything?
Of course, standing on "principle" is itself a political choice, and nothing prevents any "principled" justice from picking another principle. The WSJ had a nice editorial on Gorsuch v. Gorsuch to illustrate the point.
But if Cotton thinks the liberal justices are unprincipled, I would disagree. They have their principles, and are sticking to them, consistently. It helps to have a real ideology, and be realistic about what the Court is for.
Unlike Roberts, who in his vain effort to preserve the Court as some sort of umpire is actually destroying it by his political machinations: progs laugh at him, and conservatives despise him.
Cotton seems a genial and smart guy, and I like the cut of his jib. I remember seeing his first campaign commercial (the one with his drill sergeant) and immediately thinking he had "it!"
Nice post and good thinking.
As for Roberts, he can suck my d**k. Well, no, I don't want him to do that. But he can kiss my... uh no.
He can certainly go to hell. Then, years from now, I'll give him a long lecture about what I think about his legal reasoning.
The lecture, delivered regularly, will be part of his eternal torment.
"Ah! Now, I see the little flaw in Cotton's rhetoric! The only way the voters and the so-called "principled justices" could share the same opinion of the Chief Justice's "strange views" would be if the "principled justices" were thinking in political terms — in which case, they would be no more principled than the Chief Justice."
I think you are wrong to assert that the only reason that the 'principled justices' and the people could agree is if they are thinking in political terms. They could be agreeing on how the Constitution and statutes are to be interpreted. Both legal scholars and ordinary people can agree that the interpretation of the laws should adhere to the original understanding of the plain words in them. This principle is clearly violated by the court's recent decisions.
"That's not getting off the hook, it's the original point."
My hook was new. I'm just saying the hook — my newly introduced hook — can be avoided.
At some point, people are going to wake up and realize we don't need a court that only identifies past illegal action, but does not offer a remedy. What the fuck good is Roberts and his opinion if the illegal acts must stand?
Nitpicking Cotton‘s rhetoric, especially in an admiring way, is a dangerous game. Editors have been defenestrated for less.
John doesn't realize that the progressives still hate him, even though he's pandering to them to make them like him.
AustinRoth said...
Please explain Professor how the Court can agree that DACA was unconstitutionally originated, but still holds the weight of constitutionally enacted programs, or more accurately, that for an administration to reverse an unconstitutional action by a previous administration, they must take into account "impact"?
Silly me. I thought "unconstitutional" meant "null and void".
6/19/20, 8:30 AM
It doesn't matter to progressives as long as they get what they want.
Prof. A: are you still OK with calling Roberts “Chief”? Didn’t you get the memo from Duluth?
You may be getting up for an early run and pics of the dawn over Mendota; but are you Woke?
Feeling concerned for you.
Althouse misses one key point, I think.
Aren't the recent decisions of the Roberts court that Cotton critiques largely cases of statutory interpretation, not constitutional interpretation?
The difference is that unlike constitutional cases, the Court is not being called upon to be an independent arbiter of whether congress got the Constitution right.
It's about reading literally what the political branch, representing the people, originally intended with the legislation when it was passed by a majority in congress.
Cotton is simply saying if you want to change the intent of legislation, get elected to office and change it, don't insert your intent with your own tortured expansive reading as a judge when you're called upon to simply read the text.
They want chaos, the dissolution of yr country.
I looked Cotton up on wiki. He was a student at Harvard Law when 9/11 happened. He suspended his study and joined the army. He served with the 82nd Airborne and won a Bronze Star during his tour there. I didn't know these facts about Cotton until I looked him up on wiki....He's come in for a lot of attention recently, but these facts about him are not mentioned....I think it's fair to observe that Cotton has acted in the past in a principled way. I'm pretty sure that if he had had a messy divorce or some other past scandal, this would be mentioned in a discussion of his principles. Why not the reverse?
The stupid Mark thinks politics matters to the rape victims.
He also thinks rapists care whose cause gets them close to their preferred victims.
I use the word think loosely.
Big Mike said...
I can't remember a time when I was able to understand anything about the Supreme Court when there wasn't a notion that what they are really doing is politics.
If you’re trying to argue that they aren’t doing politics in the DACA case then next you’re going to try to sell me a bridge. Not interested in buying either one.
6/19/20, 7:51 AM
The principled members of the blog would refer the hostess to the sage advice of Mr Dooley, who reminds us that "the Supreme Court follows th'illiction returns." In this case, however, they don't seem to have liked them.
"The only way the voters and the so-called "principled justices" could share the same opinion of the Chief Justice's "strange views" would be if the "principled justices" were thinking in political terms"
--
..or if the voters were using principles.
But really, it is not uncommon for humans to arrive at the same conclusion via different paths.
So five judges, whose job it is to decide if an action is constitutionally legal, seem to agree that the original action was unconstitutional but the action to undo that action is not because it failed "provide a reasoned explanation" for undoing an unconstitutional act.
I used to think law was the basis for a civil society. You could depend on the law to be somewhat reasonable. More than ever, it seems to be just a game of politics
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
They will cut through every law to get at Trump.
I tend to agree with Cotton that Roberts' opinion is unprincipled, if the principles are constitutionality and consistency. He is arguing that Obama did something he did not have the power to do, but then wrote supporting guidance that creates expectations that legitimize the illegitimate predicate action.
NO!!! That is a path to Presidential dictatorship.
When does Robert's youngest turn 18?
It's of a piece with the sort of rhetoric about judges I've been reading for the last 50 years and more. I can't remember a time when I was able to understand anything about the Supreme Court when there wasn't a notion that what they are really doing is politics.
Yes, but is that notion incorrect? Are the justices political in their decisions? That's at issue. Labeling the argument as 'old' isn't saying much on the subject. In fact it strengthens the assertion since it isn't opposed, or opposed only with an insult.
The principled justices rely on semantic, scientific, and legal consistency. The principled justices are Pro-Choice with em-pathetic appeals to garner democratic leverage and religious fervor.
Not for nothing, but Tom Cotton is an extremely bright man. He knows what he's doing and saying is being more closely followed these days. And...he's getting some brand or identity growth through it all. He will be a major candidate for the Republican Presidential run in 2024. He and Nikki Haley are two early candidates. Look for more books and columns out of these two during the last term of Trump or Biden.
daskol @ 9:17: “ Nitpicking Cotton‘s rhetoric, especially in an admiring way, is a dangerous game. Editors have been defenestrated for less.”
“Nitpicking Cotton’s rhetoric...”
“...picking Cotton....”
Racisss! Defenestration for *you*!
Stop using that word "Cheif". I hear it's racist, insensitive, and must be stricken from the language. You need to keep up with the evolving standards. Hate to see you cancelled. And don't think for a moment that the slippery slope won't go that far. Did you think it ever would go as far as it already has this year?
For the love of all things tolerant, be careful what you say.
The joke here is in the phrase "principled justices of the Court." There's no such thing in my experience. SCOTUS is nothing more than a bunch of politically driven Mad Hatters blowing smoke from the wrong side of the Looking Glass.
This varying group has, over the years, in true humpty-dumpty style, rationalized forcing our nation's 100%-atheist-born kids to endure a daily pledge with "UNDER GOD" followed by "with LIBERTY AND JUSTICE FOR ALL" in the same sentence!
When it came to justifying school busing, they treated it as OK for forced de-segregation but not for forced integration.
In Loving v. Virginia, they struck down miscegenation laws on the basis of XIV Amendment prohibition on un-equal treatment in spite of the fact that the laws indeed treated all races equally.
I expect our bunch of mirror-lickers will soon be attempting to deal with the issues of upside-down triangles and flipped swastikas and removal of monuments to the Confederacy. They are ill-equipped for questions that require any understanding of science and math that don't countenance avoidance of the issue by merely redefining the terms.
The mathematician will rightly ask, "What the hell is an upside-down triangle?"
And "Is a swastika that opens counterclockwise still a swastika?"
And "Is an upside-down nazi triangle rotated 120 degrees still a nazi triangle?"
And what will they do with Stone Mountain, the largest Confederate monument, world's largest deep relief sculpture, far larger than Rushmore, on the largest rock in the USSA? They will no doubt find that it's really just a historical family portrait, just as when they proclaimed "In God We Trust" to be merely secular or patriotic and justified the giant Bladensburg cross as no longer religious, but historic and patriotic.
It's a great thing that SCOTUS is not entrusted with deciding anything of scientific or mathematical importance (yet), like Which Side of our Moon is up?, global warming, the economics of recycling or whether male circumcision is genital sexual mutilation.
My idea of the perfect hell our SCOTUS deserves is to imprison them in the outside of a South Pole Klein bottle with the charge of finding the upper side of a Möbius strip, and telling them they can get out by simply walking east.
Owen, I hope the good Senator hasn't got any nieces or nephews.
Of course the Supreme Court is doing politics. Article 1 institutions are in shambles, their powers stolen by the Administrative State, the Muscular Executive, and Supreme Court rulings. These days Congress barely manages to pass continuing resolutions to fund the government. Actual legislation is out of the question. We are now governed by nine wise men and women and the occasional executive order.
daskol @ 1:09: “...nieces or nephews.”
Or a small vacation home. ;-)
He will be a major candidate for the Republican Presidential run in 2024. He and Nikki Haley are two early candidates.
I agree about him and was enthusiastic for her until she started pandering for BLM. I also like Rand Paul. He just needs to be taller.
Dump Pence. Hire Cotton.
Duane the Rock Johnson or some other celebrity would be a better bet. My pick would be James Woods, since by then Americans will have had better training in the use of dark humor for political persuasion.
Dump Pence. Hire Cotton.
Spend Pence, Pick Cotton.
"I can't remember a time when I was able to understand anything about the Supreme Court when there wasn't a notion that what they are really doing is politics."
No, what they're doing when they're voting with the Left is pure politics, because the Left uses teh judiciary to push their political agenda on the American people.
The Right doesn't do that. All the Right does is push the judiciary to actual uphold the written US Constitution, the rule of law, and otehr than that follow the rules of democracy, rather than the personal desires of the abusive judges.
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