"In his stubborn avowal that the Court... remains an apolitical body, he perpetuates a lie that is anything but noble. I have written much that is entirely positive about his judicial opinions, so it pains me to say that his book reads as though it had been written by someone oddly unaware of the implausibility of its factual claims. Invoking Cicero, Breyer opens by noting that legal obedience, the kind a society needs if it is not to descend into chaos and what Tennyson called the law of 'tooth and claw,' requires either fear of punishment, hope of reward, or belief that the law is just even when it doesn’t deliver what you hope for. The central thesis of his book is that the reason Americans have over time abided by the Supreme Court’s interpretations of the law.... is that they have accepted the view that the justices are not acting 'politically.'... [H]e is content to express his belief that 'jurisprudential differences, not political ones, account for most, perhaps almost all, of judicial disagreements'—even while conceding that 'it is sometimes difficult to separate what counts as a jurisprudential view from what counts as political philosophy, which, in turn, can shape views of policy.' What accounts for these so-called jurisprudential differences? To what degree are they mere window dressing, attached after the fact to conclusions consciously or unconsciously reached on other grounds?"
Writes Laurence Tribe in "Politicians in Robes/Why does Stephen Breyer continue to insist that the Supreme Court is apolitical?" (NYRB).
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37 comments:
Larry Tribe: another clown, along with Merrick Garland, who was promoted as a Supreme Court pick but thankfully never made it there.
Another elite whose reputation is thoroughly undeserved.
I see that Professor Tribe is channeling Peter Finley Dunne's turn of the 20th Century Irish bartender Martin J. Dooley. I believe that Mr. Dooley once commented that the Supreme Court Justices "read the election returns". Maybe so--but better to have the polite fiction that they don't.
The court is not political because you can't vote them in or out.
Methinks the Larry doth protest too much.
They are not politicians.
They are pharisees.
Larry Tribe is NOT a credible reviewer. He’s exposed himself as a leftwing political hack the past six years. Embarrassing.
Breyer can insist that Supreme Court is apolitical. Roberts can insist the same. No one sensible believes them. If there actually are people who make an honest effort to put politics aside, you won’t find it on the liberal side of the court. I think that’s because, for liberals, everything is political, 100% of the time. It’s an unconscious thing.
Tribe is hardly an unbiased judge of Breyer's approach, is he?
Breyer is one of the few lefty justices I can abide because he does deal with jurisprudential issues in reaching his decisions.
Tribe is off in the clouds, treating his preferences as the desiderata of legal outcomes. I wonder how often Tribe has concluded that a Supreme Court decision with which he disagreed was properly decided?
Tribe is someone who thinks everything is about politics. This is evidenced by his reversals of position when Democrats are advantaged or disadvantaged by his previous arguments. He doesn't even acknowledge his reversals as the result of additional thought or precedent.
Once it's commonly accepted that the court is political, the court will die. After all, if its political, then there's no reason not to actively shape the court to favor your side. Breyer knows that the left desperately wants to expand SCOTUS and pack it with progressives. But once it's done, it won't take long for the GOP to do the same, or for red states to decide that they aren't going to obey any decision made by a packed court.
I haven't read Breyer's book but if it is what Tribe suggests I am disappointed by Breyer's superficiality and deceptiveness. After serving so many years on the court Justice Breyer has the direct knowledge and experience of his fellow justices, their arguments and thought processes; therefore I would expect more. If Breyer can not delve into these questions about political leanings which are threatening the credibility of the court, who can?
I would like to know if there are there justices who are capable of going beyond their innate biases while others who are not? Has anyone ever written such a book? Doubtful.
Keeping silent on this question has worked for a long time but I think that we have become so polarized socially and the government has proven itself to be so untrustworthy that the impartiality of the court is no longer trusted to make decisions with big social implications. That's probably a good thing as we expect our elected officials in the legislative and executive branches to make those kinds of decisions, not political appointments.
Larry Tribe is a man of the far left and has been for years. Breyer has been a man of the left for longer but is not as extreme as RBG was or as Sotomayor is. Plus he is an order of magnitude smarter than the "Wise Latina." I can assume Biden's nominee will be as "nonpolitical" as Tribe is.
It always comes back to political philosophy. "A thoughtful exploration of the virtues and vices of well-meaning deception"; this could be a summary of Plato's Republic.
"Well-meaning deception"
There’s a lot of c*nts in this game. There are a lot of snakes in this game.
As Michael K said, Breyer has always been what he has been. Ann, who was first in her class at a very good law school (NYU, I think), probably knows what I am talking about first-hand, because there has never been a day when Breyer could have stood up to the plate and explained the sad liberal point of view better than her, or better than any of the other hundreds of people who once got very good grades, top grades, with a pat on the head, from liberal law schools, where the (imho delusional) liberal project was king and master. But that is how a bureaucracy works - the ancient Egyptians with their hierophants, then the poor Europeans with their cold Jesuits, and the poor French with the educated elite from the Parisian hot-house schools who led France astray so many times, and so on - all countries suffer from clowns like Breyer who got good grades, got the "glittering prizes" that normal men and women would never have strived after, and thenceforth afflicted their fellow citizens with their limited and specialist blather for the rest of their working lives.
It all goes back to the illegitimate decision in Marbury V Madison.
“Well meaning deception”
Fauci has been at his post longer than the longest serving Supreme Court justice Thomas.
Obama's Harvard mentor continues slipping into irrelevance and abject stupidity.
Liberals believe that what is good and right (in their view, of course) IS constitutional. In other words, "constitutional" means "what (I think) is good policy."
And observation i picked up somewhere years ago--the supreme court is never out of step with the public for long. If the public wants it, sooner or later the court will give it to them. Does that make it a political body? Maybe. The distinction between politics and jurisprudencial preferences seems fairly strained. They may not be exactly the same thing, but there is a great deal of overlap.
I'd be interested in analysis that looks past the media friendly 5-4 decisions and dissects some of the 8-1 & 9-0 decisions, of which there are many.
I had a mid life crisis at about 47 years old. I was a finance manager at a small West TN Ford dealership and I looked up one day and was horrified to find myself where I was. I considered trying to get into a MFA program somewhere but I really didn't have a portfolio to support that type of thing. In 2007, that year, I carried my 13 year old daughter to NYC for a vacation. While running down 2nd Avenue in NYC one of the mornings of that vacation, I decided to go to law school and move to NYC to live the rest of my life. Due to complications that had to do with my family situation, I ended up staying in the south for law school While I was preparing for law school, I began to read books about the experience. Alan Dershowitz's Letters to a Young Lawyer probably made the biggest impression on me of anything I read. I'm generally not in agreement with Mr. Dershowitz's political philosophy but I think that he is a principled believer in a valid interpretation of the law. Since I started law school in 2008 and began to be somewhat educated on the law, my admiration for Mr. Dershowitz and his principles has remained, but I have been astonished that this partisan hack, Laurence Tribe, continues to be referenced as some sort of authority when it seems to me that anyone with a modicum of common or law sense can see he is a total partisan whore. If what he says makes sense, it's a coincidence. It blows my mind.
Tribe is preparing to argue that Harris could do what Pence didnt.
https://www.theatlantic.com/politics/archive/2021/10/kamala-harris-trump-january-6/620310/
Does Breyer really not see the hardened left on the court, one that never divides, not even one iota? What an odd thesis for a person of such experience. Isn’t Tribe right in this case?
Unfortunately Breyer’s book... is not a thoughtful exploration of the virtues and vices of well-meaning deception.
Tribe's criticism brings to mind commenters who complain about what the Althouse Blog is not, and the answer to that is always "Write your own Blog".
So, Mr. Tribe, write your own book.
"Once it's commonly accepted that the court is political, the court will die. "
Then it should die.
From Harvard Parody:
“I’m Larry Tribe”
(Tribe)
At first I was afraid
I was petrified
I had nothing new to write
I thought my muse had died
But then I opened up a book
And copied down the words I saw
My fatal flaw
And who would know I broke the law?
For nineteen years
I wasn’t caught
I made a killing on my books
Assigned in every class I taught
It would have never been revealed
The Weekly Standard wouldn’t see
I would still be at the top
If not for stupid Ogletree!
(Duncan Kennedy, praising Tribe)
He studied math, he studied law
And he’s the most prolific scholar
That the whole world ever saw!
He’s drafted foreign constitutions
He’s the president of Spain!
In the book they say he copied
He thanked Clinton aide Ron Klain
(Greek chorus, mocking Tribe)
Because he’s Tribe
He’s Larry Tribe
He’s not just Harvard’s best professor
He’s the smartest man alive!
No matter what the rumors say
He is the marshall of today
Because he’s Tribe
He’s Larry Tribe! (Hey hey)
(Tribe)
When the students choose their bundles
They all beg for me
For who else here mixes con law
With pornography?
And oh I spent so many years
Defending sodomy and choice
Penumbral rights
I took on all the liberal fights!
Bush versus Gore
That one I blew
My dreams of Justice Tribe are gone
Professor Tribe will have to do
It’s been my dream since I could sit
To wear the robe that’s black and long
But those old ladies in Miami
Got the whole election wrong!
(Elena Kagan, lauding Tribe)
He’s ten feet tall!
He learned to fly!
And though he’ll never be a Justice
He’s never gonna die
He is the sultan of Sudan
He is the closer for the Sox
And the legal fees he charges
Make him richer than Fort Knox!
(Members of Greek chorus lift Tribe on their shoulders, his legs straight and arms extended to his side, as if being crucified)
He’s Jesus Christ!
He’s Larry Tribe
Not just Harvard’s best professor
But the smartest man alive!
He’s got forty-one degrees
He speaks fluent Japanese
He’s Larry Tribe
He’s Larry Tribe!
"it is sometimes difficult to separate what counts as a jurisprudential view from what counts as political philosophy, which, in turn, can shape views of policy." It's not only difficult, it's impossible. The "jurisprudential" view is "political philosophy" in judge talk.
Gahrie said...
It all goes back to the illegitimate decision in Marbury V Madison.
************
OK, Gahrie, I'll bite:
What would the role of the Supreme Court be if Marbury were otherwise decided?
WHO would be the arbiter of whether laws passed by Congress (and leter the states) were constitutional?
The Republican appointees are more open minded. In 67 decisions, Republicans vote together 46% of the time. Democrat appoint, it jumps to 76% of the time.
That tells you everything you need to know about liberal judges. They are anything but impartial.
During the Gore vs. Bush Florida Recount/Supreme Court dustup in 2001, wasn't Breyer the Justice who referred to Gore as "our guy" and Bush as "your guy?"
That sounds kinda "political"...
I read that Biden will miss Breyer deeply as he make such yummy ice cream.
Mr. Majestyk said...
Liberals believe that what is good and right (in their view, of course) IS constitutional. In other words, "constitutional" means "what (I think) is good policy."
The greatest torchbearer - although tacitly - for this philosophy was William Brennan. If he didn't like the policy presented in a case before the Court, he'd find or invent a way to call it unconstitutional, and used his considerable personable and political skills to persuade his fellow justices that it was their own noble idea.
Brennan was the most hubristic and ultimately dangerous individual to ever sit on the Court. He is the person most responsible for the politically divisive state of the Court and maybe the nation today.
Time to once again bring out the Ernie Brown story (which is almost certainly true; I heard it directly from his student Bill Andrews). A number of Harvard Law School professors had left and Ernie Brown was roped into teaching some sections of the introductory Constitutional Law course. He was a tax professor but had done work on the Constitution and tax law. At the end of the course, he said, "Never again. This isn't law. It's politics."
Not political, but in 5-4 and 6-3 decisions, you can almost always predict who was in the majority and minority based on the party of the President who nominated the justice. Roberts being a rare exception.
Isn't any justice worth a damn going to say the court isn't political?
Isn't the idea of blind impartial justice the myth or noble lie that gives the court its authority?
It's like how nobody at the FBI or CNN is going to admit how corrupt their institution really is.
Brennan was the most hubristic and ultimately dangerous individual to ever sit on the Court. He is the person most responsible for the politically divisive state of the Court and maybe the nation today.
Disagree. Brennan simply made use of the tools provided to him by Marshall. Marshall is the true villain in this case.
Writes Laurence Tribe in "Politicians in Robes/Why does Stephen Breyer continue to insist that the Supreme Court is apolitical?" (NYRB).
Well, because Breyer is not deluded enough to think that the American people will continue to accept all the dishonest crap that he and his fellow travelers have inflicted on the American people from the Bench, if they ever realize that none of those Left Wing ruling have anything behind them other than the perverted desires of the left wing politicians in black robes
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