Sometimes there are arguments from ignorance...

... and sometimes they come from someone who should know better.  Shahid Buttar is billed as a civil rights lawyer, so he should know better than to claim that the Supreme Court is presently in "the politicized grip of conservative judicial insurgents."  He goes further, claiming that the Roberts court has "affect[ed] reproductive rights, the right to equal education, workplace discrimination, environmental protection, punitive damages, fraud liability, access to justice, and more," and that "what once passed for law has been usurped by an institutionally aggressive Supreme Court wielding a political agenda."

People who know what they are talking about understand that Bush replaced Rehnquist, a reliable conservative, with Roberts, another reliable conservative.  He then replaced O'Connor, a conservative-leaning woman, with Alito, also a reliable conservative.  Net gain for conservatives... about half a justice.  Hardly a dramatic shift. 

Furthermore, Obama will be replacing Souter.  Souter has been a reliably liberal justice on the court, despite being appointed by a Republican.  So, the makeup of this court probably won't change much -- although if a more reliable conservative had been appointed rather than Souter, the liberals could expect to gain some ground with this appointment.  Instead, they'll just be able to hold the ground that they were given by a President's poor choice.

But it gets worse:
Reacting to the mid-20th century jurisprudence that expanded individual rights & liberties, Presidents Nixon and Reagan each shifted the Court sharply, transforming the institution over the past 50 years.
What he actually means is that the court has been dangerously unbalanced since FDR's experiment in court-packing in the 30s, a period that produced the glorious Wickard v Filburn ruling, which claimed the a farmer growing wheat for his own consumption on his own land could be regulated (and, in fact, forbidden to grow wheat) under the "interstate commerce" clause of the Constitution. If that doesn't demonstrate exactly how politicized and warped the Court's view of the Constitution became under "progressive" justices, nothing will.

That's not the end of it, though.
In the 2008 Heller case, conservatives conjured a novel reading of the 2nd Amendment never before accepted in our nation's 230-year history. Justices Stevens and Scalia traded sharp barbs in their competing opinions: Scalia likened Stevens to "a mad hatter" and accused him of "flatly misread[ing] the historical record," while Stevens argued that Scalia's approach was "feeble," as well as "strained and unpersuasive," and "fundamentally failed to grasp the point" of rudimentary analytical principles.
That would be the decision where four liberal justices on the Supreme Court voted that the Constitution doesn't mean what it plainly says.  That "the people" means "the State".  That individuals don't have the rights that they overthrew the British armies to secure.

Quite frankly I'm surprised they dare to call themselves Americans, for fear the Founding Fathers would rise up from their graves in indignation. 

There is one small point of light:
In contrast, an assertive progressive visionary could transform the Court over time. First, a Justice able to articulate a compelling overarching vision of the law -- which the moderates lack -- could lay a foundation in dissenting and concurring opinions for future rulings to cite.
He at least recognizes that "moderates" (by which he means liberals) lack a compelling overarching vision of the law.  They lack this because they do not rule based on the law; they rule based on the dictates of their ideology. 

There are some cases where that applies in the other direction, but they are less common. 

It turns out that Obama will be nominating Sotomayor for Souter's seat.  This is not a good nomination; she's a committed liberal who believes that federal appeals courts are "where policy is made" and that a "Latina woman" will inherently make better legal decisions than a "white male."  Worse, she has indicated that she doesn't believe the 2nd Amendment secures a "fundamental right"

On the other hand I don't see anyone characterizing this as a disaster.  Obama won the election, so he gets to nominate his picks, and she seems to be at least minimally qualified.  She will be replacing a liberal, albeit one appointed by a Republican president.  No net change on votes, particularly on Heller (Souter was one of the four votes against the 2nd Amendment there).

This entry was published Wed May 27 06:50:49 CDT 2009 by TriggerFinger and last updated 2009-05-27 06:50:49.0. [Tweet]

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