The Roberts Court Returns

It wouldn't be the first Monday in October if we didn't get a little Supreme Court chutzpah from The New York Slimes:

The Supreme Court begins its new term tomorrow as bitterly divided as it has ever been. There are three hardened camps: four very conservative justices, four liberals [ED.: Got that? The adverb "very" is neatly placed in front of the word "conservative", but not in front of the word "liberal"], and a moderate conservative, Justice Anthony Kennedy, hovering in between. [ED.: How, exactly, is a solitary so-called "moderate conservative" who "hover[s] in between" described as being in a "hardened camp"?] The division into rigid blocs is unfortunate, because it makes the court seem more like a political body than a legal one. [ED.: And who's responsible for turning the Court into a "political body"? Any guesses as to who the Slimes thinks that is (or at least who they pretend is responsible)?] Justice Kennedy’s tendency to vote with the most conservative justices also means that there is a real danger the court will do serious damage to important freedoms this term. [ED.: The Slimes' editors don't have a problem with Kennedy casting a decisive 5th vote per se (see, e.g., Planned Parenthood v. Casey and Lawrence v. Texas), only when his doing so tips the balance to the "conservative" side.]

At his confirmation hearings, Chief Justice John Roberts told the Senate he had “no agenda,” and famously compared his role to that of an umpire calling balls and strikes. He has also said he wants more consensus on the court, and fewer 5-to-4 decisions. Those were fine sound bites, but in reality Chief Justice Roberts quickly settled into a bloc with his fellow conservatives Samuel Alito, Antonin Scalia and Clarence Thomas. The controversial 5-to-4 decisions have kept coming. [ED.: Apparently the 4 "hardened" leftist votes in the minority have absolutely nothing to do with the divisions on the Court.]

It is striking how conservative the court is now. On race, it was for decades a proud force for racial integration. Last term, it ordered Seattle and Louisville, Ky., to stop their voluntary efforts to have children of different races attend school together. The court, once an important force for fairness in American society, now routinely finds dubious legal excuses to deny relief to criminal defendants, consumers and workers who have been mistreated. [ED.: Talk about outcome-based jurisprudence. This sounds like it could've been written by Tony A/Morning's Minion.]

The Roberts bloc has not adhered to any principled theory of judging. Its members are not reluctant to strike down laws passed by Congress, as critics of “judicial activism” are supposed to be, or reluctant to overturn the court’s precedents. The best predictor of how they will vote is to ask: What outcome would a conservative Republican favor as a matter of policy? [ED.: I think they call this projection. Liberals are good at it. They assume that everyone is as unprincipled as they are in reaching outomes they desire, so they accuse their opponents of doing the exact same thing they would do if they could, with the added charge of "hypocrisy" thrown in.]

The court’s 4-to-4 split means that, on virtually any controversial question, Justice Kennedy decides what American law is. Last term, he was in the majority in all 24 cases decided by 5-to-4 votes. His opposition to abortion rights [ED.: Huh? Are we thinking about the same Justice Kennedy? The Planned Parenthood v. Casey Justice Kennedy? The "sweet mystery of life" Justice Kennedy?] and affirmative action has pushed the court further to the right on those issues. [ED.: Again, the Slimes' editors don't have a problem with Kennedy casting a decisive 5th vote per se, only when his doing so tips the balance to the "conservative" side.]

The court’s hyperpartisan approach to the law is unhealthy. The reason the Bush v. Gore ruling was so damaging to the court’s reputation was that the justices appeared to be acting as partisans [ED.: Does that include those right-wing Justices Breyer and Souter, who voted with the majority in what was, after all, a 7-2 decision?], tossing aside long-held views to reach the political result they wanted. Today, the justices seem just as political, wrapping their views on controversial social issues in neutral-sounding legal doctrines. [ED.: See comment above on "projection".]

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(emphasis and editorial comments added)


Previous Pro Ecclesia posts on this subject:
On Supreme Court Justices and "Activist" Jurisprudence