Dahlia Lithwick and co-writer provides a somewhat heavy-handed account as the new Supreme Court begins on how the Roberts Court "disguises" its conservatism. This opens things up for the usual heavy-handed discussions about guns, abortion and so forth. Some of the article however invites such a tone. This is unfortunate, since the core of what they say is often correct. But, the tone and some reflections on the details can close some minds and/or are somewhat misleading.
Again, since people are not too aware of what the courts actually do, I don't know how much Roberts has to "disguise" his conservatism. Off bench indicators and influences probably have as much of an effect here. People can be sort of selective about how they see the federal government.
And, the "tricks" are not novel. An upcoming bio on Justice Brennan will show "shrewd" tactics like choosing an appropriate person to write the opinion (it's an old trick, e.g., in 5-4 cases to have the shaky justice write it), take a case with "attractive facts" (this was done in the New Deal -- both to find nefarious and innocent exercises of federal power), have a "win" that on its reasoning is actually a lost for the other side in various ways, etc. have been around for some time.
This doesn't suggest that Roberts isn't a talented "magician" in various ways. The most talented Chief Justices over history tended to be so from John Marshall on down. It belies his "we are just umpires" b.s., though, which makes what he is really doing look more nefarious. A Justice Breyer can upfront talk about judicial capital and all that but that sort of thing will ruin Roberts image, since he is not supposed to be so -- yucky -- pragmatic.
Happy First Monday, y'all.
The metaphor is more than apt. There's another, newer, layer of illusion at work at the highest court of the land. Under the stewardship of its boyish chief justice, John Roberts, the court has taken the law for a sharp turn to the ideological right, while at the same time masterfully concealing it. Virtually every empirical study confirms this rightward turn. Yet recent public opinion polls indicate Americans continue to see a bench that is, if anything, a wee bit too liberal.The evidence is a Rasmussen poll that says "38% Say Judges Too Liberal." There is evidence, on the other hand, that Rasmussen itself is too conservative and not reliable. But, I don't claim to know all the details there. Still, I need more to determine that "polls" so "indicate." The poll found that people found the Supreme Court somewhat less liberal than judges as a whole:
Just 33% believe the Supreme Court is too liberal while 27% say it’s too conservative.A telling number, I think, since people don't actually know much about judges as a whole, even less about those not on the Supreme Court. Anyway, with a +/- 3% in accuracy, this would suggest that people have a certain Goldilocks opinion -- a third think they are just right, and the rest are about split on too hot/too cold. Calling Katy Perry.
Again, since people are not too aware of what the courts actually do, I don't know how much Roberts has to "disguise" his conservatism. Off bench indicators and influences probably have as much of an effect here. People can be sort of selective about how they see the federal government.
And, the "tricks" are not novel. An upcoming bio on Justice Brennan will show "shrewd" tactics like choosing an appropriate person to write the opinion (it's an old trick, e.g., in 5-4 cases to have the shaky justice write it), take a case with "attractive facts" (this was done in the New Deal -- both to find nefarious and innocent exercises of federal power), have a "win" that on its reasoning is actually a lost for the other side in various ways, etc. have been around for some time.
This doesn't suggest that Roberts isn't a talented "magician" in various ways. The most talented Chief Justices over history tended to be so from John Marshall on down. It belies his "we are just umpires" b.s., though, which makes what he is really doing look more nefarious. A Justice Breyer can upfront talk about judicial capital and all that but that sort of thing will ruin Roberts image, since he is not supposed to be so -- yucky -- pragmatic.
Happy First Monday, y'all.