SCOTUS: All Is Well! (Not Really)

A local law student and professor co-wrote an op-ed at the NYT entitled "The Supreme Court Is Not as Politicized as You May Think." Unless Justice Breyer is writing under a pseudonym. 

The basic conclusion is that only a small number of cases are ideologically divisive and some subset of that has surprising results. The word "may" here is advisable. Unless one has a simplistic view of the Supreme Court, this is not surprising. If you put aside gun rights, abortion rights, praying coaches, various administrative law cases ... well, you know, some very important things. Also, five conservative justices only go so far. No shit. 

A piece by Dahlia Lithwick -- who kneejerks and snarks a bit too much for my tastes (is it required to write at Slate?) -- has a more annoying piece. The issue here to me seems to be like Ian Millhiser at Vox, who repeatedly has pieces that hype up the stakes so that even a moderate amount of sanity is almost shocking. He's the "end the Senate" guy too. 

Noting that those who write pieces often do not write headlines, the title of the piece is annoying in itself: "The Only Working Branch of Government This Week." That's bullshit. Total bullshit. How did the Executive Branch not work? How did the Biden Administration not work? How? How I will ask one more f-ing time. Stop lying. Stop "all sides." 

One-half of one branch didn't work (the date here is 10/7). The Senate worked. Someone died and a normal process was followed to appoint a new senator to represent California. Senate Republicans sent the message that they will not block Senate Democrats from seating her on committees and appointing a new member to the Senate Judiciary. 

The blatant bullshit -- yes, some after-midnight anger here -- is not just in the headline. I would not consent to have my byline under that. We read in the actual piece how she is surprised that it "would become the one branch of government capable of modulating its own conduct in the face of chaos and self-immolation." What does the Biden Administration have to do now? What "modulating" is necessary?  

What BIG thing did the Supreme Court do? It wasn't interested in striking down as unconstitutional a whole agency. When did it ever? The m.o. of the Roberts Court is to make it harder for agencies to operate. No modulation.  Not badmouthing each other during the summer? When does it go around badmouthing each other? They suck up to each other regularly.

[ETA: Also, just how sane the Court was during the CFPB is somewhat unclear. Kate Shaw, the most optimistic of the Strict Scrutiny Podcast trio on this morning's podcast suggests it might be a 5-4 opinion with Roberts somewhat sympathetic to the challengers. They will reject it but some overall "course correction" bit of sanity very well might leave something to be desired.]

It is noted that they badmouthed each other after the Dobbs leak. Don't recall them doing it that much. OTOH, Alito doesn't seem to be "modulating" much. BTW, who leaked it again? Are abortion rights back? 

What big evidence is there that Thomas is? Wow! He recused in a single case involving his pal John Eastman, under criminal indictment, involving a committee Ginny Thomas also testified (I gather she was asked questions under oath) in front of. That was unanimously denied cert or whatever. 

They also rejected the Alabama Legislature's attempt to nullify its holding. The actual ruling was a somewhat surprising case though Kavanaugh dropped a "by the way" that made Alabama think they still had a shot. The fact the Supreme Court defended its own power (when the court below also went against it) is surprising? Why? Why? What is wrong with you?

This is the low standards we are left with, the need to find some positive message of hope, that leads her to reference a "course-correct." 

After helping the Republicans win in 2022, Kavanaugh decides to vote with Roberts (while leaving open more chances for conservatives to win) to uphold precedent. And, the justices do not let Alabama blatantly ignore its opinion. The tea leaves put the Democrats having a good shot in 2024 anyway. Granting the ruling was a positive development, even that only is so impressive. 

The Court isn't that politicized and they had a "course-correct." Hey, no need for Congress to pass an ethics bill! The Supreme Court (just trust them!) might even pass its own (after saying it seemed hopeless, this critic suddenly has hope). Why in the hell should we trust them? Checks and balances, anyone? Two justices should be kicked off for violating good behavior rules; surely Clarence Thomas. Who even says this?

I am reminded of the famous bit from The American President though I wish more people would "know the difference." 

People want leadership, Mr. President, and in the absence of genuine leadership, they’ll listen to anyone who steps up to the microphone. They want leadership. They’re so thirsty for it they’ll crawl through the desert toward a mirage, and when they discover there’s no water, they’ll drink the sand.

This is the problem at times when a very serious situation is framed in almost apocalyptic terms. Dahlia Lithwick and others often very well have some good things to say. I do not think them (as one liberal law professor I respect) "the best out there" or something, but generally speaking, they are appreciated. Back when I was about to comment on the Slate Fray and now, I still think Lithwick goes too far. But, I will not deny her that. 

The truth of the matter is that the Roberts Court plays the long game, even if the 6-3 Court has "YOLO" moments. I really don't see some "course correction" here, based on the material provided, worthy of this piece. It is a libel (written) on the Biden Administration especially to suggest the Supreme Court is the only branch that is working these days.

I'm sure certain things can be cited (Kagan noting why she is recusing, Jackson actually posting a transcript of her speech, Thomas managing to recuse in one case -- but not the 14A, sec. 3 lawsuit, even though his wife engaged with people involved in the conspiracy etc.). 

They won't go TOO far (though they never did, Dobbs a glaring exception, go all the way) and toss in a few surprises. The betting line is they found a gun regulation (involving domestic violence) at least six justices will support. Cue the first op-ed.  Not new. 

Maybe, "the Roberts Court is collectively about as terrified of the grift, the violence, and the existential threat to democracy that is Trumpism." That didn't stop Barrett et. al. from accepting Trump's nomination. Cue that meme of the hotdog guy saying he is appalled at the mess that was made and wants to find out who did it. If they were SO "terrified," why couldn't Roberts show up at the Senate? Well, can't ask too much.

They are doing all this course correction already! STFU.