Cass Sunstein is complaining that liberalism isn't what it used to be:
The Myth of Balance Between Left and Right holds that the Court has a "liberal wing," consisting of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, and a "conservative wing," consisting of Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito, and Clarence Thomas. Justice Anthony Kennedy is the swing vote, the "moderate."It should be clear, right off the bat, that something is fishy about this picture. Cautious on the lower courts, Ginsburg and Breyer were prescreened by and fully acceptable to Republicans on the Senate Judiciary Committee. Both their votes and their opinions have been far more moderate than those of the great liberal visionaries of the Court's past, such as William O. Douglas and William Brennan. Souter is a Republican appointee. His approach to constitutional law is in the general mold of Justice John Harlan, the great conservative dissenter on the Warren Court. Stevens, also a Republican appointee, was a maverick on the Burger Court, far to the right of three of its members. Contrary to what you hear, Stevens hasn't much changed in the last decades.
Here's a simple way to expose the Myth of Balance. In 1980, when I clerked at the Court, the justices were, roughly from left to right, Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist. Believe it or not, this Court was widely thought to be conservative. But think, just for a moment, about how much would have to change in order for the Court of 2007 to look like the supposedly conservative Court of 1980.
First we would have to chop off the Court's right wing, removing Scalia and Thomas and replacing them with Marshall and Brennan. Far to the left of anyone on the Court today, Marshall and Brennan believed that the Constitution banned the death penalty in all circumstances, created a right to education, and required the government not merely to protect the right to choose but actually to fund abortions for poor women.
Next we would have to replace Kennedy with Blackmun. Blackmun was also to the left of anyone on the current Court. Fiercely protective of the right to privacy and opposed to the death penalty on constitutional grounds, Blackmun believed that the social-services agencies were constitutionally obliged to protect vulnerable children from domestic violence and that affirmative-action requirements were broadly acceptable.
Then we would have to leave Breyer, Stevens, Souter, and Ginsburg essentially as they are. All of a sudden, the four would be perceived as the Court's moderates rather than its liberals, operating as a group much like White, Stevens, Powell, and Stewart. (The parallel between White-Stevens-Powell and Breyer-Stevens-Souter is very close; true, Ginsburg is somewhat to the left of Stewart in many domains, but their voting patterns and general approaches are pretty close.)
Finally we would have to assume that Roberts would vote more or less like Rehnquist (which is to say, definitely to the left of Scalia and Thomas) and that Alito would vote more or less like Burger (definitely to the left of Rehnquist).
To say the least, all this would represent a radical change in the Court's composition -- so radical that liberals cannot even fantasize about it. But this radically changed Court would be essentially identical to the supposedly conservative Court of 1980!
I remember 1980. You young people may not realize it, but back then, we didn't have these crazy touch-tone telephones you like to use to fax all your friends. We had rotary dials, with little holes for each number that you had to stick your fingers into and drag them all the way over to the right, where a touch bar known as the finger stop would register each digit. And if you wanted to call all of your friends, perhaps to invite them over for some fondue, by the end of making all those phone calls, your index finger stung from hitting the finger stop so many times, let me tell you.
Seriously: why on earth would the definition of a "conservative" court in 1980 be some sort of lodestar by which all future courts should be judged. By the standards of 1880, the current court would be a bunch of wild-eyed socialist libertine radicals bent on undermining everything that made America great. Does that entitle me to re-nominate Oliver Wendell Holmes, or his modern day equivalent?
Cass Sunstein (who graduated from law school in 1978) seems to be under the delusion that the conditions of his youth are the golden mean by which all future events are to be judged and found wanting. I mean, we all feel the same way, but most of us don't expect anyone younger to take us seriously when we drone on about how much better The Pogues were than any of this modern noise.
It seems stupid to have to point this out, but on a number of issues the public has moved rather rightward over the past generation. Naturally, the court has moved rightward too. It is not demonstrably out of step with the public on "liberal" questions like homosexuality, abortion, affirmative action, various sorts of environmental and business regulation, civil rights, campaign finance, separation of church and state, and so forth. If anything, the court is still to the left of the public on these matters.
The court is to the right of the average law professor, not to mention the average Cass Sunstein. But that's because the average law professor is to the left of the average American, and any reasonably democratic system is going to produce a Supreme Court whose mean opinion hews more closely to that of the voters than to that of any larger group from which the appointees are drawn.
jeez, Megan, you are sounding like an old curmudgeon... rotary phones? It's better perhaps to point ot the lack of cell phones and the cost of calling long distance at the time, or the lack of having a personal computer on a desk...
all that said, it's the supremes! it isn't like the court changes a lot all the time based on whim. It's makeup isn't something new and different invented this year... what's Sunstein's point?
I don't quite understand the last sentence. The Court isn't drawn from the ranks of law professors. It's drawn from the ranks of lawyers, who on average are way to the right of law professors.
I think that the Court mirrors elite opinion pretty well. Elite opinion, in turn, is happily not way out of tune with that of the American people generally, though maybe a little more libertarian (successful people generally are).
"It seems stupid to have to point this out, but on a number of issues the public has moved rather rightward over the past generation."
Really? The public today has moved rightward on abortion rights and homosexuality since 1980? On environmental and business regulation? Campaign finance reform? Really? You lived in a very different 1980 than I did.
Sunstein did his homework for that piece, and even included lip service toward not driving the court off the leftward side of the rails, but the real nature of his motives was accidentally captured like this:
"I'm not denying that in some areas, the new appointees have been less conservative than some expected or hoped. The Court has not overruled Roe v. Wade..."
If overturning Roe (coming on top of Sunstein's many other favorable comments for a constitutional right to abortion, and maybe to have public assistance for it besides) would be evidence for a "conservative" court, then Sunstein has truly lost his perspective on what the court should be doing, let alone where the center is. Legal scholars and jurists of various political stripes have argued that the Roe decision was badly-structured, and that overturning it would be a matter of good jurisprudence and sound constitutional law, apart from any political sentiments they or others might wish to attach.
What Sunstein clearly wants, judged by this and several other comments of similar nature, is an activist court that invents and upholds progressive policies, with the magical power to insert them into the constitution without the benefit of public review and approval. So, not only are the various policies he applauds somewhat left of the present American center, the process he wants the court to use has a generally disfavorable odor to it.
This is apparently a recycle of his recent NYRB article. In the NYRB he talks of this horrible "phalanx" of right-wing justices marching ahead. Ann Althouse thoughtfully pointed out that this phalanx is four justices that can only get their way if Justice Kennedy is in the mood to go along.
Sunnstein goes way around Robin Hood's barn to make the point that the court in 2007 is to the right of the 1980 court. He could have done that in 3 or 4 paragraphs. Well, yeah that's the consequence of electing Republican presidents to office for 19 of the last 27 years. He says that the court would benefit from having more left-wing views. Sounds like a call for an affirmative action program for liberal justices because Democrats can't win Presidential elections .
How conservative is the Supreme Court?
Actually, pretty conservative now that Alito and Roberts have been added, but still not all that conservative.
How deep is the ocean?
The ocean varies in depth from sea level to 11 km in the Marianas Trench, with a mean depth of about 3800 m.
How high is the sky?
What we see as sky is a phenomenon due to sunlight scattering through the denser portions of the earth's atmosphere. Therefore, the sky can be taken as going up to the top of the stratosphere at most, about 50 km above sea level.
No, that's okay, you're flowery libertarian prose is thanks enough.
How many angels can dance on a pinhead?
How many blogs must a blogger type down? How many times must the flame-wars rage? And how many seas must Matthew Yglesias sail, before he can rest in the sand?
Of course, shortly after Sunstein's clerkship with Justice Marshall ended, two terms of Ronald Reagan (and, to a lesser extent, the single term of Bush 41) ushered in a whole new crop of federal judges, with whom Republican presidents can now fill Supreme Court vacancies. Reagan alone appointed the following judges: Alex Kozinski; Edith Jones; Harvie Wilkinson; Ralph Winter; Robert Bork; Douglas Ginsburg; Lawrence Silberman; Antonin Scalia (twice). Oh, and two of Sunstein's U of C colleagues: Richard Posner and Frank Easterbrook. Conservatives have a deep bench.
By the time the Democrats got back to the White House in 1993, the electorate had shifted significantly to the right, and Clinton's two Supreme Court picks -- far from being Brennan/Marshall types -- were both former Ivy League law professors and federal appellate judges. As Jan Greenburg's book noted, the days are gone when a president could nominate a practicing lawyer like Byron White or Lewis Powell (or, implicitly, a politician like Earl Warren -- although Clinton wanted badly to name one [Mario Cuomo, George Mitchell, or Bruce Babbitt]). It's not so much the work on the Court; the job interview, i.e., the confirmation process, requires no less than someone whose day job has involved heavy doses of constitutional law. And among those types, the liberals whom Sunstein would consider fitting successors to Brennan and Marshall -- Lawrence Tribe, Bruce Ackerman, Harold Koh, Mark Tushnet, Sunstein himself -- would appear much farther to the left than Michael McConnell is to the right. So they'd never be nominated in the first place.
(One can only imagine how Sunstein's jeremiad would read if Reagan and Bush 41 had been more consistently effective in their High Court nominations -- for example, Bork instead of O'Connor, Ralph Winter for the seat that ultimately went to Anthony Kennedy, and Edith Jones instead of Souter.)
How many angels can dance on a pinhead?
Infinite. (countable)
By the time the Democrats got back to the White House in 1993, the electorate had shifted significantly to the right ..
And you know this how? Just because Ray-gun was elected doesn't mean the electorate shifted to the right. Did it shift to the right when the Decider was elected the first time? Has it shifted to the right in the 6 1/2 years of the Decider's presidency?
As many as want to. Kind of like bloggers.
Really? The public today has moved rightward on abortion rights and homosexuality since 1980?
On homosexuality, no. On abortion, yes; the percentage of Americans believing abortion should be either "totally illegal" or "illegal in all but cases of rape, incest, and saving the mother's life" has increased significantly since 1980.
On environmental and business regulation?
Certainly on business regulation. On environmental matters no.
Campaign finance reform?
I wasn't aware that campaign finance reform was either "left" OR "right". Historically the left and the right have just favored different *kinds* of "reform" (specifically, whichever kind screws the other side the most).
Really? You lived in a very different 1980 than I did.
You left out crime, education, taxation, poverty, and labor unions. The public has moved rightward on all of those issues.
The big "leftward" movements have been on gay rights, the environment, and socialized medicine. In just about every other area the left has lost ground with the public over the last few decades.
I'd agree with Dan's summary and that seems to follow my own views (disclosure: I'm gay).
Could it also have something to do with being generally more prosperous?
Probably a reflection of my age, but I find it hard to believe that anyone could seriously disagree that Souter, Ginsberg, Breyer and Stevens are very liberal justices.
I agree with anony-mouse, above.
Let me beat that drum a little harder. The current court IS quite a bit more left than the 'traditional' court, taken in the entire history of the USA. Just because the court agrees with many of the liberal litany that you listed, Megan, doesn't make them anywhere near the right.
Please dispense with this wooly-headed thinkin' and communicatin'
Not to rain on anyone's parade here, but does anyone here see a reason why the judgment of law professors might be highly relevant to the question about the Supreme Court? I think it's generally bad practice to discount the opinions of people who know something about the subject just because they disagree with the public.
This is apparently a recycle of his recent NYRB article. In the NYRB he talks of this horrible "phalanx" of right-wing justices marching ahead. Ann Althouse thoughtfully pointed out that this phalanx is four justices that can only get their way if Justice Kennedy is in the mood to go along.
Uh, that was Dworkin, not Sunstein. Dworkin is considerably less moderate than Sunstein.
What Sunstein ignores is the role of stare decisis, which all justices except Thomas respect greatly, and even Thomas respects most of the time. What that means is that for the most part the liberal decisions of the Warren and Burger courts are the baseline for the decisions of the Rehnquist and Roberts court. Would a case like Bong Hits 4 Jesus have come out the same way in 1980? Probably not -- but that just means the court isn't moving farther towards liberalism in its decisions; it doesn't mean the court is moving conservatively. All the criminal rights/right to privacy/free speech/etc. decisions are being sustained with the new court. They're just not being extended.
Sunstein is perfectly right. Conservative presidents have been intensely focused on selecting judges out of a pool of only the very most conservative people in the legal pool. These appointments have faced almost no resistance on ideological grounds from Democrats in Congress. Meanwhile, President Clinton was cowed into picking largely centrist figures; had he pursued a strategy of picking the most liberal people in the legal world, he would have faced a wall of GOP Congressional resistance against "judicial activism". There is no counterpart on the liberal side to the decades-long conservative strategy of deliberately shifting the judiciary dramatically to the right. There is no liberal counterpart to the Federalist Society. There is no liberal buzzword to counterbalance "judicial activism" as an umbrella term for delegitimizing judges appointed by the other side's presidents. There is no liberal counterpart to the periodic GOP efforts to call into question the very legitimacy of the judiciary, when it issues decisions conflicting with GOP political aims.
Today's Supreme Court consists of a conservative wing and a moderate wing. There is no liberal wing.
There are far more conservative federal judges. More importantly, the conservative justices represent mainstream conservative views. That may be right of Pinochet to you, but not to the electorate as a whole.
Justice Bork would disagree, as would Justice Thomas with three fewer votes. I also recall Alito facing substantial resistance on ideological grounds, but that was a long time ago and I may be misremembering.
Is there any evidence of this? I will admit that Clinton may have been more courteous in his dealings with the minority party in Congress, but with 56 Senate seats and an 83-seat margin in the House, are you seriously suggesting that Clinton was more "cowed" than Bush was in 2005 and 2006?
There is the Warren Court, which vastly increased the Supreme Court's power in an unprecedented manner, as best explained by a notorious right-wing nutjob. Conservative judicial philosophy over the past several decades is mostly a response to that.
No, except for the occasional article like this.
So if we accept your argument, the courts have moved sharply rightward, to the extreme right of the American people, because of a cunning plan of the Republicans that has gone unnoticed or unchallenged by the Democrats and the American people because they are stupid or cowardly, aided by the right wing noise machine of the media. Why go with the simple explanation that the courts reflect trends in American political views when we have the classic they're evil, we're cowards, and everyone else is dumb explanation? Because the former means that a lot of people legitimately disagree with you?
as would Justice Thomas with three fewer votes.
Resistance to Thomas was not on ideological grounds, though it should have been -- that, and low performance reviews.
are you seriously suggesting that Clinton was more "cowed" than Bush was in 2005 and 2006?
Yes, that is exactly what I am suggesting. GOP tactics of total resistance on ideological grounds cowed Clinton even though he had a majority in Congress. The Democrats have never offered similar resistance and have thus failed to deter GOP presidents.
There is the Warren Court, which vastly increased the Supreme Court's power in an unprecedented manner
Candidates for the Warren court, selected by Truman, Eisenhower, Kennedy and LBJ, were not picked from the most liberal segment of the political spectrum as part of a deliberate political strategy. There was no such thing as a "movement liberal" in the 40s, 50s and 60s.
the courts have moved sharply rightward, to the extreme right of the American people, because of a cunning plan of the Republicans that has gone unnoticed or unchallenged by the Democrats and the American people because they are stupid or cowardly, aided by the right wing noise machine of the media.
Yes. You are beginning to get it.
You left out crime, education, taxation, poverty, and labor unions. The public has moved rightward on all of those issues.
Although the public may have shifted to the right on some issues, actual government policy has shifted WAY to the right on a lot of issues, so that many people who wanted things to move right in 1980 might want things to move left in 2007, even if they themselves moved slightly to the right. That's especially true with regulatory and taxation issues.
I mean, I was Republican in the 80s. I'd never think of being one now.
Actually, on education I have no idea what you mean. The Right's position has shifted from eliminating the Edu Department to NCLB. That's one issue where both policy and the public have shifted left, and will probably continue to move even further.
And with campaign finance reform, law professors who equate money with speech are probably closer to McArdle than they are to the public, who show pretty clear support for increased regulation here.
Sunstein is totally right here--there's no liberal equivalent of Scalia and Thomas on the bench, and no reason to think that Scalia and Thomas are more acceptable to the mainstream than their liberal equivalents would be.
Sunstein makes an interesting point about the change of the political dynamics over time relative to perceived norms. He uses 1980 as a benchmark for obvious reasons - its the year he clerked at the court and had the most intimate relationship with it. You, on the other hand, have no point.
I was starting to actually read this blog for something other than a laugh, as your posts have generally improved since your unfortunate start. But today you have a pair of almost indefensible posts. What gives?
I don't know about the courts, or professors, or the really smart people however a few years ago when I began questioning 'just a clump of cells' I was motivated to question all other words offered by the narrative. For the good of people I'm suppose to believe it's 'just a clump of cells' however science is telling me otherwise.
When I was younger I simply accepted 'just a clump of cells' however from that experience, now that I am in my elder years, I must question what is 'same-sex union between a man and a woman'; do these words strike anyone as irrational?
I suppose what I am attempting to say is that I have no idea how the legal profession manages to write laws based on meaningless words or how educators can teach subjects based upon words that have no meaning.
What bothers me most is the emotional blackmail used whneever anyone questions what the meaning of 'is' is.
The one thing that has not changed over the period being discussed above is the United States Constitution, though it is sometimes difficult to tell from the way its meaning is being distorted.
We may have justices today who are less sensitive to "emanations and penumbras" than in the past; but, we also have justices who are more sensitive to international law and the laws of other nations than in the past.
However, we also have justices who seem incapable of understanding simple phrases, such as: "Congress shall make no law..."; but, we also have congresspersons who share this problem.
The founders provided very explicit requirements for the amendment of the document they created. We ignore those requirements at great peril to our Constitution and our liberty.
A core truth in Sunstein's piece is this: Marshall and Brennan were very, very liberal (radical) relative to the population at large. Today, there are no justices who fit this mold.
There are, however, two justices who are very, very conservative (reactionary) relative to the population at large: Scalia and Thomas.
Which is to say, there is a hard-core conservative wing of this court and no hard-core liberal wing. That's true regardless of whether the court does or does not line up with a bunch of liberal law professors.
Well, The Pogues ARE better than any of the noise out there now...
"Legal scholars and jurists of various political stripes have argued that the Roe decision was badly-structured, and that overturning it would be a matter of good jurisprudence and sound constitutional law, apart from any political sentiments they or others might wish to attach."
This is an important point- Sunstein and leftists in general view the court through the prism of how they enforce their political beliefs, either right or left. Thats the sand he built this castle on.
The idea that that conservative philosophy is for the court to adhere to the laws as written, and not to a preferred political outcome, tellingly never seemed to occur to him.
Roberts, Alito, Thomas, and Scalia are a Murderer's Row of ultra-right wing crazies. We're one wingnut away from having a Supreme Court which would probably back indentured servitude for debtors. A toad like Alito would pop his eyeballs out of his head and swallow them before he'd vote against corporate interests.
There isn't a single Republican running who wouldn't nominate exactly that kind of wingnut, either.
My "libertarian analytical approach" thanks kwyjibo makes me want to have Alito over to dinner to find out just what makes him tick. I think I'd find him much less objectionable than most of the writing here suggests. There's no doubt that his voting pattern is much different from mine, but as a justice I'm more interested in what part of the Constitution he'd amend if he could and how the courts might prompt the legislative branch to start taking some responsibility for legislating instead of allowing the courts to do it for them.
The idea that that conservative philosophy is for the court to adhere to the laws as written, and not to a preferred political outcome, tellingly never seemed to occur to him.
That idea never seems to occur to conservatives, either; see "Bush v. Gore". Nor does the idea that the notion of "interpreting the Constitution as it was written" is pretty much gibberish, as has been explained over and over again for the past decade by legal scholars much smarter than I am, in about a zillion forums. The Supreme Court is capable of deciding, in one decade, that the idea that the Constitution protects one's right to same-sex sexual relations is "facetious"; and, two decades later, that in fact same-sex sexual relations are constitutionally protected. In fact, in today's political climate, the consensus is that it would be really strange to believe that the Constitution would allow a state to criminalize sodomy. So, which position is the "strict constructionist" one? The one that a conservative justice articulated in the late '80s, or the one that a conservative justice articulated a couple of years ago?
The very idea that the Supreme Court is empowered to rule on whether or not a law is constitutional...is not in the Constitution! Chief Justice John Jay made it up. Bad law, that Marbury v. Madison! Not strict constructionist! Here's betting the current court doesn't overturn it, though, and for good reason.
brooksfoe,
No reading of the Constitution can be used to support the idea that homosexual relations are constitutionally protected. Yes, the court has been incoherent on this issue in the last 20 years, but the decision in the 1980s was the correct one. If you want it protected so, then you must pass an amendment. The strict constructionists and original intent purists are on much more solid legal ground than those who wish to find rights in penumbras and emanations. The problem with expanisive interpretation is that it is based on no principle other than the desires of whoever holds power at the moment on the court.
Ginsberg is not moderate by any rational definition. I agree with Sunstein that she is not yet a "great liberal visionary", but she has one out of three (liberal) locked down. I am frequently affirmatively horrified by her decisions on the controversial issues, all of which seem completely untethered from any notion that law might be predictable, or that it be related to the actual words written in the statutes or constitution.
The Court was still "liberal" in 1980. I remember well because I was in law school at the time, taking Con Law, and hearing speakers such as Woodward & Bernstein come and talk about their new book, "The Brethren." If thinking in statistical terms, Rehnquist was the only outlier on the court, i.e., he was further from the mean than any of the others.
And Brooksfoe, the Bush v. Gore case was decided 7-2, not 5-4, so you can't use that decision to claim that conservatives always vote for the preferred political outcome. The only 5-4 part of the decision was what to do about the consititutional violation, but 7 justices agreed that there was a constitutional violation. And I read the case, from start to finish, and I didn't perceive that political party considerations entered into any of the judges' opinions. Political "philosophy", sure, but judges can't help that. In fact, that's why it's important to elect a president who will be able to get people of a certain philosophy on the court. I think that there is now a healthy mix on the court, and all viewpoints will be heard and considered.
I would propose that the fact that Republicans are constantly invoking the Reagan years as a Great Conservative Moment legitimizes referencing 1980 (or any other Reagan year, for that matter) as "some sort of lodestar" of a conservative court.
Uh, how many justices do you figure Reagan nominated to the court by 1980, considering that he was sworn in on Jan 20, 1981?
Kwyjibo, I absolutely disagree with your statement, "There are far more conservative judges." What do you base that statement upon? Have you polled the judges to a sufficient degree that you can make that statement, with such assurance and absolutism?
I'm sorry, but that arch-Conservative Reagan sure did put in a lot of 'conservative' judges that have moved a number of court rulings veering way to the Left.
Also, for b-foe to say there is no liberal wing in the court is laughable. If I were to discount Ginsburg, Souter, Breyer, and until recently O'Connor, then I MIGHT give him the time of day on that assertion.
"A toad like Alito would pop his eyeballs out of his head and swallow them before he'd vote against corporate interests."
How do you know? We could look at the voting lineup on a corporate interests case like Kelo v. City of New London--and guess what? O'Connor, Rehnquist, Scalia, and Thomas (all Republican appointees, and three of whom you would call wingnuts) voted AGAINST corporate interests. Who voted for the right of a city to take private land to give it to a corporation? Stevens, Kennedy, Souter, Ginsburg, and Breyer--the left end of the bench.
You might want to work on using empirical evidence, not just ranting and raving.
Yes -- Kelo seems the most egregious "big guy against the little guy" case in recent history -- and there the court's left was on the side of the corporate interest against, you know, normal folks in their homes.
Stevens "to the right" or "moderate?" Regardless of what he may have been in 1980, no way ON EARTH that's true now.
Ginsburg "moderate?"
This guy is insane.
"Probably a reflection of my age, but I find it hard to believe that anyone could seriously disagree that Souter, Ginsberg, Breyer and Stevens are very liberal justices."
Ginsberg and Souter are conservatives. Breyer and Stevens are moderates. Obviously, the label depends on one's definitions.
Ginsberg, over her career, in split decisions sides with Republican appointees more often than with Democratic ones. She was chosen specifically because she was recommended by a Republican Senator. Perhaps Republicans are more liberal than Democrats.
The court has marched to the right faster than the American people. Republican presidents nominated 7 of the 9 justices, but certainly haven't received 77% of the people's votes recently. Republicans have risked nominating more extreme judges than Democrats when the opportunity presented itself. Neither Democratic nominee was opposed at a time when the Republicans in the Senate were ardently opposing most of Clinton's plans.
It is illogical to think the court reflects American thought. It reflects snapshots of power when Justices retired. That may, coincidentally, align with public feelings, but in this case does not. The court is significantly to the right of the people. It is significantly to the right of its past self.
this is really silly, because it assumes there's some correct place for the court to sit on the left/right scale (akin to assuming there's some preferable earth temperature to defend). the court has moved leftward at times, rightward at others. you can just as easily frame today's court as a correction of the lefty excesses of the 60s/70s as a rightward turn.
all sunstein is saying is that the court has yet again shifted its political orientation, and he doesn't like that shift. tell us something we didn't know/couldn't have guessed.
I must strongly disagree, that is *not* how a rotary dial phone works. The linked wikipedia article gets it right, though. Other than that, it's a great article.
Njorl,
You can't use voting together as any measure of whether a justice is liberal, moderate, or conservative. The only true measure is obtained by looking at the underlying issue, and even then, looking at the settled case law. Just because a liberal justice follows settled case law which favors the "conservative" position, that doesn't make the justice a conservative justice.
And I'm not at all sure that people aren't arguing the wrong definition here--to me (and most legal scholars I have read) a liberal justice is one who is willing to disregard the settled law to bring about a desired result, while a conservative justice is one who is not willing to disregard the settled law just to bring about his (or her) "desired" result.
Note that this definition is irrespective of whether the justice happens to be a political liberal, political moderate, or political conservative.
TMoC writes: "Yes -- Kelo seems the most egregious "big guy against the little guy" case in recent history -- and there the court's left was on the side of the corporate interest against, you know, normal folks in their homes."
Or you could say that the "court's left" took the side of a rather poor city. The corporations involved were going to be fine either way - they'd just take their business elsewhere.
In any event the taking of private property by eminent domain is about as established as law can get. If people want to abandon it, they can always look to the legislature in order to do so. (And after Kelo moves were made to do just that.)
Under Kelo property could just as easily be taken from one corporation to be "given" to another, if that makes you feel better.
Wile E. Coyote quotes and writes: ""A toad like Alito would pop his eyeballs out of his head and swallow them before he'd vote against corporate interests."
How do you know? We could look at the voting lineup on a corporate interests case like Kelo v. City of New London--and guess what? O'Connor, Rehnquist, Scalia, and Thomas (all Republican appointees, and three of whom you would call wingnuts) voted AGAINST corporate interests. Who voted for the right of a city to take private land to give it to a corporation? Stevens, Kennedy, Souter, Ginsburg, and Breyer--the left end of the bench.
You might want to work on using empirical evidence, not just ranting and raving."
You might want to explain what any of that has to do with Alito, who wasn't on the Court when Kelo was decided.
What makes you think Kennedy was on the "left end" of the bench and O'Connor wasn't, by the way? Or are you just ranting and raving?
If you want it protected so, then you must pass an amendment. The strict constructionists and original intent purists are on much more solid legal ground than those who wish to find rights in penumbras and emanations.
Except that pesky 9th Amendment keeps cropping up with its rights unenumerated, and then there's that 14th that says all of the rights granted by the federal constitution must be upheld in the states. Neither of which states outright "who you choose to sleep with is your own business" but which certainly leaves the question of privacy open to discussion. Then you scan through the Bill of Rights as a package and you note that of the first 10 amendments five or six of them all hinge on an unstated but obvious "right to be left alone." So it's really not an intellectual leap to get to "maybe that right to be left alone in the bedroom is one of those rights unenumerated there in #9, and #14 says Texas has to respect that, so will you look at that! Right to privacy."
But you keep pretending that the "strict constructionist" line of reading that you've been spoon-fed like an autistic toad is the only rational reading. I'm sure it makes your world easier to live in for simplicity's sake.
What is it about "retained" that always gives people so much trouble?
At least you believe your rights come from 9 and not 14, a choice the Supreme Court couldn't be bothered to make.
Hey, if Justice Stevens can say he is "pretty darn conservative" with a straight face, shouldn't Sunstein admit that being thought of as conservative is something even the most liberal Justices aspire to?
Seriously: why on earth would the definition of a "conservative" court in 1980 be some sort of lodestar by which all future courts should be judged
I thought it was rather clear that Sunstein picked that date because it's when he clerked there. To borrow a snarky comment from later on in your tirade, "It seems stupid to have to point this out".
What is it about "retained" that always gives people so much trouble?
Uh, what? All rights, enumerated or not, are retained by the people. People have rights. That's what rights are. States don't have rights. Feds don't have rights. Corporations don't have rights. Etc, et al. People have rights, even rights no explicitly enumerated in the partial list in the Constitution.
Which is why people have a right to privacy even if it's not "strictly" spelled out in the document.
> Which is why people have a right to privacy even if it's not "strictly" spelled out in the document.
Do people have rights that are '"strictly" spelled out in the document'?
Did they have a right to privacy when other rights were enumerated in 1791? You can't retain something that you don't have.
Sam,
Being mostly a libertarian, I would be perfectly comfortable politically with an expansive reading of the constitution to keep the government out of a lot of areas that it intrudes on today. However, the intent of the writers of the 9th and the 14th amendments would not have encompassed something like freedom to participate in any kind of sexual relations one wishes. The problem with basing civil rights on expansive, new interpretations of what amendment writers and ratifiers wrote is that these new interpretations need not be in the freedom enhancing direction you or I might wish, and, in those cases, I am left with no principled recourse for argument- I have already conceded that the explicit language and the intent of the writers of the constitution need not direct the interpretation.
For example, the right to be left alone encompasses a lot of territory on which different factions are going to disagree. Even worse, what is defined by "left alone" is also up for interpretation, left open to interpretations that you and I may not agree with in all circumstances. This is why it is so dangerous to rely on judicial expansions of constitutional rights- it takes much out of the realm of compromise. For example, what if a future court were to expansively interpret the constitution such that fetuses have a right to life? Judicial power of interpretation is a double-edged sword.
Did they have a right to privacy when other rights were enumerated in 1791?
Yep. Not enumerated, but guaranteed by the ninth, placed there specifically to say "this list is not complete. Don't mistake these 10 as the only things we're talking about." I forget which Federalist Paper that was, but it's there.
Yancy,
The intent of the writers of the 9th was to explicitly state that the list of ten guarantees in the Bill of Rights was not exclusive. I'll look for the Federalist Paper that documents the debate over whether to put the BoR in at all. The argument against was "if we list a Bill of Rights future generations will think this is all we're protecting and that's not right." So the ninth was put in to state "guys, just because we don't list it doesn't mean it's not protected."
The intent of the writers of the 14th was to explicitly demand of the states the same guarantee of rights provided by the federal government, specifically as regarded the rights of former slaves but not necessarily limited thereto.
The writers in both cases knew that such explicit protection of _the right to be free_ rather than simply protecting freedoms enumerated at the time would be open to expansion. It was assumed, I'd argue, that the freedoms would expand. Surely future generations wouldn't be so closed minded and unthoughtful as to take their words as holy writ. Surely posterity wouldn't become so kowed and callow as that.
You require to much hand holding if you think "the intent of the writers", acquired by some mystical seance driven mind reading or something, has to define every reading of the text. Jefferson and Adams knew better than to think as much.
As for your reference to abortion, if science can determine that a fetus has enough cognition to claim natural rights then the rights of a fetus should be considered. I have yet to see any evidence that there is signficant pre-natal cognition to begin to sacrifice the real rights of real people for the potential rights of possible people. If science changes that determination then I will readdress that question.
Oh. My. God. Using "crazy" touch tone phones to "fax your friends"?
How many martinis did you have before writing this entry, Milady?
a) Touch tone phones were available en masse in 1980
b) nobody "faxes" anything with a touch tone phone. Touch tone phones do not have fax capabilies. Never did. How high are you?
Friends don't let friends blog drunk. So please, for the love of Pete, stop it already.
And before we get lost on a tangent, please recall that my original point was that "strict constructionism" is hardly the only rational and reasonable method of interpreting the Constitution. It is popular amoung self-styled conservatives to present constructionism and original intent as the only valid method of addressing the document but that is simply a rhetorical device used to cut off any potential reading that doesn't support their ideological ends.
I'm aware of the background of the Ninth Amendment. You did not answer my question of whether there was a right to privacy in 1791. If so, did it include contraception and abortion? If not, is the Ninth Amendment itself a source of positive rights?
Mike T - Which explains why this would be of interest to Sunstein. But not to the rest of us.
What Zarba said.
And my father still has a damn rotary phone. Along with his black and white tv.
I think Sunstein's reasoning and analysis is very appropriate. He is looking at the individuals who comprise the court and the way in which they reason and apply the tools of judicial decisionmaking.
At the present time, we have four result-driven right wing ideologues on the court. In past years appointees with conservative values and outlook, like Souter, Kennedy or Blackmun, could find themselves, through application of principles and reasoning, landing on the more "liberal" side of an issue, or could even change their outlook over time, like a Brennan. You could have very conservative died-in-wool republicans like O'Conner or White or Potter Stewart taking positions which are now thought of as liberal.
The right wing fundies now want to appoint people with closed minds, and take any sign of flexibility as an immediate disqualifier. So these right wing appointees aren't like conservative justices of the past. They have for the most part abandoned the whole enterprise.
And finally, a word about Kelo. The right did not side against the corporation: it sided in favor of private property rights and against the government's taking power. The fact that a corporation was served by the city's decision in that case is irrelevant. So that sure as heck is not a decision where the allignment of the justices was surprising.
Now, there will always be some cases that are surprising in their allignment. By now that we have such result oriented justice, they will be few and far between.
I already answered the question re: privacy in 1791. Yes, that human right existed then too.
Yancey said:
No reading of the Constitution can be used to support the idea that homosexual relations are constitutionally protected. Yes, the court has been incoherent on this issue in the last 20 years, but the decision in the 1980s was the correct one.
Well, at least one reading can -- Lawrence v. Texas, currently the law of the land. "The intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment's due process protections."
At least Kennedy knew where he was finding his rights! He might have just said he had no idea and cited inconsistent propositions, as so:
By what measure has "the average American" "shifted right?"
I don't believe that at all. Maybe the "voting American" has shifted right, but he seemed to shift hard left last November.
"any reasonably democratic system is going to produce a Supreme Court whose mean opinion hews more closely to that of the voters than to that of any larger group from which the appointees are drawn."
Resolved: that the American democratic system has become less "reasonably democratic" over the past 27 years. It has, through a combination of complacency, ignorance, and distraction been subject to corruption and manipulation by cynical and powerful special interests, to the point where it increasingly has become a self-perpetuating oligarchy of the wealthy (or outright plutocracy).
Let's count how many national-level politicans are NOT millionaires, in fact millionaires many times over.
"However, the intent of the writers of the 9th and the 14th amendments would not have encompassed something like freedom to participate in any kind of sexual relations one wishes."
That's some pretty deft mind-reading there, Yancey.
In any case, nothing in the Constitution PROHIBITS any kind of sexual relations one wishes, either. The Constitution is pretty silent on the whole subject of sex, in fact. Kind of like that was something that wasn't germane to delineating the structure and processes of government.
You've got it right, Bob, which is why they invented the Tenth Amendment:
"any reasonably democratic system is going to produce a Supreme Court whose mean opinion hews more closely to that of the voters than to that of any larger group from which the appointees are drawn."
Perhaps, but how long does it take? At least decades.
Here are the political cycles:
House of Representatives--2 years. Arguably the closest in touch with the voters at the local level, but not necessarily close to the mean at the national level.
Senators--6 years. Much more out of touch both at the local level and at the national level.
President--4 years. Perhaps the closest to the national mean, because of existing only at the national level and not at the local level.
Supreme Court--historically, one or two changes every decade? A much longer cycle, and one which lags all the other cycles.
They are all part of the balance of power. When the Supreme Court in the 20's and 30's read the commerce clause to mean, well, commerce, and thwarted the Congress and President, FDR came up with his court packing scheme, and the Supreme Court reversed its direction. The point here is how long it took (but it did take).
So just why does one think that the first sentence quoted above should be or would be true? By the time the Supreme Court changes, the mean of the populace has already probably changed again--sort of like trying to hit a moving target.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people.
And sometimes the States infringe basic human rights protected by the USC, which is why they invented the 14th. Really, the 14th does actually apply. And combined with the 9th the 14th pretty much tells the various States that if it's not requisite to running the government they can bloody well sod off. The inherit rights of the people rule the day. Sorry if that means you have to swallow your irrational emotional disgust for gay sex.
My moral and emotional disgust with gay sex is hardly irrational, particularly in this day of HIV/AIDS. Your emotional fascination with it may well be, however. Fortunately for me, that is your problem.
If two lesbians wish to participate in a "vagina dialog", so be it. If two gays wish to participate in a "skin flute duet", so be it. If you expect me to accept your behavior as "normal", you will be disappointed; your behavior is 2 standard deviations (pun intended) from the norm, no matter how loudly you whine. If the state wishes to recognize your long term, loving relationship as a civil union, so be it. If, instead, it wishes to recognize it as a "marriage", I have a problem, because it is not. If you wish to teach children that your behavior is "normal", I have a problem, because it is not.
I do not believe that most people in the US really care what you do in private. Many of us become upset when you insist on shoving your life style in our faces and demanding that we accept and honor it. Also, in that case, our response is not "homophobia"; our response is "homo-revulsion".
Ed writes: "If two lesbians wish to participate in a "vagina dialog", so be it. If two gays wish to participate in a "skin flute duet", so be it. If you expect me to accept your behavior as "normal", you will be disappointed; your behavior is 2 standard deviations (pun intended) from the norm, no matter how loudly you whine."
I wonder if Ed ever asks Mrs. Ed to perform a "skin flute solo" or if he ever does a "vagina monologue."
Probably not.
Ed...who is it who is "fascinated" by the image of gay sex here? I'd strongly contend it was the guy who introduced the term "vagina dialogue" into the conversation, which had previously concerned constitutional issues.
Deep is the ocean? Person, it's from High Tide Mark to the Mariana Trench (excess of 35,000 feet).
Useful atmosphere might better define sky. For human breathability is an interesting marker. Above 10,000, depending on the person, the beginning of hypoxia can be shown, but most people are pretty good for a while afterwards. If you're an altitude junky already that is already climatized to something greater than sea level, that level increases somewhat - again it's very individual oriented.
50% of the atmosphere (estimated total # of molecules) is right at 18,000 feet, so, for humans, living above that requires incredibly efficient cardio-pulmonary systems.
brooksfoe, and all this time I thought that term was the secret way women talked to each other without their lips moving...my mistake.
Another crazy idea for Ed to think about. It is possible for people who are not gay to understand that the human rights of gay people are actually guaranteed by the Constitution as well. Weird concept, I know.
Sam,
Yes, it is. Which of your human rights have been denied, or violated? You are still alive, I presume your are still at liberty and in the pursuit of your happiness.
Think hard, Ed. If we assume your shorthand for human rights is adequate, that the entire sphere of human rights can be summed up as "life, liberty and the pursuit of happiness" and that we don't need to explicate that text with any detail, then consider the life of a gay man denied by his government the right to love as he so desires (Texas, and a lot of other states before Lawrence.)
He has life. But his liberty is severely constrained. The state is making a claim to modify his most personal and private behavior - how he professes his love to another, either emotionally or physically. So constrained it is virtually impossible to say he is capable of "pursuing happiness." His happiness is negated by state law.
Telling gay men and women they can't be themselves in public is like telling breeders "you're free to do whatever you want in private, but don't advertise your deviant lifestyles be dragging those mauling procreant monsters of yours out into public."
Sam,
Allow me to repeat my question to you. Which of your human rights have been denied, or violated? To the best of my knowledge, public shows of affection between people of the same sex are not a human right; they are also not illegal. Shoving your homosexuality in the face of strangers in public is not a human right. Insisting that abnormal behavior be taught to children as "normal" is not a human right. Acceptance of a homosexual relationship as the equivalent of a heterosexual relationship is not a human right. Renaming a homosexual relationship with the name of a heterosexual relationship is not a human right. You may well believe some of these things ought to be human rights, but that does not make it so.
Ed, your emotional, irrational response notwithstanding, there's nothing abnormal about men and women loving each other as they were born -- literally, genetically -- to do. You're a bigot. I'm okay with that. You don't get to institutionalize your bigotry in the government. That's a no-go.
See how easy that is?
It seems she missed something here:
"It seems stupid to have to point this out, but on a number of issues the public has moved rather rightward over the past generation. Naturally, the court has moved rightward too. It is not demonstrably out of step with the public on "liberal" questions like homosexuality, abortion, affirmative action, various sorts of environmental and business regulation, civil rights, campaign finance, separation of church and state, and so forth. If anything, the court is still to the left of the public on these matters."
Hasn't public opinion on all these matters gotten more liberal over the years? I mean, what the hell was the "Gay 90s" all about?
All this commentary re the judiciary - at all levels - is a crackup. The judiciary is and always has been just an institution which socially mandates the personal opinion of the majority of its members in a given 'court', even in, especially in, the (apparently relatively few) cases where the body of law applicable to the case is explicit and unambiguous, and the 'judges' choose to ignore it as so often happens.
This 'court', 'interpretation of law' fiction should be dispensed with and the obvious reality be made explicit and clear. 'Court' decisions comprise personal opinion, however formed. It's nothing but commonsensically true, indeed it can't ultimately be any other way. Judges are politicians, always have been. And as long as courts are required as a means of settling disputes so as to desperately try to keep people from cutting each others throats over arguments of one kind and another, it would sure be nice if a few judges were God Fearing and had a little character. Lawyers, the class from whom (irrationally) judges are drawn seem woefully inadequate to the task.
Less (corrupt) law, more Morality would solve the problem. But I can't see many lawyers approving a concept as radical as that.