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May 19, 2009


"What bothers me is that we pretend otherwise," says Publius. Me too.

The Framers could have specified that Justices of the Supreme Court shall be selected by competitive examination, or by seniority, or by lot. But they explicitly specified a POLITICAL process.

It is ridiculous to pretend, as Republicans were doing back during the Roberts-Alito double header, that the Senate must not ask the nominess "political" questions. For one thing, it's preposterous to imagine they got to BE nominees without answering "political" questions in the first place. Well, almost: I suppose it's just possible that Dubya scrupulously avoided discussing "political" issues when he interviewed them, and stuck to chatting about the weather and golf. Or, since that was the year of Katrina, maybe just golf. But Dubya was ... special.


I confess I did not read all of Toobin's article. Yet, I doubt that Mr. Roberts said "the court should almost always defer to the existing power relationships in society."

It is undoubtedly Toobin's opinion of Roberts which Toobin formed by taking a classist view of the results. Toobin wrote: //In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.//

Toobin seems to suggest that justice can be measured by how evenly the victories are split between prosecution and defendant, between the state and the condemned, between the executive branch and the legislative, and between the corporate defendant and the individual plaintiff. Regard is not given to the details of the case but to the class of the victor.

In such a world we need no judges. We only need a random victor designator.

Publius seems to agree with Toobin.

d'd'd'd, I read the passage you quote as follows:
Cases that get all the way to the supreme court are likely not terribly easy; there is usually at least a somewhat reasonable case to be made on either side, or the Court probably wouldn't be wasting its time. So if you were to find that a justice's decisions consistently came down on the side of a group defined by some variable that shouldn't necessarily assort with whether the side in question was arguing a position more firmly grounded in the Constitution than was the other side - some variable such as the height of the lawyer pleading the case, or the number of letters in their middle name, or the relative power of their client's position in society compared to the opposing side - then you'd have a few options:
(1) It's just random chance.
(2) The legal soundness of each case is in fact linked to the variable you're looking at, they're not independent.
(3) The justice is showing bias on the basis of that variable.

Mind you, that doesn't mean the actual decisions should be made at random, it just means that if the decisions and the variable are linked beyond what's probable by random chance then they must in fact be linked, either impartially so or in the mind of the justice.

In the case of Roberts, the answer is pretty clear: Roberts comes down on the side of the powerful every time. And it's too often to be by chance, so either the powerful just have a better case each time, or Roberts is biased towards defending their interests. This is wholly unsurprising for any of Dubya's judicial cronies; I invite you to read up on the pro-corporate and pro-law-enforcement biases of the Texas Supreme Court, the court that ruled a man whose lawyer slept through his death penalty case had received sufficient representation. Roberts, like others of his ilk, is fundamentally uninterested in arming the individual with the power to defend their interests against the state or against corporations.

I dislike the media as much as the next person, but I don't think they can be accused of not pointing out the fact that Roberts was a conservative, or even that Bush would nominate conservative judges. That was always quite clear.

"It seems, therefore, that both textualists and originalists would favor fairly robust procedural protections. But they don't."

They do. They're not on the Court.

Look, Republican politicians, with the exception of a few like Ron Paul, like the modern Leviathan. They might want it to exercise usurped powers in different ways than Democrats, but the idea of being limited to only those powers with a genuine Constitutional basis leaves them cold.

So originalists and textualists simply don't get nominated to the Supreme court, and rarely to the lower courts. Take Scalia, for instance: He explicitly rejects the originalist label.

You've got a few justices who'll engage in sort of originalist reasoning if the result doesn't offend them, but it's a very fair weathered version of originalism, not the real deal.

Essentially, you can predict a Justice's rulings from their political position, not because it's impossible for a Justice to reason their way to rulings that contradict their politics, but because that's the sort of justices you need, if you're going to run a government enormously more powerful than actually authorized by it's founding document.

Of course it is political, and arguing otherwise is silly.

It's also political in a very specific way, that tracks with partisan definitions of liberal and conservative.

If members of the court's opinions were distributed on the basis even of political or constitutional philosophy, there would be alot more judges who are populist or libertarian. Instead, those members of the court most interested in regulating business are least interested in private behavior, and those least concerned for individual privacy or the rights of the accused are also least interested in regulating business. Those in the middle, fall in the middle of this particular continuum of american style "conservative" and "liberal". Seeing that distribution of opinions on the court rather than a distribution along the libertarian-populist axis is all the proof that's needed that the court's composition reflects the distribution of elected political power at the time of justice's appointments.

Just so we're keeping track, today is one of the days Brett doesn't mind arguing by attributing bad-faith motivations to his political opponents. Tomorrow may be different, but today is today, so just note it on your scorecard.

Phil, did you mean d'd'd'dave? Because I don't see Brett attributing bad-faith motivations to anyone except Republican politicians (who he explicitly mentioned in his comment) and, one might infer, Democratic politicians as well.

I don't think I'd have the slightest clue what was going on, here, if I didn't have Phil interpreting for me. Thanks, Phil!

Yes, I think there's a great deal of bad faith from Republican politicians when they claim to be putting originalists on the bench. Not so much from Democrats, because they're fairly open about not meaning to do that.

I'd say they're all lying their heads off when they recite tha oath of office, though.

Thanks for the response warren.

"In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant,..."

Of course, the exception will occur when he passes judgment on Conrad Black. Multimillionaires who are prosecuted for "defrauding" their shareholders, devising schemes to "evade" taxes need greater judicial protection, which no doubt Roberts will try to provide. "Evade" will be found to be clever avoidance, and "defraud" will be impossible to discern on the facts as Roberts restates them in his opinion. "Honest services" will be found to be an inappropriate standard for capitalists unfairly oppressed by "prosecutorial overexuberance".

"Take Scalia, for instance: He explicitly rejects the originalist label."

"I’m happy to say that we reversed [the case] last term with the votes of the two originalists on the Court."
[Unless he's referring to two *other* originalists, he's talking about himself here].

Perhaps there are arcane differences between textual originalists and original textualists that lead you to such a pronouncement. Or perhaps this is just another case of people who disagree with Brett misreading the Constitution, as only Brett has access to the unadulterated truth of the matter?

"Toobin seems to suggest that justice can be measured by how evenly the victories are split between prosecution and defendant, between the state and the condemned, between the executive branch and the legislative, and between the corporate defendant and the individual plaintiff. Regard is not given to the details of the case but to the class of the victor."

That's the joy of statistical inference. If the cases a judge hears find 75% of white defendents innocent but 75% of black defendants guilty, then you ought to suspect that something is wrong (given adquate sample size). You seriously wouldn't bat an eye at something like that?

You act like you could watch an entire basketball game where the refs only called fouls on one team and then say "whats wrong with that? maybe the individual calls and non-calls were all marginally defensible on their own merits."

The only defenses I can think of for Roberts are sample size, Toobin's subjective "major case" distinction, and perhaps the distinctions between which side truly represents the categories in question.
Which isn't to say that Roberts is violating his oath at all, a more charatable explanation is that his judicial philosophy favors those outcomes & that therefore on a divided court he's likely to find himself on the same side repeatedly. But it's disingenuous to pretend that this philosophy doesn't exist, and that it's happenstance that he finds himself repeatedly finding in favor of eg the state against defendants.

And to add to that, while it would be easy to suggest, for example, that in cases of states versus criminal defendants or convicts, it's not surprising for decisions to be made more often in favor of the state because criminals file a lot of frivolous or groundless suits; in reality, the types of cases that tend to get heard at the Supreme Court are unlikely to be those types of cases, and tend to have a genuine Constitutional issue at heart. And in those cases, Roberts tends to decisions which preserve and increase state power.

(Thomas, too, for that matter, e.g. his infamous opinion in which he stated that beatings of prisoners by prison guards did not violate the 8th Amendment because it wasn't "punishment" as is usually understood.)

Carlton, he seemed pretty clear about it in "A matter of interpretation". I'm relying on memory, of course, my copy is boxed up, since we've been living in a small apartment until we can buy a new house.

He explicitly rejects the originalist label.

This isn't true. He has called himself a "faint-hearted" originalist -- he concedes that in some cases long-standing precedents have to trump original understanding -- but he's also multiple times identified originalism as a superior methodology. (He has rejected the "strict constructionist" label.)

Yes, you've jogged my memory, it was indeed strict construction he's rejected, he's happy enough to be an "originalist" whenever it leads someplace he likes, and not, if it doesn't.

//until we can buy a new house.//
amazing bargains can be had at foreclosure auctions right now.

Yes, but my savings got wiped out last year while I was unemployed, searching for a job. Kind of hard to buy anything, without a downpayment.

One, generally unremarked upon aspect of the Roberts Court is the Catholic bias of its majority. Roberts' deference to the existing structures of the powerful is a habit of mind ingrained by parochial education and reinforced by his study of classics in university, rather than something bred from the Enlightenment, like physics say. With a Catholic majority this bias need not be articulated and is established as the background before any discussion begins. Of course, this deference was the price the Roman Church paid to remain an independent actor, rather than being explicitly subject to the secular authority as in England or Greece. With the Church controlling education in Italy and elsewhere the detente perpetuates. It would be fascinating to read Alito's senior Princeton thesis on the Italian judiciary. It is possible that Obama takes the Catholic majority to six. No matter how progressive, a Catholic pick will have more in common with the Roberts-Scalia-Alito-Thomas-Kennedy axis than he envisages. A Catholic woman might have more intellectual independence, but it will be experiential rather than from legal reasoning. Catholic women have staged their own Enlightenment in the past generation. The American founding documents are premised on individual claims of rights and conscience against Crown and Church. I would prefer Obama picked someone from the West, where frontier organization preserved the individualistic, pragmatic and congregationalist mindset. The O'Connor seat remains unfilled.

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