Category Archives: Courts

A Newly Conservative Court?

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Jess Bravin, writing in The Wall Street Journal, thought so.

When Justice Brett Kavanaugh takes the bench Tuesday, it will mark the culmination of the Republican Party’s 50-year drive to cement a conservative majority on the Supreme Court.

At the least, he argued,

[A] five-justice majority more sensitive to regulatory and litigation costs on business should tip more outcomes toward industry and employers, imposing higher bars for workers, consumers and environmentalists, according to legal experts who have studied the court and Justice Kavanaugh’s jurisprudence. At the same time, the new majority is likely to show more sympathy for social conservatives resisting the encroachment of gay rights and access to contraceptives, as well as greater tolerance for state initiatives to curb the availability of abortion.

Not so much.

Bravin is either naive or excessively optimistic.  Kavanaugh’s confirmation has produced no five-justice majority.  The only Conservatives on the Court are Thomas, Alito, Gorsuch, and Kavanaugh.  Four others form a liberal bloc convinced that the Constitution needs updating in accordance with the climate of the era.

The ninth Justice, Chief Justice John Roberts, is too squishy, too enamored of “perceptions of Court legacy” to be reliably conservative. He’ll find middle ground for the sake of that perception instead of basing rulings on the text of the Constitution or the law in front of the Court.

Roberts’ Court

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Aside from the misnomer of the title, which is implied by the thrust of a piece in Sunday’s Wall Street Journal centered on Brett Kavanaugh’s confirmation and the hoo-raw surrounding that, Chief Justice John Roberts has a problem with the perception of the Supreme Court—according to Brent Kendall and Jess Bravin, the authors of the piece.

“We don’t work as Democrats or Republicans, and I think it’s a very unfortunate perception that the public might get from the confirmation process,” CJ Roberts…2016.

The Court can’t worry about perceptions, though.  It can—should—only rule on what the Constitution or law actually says.

“Every single one of us has an obligation to think about what it is that provides the court with its legitimacy, to think about how we can be not so politically divided as some of the other political institutions in the nation,” Justice Elena Kagan said[.]

No.  What provides the court with its legitimacy is its rulings based on the text of the Constitution or the law. A Justice’s empathy, or the particular wisdom of Latinas, or the concept that a judge should take account of…the climate of an era, have no place on the bench. Nor does an automatic reach for the middle.

The handling of any of those things—and they are important (as are the social climate generally; the wisdom of non-Latinas, also; empathy)—can only be done politically, not judicially.

Partisanship

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Chris Wallace interviewed Senator Ben Cardin (D, MD) on his Fox News Sunday program last Sunday.

Here are some of the claims Cardin made.

The change that Senator McConnell made to the rules on the Supreme Court really caused us to be much more partisan in this[.]

And

I don’t believe that Justice Kavanaugh’s in the mainstream of judicial thought.

And

Kavanaugh’s confirmation puts at risk “the progress we’ve made on health care issues, on women’s Constitutional rights, and on protecting the Mueller investigation.”

Not quite, although this is America, and Cardin is entitled [sic] to his spin.

However.

Filibustering confirmations is by design partisan. Absent overt filibustering—courtesy of Cardin’s erstwhile Leader Harry Reid; McConnell only completed Reid’s program—engaging in character assassination and smear as the preferred means of blocking a confirmation is especially, despicably partisan.

Not mainstream?  In Cardin’s fetid imagination and that of his fellow Progressive-Democrats, “mainstream” is judges with feelz and Latina wisdom. “Mainstream” also is the Constitution meaning whatever a judge thinks it should mean instead of what its text says.  No, Kavanaugh is in the heart of the envelope: the text of the Constitution and of a law is what should be adhered to.

Regarding what Cardin is pleased to call “progress,”—health care issues, women’s Constitutional rights, and protecting the Mueller investigation—these are political matters, not judicial ones.  Cardin and his fellow Progressive-Democrats need to make their case in the political branches and quit hiding behind judges’ robes.  If these politicians are unable to impose their political views on the rest of us, they need to accept that us unwashed masses disagree with them, and move on.

The Supreme Court

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As I write this (Saturday morning), Supreme Court Justice nominee Brett Kavanaugh has not been confirmed; although, that seems more likely than I had thought Friday morning before the cloture vote.  Nevertheless, here’s why we need another textualist Justice on the Court—from the words of another Supreme Court Justice.

Associate Supreme Court Justice Elena Kagan said Friday she fears the high court may lack a justice going forward who would serve as a swing-vote on cases….

And

Kagan said at a conference for women at Princeton University that over the past three decades…there was a figure on the bench “who found the center or people couldn’t predict in that sort of way.”

She made her view explicit:

It’s not so clear, that I think going forward, that sort of middle position—it’s not so clear whether we’ll have it[.]
…
It’s an incredibly important thing for the court to guard is this reputation of being impartial, being neutral and not being simply extension of a terribly polarizing process.

In one respect, it’s shocking that a Supreme Court Justice would have so little understanding of the role of American judges in our nation—in their role at the foundation of our freedom.

What’s polarizing and destructive of the Court’s credibility is its penchant for ruling on the basis of their individual views of what society needs or wants, even to the point of rewriting a law, as Chief Justice Roberts did in order to “save” Obamacare.  Determinations of what society needs and modifications of law are political decisions, that only We the People, through our elected representatives, can make.  That’s clear from our Constitution’s Article I, Section 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Short, sweet, to the point, and not at all susceptible to misunderstanding.

Nor can a judge rule for the sake of achieving what seems to be—to the judge—some sort of “middle ground.”

A judge can only rule on the basis of what a law, or our Constitution, says.

Full stop.

A Response

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Recall Senator Richard Blumenthal’s (D, CT) sly innuendo about Supreme Court Justice nominee Brett Kavanaugh during last Thursday’s (has it been only a week?) Senate Judiciary Committee hearing to receive testimony from Dr Christine Blasey Ford and Judge Kavanaugh:

As a federal judge, you’re aware of the jury instruction falsus in uno, falsus in omnibus [false in one thing, false in everything], are you not? You’re aware of that jury instruction.

Where Blumenthal was being legally pedantic, Victor Davis Hanson has an idea of an entirely appropriate response by Judge Kavanaugh, a broader, literary one, from Horace:

Mutato nomine de te fabula narratur [change only the name, and the story is about you]

Indeed.