the Cucking Stool: Evolution is real

Regrettably, so is devolution. Pictured here is the new chief justice of the U.S. Supreme Court, John Roberts. Spot thinks that he is typing up the opinion in Parents Involved v. Seattle School District, the case decided last week that effectively overturned Brown v. Board of Education.

Oh, Spotty, isn't that Scalia, or maybe Alito? Or maybe even Thomas?

Actually grasshopper, it's none of them. It's just a picture that Spot found in a blog post somewhere about the 2006 movie Idiocracy. But it illustrates the point very well.

We are just beginning to see the effects of the appointment of that well-groomed young fellow to be our new chief justice. Much better court watchers than Spot have tried to quantify the carnage, and Spot will defer to some of them.

First, here's a couple of quotations from Spot's favorite law blog, Balkinzation. Spot knows that Balkinization, which is penned by a bunch of constitutional law professors, can be a tough go, boys and girls, but it's always worth it. First, Marty Lederman:

Of course, a large part of this decided trend [of conservatism] can be explained by Justice Alito replacing Justice O'Connor. At the time of her resignation, I identified 31 5-4 decisions in her final decade on the Court that could very well be overturned by a Court with a more conservative Justice replacing her. (That list can be found here. ) So far, only two of those precedents have been (de facto) overruled -- but they're big ones: Carhart and the BCRA title II section of McConnell. And although Grutter [a case decided in a somewhat more Brown-friendly way] was not overruled, its impact was severely compromised in the integration cases on Thursday. That's already three of the five major areas (abortion, affirmative action, campaign finance) I identified as the most significant doctrinal areas subject to dramatic shifts; the other two are the Establishment Clause and Congress's remedial powers under the Civil War Amendments. (The Court hasn't yet considered any cases in which O'Connor precedents such as Mitchell v. Helms and Tennessee v. Lane might be vulnerable.)

But the Chief Justice's contribution should not be underestimated. As Emily Bazelon explains in this terrific post, many self-styled liberals and moderates expressed some optimism a year or two ago that John Roberts would not be a predictable conservative vote -- as Jeff Rosen described it, that Roberts viewed himself as a consensus-builder seeking to find common ground among the Justices (as in the Solomon Amendment decision in his first Term), discouraging splintered opinions and endeavoring to avoid the impression that the Court's decisions are ideologically driven (and divided). For example, as Media Matters reminds us, the Washington Post endorsed Roberts's confirmation, even though its editorial board expected him to cast some votes they would not approve, because he had "a modest conception of the judicial function [and] a strong belief in the stability of precedent," and because "[w]hile [Roberts] almost certainly won't surprise America with generally liberal rulings, he appears almost as unlikely to willfully use the law to advance his conservative politics."

But if I'm not mistaken, the Chief Justice voted for the more conservative result (by most observers' lights) in 24 out of the 24 cases decided by a 5-4 vote. One might assume that in this respect, he is simply following in the footsteps of his predecessor. Yet occasionally Chief Justice Rehnquist would vote with the more liberal wing of the Court (particularly where he saw that he could not command a majority for the conservative position, as in Hibbs and Dickerson). There are not yet any such examples from the new Chief Justice. I don't think this should surprise anyone who had followed the Chief's career prior to joining the Court. But here's Cass Sunstein, as quoted by Bazelon: "I'm surprised that Roberts has shown no unpredictability at all; in the big cases, he's been so consistent in his conservatism. I thought that he was too careful a lawyer to be so predictable!"

Next, Deborah Hellman from the University of Maryland Law School:

In his plurality opinion in Parents Involved, Justice Roberts closes his opinion with the seeming truism that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” [italics are Spot's] The problem with this claim is that it profits from an important conflation between two different senses of the term “discrimination.” Sometimes to discriminate is simply to draw distinctions among people or things. For example, insurers routinely discriminate between potential insurance customers on the basis of the risk each poses of making a claim against the insurer during the policy period. Other times, we use the term “discrimination” in a critical rather than a descriptive way. For example, laws forbidding blacks from sitting in the front of public buses discriminate (read wrongly discriminate) against African-Americans. When we pay attention to the two senses of the word “discrimination,” we see that Justice Roberts’ claim is far from obvious. The way to stop discrimination (i.e. wrongful discrimination) on the basis of race is to stop discriminating (i.e. drawing distinctions) on the basis of race. Is he right?

This is the kind of bromide that we might expect from Katie! Two wrongs don't make a right! Look before you leap! He who hesitates is lost!

Spotty, aren't those last two contradictory?

Yes, grasshopper, they are, But that is the nature of bromides. One chooses a bromide not because it contains genuine and universal truth, but rather because it provides a shortcut to a point, often unexamined, that a speaker or writer wants to make. Judicial decision making by sloganeering: not a pretty sight. When Katie artlessly pulls a bromide out of the bag it's one thing. It's quite another when the highest judicial officer in the land does it.

Spotty, how did we end up with this clown, this charlatan?

Conservatives panted for him of course, but liberals and moderate, gullible almost to a one, gave him a pass:

All of which is to say [commenting on the court's recent record] that John Roberts is proving to be an extremely conservative chief justice. Which is what President Bush promised his supporters and what Roberts' lower-court record signaled—see in particular the Guantanamo case Hamdan v. Rumsfeld. Roberts may not go in for rhetorical swashbuckling, but he gets the job for the right done. As Adam Cohen put it in the Times last year, Roberts' votes are the product of his "predictable arch-conservatism."
And yet some liberal and moderate lawyers and academics didn't predict this at all. These members of the legal literati urged Roberts' nomination, promising that he would be a model of restraint and principle and modesty. Why did they think that then? And how do their arguments on his behalf look now?

Well, here's what the linked Slate article quotes one of them a saying:

George Washington law professor Jeffrey Rosen knew Roberts too, from an interview he'd conducted in 2002. Before the confirmation hearings, he called "the claim that Roberts would move the Court to the right as chief justice … transparently unconvincing." Rosen even ventured that because Roberts "may turn out to be more concerned about judicial stability and humility" than Rehnquist or then-Justice Sandra Day O'Connor, "he might even move the Court to the left." Rosen has since changed his mind about where the court is going in the Roberts-Alito era: In Time next week, he states the obvious about the past term, "[T]he center of the court has shifted several degrees to the right." In this essay, he chooses not to address his previous position that this would never happen.

Hey Professor, Spot has a bromide for you: If wishes were horses, beggars would ride! Jeffrey Rosen is usually a pretty insightful commentator, but he and a lot of other people, who should have known better, really blew it in assessing Roberts' nomination.

When the Democrats on the Senate Judiciary Committee heard from Roberts during his confirmation hearings, they saw a cherub at the witness table. Really, it was just another right-wing flying monkey.