14/09: Say Again? Celebrity Professor Postulates a Preposterous Framework
Category: Courts
Posted by: A Waco Farmer
Stipulation: Cass Sunstein, the distinguished professor of law from the University of Chicago, is a brilliant legal mind, and I generally appreciate his reasoning even when I disagree with his conclusions.
However, his column this week in the American Prospect,
"The Myth of the Balanced Court,"
is surprising and disturbing for its absolutely fallacious premise.
Sunstein's Assertion (condensed and slightly rearranged):
"The mainstream media promotes a conceptual scheme concerning the current Supreme Court, the Myth of Balance Between Left and Right, which makes it utterly impossible to understand either the Court's current makeup or its recent history."
"The Myth of Balance holds that the Court has a liberal wing (Stevens, Souter, Ginsburg, and Breyer) and a conservative wing (Scalia, Thomas, Roberts, and Alito) with Justice Anthony Kennedy serving as the swing vote, or the moderate."
Not so, says Sunstein. Conservatives have achieved a "stunningly successful" revolution on the Court, which has been so successfully hidden by the shills in the mainstream media "that most people have not even noticed it" (of course, Sunstein is a notable exception).
According to Sunstein, "[Ruth Bader] Ginsburg and [Stephen] Breyer [two so-called liberals] are...far more moderate than those of the great liberal visionaries of the Court's past, such as William O. Douglas and William Brennan." Moreover, in Sunstein's book, David Souter and John Paul Stevens are essentially conservative.
What gives?
Sunstein admits that all this nonsense (my characterization) is filtered through his formative experience of clerking for the Court in 1980 during the William Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist years.
Sunstein: "Believe it or not, this Court was widely thought to be conservative."
Actually, I am incredulous. Who thought that exactly?
FYI: That 1980 Court is essentially the same "conservative" Court (switching Stevens for Douglas) that voted 7-2 in favor of Roe v. Wade.
The slight of hand: he uses the Burger Court, arguably one of the most liberal Courts in the long history of American jurisprudence, as the standard against which the political make-up of all courts must be judged. If that Court was conservative--then by comparison, this Court is far right.
Come now, Professor. Sunstein's entire argument collapses like a house of cards if we choose another famous court as the preferred point of reference.
What if we use the Roger B. Taney court as the standard? The Roberts Court would seem pretty left of center. What if we used the William Howard Taft Court? Or the Court headed by Melville Fuller or Edward O. White. Again, would not the Roberts Court look ultra progressive in comparison?
But, for Professor Sunstein, constitutional history seems to begin with Earl Warren.
His second to last paragraph attempts to give some "balance" to his essay by finally addressing (albeit indirectly) the obvious fallacy:
"Nor am I saying that the liberals of the Court's past were correct in their view of the Court's role. On the contrary, the Court does best if it proceeds cautiously and incrementally, with respect for the elected branches of government. Marshall and Brennan, no less than Scalia and Thomas, tried to use the Constitution to impose a contestable political vision on the nation. For the future, the preferable route was charted by underrated justices such as Felix Frankfurter and Byron White -- excellent lawyers who worked within established categories and were reluctant to strike down acts of elected officials, above all Congress."
But it is too little too late.
Sunstein is a vocal proponent of "incremental change" concerning constitutional interpretation. That is, he views conservatives who want to roll back liberal innovations as radicals; however, he has little contempt for historic liberals who radically altered American jurisprudence. Morevoer, he champions the current liberals (and lauds them as conservatives) because they seek to protect the radical departures of the recent past.
UPDATE: A thoughtful and extensive commentary on Sunstein's essay here from Rightlinx.
However, his column this week in the American Prospect,
"The Myth of the Balanced Court,"
is surprising and disturbing for its absolutely fallacious premise.
Sunstein's Assertion (condensed and slightly rearranged):
"The mainstream media promotes a conceptual scheme concerning the current Supreme Court, the Myth of Balance Between Left and Right, which makes it utterly impossible to understand either the Court's current makeup or its recent history."
"The Myth of Balance holds that the Court has a liberal wing (Stevens, Souter, Ginsburg, and Breyer) and a conservative wing (Scalia, Thomas, Roberts, and Alito) with Justice Anthony Kennedy serving as the swing vote, or the moderate."
Not so, says Sunstein. Conservatives have achieved a "stunningly successful" revolution on the Court, which has been so successfully hidden by the shills in the mainstream media "that most people have not even noticed it" (of course, Sunstein is a notable exception).
According to Sunstein, "[Ruth Bader] Ginsburg and [Stephen] Breyer [two so-called liberals] are...far more moderate than those of the great liberal visionaries of the Court's past, such as William O. Douglas and William Brennan." Moreover, in Sunstein's book, David Souter and John Paul Stevens are essentially conservative.
What gives?
Sunstein admits that all this nonsense (my characterization) is filtered through his formative experience of clerking for the Court in 1980 during the William Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist years.
Sunstein: "Believe it or not, this Court was widely thought to be conservative."
Actually, I am incredulous. Who thought that exactly?
FYI: That 1980 Court is essentially the same "conservative" Court (switching Stevens for Douglas) that voted 7-2 in favor of Roe v. Wade.
The slight of hand: he uses the Burger Court, arguably one of the most liberal Courts in the long history of American jurisprudence, as the standard against which the political make-up of all courts must be judged. If that Court was conservative--then by comparison, this Court is far right.
Come now, Professor. Sunstein's entire argument collapses like a house of cards if we choose another famous court as the preferred point of reference.
What if we use the Roger B. Taney court as the standard? The Roberts Court would seem pretty left of center. What if we used the William Howard Taft Court? Or the Court headed by Melville Fuller or Edward O. White. Again, would not the Roberts Court look ultra progressive in comparison?
But, for Professor Sunstein, constitutional history seems to begin with Earl Warren.
His second to last paragraph attempts to give some "balance" to his essay by finally addressing (albeit indirectly) the obvious fallacy:
"Nor am I saying that the liberals of the Court's past were correct in their view of the Court's role. On the contrary, the Court does best if it proceeds cautiously and incrementally, with respect for the elected branches of government. Marshall and Brennan, no less than Scalia and Thomas, tried to use the Constitution to impose a contestable political vision on the nation. For the future, the preferable route was charted by underrated justices such as Felix Frankfurter and Byron White -- excellent lawyers who worked within established categories and were reluctant to strike down acts of elected officials, above all Congress."
But it is too little too late.
Sunstein is a vocal proponent of "incremental change" concerning constitutional interpretation. That is, he views conservatives who want to roll back liberal innovations as radicals; however, he has little contempt for historic liberals who radically altered American jurisprudence. Morevoer, he champions the current liberals (and lauds them as conservatives) because they seek to protect the radical departures of the recent past.
UPDATE: A thoughtful and extensive commentary on Sunstein's essay here from Rightlinx.
martian mariner wrote:
In your opinion, how does the more political side of the Court's operations in modern times compare to Court procedures in American history? I'm refering to the recent highly partisan conflicts surrounding Court appointees, the idea of "legacy" judges, the concern with the political balance of the Court, etc. Was this always a major concern?