The "Right Leaning" Supreme Court

[Gaviani]

Preface: I hesitate to post in this topic at all, because I'm almost completely certain it's going to get overtaken by partisan trolling, ignorant myth-spewing, and the ilk very quickly - for politics, this is a little more understandable/acceptable, but conceptually at least, the Supreme Court does not sit as a superlegislature to adjudicate naked policy decisions, but as a legal body - so discussing it as a legal organ first, rather than a political one, requires some background knowledge and some normative, axiomatic beliefs. I can't say this as an absolute rule, but if you don't believe in the following, you probably are going to cause more problems than you're worth in this thread:

1) The judicial function of the Supreme Court of the United States is separate from the legisltive function of the Congress.

2) To whatever extent the Court exists in a policymaking role (some say zero, some say ancillary, some say heavy), this "policymaking" purpose behind the Supreme Court is/should be subordinate, coincidental, or an unfortunate byproduct of their adjudicative purposes.

3) The Supreme Court of the United States is not a political branch of government. By this I mean the Justices do not have a political (in the contemporary sense) agenda, do not have partisan affiliations, are not elected, do not "represent the people," and should not behave, in short, like politicians.

4) Judicial philosophies do not 1-to-1 map onto political leanings - there may be some policy overlaps, but being an original intent guy, a public policy guy, a strict constructionist, etc., are not merely proxy labels for "conservative" or "liberal."

If you aren't on board with the above at least as a framework to start with of normative good things, then your post is probably missing the point or going to derail this one.

In the recent Sarah Palin thread, Aristotle said that the current Court is heavily right-wing; I would argue that especially through the last term and a half or so, the Supreme Court has proven, when behaving in a "right wing" (for our purposes here, we'll refer to 'right wing' as judicially minimalist, preferring federalism and the devolution of powers, a smaller reading of the Fourth Amendment, more narrow readings of Roe, etc. and 'left wing' as expansive views of the Commerce Clause, minimalizing the Second Amendment, etc. - if need be this can be clarified later) fashion, has been minimalist first and right-wing second - in contrast, when Kennedy has gone the other way, the court has behaved in judicially maximalist tendencies, sweeping swaths of policy under the left-wing rug (see also no death penalty for child rapists under a "national consensus" that most of the nation disagrees with, see also property redistribution under a tortured reading of the Takings Clause) - so that it's fairer to call this court "minimalistic" rather than right-wing - and the absolutely BREATHLESS furor out of the Daily Kos et seq. about the "right wing" Supreme Court is disingenuous or ignorant at best and total partisan hackery at worst.

[WHY I think this is is complicated - not the least of which being that Kennedy is often the limiting reagent in left-wing opinions (and their author) but not right-wing ones this term - again, to be discussed later.]

Discuss (preferably with case citations).

[Aristotle]

I definitely think there are grave misunderstandings about the realities of the Supreme Court. While I do believe it leans right, I do not think the Supreme Court is furthering a right wing agenda. But I will say that I am a little concerned about what might happen if John Paul Stevens retires (or dies) and gets replaced with a hard core conservative.

Scalia, for example, is definitely a strict constructionalist far before he is anything political. He is legendary for the fact that he has dictionaries from the late 18th and early 19th century so he can study the meaning of words as they were used THEN, so he can better understand the Constitution, early legislation, the Federalist papers, etc. This is not a political act. This is a philosophical act from someone who truly believes the Constitution is a brilliant creation that should be respected and trusted for what it actually IS and was intended to be, not for what it can be interpreted to be now. It is not simply a roadmap or a set of general guidelines to be tossed aside at the whim of a political jurist.

Also, to support your enumerated statements, it is important for people to understand the enormous institutional respect throughout all levels of the Supreme Court. I don't just mean with the Judges, I mean the clerks, support staff, and even the people who run the printing presses (The Supreme Court has its own private press that it operates in the basement).

My favorite example of this: Supreme Court decisions are made and then sent down to the basement to be printed. This process is time consuming and somewhat slow, and then there is often a delay of a few weeks or months before the decision is released to the public (the reasons are varied, and are sometimes as simple as letting the minority read the majority opinion so they can respond fully in their own opinion).

The actual decision never leaks early, however. How is this accomplished? Air tight security? Felony punishments for printers who leak information? Nope. This is accomplished purely out of respect for the Supreme Court. It really is quite amazing.

The examples throughout history of Presidents failing to "stack the court" in their preferred political direction are countless. Souter is one of the most recent examples. He was appointed by Bush, Sr., and has turned out to be a very "liberal" judge. John Paul Stevens was appointed by Ford, and many consider him the most liberal of all the judges. But again, labeling judges "liberal" and "conservative" is tough. It just doesn't fit, because they really do transcend those labels for the most part.

The court is generally considered to lean right by at best a 5-4 margin (with Kennedy being the swing vote, and he is actually considered socially liberal). When you keep in mind that 7 of the current justices were appointed by Republican Presidents (the other 2 by Clinton), that goes to show that the justices take their jobs very seriously and feel no duty to further anyone's political agenda.

Of the three branches of government, the Supreme Court is the only one doing its job in the way it was intended. I wish the other branches could take note and learn a thing or two. Considering it is the only branch that is not elected, it sorta makes one question the value of an electoral process.

[Gaviani]

Originally posted by Aristotle
The court is generally considered to lean right by at best a 5-4 margin (with Kennedy being the swing vote, and he is actually considered socially liberal). When you keep in mind that 7 of the current justices were appointed by Republican Presidents (the other 2 by Clinton), that goes to show that the justices take their jobs very seriously and feel no duty to further anyone's political agenda.

Of the three branches of government, the Supreme Court is the only one doing its job in the way it was intended. I wish the other branches could take note and learn a thing or two. Considering it is the only branch that is not elected, it sorta makes one question the value of an electoral process.

The disturbing tendency towards attempting to politicize the Court, though, is disturbing - not that the dog-whistle methods of saying "I'll appoint justices that support my political leanings" are great, but they're pretty irrelevant, as you point out (Justices are notoriously fickle and often extremely obtuse as a result of the COMPLETELY vicious and politicized confirmation process) - but the characterization of the court AS a political body in the first place is disturbing, and the extensive nature of various factios attempting to force it to behave as such is even more disheartening. This was once the political province of the left - the ACLU was notorious for its strike suits, and still is - but now is successfully employed for coercive purposes by, well, everyone.

MoveOn is one of the worst offenders in terms of propaganda on this one - ditto NYTimes Court followers in their characteization of the Roberts court as some Lochner throwback. The Bong Hits 4 Jesus case (no joke, that was the banner), Guantanamo Bay cases, and Louisiana death penalty for child rapists cases alone should be sufficient to set fire to the idea this is a right-wing court - and yet neither hide nor hair are mentioned thereof...

[Tartun]

This is my new favorite thread! Unfortunately, I have no constructive input so I'll shut up now. Debate on.

[Savaric]

Originally posted by Aristotle
Scalia, for example, is definitely a strict constructionalist far before he is anything political. He is legendary for the fact that he has dictionaries from the late 18th and early 19th century so he can study the meaning of words as they were used THEN, so he can better understand the Constitution, early legislation, the Federalist papers, etc.

If I may quote the chick from the HughesNet commercials, "How cool is that?"

[Aristotle]

Originally posted by Savaric
If I may quote the chick from the HughesNet commercials, "How cool is that?"

Very cool.

I should have been a tad more specific and said: "so he can better understand the Constitution, early legislation, the Federalist papers, etc. as the Framers actually wrote and intended them."