Stuart Taylor, Jr.Recent Supreme Court Decisions Show: – Stuart Taylor, Jr. https://www.stuarttaylorjr.com Online Archive Fri, 20 Aug 2021 13:35:39 +0000 en-US hourly 1 https://www.stuarttaylorjr.com/wp-content/uploads/2018/06/cropped-favicon-32x32.png Recent Supreme Court Decisions Show: – Stuart Taylor, Jr. https://www.stuarttaylorjr.com 32 32 Recent Supreme Court Decisions Show: https://www.stuarttaylorjr.com/content-recent-supreme-court-decisions-show/ https://www.stuarttaylorjr.com/content-recent-supreme-court-decisions-show/#respond Stuart Taylor, Jr. http://stuarttaylor.vivacreative.webfactional.com/?p= Justice John Paul Stevens, the 88-year-old dean of the Supreme Court's liberal bloc, is a gentleman of the old school. So it carried a special bite when he read from the bench late last month an unusually bitter dissent, castigating the conservative majority. He fumed against an unprecedented decision striking down a Washington, D.C., gun-control law. The conservatives had argued that the 217-year-old Second Amendment, which speaks of the necessity of a "well-regulated militia" and "the right of the people to keep and bear arms," protects an individual's right to keep a loaded handgun at home. Stevens assailed the decision as a betrayal of the conservatives' long-professed devotion to "judicial restraint" and to the Constitution's "original intent." Joined by the other three liberals, he accused the majority of casting aside "settled law" and plunging into the "political thicket."

Justice Antonin Scalia returned fire. Scalia spoke scornfully of the liberals' analysis of the Second Amendment's language and history–so scornfully as to imply that it must be a cover for an anti-gun political agenda. Speaking for the four conservatives and centrist Anthony Kennedy, Scalia accused the dissenters of judicial opportunism: the liberals were seeking to "pronounce the Second Amendment extinct," he said. Scalia dismissed as "particularly wrongheaded" their reliance on a 1939 precedent; slammed as "bizarre" their parsing of the amendment's language; whacked as "wholly unsupported" their discussion of English history, and said that Stevens "flatly misreads the historical record" of the Framers' era.

The two blocs came close to calling each other hypocrites. Are they?

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]]> Justice John Paul Stevens, the 88-year-old dean of the Supreme Court’s liberal bloc, is a gentleman of the old school. So it carried a special bite when he read from the bench late last month an unusually bitter dissent, castigating the conservative majority. He fumed against an unprecedented decision striking down a Washington, D.C., gun-control law. The conservatives had argued that the 217-year-old Second Amendment, which speaks of the necessity of a “well-regulated militia” and “the right of the people to keep and bear arms,” protects an individual’s right to keep a loaded handgun at home. Stevens assailed the decision as a betrayal of the conservatives’ long-professed devotion to “judicial restraint” and to the Constitution’s “original intent.” Joined by the other three liberals, he accused the majority of casting aside “settled law” and plunging into the “political thicket.”

Justice Antonin Scalia returned fire. Scalia spoke scornfully of the liberals’ analysis of the Second Amendment’s language and history–so scornfully as to imply that it must be a cover for an anti-gun political agenda. Speaking for the four conservatives and centrist Anthony Kennedy, Scalia accused the dissenters of judicial opportunism: the liberals were seeking to “pronounce the Second Amendment extinct,” he said. Scalia dismissed as “particularly wrongheaded” their reliance on a 1939 precedent; slammed as “bizarre” their parsing of the amendment’s language; whacked as “wholly unsupported” their discussion of English history, and said that Stevens “flatly misreads the historical record” of the Framers’ era.

The two blocs came close to calling each other hypocrites. Are they?

All the justices seem sincere in their legal arguments. But all nine also appear, at times, to act like politicians on the bench. The gravitational pull of political preferences, plus the glue of group solidarity, seems to spur them to grasp for whatever legal argument gets the results they want–particularly on the biggest questions, which rarely have clear right answers.

Take the 5-4 decision striking down the District of Columbia’s total ban on handguns and on keeping operable firearms of any kind in the home for self-defense. In 154 pages of opinion, five of the justices announced with utter confidence that the Second Amendment guarantees an individual right to keep a loaded handgun at home, while the other four retorted with equal confidence that it protects (or used to protect) gun rights only for members of now defunct state militias.

The justices whose votes pleased Republican politicians–both in the gun case and in many other recent cases involving campaign finance, abortion, affirmative action, free speech and the rights of Guantánamo detainees–just happened to be the four conservatives, and vice versa with liberal justices voting in a way that generally pleased Democrats. Then there was Bush v. Gore, the 2000 decision in which the more conservative justices read the Constitution in a way that just happened to award Florida and the presidency to George W. Bush. The pattern is clear: across a wide range of issues, both blocs appear remarkably inconsistent on what may seem like matters of legal principle–whether to favor individual rights over government power, whether to defer to the elected branches and whether to honor inconvenient precedents. Yet with occasional exceptions, they have been consistent in voting just the way liberal and conservative politicians would have voted on the same issues.

This politicization of the judiciary may have increased with the polarization of our politics. But it is not entirely new. It was Thomas Jefferson who complained, back in 1819, that the Constitution “is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.”

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