After Adam Liptak’s page one news story at the New York Times explaining why the First Amendment is a conservative weapon, Jeffrey Toobin joined the party. The party is the Democratic Party, and it’s the last ditch effort to feed the hysteria and undermine whatever trust and integrity there may be in the Supreme Court.
After all, they may not be able to stop Trump from nominating Justice Kennedy’s replacement, but they can sure as hell feed the frenzy to turn the Least Dangerous Branch into the impotent cabal of disingenuous partisan scoundrels. The Supreme Court has no army to force Americans to do as it rules, so it relies on our acceptance of the proposition that it is an honorable institution. Or in the alternative, that without trust in the legitimacy of the Court, we devolve to anarchy.
Toobin has made his choice.
It’s all the more important, then, to articulate in plain English what, if such a nominee is confirmed, a new majority will do.
Some of us, lawyers, believe that we get to argue our causes, fight for our positions, persuade the justices that the law, the Constitution, the precedent, backs us up. We never assume we will win, but we sure as hell try our best. But then, unlike Toobin, we don’t know what a new majority will do. Toobin thinks he does. More to the point, Toobin tells us exactly what this new majority will do.
It will overrule Roe v. Wade, allowing states to ban abortions and to criminally prosecute any physicians and nurses who perform them. It will allow shopkeepers, restaurateurs, and hotel owners to refuse service to gay customers on religious grounds. It will guarantee that fewer African-American and Latino students attend élite universities. It will approve laws designed to hinder voting rights. It will sanction execution by grotesque means. It will invoke the Second Amendment to prohibit states from engaging in gun control, including the regulation of machine guns and bump stocks.
Does Toobin have the ability to see into the future? Does he have a time machine? If not, then what could possibly possess him to write such outrageous garbage that is clearly unsupportable?
There is, unfortunately, a completely rational reason behind Toobin’s apparent madness. Recognizing that there is nothing to be done to prevent confirmation of Trump’s nominee, progessives have no recourse other than scorched earth. Destroy the public’s acceptance of the Supreme Court as the final arbiter of the Constitution by using one’s pundit-cred to validate the hysteria that the conservative justices are all whores to their masters and unworthy of trust.
Attacking the legitimacy of the Court, as was done to Justice Gorsuch and will most assuredly be done to whomever the next nominee will be, is not only a lie crafted to feed the deranged, but will cause permanent damage to the institutional legitimacy of the Court. Many of you will shrug that off, albeit for different reasons than Toobin, because they may be final but the Court is hardly perfect.
That’s neither the point nor a viable answer. Of course justices have their own philosophies and perspectives, and we (particularly in criminal defense) often find them contrary to our views. But if the Court, the justices, lack legitimacy, then we’re left with a sham. Why argue if the outcome is pre-ordained? Why bother if the fix is in?
And if the Supreme Court isn’t legitimate, why follow its holdings? It makes trial by combat a far more legitimate means of accomplishing one’s ends of “justice,” when there is no other entity one can accept as the legitimate decision-maker.
No doubt Toobin will find legitimacy in the Court when the pendulum swings and the president isn’t a vulgar ignoramus, when the nominees are of the right view, even if they are substantively pretty much the same as the ones on the other team. But if the Court isn’t legitimate, then it isn’t legitimate for the good guys any more than for the bad guys. But Toobin doesn’t care. After all, this is war and it’s time to drop his bomb.
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The left might have had a chance to influence the choice. End up with a justice who, while not at all who they would have chosen, might not be completely awful from their perspective. Granted, we’re dealing with Trump, so this is far from certain, but the opportunity was still there. But rather than make the attempt, they’ve completely thrown away the chance.
And there are a whole lot of Americans who think Toobin’s parade of horribles that will result from the new court actually sounds pretty good.
The nature of a republic is that sometimes the other side wins and you don’t get your dream date. Either they can try harder, do better, persuade people to come to their cause, or try to blow the place up. Even though progressives don’t reflect the will of the majority, there are enough hysterical people to wreak havoc rather than try harder. This will not be good for anyone.
SHG,
What I often forget is how frequently the Justices agree with each other. For the October Term just passed, the average majority decision garnered seven votes in favor of the judgment and 2 opposed. Kedar Bhatia, Final October Term 2017 Stat Pack and key takeaways, SCOTUSblog (Jun. 29, 2018, 9:00 AM). Indeed, nearly 40% of the times all Justices were in agreement with the judgment. Id.
In short, there is frequently more agreement than disagreement among the Justices than the pundits are willing to acknowledge.
All the best.
RGK
As if they were actually justices making reasoned decisions, at least on occasion.
Posner would disagree. He killed any legitimacy the courts might have before Liptak and Toobin had their shots.
Everyone knew poor Posner’s best days were behind him. We can’t chalk Toobin and Liptak up to senility.
> there is frequently more agreement than disagreement among the Justices ….
trivially true? It is a stalemate, or there is more agreement than disagreement.
Do you have to practice being incomprehensible or does it come naturally for you?
Maybe Trump will fool us and nominate someone who is qualified.
Won’t matter. Whoever it is, they’ll drag him (or her).
Yeah, we wouldn’t want another dilettante like Gorsuch.
John Oliver had a thing on Toobin last night. (Video apparently not yet available.) Did you rip off John Oliver? It sounds like you did.
Of course not. I bring humor to my work.
So was Toobin.
Justice Kennedy, their darling of the moment, was nominated by such an esteemed Progressive thinker: Ronald Reagan.
Once you give someone a life appointment as Philosopher King, God only knows what they’ll do with it.
But hysteria sells, eh?
Better yet, Earl Warren, Ike’s biggest mistake.
“The Supreme Court has no army to force Americans to do as it rules, so it relies on our acceptance of the proposition that it is an honorable institution.”
There are probably at least seven hundred thousand armed police officers in the united states. I’m pretty sure they’d object if Americans started ignoring the Court’s rulings. Of course if law enforcement starts ignoring it too, then you’re living in interesting times.
Police are under the authority of the Executive branch, not the judicial. This is a lawyer concept. Had you clicked on the Least Dangerous Branch link, you might have understood.
If law enforcement STARTS ignoring it?
So, it’s just like pen-and-phone. When the justices were redefining centuries-old concepts like marriage to enact the new, progressive social agenda, that was fine. But now, DANGER, WILL ROBINSON!!! DANGER!!!
Sure. Having the Court as super legislature is fun when it is doing what you agree with, but otherwise, not so much, and what comes of using the Court to legislate based on evolving standards can go the exact same way.
The truly amusing thing here is that it’s Kennedy being replaced. If it were RBG, all the leftist panic would make sense. It isn’t, and it doesn’t. Evidently some people are just very nervous out there on the left.
In Portlandia, swords only have one edge.
That’s funny. Almost as if conservatives hadn’t been hysterically crying about “activist” courts for the past 20 years.
So the bar is “be no better than your opponents”?
No. Absolutely not. But democrats seem to be waking up to the fact that the focus on courts has worked for conservatives. It may take them a while to become as effective. It doesn’t look like there’s a democratic Karl Rove out there.
I personally hate both sides partisan cheerleading. This has become about “winning”, rather than service.
Perhaps it’s all a bit more complicated than Dem’s getting a Karl Rove of their own.
I’m sure. There’s probably infographics and charts involved. The moveon bakesale might be tweaked.