Friday, June 27, 2003

Myth of the Conservative Court. For most of my life I've heard the Supreme Court labeled "conservative" or even "right-wing." After the term just concluded we heard Kimberle Crenshaw of UCLA on PBS discussing "broad themes that really sound very much like a Warren Court coming out of a very conservative court's mouth." Last Sunday saw NY Times doyenne Linda Greenhouse write: "Will the Court Move Right? It Already Has." Charles Lane, writing in the WaPo describes "an increasingly conservative court."

This is a myth and no matter how much the mantra is uttered, it remains a myth.

For those who have a shred of integrity, there is the beginning of a breakdown of the myth. Dahlia Lithwick describes this past week as "a shockingly progressive set of decisions from a supposedly conservative court." To which former Clinton solicitor general Walter Dellinger agrees:
But the number of progressive results is close to stunning.

  • The method of funding of Legal Services for the poor by "taking" the interest on lawyers trust accounts is upheld against a property rights challenge.
  • The Family Medical Leave Act is upheld as applied to the states, in spite of strong case law on state sovereignty.
  • Justice Powell's lone opinion in Bakke sustaining the use of race for diversity becomes the opinion of the court.
  • A capital case is overturned because of ineffective assistance of counsel.
  • The retroactive extension of the time for bringing sex abuse charges is held unconstitutional.
  • Bowers v. Hardwick is overruled.
  • In fact, this Court is a liberal court.

    Consider: the twin big rulings of the past term: upholding state sponsored racial discrimination and discovering right to homosexual activity.

    In the prior term the Court ruled for pornographers striking down the Child Pornography Prevention Act of 1996. It further ruled that executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment. (This is as good a point as any to add that I don't necessarily disagree with the court on these rulings -- my point is that this is a "conservative court" is a myth.)

    In the 2000-2001 term the Court ruled the ADA required the PGA to provide Casey Martin a golf cart, allowed the jailing of people for failing to wear a seat belt, and did something involving Al Gore.

    In the 1999-2000 term, the Court struck down a state law prohibiting partial birth abortion, banned student led prayers before football games, and reaffirmed the Miranda decision (it should be remembered that Miranda was a 5-4 decision of the Warren court, this was 7-2, with Rehnquist writing the opinion).

    In prior terms, the Court struck down the Line-Item Veto, held that school districts can be liable under Federal law for offenses by students, and struck down a state initiative effectively granting special gay rights in Colorado.

    In fact, this is a liberal court with a few bones tossed to the right.

    By the Time I Get to Phoenix . It's a little after midnight here in Phoenix and I've gotta whine again -- I'm really getting tired of traveling. On this trip at least we're staying in a very plush resort -- as you can imagine the resorts are empty in June in Phoenix. My room is on the ground floor about 40 yards from a 25 meter swimming pool, so I get up and swim first thing in the morning.

    I've really missed access to the internet. My work provider is down (or off or something). I hadn't put my home ISP software on my laptop, so I was flat out of luck. What I've really missed is being able to read Supreme Court opinions -- I can't get over how much the 'net access to these opinions has changed my life -- ten years ago I would be down at the Court to get slip opinions to read -- that was the only way until we got the paperback opinions in the library 2 to 3 weeks later (I didn't have Lexis or Westlaw access either). Since it's the end of term I have been motivated to go out and get some of that free trial software to install so I could read these things. Well, it's been a busy week as well. More later.

    Wednesday, June 25, 2003

    Hiatus. I believe I will be taking a hiatus from blogging through the period of Lent.

    Sunday, June 22, 2003

    My Turn. Five minutes ago, my daughter handed me the book -- she's done reading it in less than 24 hours. I couldn't tell how much she liked it -- I know she doesn't want to spoil it for me. She may post a review here later.