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The 'magic' of the Supreme Court's rightward shift

Adam Serwer is a staff writer with The American Prospect, where he writes his own blog.

Barry Friedman and Dahila Lithwick have an importance piece up at Slate today, the first day of the Supreme Court's new term, looking back at the way the Roberts court has quietly dismantled longstanding legal precedents while still managing to maintain its moderate veneer.

How to explain the justices shoving the law rightward, while everyone thinks it is dead center or too far left? The answer is that [Justice John] Roberts is a brilliant magician. He and his four fellow conservative justices have worked some classic illusionist tricks to distract us from seeing the truth. Roberts is likely the first chief justice to understand that the message matters as much as the outcome. He has played his role with consummate skill, allowing the law to shape-shift before our very eyes, even as he and his fellow conservatives claim that nothing is happening.

Lithwick and Friedman's piece is an important primer for the upcoming court session and a good piece on how dramatically the court has shifted right since the Bush years. But I don't entirely buy their thesis about Roberts being a "brilliant magician;" I just think the courts are, like taxes, an arena in which liberals have completely ceded the public discourse to the right. Even when it comes to liberal criticism of the court, liberals are stuck trying to use conservatives' own vocabulary against them -- attacking conservatives as the true "judicial activists." As Sen. Al Franken (D-Minn.*) put it in an address before the liberal American Constitution Society earlier this year, "Federalist Society members have long believed that, if you change the way you talk about the law, you can change the law. They are right."

The fact is that these days, conservatives care about the courts more than liberals do. Lithwick's article isn't just a primer, it could also double as a list of conservative legal successes that have been decades in the making. Conservatives have been trying to weaken the Voting Rights Act, curtail due process rights for the accused, loosen restrictions on gun rights, dismantle protections against discrimination and limit abortion rights for decades. The rulings Lithwick describes aren't "magic," they're the result of a long game conservatives have been playing ever since Roe v. Wade. Not only that, but even when the court reaches a moderate decision -- such as last term's case outlawing juvenile life without parole, conservatives howl about the liberal tyranny of unelected activist judges despite the working conservative majority on the court.

Liberals, to the extent they care about the Supreme Court, are often narrowly focused on preserving abortion rights. The liberal narrative of a corporate-friendly conservative activists, is really only just beginning to take shape, and the while liberal legal groups that can shape and support prospective nominees are growing stronger, there's nothing on the left that yet equals the influence and reach of the Federalist Society. The Obama administration has offered tepid criticism of the unprecedented Republican obstruction of their judicial nominees -- in stark contrast to Bush pounding his fist and demanding "up or down votes" when his were on the line. As a result, a number of federal courts across the country are facing "judicial emergencies" because of the vacancies, and if Republicans win handily in November a chance to tilt the courts to the left may have been lost.

Again, this all a reflection of priorities and history. Conservatives see themselves as trying to undo years of liberal influence on the court, and the results we're looking at now reflect decades of work. Liberals are merely trying to preserve the successes of a previous era, and as a result, they're less motivated.

Citizens United might be a tipping point. If the flood of secret corporate donations to the other side coincides with a Republican takeover of one or both houses of Congress, the country might wake up to just how much damage a conservative majority on the court can do. That depends, of course, on the left's willingness to put forth publicly a different philosophy of how judging works, that if it was merely a matter of calling "balls and strikes" then we'd just do away with confirmation hearings and have Google design some brand new robo-judges.

Ironically, the best recent refutation of conservative "originalism" came from a justice who is no longer on the court. Former Justice David Souter, speaking at Harvard's commencement, reminded us that the Constitution "grants and guarantees many good things, and good things that compete with each other and can never all be realized, all together, all at once." Americans know which parts conservatives want realized, but the liberal vision of the Constitution remains largely defined by their opposition. 


UPDATE 1:55 p.m: Franken is from Minnesota, not Wisconsin, and Barry Friedman co-wrote the piece.

By Adam Serwer  | October 4, 2010; 12:32 PM ET
Categories:  Supreme Court  
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Comments

Glen Greenwald supports the Citizens United ruling therefore it must be a good ruling. See, righteousness overrules the dire consequences a decision might have, no matter how much it diminishes the power of the people.

See, defending the rights of an American that is openly training individuals to commit mass murder on U.S. soil, barely having one of the plots fail because of the ineptitude of the terrorist, and supporting the freedom of speech of corporations, as was the purpose of the first amendment according to Greenwald, will make us a better country in the end.

Posted by: mikefromArlington | October 4, 2010 12:46 PM | Report abuse

Once the the next GOP President can replace Justice Kennedy, then we will get a real rightward shift. I am amused by the libs arguing that today's Court is more conservative than Dred Scott (1857) or Korematsu (1944).

Posted by: JakeD2 | October 4, 2010 12:51 PM | Report abuse

Shorter Jake - the current right wing court is not as bad as previous horrible right wing courts.

OK ... so long as we can agree that right wing courts are bad.

Posted by: pragmaticstill | October 4, 2010 1:07 PM | Report abuse

pragmaticstill:

LIBERAL Supreme Court Justices upheld slavery too, you know?

Posted by: JakeD2 | October 4, 2010 1:21 PM | Report abuse

At least (purported) Justice Kagan recused herself from 25 of the upcoming 51 Supreme Court cases ...

Posted by: JakeD2 | October 4, 2010 1:23 PM | Report abuse

Jake

Don't forget the democrats wanted the Dred Scott decision.


The Republicans were the ones against that decision.

.

Posted by: SaveTheRainforest | October 4, 2010 1:27 PM | Report abuse

Pre Civil War, Slavery Supporting Supreme Court Liberals!

Good to know.

Posted by: Liam-still | October 4, 2010 1:30 PM | Report abuse

I find the obsession with Citizens United hysterical. Wal-Mart could spend a trillion dollars on ads in my congressional district and I'd never know it, not because it wasn't disclosed, but because I know how to use a DVR.

Posted by: NoVAHockey | October 4, 2010 1:36 PM | Report abuse

Adam:


Good post. The Conservative takeover of the courts has been ongoing for 40 years. Look at the 1971 Powell Memorandum, authored by Lewis Powell just months before Nixon appointed him to the Supreme Court, places the Chamber of Commerce at the vanguard of the Radical Right Agenda. An excerpt:

"Neglected Opportunity in the Courts
American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government. Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change. Other organizations and groups, recognizing this, have been far more astute in exploiting judicial action than American business. Perhaps the most active exploiters of the judicial system have been groups ranging in political orientation from "liberal" to the far left. The American Civil Liberties Union is one example. It initiates or intervenes in scores of cases each year, and it files briefs amicus curiae in the Supreme Court in a number of cases during each term of that court. Labor unions, civil rights groups and now the public interest law firms are extremely active in the judicial arena. Their success, often at business' expense, has not been inconsequential.This is a vast area of opportunity for the Chamber, if it is willing to undertake the role of spokesman for American business and if, in turn, business is willing to provide the funds. As with respect to scholars and speakers, the Chamber would need a highly competent staff of lawyers. In special situations it should be authorized to engage, to appear as counsel amicus in the Supreme Court, lawyers of national standing and reputation. The greatest care should be exercised in selecting the cases in which to participate, or the suits to institute. But the opportunity merits the necessary effort."

http://www.reclaimdemocracy.org/corporate_accountability/powell_memo_lewis.html

Read the entire memo. It is the Plutocrats Manifesto and it has been put into full effect.

Posted by: wbgonne | October 4, 2010 1:40 PM | Report abuse

"Glen Greenwald supports the Citizens United ruling"

Greenwald is wrong. So is the ACLU which, I understand, is re-now evaluating its position in support of Citizens United. First Am purists are hard to reason with.

Posted by: wbgonne | October 4, 2010 1:43 PM | Report abuse

If TV spots were not being watched and swaying many viewers, then Corporations would not spend so much on such propaganda.

TV ads are what made Geico. Just because some people use DVRs all the time, instead of watching live, is proof of nothing, anymore than claiming that TV ads do not work because so many Amish people never see them.

Posted by: Liam-still | October 4, 2010 1:43 PM | Report abuse

"If TV spots were not being watched and swaying many viewers, then Corporations would not spend so much on such propaganda."

I didn't think anyone put any stock in the Magic Bullet theory of media consumption. That was discredited a long time ago.


Posted by: NoVAHockey | October 4, 2010 1:54 PM | Report abuse

"there's nothing on the left that yet equals the influence and reach of the Federalist Society."

Except the entire rest of academia.

Posted by: tomtildrum | October 4, 2010 1:56 PM | Report abuse

I'm going to agree with both Jake and STRF:

Conservatives supported the Dred Scott decision. Those conservatives were Democrats.

Posted by: KathleenHusseininMaine | October 4, 2010 1:58 PM | Report abuse

tomtildrum:

I believe that Mr. Serwer was referring to any comparable LIBERAL legal groups ; )

Posted by: JakeD2 | October 4, 2010 1:59 PM | Report abuse


"If TV spots were not being watched and swaying many viewers, then Corporations would not spend so much on such propaganda."

I didn't think anyone put any stock in the Magic Bullet theory of media consumption. That was discredited a long time ago.


Posted by: NoVAHockey | October 4, 2010 1:54 PM

................

You are free to think what you wish about how you view things. You are not free to claim that every other TV viewer is just a clone of you.

Drug companies report that their sales increase in a range of 25 to 50% on prescription drugs, once they conduct TV ad campaigns on their specific products.

You only know what you do not do. The people that pay to have all those ads run on TV, know what results they end up getting back.

Posted by: Liam-still | October 4, 2010 2:05 PM | Report abuse

KathleenHusseininMaine:

I prefer when you violently disagree with me.

Posted by: JakeD2 | October 4, 2010 2:08 PM | Report abuse

Seems like four left, four right, and one swing is a pretty good balance. I realize idealogues will only be satisfied if their side dominates the court. I wouldn't argue that the conservatives aren't conservative, so I hope no one takes on the embarrassment of suggesting that Sotomayor, Ginsburg, Kagan, and Breyer aren't lefties. Wasn't Breyer the one who suggested that burning the Koran might be the equivalent of yelling 'fire' in a crowded theater? LOL. Flag-burning okay; Koran burning no-no. You have to hand it to the lefties---no real principles whatsoever, just a whacked out idealogy.

Posted by: Brigade | October 4, 2010 2:10 PM | Report abuse

All, Sharron Angle's latest is pretty amazing:

http://voices.washingtonpost.com/plum-line/2010/10/sharron_angle_promises_tea_par.html

Posted by: Greg Sargent | October 4, 2010 2:12 PM | Report abuse

Kathleen

Please stop agreeing - it is no fun.

Abraham Lincoln, a Republican, freed the slaves.

The democrats continued their resistance to black civil rights after the Civil War.

The democrats put in the Jim Crow laws.

The democrats keep Jim Crow in place by not going after the KKK - which terrorized blacks.

It was the democrats in the US Senate who filibustered the civil rights' laws - and tried to stop progress.

HOW the Republicans get blamed for any of that is beyond me.

Posted by: SaveTheRainforest | October 4, 2010 2:14 PM | Report abuse


I'm going to agree with both Jake and STRF:

Conservatives supported the Dred Scott decision. Those conservatives were Democrats.

Posted by: KathleenHusseininMaine | October 4, 2010 1:58 PM
...................

And the Southern Democrats who wanted to keep Segregation in place, are now mostly voting for Republicans. The Republicans welcomed Dixiecrats, with open arms.

Posted by: Liam-still | October 4, 2010 2:14 PM | Report abuse

"Don't forget the democrats wanted the Dred Scott decision.


The Republicans were the ones against that decision."


Because Democrats were more welcome in Dixie. The Republicans of that era were truly radical, and would still be so regarded today.

To equate the Republican Party of Thaddeus Stevens with today's GOP - a party in the thrall of the intellectual descendants of the Dixiecrats of yesteryear - is one of the endless pieces of chicanery today's conservative movement (which President Eisenhower rightly dismissed as stupid) is so shamelessly fond of constantly indulging in.

Posted by: akaoddjob | October 4, 2010 2:17 PM | Report abuse

Recall when Trent Lott lamented that, staunch segregationist, Strom Thurmond had not become President.

All the old Segregationist Democrats were courted by Richard Nixon, as part of his "Southern Strategy", and the Republican Party has catered to the Southern Aparheid lovers, ever since.

Posted by: Liam-still | October 4, 2010 2:19 PM | Report abuse

Liam

The Republicans never stood for restricting black Civil Rights - the democrats did - and acted that way too.


The KKK used to control blocks of delegates at Democratic National Conventions - there was a working relationship there.


Whose hands are dirty ?

.

Posted by: SaveTheRainforest | October 4, 2010 2:29 PM | Report abuse

I still maintain that it is absolutely true -- if the rest of America had followed our lead -- we wouldn't have had all of these problems over all these years either.

Posted by: JakeD2 | October 4, 2010 2:31 PM | Report abuse

"You are free to think what you wish about how you view things. You are not free to claim that every other TV viewer is just a clone of you."

I'm not claiming that, but apparently you think TV viewers are blank slates waiting to be told how to vote and what drugs to buy -- the premise of Magic Bullet. which is bunk.

The concern that companies can "buy" an election is based entirely on the idea that Americans are too dumb to think for themselves.

Posted by: NoVAHockey | October 4, 2010 2:35 PM | Report abuse

Sotomayor, Ginsburg, Kagan, and Breyer

Of that group only Ginsburg qualifies as a Liberal and even she wouldn't hold up against Marshall and Brennan and Warren. Sotomayor, Breyer and Kagan are Moderates. Think of them as Republicrats. The 4 RightWingers are activist extremists out to undo legal precedent and boost business interests at the expense of American citizens. The only "civil Liberty" the Roberts Court cares about is the right to possess deadly weapons. Pitiful.

Posted by: wbgonne | October 4, 2010 2:38 PM | Report abuse

@vahockey,

There is an old adage that applies here. Are there any consumer products that you buy that are NOT promoted? We are at the mercy of advertising whether we realize it or not.

Posted by: 12BarBlues | October 4, 2010 3:11 PM | Report abuse


"You are free to think what you wish about how you view things. You are not free to claim that every other TV viewer is just a clone of you."

I'm not claiming that, but apparently you think TV viewers are blank slates waiting to be told how to vote and what drugs to buy -- the premise of Magic Bullet. which is bunk.

The concern that companies can "buy" an election is based entirely on the idea that Americans are too dumb to think for themselves.

Posted by: NoVAHockey | October 4, 2010 2:35 PM |

........................

You appear to live in a Naive, wishful thinking cocoon. The reality is that advertising works. and attack ads work to drive up an opponents negative ratings. "You can fool all the people some of the time, and some of the people all the time" Abraham Lincoln.

So called swing voters, are those who do not know their own minds, and are susceptible to being swayed one way or the other, by propaganda. That is a word you should become more familiar with, since it persuaded a seemingly logical population, in a highly developed nation, to allow a psychopath to lead them into war against several European powers and the USA, at the same time.

Ads are just a form a propaganda, and propaganda works. That is why the number of Americans who believe that President Obama is foreign born, keeps increasing.

Posted by: Liam-still | October 4, 2010 3:28 PM | Report abuse

"Except the entire rest of academia."

Beat me to that.

Greg's post is amusingly ahistorical and "counterfactual."

"Of that group only Ginsburg qualifies as a Liberal and even she wouldn't hold up against Marshall and Brennan and Warren. Sotomayor, Breyer and Kagan are Moderates. Think of them as Republicrats. The 4 RightWingers are activist extremists out to undo legal precedent and boost business interests at the expense of American citizens. The only "civil Liberty" the Roberts Court cares about is the right to possess deadly weapons. Pitiful."

That statement is utterly preposterous. You have zero credibility.

Posted by: quarterback1 | October 4, 2010 5:23 PM | Report abuse

Let's review a bit of the Friedman/Lithwick propoganda piece in the harsh light of reality.

"Trick 1: Stacking the Deck"

Translation: it's, like, unfair when the court accepts for review cases that make left-wing positions look bad.

Every SCOTUS accepts cases in which out of the ordinary or "extreme" facts stretch the rationales of legal precedents and rules. (It's also a typical argument technique of the left to pose extreme facts, right?) And 99% of the time what the court does is incremental -- what F/L smear as "whittling." Gee, when they don't "whittle" but overturn, F/L don't like that either.

But the Court also has a duty to review cases because it is the court of last resort. As has been said, first and foremost it decides cases. So, in the Shatzer case it was confronted with a child rapist whose conviction was thrown out under Miranda. An undisputed child rapist.

Who on this reactionary SCOTUS meddled with this result, which F/L apparently think was just right? Anwer: it was a unanimous judgment. Ginsburg, Breyer and Sotamayor actually joined Scalia's opinion! And Stevens concurred in judgment.

Then there is the Carhart case and partial-birth abortion. Apparently, F/L would contend that SCOTUS could never properly accept a partial-birth case for review, because it's just too embarrassing. Of course, then it would be abdicating its duty as court of last appeal and what Lithwick was just the other week pontificating is an exclusive power to review constitutionality of laws. These people are downright nitwits.

"Misdirection"

Translation: the Roberts court makes some decisions that seem right-wing and some that don't; obviously this is to cover up the right-wing stuff.

Regarding the Iqbal case, they say: "The court dismissed his claims, and in so doing it narrowed the doorway into the courtroom for the rest of us."

In fact, the Iqbal ruling was an entirely predictable and expected application of a 2007 decision that clarified it applied to all civil cases. And F/L simply don't understand or are misleading people about the issue and the result. These cases did not overturn "notice pleading," they simply threw out a previous standard that had made "notice pleading" an incomprehensible and cruel joke of a standard.

Under that older standard, a plaintiff's complaint could survive so long as the plaintiff could recover under "any conceivable set of facts." Notice pleading is supposed to require a plaintiff to give reasonable notice what a defendant did wrong. Of course, that older standard did nothing of the sort, which is why any lawyer will tell you it was applied with wild inconstency, because it is literally a meaningless standard.

And this statement by F/L is simply untrue: "After Iqbal, plaintiffs now must allege things they may not even be able to find out—about their employer, or the government, or a polluter."

Posted by: quarterback1 | October 4, 2010 6:08 PM | Report abuse

"Trick 3: Restoration'

Translation: liberal precedents that distorted the law are inviolate.

Re the Seattle Schools case, they baldly misstate the result by saying: "As Justice Stephen Breyer explained in his dissent in the school case, the Roberts opinion subverted the legacy of Brown while claiming to honor its spirit.' No, actually Brown, in prohibiting segregation, plainly held that students may not be assigned to schools based on race. That wasn't just the "spirit" of Brown but its letter.

On what ground do F/L maintain that the Michigan affirmative action case was "true" to Brown in allowing deliberate race-conscious admission, while Seattle Schools was "fake" by holding that race-conscious school assignment is unconstitutional? They do not and cannot say.

Precedent has swung back and forth on many issues in SCOTUS, with liberals much more often reversing recent precedent. Virtually the entire edifice of modern liberal "jurisprudence" is built from such reversals and rejections of accepted principles and precedents. Where are the complaints then?

And this old chestnut is just plain untrue: "Not so: As the vast majority of historians will confirm, the right to bear arms originally existed for precisely the reason specified in the Constitution: "A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed." How many homeowners with handguns do you know who are in a militia?"

The liberals can keep saying it, but it simply isn't true. Very liberal law professor Sandy Levinson admitted the reality years agon in an article called The Embarrassing Second Amendment. Since then the "militia" position has been widely discredited.


"Trick 4: The Escape"

Translation: sometimes the judges overrule without acknowledging it.

The truth is that this is commonplace for every SCOTUS and Justice. They often disagree on whether X is inconsistent with Y. It's an absurd criticism. And, again, when the Roberts Court rules broadly, F/L condemn it for radicalism, and when it rules narrowly they condemn it for stealth. They are incoherent.

"Trick 5: Sawing the Lady In Half"

Translation: it's, like, also totally unfair for the court to decide cases on which liberals disagree and some agree with conservatives. And it's, like, totally magician-like the way Roberts gets the ACLU and other liberals to split on issues.

You've got to be kidding. They are criticizing the Roberts Court for taking cases on which liberals aren't unanimous? This makes thoes decisions by the Court somehow devious and illegitimate?

What on earth are these airheads smoking?

Hope my liberal friends appreciate the work I've put in to set the record straight.

Posted by: quarterback1 | October 4, 2010 6:59 PM | Report abuse

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