E.J. Dionne, bless him, is shrill:
The nation owes a substantial debt to Justice Samuel Alito for his display of unhappiness over President Obama’s criticisms of the Supreme Court’s recent legislation — excuse me, decision — opening our electoral system to a new torrent of corporate money.
Alito’s inability to restrain himself during the State of the Union address brought to wide attention a truth that too many have tried to ignore: The Supreme Court is now dominated by a highly politicized conservative majority intent on working its will, even if that means ignoring precedents and the wishes of the elected branches of government.
Obama called the court on this, and Alito shook his head and apparently mouthed “not true.” His was the honest reaction of a judicial activist who believes he has the obligation to impose his version of right reason on the rest of us.
The controversy also exposed the impressive capacity of the conservative judicial revolutionaries to live by double standards without apology.
The movement’s legal theorists and politicians have spent more than four decades attacking alleged judicial abuses by liberals, cheering on the presidents who joined them in their assaults. But now, they are terribly offended that Obama has straightforwardly challenged the handiwork of their judicial comrades.
More columns like this, and less Media Village Idiot chatter, and we’d have to stop calling it the Kaplan Daily.
cmorenc
What’s given birth by sharply divided 5-4 will someday die by sharply divided 5-4 when the court’s balance is tipped the other way. One of the wisest things the Warren Court ever did in Brown v Board of Education was to get a consensus that could win a unanimous vote for a fundamental change in US constitutional law that overturned a sheaf of precedents going back over 50 years to Plessy v Fergueson (and even further back).
I’m not saying the court always has to be unanimous in constitutional rulings that break new ground, or even those which significantly modify earlier precedents, but it does provide a much more soundly lasting foundation that the sheer arrogance of forcing pet ideologies on the law by hair’s breadth-narrow votes.
John PM
So, he will be looking for a job by the end of the week.
aimai
I so want Obama and the Dems to start campaigning against “Judicial Activists.” I’d love to see them send out fundraising letters to all the right wingers on this topic.
aimai
Catsy
It’s about time. I get so sick of listening to practically every single Republican from president all the way down to dogcatcher bleat about “activist judges” and regularly trash the Supremes (that don’t vote their way), yet somehow it’s out of line for a Democratic president to call out a nakedly ideological Republican (there was nothing conservative about it) vote on the court. Goddamn Village double standards.
More like this, please.
cmorenc
The one potential huge problem with waiting for the court’s balance to shift 5-4 the other way is that:
1) One of the troglydites must die, retire, or be forced by unsurvivable scandal to resign. AND
2) This must happen while at least a moderate democratic president is in office.
Unfortunately, none of the current hard-right quartet of justices is close enough to the brink yet to hope for this anytime soon. Anton Scalia is 74 – which these days is mere late middle-age for a SCOTUS justice. Justice Kennedy, the supposed “swing” vote outside the hard-right block was born in 1936, and is thus about the same age as Scalia. The other three hard-right Justices are relatively spring chickens compared to these two, so under the best of circumstances things will only improve to 6-3 within the next twenty years or so.
As to the possibility things might go the other way if Ginsburg unwisely chooses to hang on past Obama’s term in office – that’s too horrible to contemplate. We’ll never be rid of the dominance of the troglydites in our lifetime or possibly even that of our kids.
carlos the dwarf
@cmorenc:
I don’t remember where I read this, so YMMV, but apparently Obama believes that he’ll have two more court vacancies to fill in the next year–presumably Stevens and Ginsburg.
kay
I think Justice Roberts says it best:
“If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case,” Roberts said. “Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds.”
Except when conservatives are looking for a particular result. Then he can (and will! happily!) just throw “narrowest possible grounds” out the window, apparently.
I don’t object to them promoting their ideology. They were appointed and confirmed. What I object to is how completely full of shit they are.
I’m glad this right wing myth of judicial restraint is finally dead.
Jeff
I believe that E.J. will be having a “come to Jeebus” meeting with Fred Hiatt soon.
aimai
The court won’t swing far enough: even if Obama can replace Ginsburg, Stevens *and* Kennedy with really rock ’em sock ’em liberals. That only keeps the status quo and gives us a Kennedy replacement vote that is solidly sane instead of sporadically ok. But that’s still four to five, isn’t it? What’s the betting on what happens if Obama gets a second term? It still looks to me like we never manage to budge the troglodytes.
aimai
cmorenc
@carlos the dwarf
Stevens for sure at the end of the current term. Ginsburg I’m less sure of – I really wish she was younger and in better health (she’s had a couple of bouts with cancer, the latest pancreatic, caught very early (but that tends to be a nasty, aggressive form of cancer). She is fond of being on the court, and has the background as past head of the ACLU, appointed by Clinton. I just hope that she’s not so fond of being on the court that she fails to recognize that the country’s best interests depend on her not still being there when next there’s a GOP president in office, and her health suffers another serious problem.
The GOP is sure to make any nomination Obama makes a nasty, brutal, bruising one, and we’ll see likely filibuster threats. Look at how nasty the Sotomayer nomination went, even with the damage the GOP did to itself with Hispanics going at her as sharply over as relatively little as they did. It’s going to require that Obama select a nominee who’s bulletproof and resiliently tough as alligator skin against the troglydite GOOPers who will promptly set out to attempt to sabotage and destroy them.
Kryptik
@Jeff:
I’m still counting the days until Dionne and Robinson are fired, and replaced by Dana Perino and John Bolton. You know, for balance.
Violet
The silver lining to this decision is that it’s easy to make it look bad to the average wingnut by saying things like, “Do you really want Hugo Chavez to be able to pour money into our elections? That’s what this ruling allows.” David Axelrod mentioned Chavez in this context on MTP, which seems like a good start to me.
Beating home that the court opened the floodgates for Hugo Chavez, Castro, etc., in addition to Chinese companies (scary! Chinese will take us over if we’re not careful!) to determine the outcomes of elections by pouring money into them is a winning strategy, it seems to me. Hammer home the “foreigners” concept and people just won’t like the result of the ruling at all.
Then once public opinion is against the ruling, or even concurrent with doing this, hammer on the “judges who are in the pockets of big corporations” (average people don’t like ‘big corporations’).
I think the Supremes have given the left and the Dems a giant opening to show just how awful so-called “conservative” judicial decisions are. Now they need to pounce on the messaging and hammer it home.
Mike in NC
It’s nearly impossible to use the word “conservative” in a sentence without following up with “double standards”. The old IGMFY mentality.
DecidedFenceSitter
@kay: “I’m glad this right wing myth of judicial restraint is finally dead.”
Bwahahahahaha. As if. Current events have shown that if a fact has been disproven, simply wait until the cycle dies down and restate it, and it’ll be covered anew by the media, distributed, and need to be killed again.
And again.
And again.
Regulatory Capture of our media has happened and now we get to deal with the negative externalities.
gex
I’ll be very interested to see how this court votes on the Prop 8 case if it gets there, seeing as Scalia himself said after 2003’s Lawrence v. Texas that the removed any argument that there is a legitimate state interest in preventing gay people from marrying. Will he vote based on his legal conclusions there? Or will he vote based on his preferred political outcome?
Sentient Puddle
@kay: Wait wait wait, I need an English translation on that one. From my reading, Roberts just said that when the Justices are all in agreement, they’re going to split 5-4 just for the hell of it.
That can’t be right, can it?
MrRoivas
@gex: There is no question. It’s Scalia. He’ll vote for his preferred political outcome.
Dennis G.
@Jeff:
Hiatt is the weakest link at the WaPo. He really needs to go. I know many folks who work at the paper who are just embarrassed by him and the Editorial section on a regular basis. The only person with the authority to remove him is the Publisher, Katharine Weymouth. It would be nice if she would give Hiatt his walking papers and choose a replacement who could start repairing the damaged he has done to the integrity of her Grandmother’s newspaper.
bayville
It’s nice to see Dionne starting to get some of that sand out of his eyes after his 20-year slumber.
He might have to apologize for this column however if Mrs. Alito reads it and breaks down in tears.
Wag
Which is why Obama should nominate Sandra Day O’Connor to go back on the Court. Make the GOP fight one of their own.
Little Dreamer
@Violet:
Chavez is small potatoes, go for OBL, or Ajad, or any communist leader. ;)
kay
@Sentient Puddle:
I know. It’s a mess of a statement.
He’s saying that the Court should look at each case and reach a decision on the narrowest possible grounds. If they don’t have to reach a broad decision that changes the current trajectory or “settled law” on a constitutional issue, they shouldn’t. The end result of that (he says) would be more consensus, because the liberal justices are more likely to vote with him if he uses restraint, and doesn’t change the law too radically. They know this decision will be applied and then possibly extended and might have profound effects. If they were comfortable that it wouldn’t be, they might vote his way.
His test for if he succeeded in that is more consensus. 6-3, 7-2, 8-1, 9-0.
A 5-4 decision isn’t consensus.
He failed his own judicial restraint test.
Dr. I. F. Stone
The word, “shrill,” is quite apt, along with others, such as hyperbolic horseshit; the column reads as if he were channeling the ever hysterical Glenn Gleenwald.
r€nato
I’ve been saying for at least 30 years (since I first heard of this ‘judicial activist’ trope), that it’s bullshit – a judicial activist is simply a judge who makes rulings conservatives don’t like.
Nobody ever listens to me… :-(
Chyron HR
@Dr. I. F. Stone:
Oh, look, it’s the Angry Politics Nerd.
r€nato
@Violet:
Remember when conservatives got their panties in a wad because Al Gore might have taken money from the Chinese?
thomas Levenson
When pigs fly, hell sells skis, and a columnist, any columnist loses his/her job for gross and repeated inaccuracy (are you listening, George Will…) this will happen.
But to be sure, E. J. is one of the few good ones, though I wish he’d stop giving Bobo any credibilty/deference in their NPR fests. And good work should get noted so the condemnations of the bad gain more force.
Elie
@Dr. I. F. Stone:
shut the fuck up
thomas Levenson
When pigs fly, hell sells skis, and a columnist, any columnist loses his/her job for gross and repeated inaccuracy (are you listening, George Will…) this will happen.
But to be sure, E. J. is one of the few good ones, though I wish he’d stop giving Bobo any credibilty/deference in their NPR fests. And good work should get noted so the condemnations of the bad gain more force.
Kryptik
@Dennis G.:
Doesn’t help that you have schmucks like Kurtz spreading a persistent myth of a ‘liberal’ WaPo editorial board.
Napoleon
@kay:
By the way the whole making the determination on the narrowest ground is hardly Roberts’ idea but is widely considered SOP good jurisprudence.
trollhattan
@25 Chyron HR
“Nerd” implies some sort of knowledge and ability, which in this case is quite absent. I’ll definitely give you “Angry” although “Mad” might be more apropos here.
As to the new batch of conservative Supremes, what the hell happened after all those many genuflections to Mount Stare Decisis during their confirmation hearings? They marketed themselves as such judicial nonactivists.
kay
@Dr. I. F. Stone:
He’s just holding the conservatives on the Court to their oft-stated “bed rock principles”.
Close decisions on major issues indicate judicial overreach.
That’s what the Chief said. We’re all just following orders here. No hysterics. We’re seeing some dithering.
This is a close decision on a major issue. What do we do next? Is it valid? Did the conservatives suborn the will of the people and 24 states, or not?
Does that rule still apply?
kay
@Napoleon:
Right. Thanks, Napoleon. I vaguely remembered all that, but I can’t go into that whole thing without descending into gibberish.
I just thought it was interesting because that’s part of the rap on this decision, right? That they didn’t have to reach that issue so broadly, but wanted to?
I know they’ve loathed McCain-Feingold since passage. I figured they were gunning for it.
Violet
@Little Dreamer:
LOL. I think OBL would be too abstract – he just shows up in grainy videos every other year. But Chavez is real and the wingnuts love to rail against him. Put them on the back foot by asking them to explain how Chavez won’t get involved in our elections now that this decision has been made. Point out that the Court specifically opened the floodgates for this kind of thing. Chavez, Chavez, Chavez. Scary sounding!
@r€nato:
Yep. And that’s a perfect reason to point out that the Chinese can now legally influence our elections. The Supreme Court just allowed them to. Ask wingnuts, “Do you really want Chinese corporations meddling in American government?” Nevermind that it already happens – it’s the way it sounds.
Napoleon
@kay:
Exactly, and in addition in their rush to do so tossed into the ditch a well recognized common sense rule of constitutional construction that I would guess goes back well over 100 years, maybe over 200 years, in use (and my guess is that as a general type rule it may be quite a bit older). Oh, and they whole idea of that rule is minimize the impact of what the judge is deciding (in other words to minimize judicial activism).
arguingwithsignposts
@Not in Stone’s Name: You’re back again with your lack of class?
SteveinSC
@Dr. I. F. Stone: BoB? BoB? Is that you BoB?
I can’t remember when, exactly, SCOTUS handed down the ruling that corporations were entitled to be treated as a person, but it would also seem that since corporations are made up of shareholders (i.e. people, or other entities ultimately made up of people, some from foreign countries who would not count) then the court would have to agree that for these hive-people, there must be one hive-person, one vote. Thus the corporation would have all decisions subject to one-hive person, one vote, and could not accept voting by the number of shares owned. Possibly the court could allow each corporation to have a vote in one of the political jusridictions in which it “resides” and to whom they gave money would also be subject to a voting process… Shit, what am I talking about? I sound like BoB.
fraught
Alito was talking to Sonia Sotomayer when he said, “not true.” What a stupid thing to be seen doing. It shows how men of that age think they can say things to women that women would not dream of saying in public. It’s as if they think their opinions are part of their entitlement and that women will just silently agree. Prick.
Catsy
@Not Really Stone: I’m going to take another tack on this.
You may or may not have noticed a commenter here named Aimai. On the assumption that you are not aware of it, she is the granddaughter of the person whose name you have appropriated for a pseudonym.
Far be it from me to speak for her or her esteemed grandfather. Nonetheless, I feel compelled to note that while using the pseudonym of a real famous person is not in and of itself a wrong, continuing to do so when a close relative of said person has personally and directly expressed that they find this offensive is… well, in extremely poor taste. She has, and it is.
Would you kindly find another pseudonym under which to post your offerings?
Comrade Kevin
@Chyron HR:
To quote Milhouse Van Houten: “I’m not a nerd, Bart. Nerds are smart.”
CalD
Not to worry. I’m sure he’ll revert to form in tomorrow’s column.
El Cid
@Catsy: Not to mention, the actual I. F. Stone wasn’t a nitwit. You can actually read his writings on the intertrons, and really, he was quite well researched, thoughtful, and well argued. Quite harsh and insulting to dolts, but he actually presented arguments about who was who.
E.g., 1968 (PDF):
someguy
Alito needs to learn to sit there and take it. His outburst was disgraceful.
Not as bad as his jurisprudence maybe, but certainly in worse taste.
Anonsters
@SteveinSC:
For purposes of the 14th Amendment, in Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886), although the beginnings of the idea (not in the 14th Amendment context, obviously) can be seen in earlier decisions, like Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819) and Providence Bank v. Billings, 29 U.S. 514 (1830).
So it’s not a new idea.
Though I still think Santa Clara should be overturned.
General Winfield Stuck
@Catsy:
Yes. And might I offer the name of me late great grand pappy Renault Ellington (or Rennie for short), a french englishman who was locally famous in our holler of east kentucky for making the finest moonshine along the Licking River ecosystem. He won’t mind much being dead as Franco, and loved him some Herbie Hoover.
One day when I was little and tromping the woods, I came across one of his little spirit factories and wondered why all the mason jars lying on the ground filled with water. I was thirsty, so I unscrewed one and took a swig and the rest is history.
BillCinSD
@Anonsters: technically, the decision in Santa Clara did not say anything about corporate personhood. The court reporter included some language not part of the decision in the headnotes and what with the time to get it printed, and the illness and possibly death of the Chief Justice in the interim, nobody corrected the headnotes
Yutsano
@General Winfield Stuck: You realize of course this explains a lot, right?
General Winfield Stuck
@Yutsano: Only the FSM knows for sure.
brantl
I mind these sons-of-bitches promoting their ideology from the bench. They are entitled to have their private opinions, and they are paid to interpret the law from the bench, not make new law from the bench. This is bullshit.
One of the things that I didn’t buy from JC was that “Bush was entitled to have his SC picks.” and that was shit, too; they get to pick them and we get to be stuck with them, as long as they live? That’s horseshit, too!