Hey, Who Moved My Court?
Judging from some of the post-mortems from Monday's Supreme Court rulings, it appears that America's chattering class is shocked -- shocked! -- to discover that the court has moved even further to the right than it had been under the stewardship of the late Chief Justice William Rehnquist, the man who as a law clerk famously didn't think much of the court's seminal Brown v. Board of Education ruling.
The online landscape Tuesday is littered with analysis pieces that discuss as development what is merely confirmation: the so-called "Roberts Court" is precisely what President Bush promised it would be when he ran for reelection in 2004: more conservative, more pro-business, more open to the role of religion in government and less concerned with the rights of the downtrodden or those who have fallen through cracks in the system. If this is truly a surprise to you, you need to get out more, or at least pay more attention to Supreme Court law and politics.
Justice Samuel Alito is more conservative than was his predecessor, Sandra Day O'Connor? Go figure. Chief Justice John G. Roberts Jr. is a lot less beholden to court precedent than we were all led to believe? Can't be. He told the Senate Judiciary Committee over and over again during his confirmation hearing that he would respect precedent and try to build consensus on the court. Justice Anthony Kennedy isn't the second coming of the moderate O'Connor or the more liberal Souter? What a surprise! The election of 2004 (and 2000) mattered in shaping the court? Who knew?
The late-coming hand-wringing from mainstream media voices -- and I'll include myself in the chorus -- would actually be funny if it didn't reveal how pathetic too many of us were in 2005 and 2006, when first the chief justice and then his mini-me Alito were confirmed by the Senate. The kabuki dances that were their nomination hearings -- I'm sorry, senator, I just can't offer you any guidance about how I would rule in a future case -- now stand as comedic tragedies. Not because it is tragic to have conservatives on the court. But because everyone could spend so much time and energy on what was in the end such a worthless endeavor. The nominees were asked stupid questions and then were allowed to offer vague, meaningless answers.
The president nominated Roberts and Alito to replace Rehnquist and O'Connor because he wanted to take the court further to the right; wanted to achieve what his father and even Justice Kennedy's patron had failed to achieve -- a rock-ribbed right-wing conservative majority. He has achieved this goal. This is not news. What's news is that people today still profess to be surprised by the court's ideological reality or the practical consequences it has for all of us over the next generation.
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