The Judiciary Has Been Drowned In A Bathtub

Geoffrey Stone skillfully argues at HuffPo that the Supreme Court abdicates its constitutional role by issuing narrow opinions in the manner that Chief Justice Roberts propones. He briefly touches on the reasons why this matters to people: it creates different zones of the country where the law applies differently, but there’s more.

First, liberals like to refute the conservatives “Activist” diss of the Warren court by showing that the Rehnquist court struck down far more laws. That is correct, but the typical decisions of the Rehnquist court, especially those that pivoted on Sandra Day O’Connors tie-breaker contained very narrow holdings that were often only useful in the case at hand.

This chicken-shit jurisprudence is part of the half-century long conservative crusade to neuter the judiciary. It’s not simply something with good intentions and bad effects. So, the Warren court says you have to give the Miranda warning and says exactly what it is. To conservatives, that’s legislating. But when the Rehnquist court says that a search was valid due to the “totality of the circumstances” it not only leaves police and lower courts not knowing what the new boundaries really are, it leaves that decision in the hands of other branches of government.

So, to the extent this has succeeded, they have drowned this particular branch of government in a bathtub.

Second, the practical effect of this is leaving these broader pronouncements to the Circuit courts which are essentially dominated by conservative, Republican appointees. There are only a very few truly liberal Circuit court justices. Judge Reinhardt on the Ninth Circuit, a famously liberal circuit, is really the only one on that court. Most of the so-called “liberals” are center-right.

Up until very recently, this ploy, begun largely by Rehnquists diktat to reduce the number of cases the court hears, had the effect of handing down the decisions to the more conservative courts where nutjobs could get approved more stealthily.

The extreme political wars fought over every Supreme Court justice have resulted in near-stasis at that level, but the Circuit courts have taken a sever right turn.

Never underestimate the subtlety and extremely cynical partisan ends of the conservative war on the judiciary. It is ancient, vast, powerful, and hidden from the ken of most Americans. It machinations are always more sinister than is apparent.