September 20, 2007

Cass Sunstein on the Supreme Court's Lurch to the Right

His point - what was once the center is now the left, and a right-wing that barely existed in 1980 now dominates the highest court in the land. Beyond that, it's the right that's driving the court intellectually. Predictably, this displeases him.

Posted by armand at September 20, 2007 12:46 PM | TrackBack | Posted to Law and the Courts


Comments

And as Glenn Reynolds (usefully, for once) pointed out, so what? As he said, compared to the 1880 Court the modern court has gone so far left as to be almost unrecognizable. Why should 1980 -- the last year of the Malaise Era -- be the benchmark?

Posted by: jacflash at September 20, 2007 12:59 PM | PERMALINK

Well I think the point (at least to a degree) is to call out the way that wording used by the press as inaccurate, or at least inadequate.

And 1980 makes MUCH more sense to me as a comparison to illustrate this than 1880 - when what the Court did was entirely different. I mean pre-incorporation ... that was in many ways an entirely different government - so much so that the language of liberal/centrist/conservative (which seems to be what Sunstein think's the press gets wrong) doesn't make any sense to use.

Posted by: Armand at September 20, 2007 01:15 PM | PERMALINK

Well, okay, we could just as easily say that "a left wing that barely existed in 1950 dominated the court in 1980". So what?

Posted by: jacflash at September 20, 2007 01:28 PM | PERMALINK

So ... why not note that? If there's a big change, it seems reasonable to point that out. A not unimportant part of Sunstein's article is that by the standards of the time the 1980 Court wasn't seen as a bastion of wacky lefties. I mean a shift had already gone on. I think a reasonable argument could be made that the "liberal" Court began pre-Warren. I mean look who was on it in the 40's - Douglas, Murphy, Rutledge, Black ...

Posted by: Armand at September 20, 2007 01:41 PM | PERMALINK

To be clear, my larger point is this: the country has gone in a political direction Sunstein doesn't like. The court's evolution is a symptom/effect of that. It's not exactly happening in isolation, and it wasn't like it would have been hard to predict.

Posted by: jacflash at September 20, 2007 01:51 PM | PERMALINK

i'm with armand on this. the Court is what it is now, and while to a given period, the increments immediately preceding it are recognizable, there's an apples to oranges thing if you go back to far.

and regarding media terminology, i think the point is valid, and also echoes what's going on in the more political spheres, what with b. clinton looking like a lefty now when he ran and governed as what many of us think of as a centrist with rightward shadings.

i mean -- and this is far more provocative than i really want to be, but it does hammer home the point -- in lincoln's era the republicans were the party of emancipation, now they're, to many people, the party of ghettoization.

it doesn't make much sense to compare today's parties with their predecessors a hundred years ago either.

Posted by: moon at September 20, 2007 01:56 PM | PERMALINK
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