If Supreme Court justices don’t want to be seen as “partisan hacks,” they should not act like them.

In a speech last week at the McConnell Center at the University of Louisville Law School, Justice Amy Coney Barrett said, “This court is not comprised of a bunch of partisan hacks.” She added, “Judicial philosophies are not the same as political parties.”

Setting aside the irony of uttering these statements at an event honoring Sen. Mitch McConnell, who blocked the confirmation of Merrick Garland to the court and rushed through the confirmation of Barrett precisely because of their ideologies, the reality is that time and again the court’s Republican majority has handed down decisions strongly favoring Republicans in the political process.

Does Barrett really expect people to believe that is a coincidence?

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In the same speech, Barrett reiterated that she is an originalist, one who believes that the Constitution must be interpreted to mean what it might have meant at the time it was adopted. Yet not one of the court’s decisions about the election process favoring Republicans can possibly be defended on originalist grounds, which shows how wrong her claims really are.

In a series of rulings, with all of the Republican-appointed justices in the majority and the Democratic-appointed justices dissenting, the court has strongly tilted the scales in elections in favor of Republicans. In 2010, in Citizens United vs. Federal Election Commission, the court ruled 5 to 4 that corporations can spend unlimited amounts to get candidates elected or defeated.

Business interests, which overwhelmingly favor Republican candidates in their campaign expenditures, outspend unions by more than 15 to 1. There is no plausible argument that the original meaning of the 1st Amendment included a right of corporations to spend unlimited amounts in election campaigns. Neither political expenditures nor corporations, as we know them today, even existed at the founding of this country.

In decisions in 2013 and this year, the court’s conservative majority eviscerated the protections of the 1965 Voting Rights Act in a manner that helps Republicans and hurts voters of color and Democrats. In 2013, in Shelby County vs. Holder, the court, 5 to 4, nullified the law’s requirement that states with a history of race discrimination get preclearance before making a significant change in their election systems. Every one of these states where preclearance was required was controlled by Republicans.

Chief Justice John G. Roberts Jr. wrote for the majority and said that Congress violated the principle of equal state sovereignty by not treating all states the same. Nowhere is that found in the Constitution — and it was certainly not the understanding when the 14th Amendment was adopted by a Congress that imposed Reconstruction, including military rule, on Southern states.

After the Shelby County case, Republican-controlled governments in states like Texas and North Carolina immediately put in place restrictions on voting that had been previously denied preclearance.

In July, the court, now with six Republican appointees, gutted another crucial provision of the Voting Rights Act. Section 2 prohibits state and local governments from having election systems that discriminate against minority voters. Congress amended this provision in 1982 to provide that the law is violated if there is proof of a racially discriminatory impact.

The case, Brnovich vs. Democratic National Committee, involved two provisions of Arizona law that the United States Court of Appeals found had a discriminatory effect against voters of color. But Justice Samuel Alito, writing for the Republican-appointed justices, imposed many requirements that will make it very difficult, if not impossible, to prove a violation of the Voting Rights Act.

He said, for example, that courts must consider whether the new restrictions are worse than what existed in 1982 when the law was amended, all other ways for people to vote, and the state’s interest in preventing fraud. For any restriction on voting, a court can now say it isn’t as bad as some that existed earlier, or that there are enough other ways to vote, or that the state’s interests are enough to justify the law. In her dissent in Brnovich, Justice Elena Kagan noted there’s new evidence that “the Shelby ruling may jeopardize decades of voting rights progress.”

Conservative justices, who say they focus on the text of the law in interpreting statutes, created limits on the reach of the Voting Rights Act that are nowhere mentioned in it. The result is that the laws adopted by Republican legislatures in Georgia, Florida, Texas and other states are now far more likely to be upheld.

In these and other cases, the Republican justices changed the law to dramatically favor Republicans in the political process. Barrett’s protest against the justices being seen as “partisan hacks” rings hollow when that is what they have become. And it is risible to say that “judicial philosophies are not the same as political parties.” I would challenge her to give a single instance where the conservative justices on the court took positions that were at odds with the views of the Republican Party.

The most obvious example, of course, is abortion. The GOP vehemently opposes abortion rights and Republican presidents have appointed justices with that view. No one should have been surprised when the five conservative justices refused to enjoin the Texas law banning abortions after the sixth week of pregnancy even though it blatantly violates the constitutional right to abortion.

Supreme Court decisions always have been and always will be a product of the ideology of the justices. No one — least of all a Supreme Court justice — should pretend otherwise.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion. He is the author most recently of “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.”

(http://www.autoadmit.com/thread.php?thread_id=4926518&forum_id=2#43151944)

every time the court splits on ideological line the MSM and guys like Chemerinsky say, "look, the conservatives voted on ideological lines!"

(http://www.autoadmit.com/thread.php?thread_id=4926518&forum_id=2#43152149)

"Supreme Court decisions always have been and always will be a product of the ideology of the justices. No one — least of all a Supreme Court justice — should pretend otherwise."

(http://www.autoadmit.com/thread.php?thread_id=4926518&forum_id=2#43160067)

he lost 9-0 i believe. not his only drubbing at SCOTUS.

(http://www.autoadmit.com/thread.php?thread_id=4926518&forum_id=2#43152419)

Erwin Chemerinsky

Dean (2019)

U: Poast, move commas

https://transparentcalifornia.com/salaries/2019/university-of-california/erwin-chemerinsky/

(http://www.autoadmit.com/thread.php?thread_id=4926518&forum_id=2#43152300)

Wouldn't an originalist be more of a free speech absolutist with respect to abortion?

Why would an originalist think there is a constitutional right to abortion?

-- How the fuck is this guy the dean of a law school. This shit wouldn't even be published in a state school newspaper.

(http://www.autoadmit.com/thread.php?thread_id=4926518&forum_id=2#43155467)

Like Gorsuch and Roberts in Bostock?

Like in all of Trump election fraud cases?

Like the 9-0 in Trump v. Vance?

Like Roberts, Kavanaugh, and Gorsuch in Trump v. Mazars?

I could go on, but he only asked for a single instance, so we've already blown past that.

I would challenge any defender of Chemerinsky to give one example of a non-dogshit opinion piece he has written since 2015.

(http://www.autoadmit.com/thread.php?thread_id=4926518&forum_id=2#43156447)

Our Lady of Guadalupe School v. Morrissey-Berru (2020) was a case about the scope of the ministerial exception in employment discrimination cases. That was decided 7-2 in favor of an exception that was broader than progressives would have liked. Hell, they would have preferred abolition of the exception.

Kagan joined an Alito dissent in the Ramos v. Louisiana (2020), the unanimous criminal jury trial case. Politically important? I dunno. But, at the time, there were several journalists screeching about how racist non-unanimous criminal trials are.

(http://www.autoadmit.com/thread.php?thread_id=4926518&forum_id=2#43161583)

On significant political and cultural cases they vote 100 percent lib lockstep

(http://www.autoadmit.com/thread.php?thread_id=4926518&forum_id=2#43161641)

Let individuals contribute as they desire; but let us prohibit in effective fashion all corporations from making contributions for any political purpose, directly or indirectly.

-T. Roosevelt, SOTU 1906

(http://www.autoadmit.com/thread.php?thread_id=4926518&forum_id=2#43156452)

This is a great example of libs holding conservatives to standards they never, ever apply to their own and never would. When SCOTUS was liberal they were thrilled to declare "LOVE WINS!" as gay marriage becomes a constitutionally guaranteed right. MSM never declares when the court is liberal and partisan that maybe they should resign so the court is balanced. Conservatives finally get a court? TEAR IT ALL DOWN!

(http://www.autoadmit.com/thread.php?thread_id=4926518&forum_id=2#43157917)

====

https://jonathanturley.org/2021/09/20/the-age-of-rage-berkeley-law-dean-calls-conservative-justices-partisan-hacks/

Berkeley Law Dean Calls Conservative Justices “Partisan Hacks”

Erwin Chemerinsky, dean of the UC Berkeley School of Law, has published a blistering opinion editorial entitled “Are Supreme Court Justices ‘Partisan Hacks’? All the Evidence Says Yes.” The column is unfortunately the latest example of how rage has replaced reason in our discussions of the Court. Chemerinsky previously declared that “Congress would be totally justified in increasing the size of the court.” He has insisted that court packing is “the only way to keep there from being a very conservative Court for the next 10–20 years.”

Chemerinsky was responding to Justice Amy Coney Barrett recently saying that “Judicial philosophies are not the same as political parties” and insisted that the Court “is not comprised of a bunch of partisan hacks.”

That clearly set off many like Chemerinsky who wrote:

“Barrett’s protest against the justices being seen as ‘partisan hacks’ rings hollow when that is what they have become. And it is risible to say that ‘judicial philosophies are not the same as political parties.’ I would challenge her to give a single instance where the conservative justices on the court took positions that were at odds with the views of the Republican Party.”

It is a bizarre statement. The last two years have seen conservative justices like Kavanaugh, Gorsuch, and Barrett cast key votes with their more liberal colleagues. That includes the rejection of all of the election challenges to the 2020 election that led to these justices being attacked by former President Donald Trump.

There are many other such examples. Justice Brett Kavanaugh for example voted to uphold the nationwide moratorium on the eviction of renters issued by the Centers for Disease Control and Prevention (CDC). His vote was key in the 5-4 decision in Alabama Association of Realtors v. Department of Health and Human Services.

Likewise, Justice Neil Gorsuch not only supplied the critical vote in United States v. Quartavious Davis but wrote the opinion with his more liberal colleagues. In a 5-4 decision, the majority sided with a habitual offender in striking down an ambiguous provision that would allow enhanced penalties for a “crime of violence.” Gorsuch wrote “In our constitutional order, a vague law is no law at all.”

During the confirmation hearings of now Justice Amy Coney Barrett, I repeatedly objected to the clearly false narrative that she was nominated to vote to strike down the Affordable Care Act in the pending case of California v. Texas. The case was highly unlikely to result in such a decision and the Democrats knew it. The case was focused on a highly technical and limited issues of severability. It would either be resolved on that limited basis or dismissed for standing. While Barrett might view the ACA as unconstitutional (as many do), I noted that she was more likely to dismiss the challenge or sever the individual mandate than to strike down the Act in the case. That is what she did in joined the 7-2 decision to dismiss the case.

In fact, the Court just finished a term marked by a long list of unanimous and non-ideological decisions.

The portrayal of voting pattern of conservatives as raw politics is an old saw on Capitol Hill. In the confirmation hearing for Kavanaugh, Senator Sheldon Whitehouse had raised this issue, asking, “When is a pattern evidence of bias?” Whitehouse noted a voting pattern by the five conservative justices who “go raiding off together.” Whitehouse denounced how the “Roberts Five” of “Republican appointees” join in such decisions and “no Democratic appointee joins them.” He simply ignored the “Ginsburg Four” on the other side of most of those opinions. Those liberal justices are not ideologues because they are treated as manifestly right.

None of this matters. It is not the reality but what is reported as the reality that drives polls and politics.

Most notable is the what Chemerinsky cites as the “most obvious example” of the conservatives acting like partisan hacks: the recent decision not to intervene to enjoin the controversial abortion law: “No one should have been surprised when the five conservative justices refused to enjoin the Texas law banning abortions after the sixth week of pregnancy even though it blatantly violates the constitutional right to abortion.”

Chemerinsky (and the Los Angeles Times) does not even mention the technical flaw leading to the decision. The court’s order removed from the actual merits of the law and due to the fact that the challengers sued a state judge and clerk who are not actually tasked with enforcing the law. They were virtually randomly selected in a challenge that seemed more improvisational than procedural. Accordingly, the majority stated that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.” However, the majority emphasized that it was not upholding the law and acknowledged that “the applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue.”

Chemerinsky also does not mention that one of the conservative justices, Chief Justice John Roberts, voted with his more liberal colleagues. However, even in his dissent, Chief Justice John Roberts admitted it is unclear “whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.”

None of that is mentioned. Instead, it is offered as the greatest evidence that the justice are just a bunch of political hacks — and by implication support the calls to immediately pack the Court with a liberal majority.

Chemerinsky also does not mention that Barrett is not the only justice objecting to this label. Justice Stephen Breyer has repeated pushed back on the left and rejected the claim that the Court was filled with rigid ideologues. He also opposes the calls for court packing. The late Justice Ruth Bader Ginsburg also opposed such court packing.

What is most disappointing is to see a dean or any law professor engage in such personal and unsupported attacks on the Court. While the number of conservatives among the students at Berkeley may be small (and the number of conservatives on the faculty is even smaller), Chemerinsky is dismissing conservative jurisprudence as mere political hackery. He is also the President-elect of the Association of American Law Schools.

This analysis tends to fulfill a narrative rather than inform the readers. With all due respect to Chemerinsky and his extraordinary career, such columns fuel the age of rage where reason is increasingly a stranger to legal analysis.

(http://www.autoadmit.com/thread.php?thread_id=4926518&forum_id=2#43158974)

You just had to throw that in at the start to let everyone know that you are just a fair and balanced moderate, of course.

(http://www.autoadmit.com/thread.php?thread_id=4926518&forum_id=2#43161701)