Bench Memos

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What Cass Sunstein Has Missed


In a New Republic blog post titled “What We’ve Missed About the Supreme Court,” University of Chicago law professor Cass Sunstein shows that he’s somehow missed quite a bit.  His claim is that the supposed “conservative refashioning of the Court has radically changed the terms of legal and political discourse.”  By “discourse,” he means the shorthand (and generally sloppy) labeling of justices as conservative, liberal, or moderate.  Let’s consider some of his assertions:


1.  “Astonishing but true:  The court of 1980, so far to the left of the court of 2007, was itself described as a conservative court.”  Well, the fact that the media may have misdescribed it as a conservative court hardly means that it was conservative.  And there was plenty of room on the left spectrum for it still to be to the right of the Warren Court without being anywhere close to conservative.


2.  “After all, [the court of 1980] included five Republican appointees (Powell, Burger, Rehnquist, Stevens and Stewart) who generally rejected the liberal rulings of their predecessors on the Warren Court.”  (Emphasis added.)  Oh, really?  Which Warren Court rulings did those five vote to overturn?  Or does “rejected” in Sunstein’s usage mean merely something akin to “declined to extend”?


3.  “Justice Kennedy is standardly described as the ‘moderate’ on the Court–even though his views on key issues are far more conservative than those of Powell, Stewart, and White, the distinguished moderates on the Burger Court.”  (Emphasis added.)  Which key issues does Sunstein have in mind? 


Certainly not abortion, where White, who dissented in Roe v. Wade and supported its overruling, was (in sloppy political parlance) “more conservative” than Kennedy and where there seems no basis for distinguishing Powell’s and Stewart’s views from Kennedy’s. 


Ditto for homosexual issues:  White authored, and Powell joined, the Court’s 1986 ruling in Bowers v. Hardwick, which Kennedy’s 2003 opinion in Lawrence overruled. 


Establishment Clause?  White dissented from Kennedy’s extravagant 1992 opinion in Lee v. Weisman; what reason is there to think that Powell (who joined O’Connor’s 1984 opinion in Lynch v. Donnelly permitting the display of a crèche on public property) wouldn’t have done likewise?  (I’m not immediately familiar with Stewart’s Establishment Clause views and am not inclined to do more research than Sunstein did (obviously zero).)


Perhaps Sunstein could come up with some evidence for his proposition, but it’s strange that he didn’t even try to.


Update:  A reader reminds me that, contrary to what Sunstein says in the third assertion set forth above, the media usually identify Kennedy as a “moderate conservative” rather than as a “moderate” (even though his extravagant views of judicial power, and his exercise of that power to entrench liberal results, make both labels deceptively inaccurate).

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