Bench Memos

Calabresi v NYT

Northwestern law professor Steven Calabresi writes a letter to the editor of the NewYork Times responding to this hyperventilating editorial that complained about the allegedly “hyperpartisan” Roberts Court.

You complain that the Roberts Court is unprincipled and simply reaches policy results that conservative Republicans favor (editorial, Sept. 30). This is false.

Justices Antonin Scalia and Clarence Thomas, for example, regularly reach left-wing results where the law compels them. Consider their votes to find flag-burning constitutionally protected, strike down the sentencing guidelines and uphold gargantuan punitive damage awards.

Likewise, no Roberts Court member has ever suggested that the court should protect human life from conception to birth under the murder laws or the 14th Amendment.

It is great to see you endorse the idea that judges should have a non-result-oriented philosophy of judging. Admittedly, some may doubt the depth of your new-found commitment in light of the editorial’s conclusion that the court’s new term should be judged by whether it reaches The Times’s preferred results. Nonetheless, even lip service is a start.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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