Bench Memos

Ronald Dworkin’s The Supreme Court Phalanx

I’ve recently received Ronald Dworkin’s new book, The Supreme Court Phalanx:  The Court’s New Right-Wing Bloc.  The little book—just 70 pages—republishes in four separate chapters four essays by Dworkin that appeared in the New York Review of Books from 2005 to 2007—one on Roberts’s confirmation hearing, one on Alito’s, one on the 2007 partial-birth ruling, and one on the 2006-2007 term generally.

 

I’ve just read a couple of the chapters this morning and skimmed the others.  One need not wade far into the book to discover that Dworkin—a law professor at NYU and at University College London and, for reasons that escape me, a revered figure in some quarters—is quite unhinged.  At the end of the first chapter of his introduction, Dworkin, summarizing the Supreme Court from 1994 to 2005, asserts that Chief Justice Rehnquist, Justice Scalia, and Justice Thomas “steadfastly defended the most conservative positions possible.”  That assertion is patently false.  For example, on the issue of abortion (about which Dworkin is passionate), Rehnquist, Scalia, and Thomas never took the position that the Constitution prohibits permissive abortion laws.  Rather, they took the middle-of-the-constitutional-road position that the Constitution does not speak to the question of abortion.  (For more on this, see my 2005 essay, “Abortion and Justice:  Let’s hope John Roberts is a genuine moderate”.)  Likewise, on issues of race, the trio never took the position that Brown v. Board of Education was wrongly decided.  Instead, they took the position that the Constitution requires that the government be color-blind.  For someone like Dworkin who associates conservatives with benighted racial views, it is absurd to contend that colorblindness is “the most conservative position[] possible.”  And so on for plenty of other issues.

 

Here are some other examples of Dworkin’s wild rhetoric:

 

“The polarization [in the 2006-2007 term] was matched by revolutionary zeal:  the new conservative phalanx overruled an amazing number of past decisions in that term.”  (pp. xi-xii)

“Alito, Roberts, Scalia, and Thomas are judges on a mission:  to destroy the impressive constitutional structures that a long succession of prior justices built and shaped in the decades following the Second World War, and to replace them with cruder principles that burden if not eliminate abortion rights … and allow the executive branch near-dictatorial powers in the so-called ‘war’ against terror.”  (p. xii)

“The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush’s choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.” (p. 47)

“It would be a mistake to suppose that this right-wing phalanx is guided in its zeal by some very conservative judicial or political ideology of principle. It seems guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance.”  (pp. 47-48)

“I suspect that [Roberts’s] Senate testimony was actually a coded script for the continuing subversion of the American Constitution.  The worst is yet to come.”  (p. 70)

Even a quick read shows that, beyond his reckless rhetoric, Dworkin can’t be trusted to present legal issues accurately.  For example, Dworkin contends that “[i]n one of the two most politically sensitive of his cases [as a D.C. Circuit judge, Roberts] declared that the federal government has no power under the Constitution’s interstate commerce clause to force a California developer to protect an endangered species of toad that has so far been found only in that state.”  In fact, Roberts’s opinion (in dissent from a denial of rehearing en banc), in arguing that the panel’s approach “seems inconsistent with” Supreme Court precedent, expressly reserved the possibility that there might be “alternative grounds for sustaining application of the [Endangered Species] Act” under the Commerce Clause.  Similarly, Dworkin concocts a flawed challenge to Alito’s testimony that “the question of the unitary executive [as Alito had used the term] does not concern the scope of executive powers, it concerns who controls whatever power the executive has.” 

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