Bench Memos

Law & the Courts

Unwarranted Pessimism from the Left

I wish that I were as optimistic as the New Yorker’s Jeffrey Toobin is pessimistic about the prospect of conservative victories in the coming Supreme Court term.

In a piece hyperbolically titled “The Coming Liberal Disaster at the Supreme Court,” Toobin anticipates liberal defeats on racial preferences in Fisher v. University of Texas, on abortion, and on mandatory union fees in Friedrichs v. California. I won’t argue against him on the union-fees case. But I think that what Toobin properly labels the “surprising victory” for the Left last term in the Fair Housing Act case ought to diminish conservative expectations about a victory in Fisher. And apart from the fact that no abortion case is before the Court, Toobin’s assertion that “there is every reason to believe [Justice Kennedy] will support” the constitutionality of contested state abortion restrictions strikes me as wildly exaggerated.

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