New at Reason

David Boaz wants to know when the particular ideological mix of the Supreme Court at any given time became sacrosanct.

Comments

jbd | January 19, 2006, 2:52pm | #

I'm often a fan of Boaz, but I think this article makes no sense at all, and appears to be "phoned in." It may prove that the media is more likely to use alarmist rhetoric in describing conservative nominees in comparison to liberals, but that doesn't seem to be the point that Boaz is trying to make. He says it's okay to be concerned about whether Alito is "too conservative," but not okay to be concerned about whether Alito would "shift the balance of the Court in a conservative direction." Is there a point here at all? If there is, it seems to be a petty semantic one.

sage | January 19, 2006, 2:59pm | #

"David Boaz is executive vice president of the Cato Institute and author of Libertarianism: A Primer. "

Has anyone read this? Is it better than Harry Browne's "offer?"

Pro Libertate | January 19, 2006, 3:04pm | #

sage, I read it a while back and thought it pretty good.

thoreau | January 19, 2006, 3:27pm | #

upholding sodomy laws in Bowers v. Hardwick

Herrick, you wanna take this one?

hedonismbot | January 19, 2006, 3:29pm | #

does ginsberg really have that bad a record against civil liberties?

Qbryzan | January 19, 2006, 3:34pm | #

I'll second the favorable review of "Libertarianism: A Primer", but I have not read Harry Browne's book, so I cannot compare the two.

John | January 19, 2006, 3:36pm | #

does ginsberg really have that bad a record against civil liberties?

Considering her vote to uphold McCain Feingold, only if you think political speech is a civil liberty.

The article makes an obvious but valid point, whenever a liberal is nominated to the Court, they are just nominated. Whenever a Conservative is nominated that person is inevitably taking someone's place on the Court. Bork was taking Powell's swing vote. Thomas was taking Thurgood Marshall's seat. Now Alito is taking O'Conner's seat. Of course, Ginsberg didn't take White's seat. If you are a conservative you don't get a seat.

Stretch | January 19, 2006, 3:45pm | #

It was actually one of the first things I read about it, so it's good enough to open the door at least.

On the topic at hand, it is interesting to note the way media has identified court nominations. This may add an argument about media bias, but I don't think it's really the "media's notion that the Supreme Court exists in some sort of delicate balance...". I think the notion of court balance is a very common view, which perhaps the media reports on inconsistently, but it not solely in their province. One only needs to look at conservative blogs, radio and TV to see the amount of complaints about liberal judicial activism. In fact, I would say that the idea of court balance is a direct (and real) product of a political process so dominated by a two-party system and divided along partisan lines.

dhex | January 19, 2006, 4:26pm | #

it's not media bias; it's the stupid abortion thing.

FWIW | January 19, 2006, 4:27pm | #

If you are a conservative you don't get a seat.

You're right, John. You get seven.

JD | January 19, 2006, 5:10pm | #

Maybe the "ideological balance" of the court didn't make so much of a difference because the Supreme Court wasn't supposed to be the Second Chance Congress. Unfortunately, that meme seems to be here to stay, probably because it's too convenient to a lot of folks. As Joe Biden pointed out, nominees weren't supposed to run this public gauntlet until 1925 or so.

Pro Libertate | January 19, 2006, 5:13pm | #

If I were president, I'd appoint a brilliant chimpanzee to the Supreme Court. One of the ones that knows American Sign Language:
Bobo dissents. Bobo wants banana. Okay, Bobo affirms. Bobo likes Constitution. Bobo finds it tasty.Have a clerk fill in some legal jargon, and voila! That's basically how it really works anyhow.

P.S. And yes, a chimpanzee meets the qualifications for the Supreme Court as laid out in the Constitution. And no, that's not a joke.

John | January 19, 2006, 5:29pm | #

You're right, John. You get seven

Actually you get four (Scalia, Thomas, Roberts and Alito), but when those guys leave and are replaced no one will pine for the Scalia seat on the court. But rest assured, when Stevens retires, whoever replaces him, assumeing they are appointed by a Republican, will be taking the "Stevens" seat.

downstater | January 19, 2006, 5:50pm | #

But rest assured, when Stevens retires, whoever replaces him, assumeing they are appointed by a Republican, will be taking the "Stevens" seat.

it must be hard to be so persecuted. seriously, with control of all three branches of government, i guess this is all that's really left for republicans to complain about - whether their nominees are getting their props, nevermind their confirmations which seem to be going just fine.

Alex Gourevitch | January 19, 2006, 6:09pm | #

I find this debate somewhat confused. It seems to me, the proper libertarian position is simply to be against judicial review. There is very little historical evidence that the Court, on the whole, has protected civil liberties, regardless of whether it was tilted right or left. Not only is it generally 'more executive minded than the executive', but when it really counts, ie in the moment, the court generally chickens out. Or even worse, it ends up constitutionalizing all kinds legal limbos and black holes, expanding the kinds of things the state can do perfectly legally. Think, for instance, of the recent rulings creating military tribunals - this gives a legal gloss to the lack of real due process given to 'enemy combatants', and that's thank to the courts. All this tilt and whirl about balance and shift misses the forrest for the trees. Let's just get rid of judicial review!

Mr. F. Le Mur | January 20, 2006, 7:11am | #

There is very little historical evidence that the Court, on the whole, has protected civil liberties, regardless of whether it was tilted right or left.

When you consider that nearly everything the federal government does is clearly unconstitutional, the nine government lawyers are revealed as little more than a bad joke.

George Orwell | January 20, 2006, 1:34pm | #

A number of comments seem to be on point: The so-called "conservative right" shouts a great deal about judicial activism, yet the judges which they would place on the court appear to be greater activists than the ones they would be replacing. How do you explain Alito's position on abortion or Constitutional Originalism otherwise?

The same can be said of Scalia, Thomas, and Roberts. What can be made of their dissenting opinion concerning the Oregon Death with Dignity Law if not judicial activism? The Executive trying to overturn a State's Law, which received a higher percentage of the popular vote btw than the president did, through the use of the courts cannot be called anything else.

As for the supposed balance, unfortunately, the Supreme Court has been more conservative than anything else. Historically, the Court has been slow to change US Law, even when that Law was obviously wrong (see Dred Scott, and how many times did Thurgood Marshall have to present before the Court briefs against Jim Crwo before the Court actually decided what was right).