a new SCOTUS era

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Erwin Chemerinsky (author of The Conservative Assault on the Constitution) sees a new era for the Supreme Court:

The just completed Supreme Court term will come to be regarded as the beginning of a new era in constitutional history: a time of a very activist Court that aggressively follows the conservative political agenda. This term was the most conservative since October 1935, when the Supreme Court repeatedly declared unconstitutional key New Deal laws. The 2017-2018 term was a year filled with cases of unusual importance, and the conservative position prevailed in almost every case.

"One measure of this term's conservatism," Chemerinsky writes, "is found by looking at the 5-4 decisions:"

There were 19 5-4 rulings out of 63 decisions. Justice Anthony Kennedy voted with Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch in 14 of them. He voted with the liberal justices--Ruth Bader Ginsburg, Stephen Breyer, Sonya Sotomayor, and Elena Kagan--zero times. A year ago, in the ideologically divided cases, Kennedy was with the liberals 57 percent of the time. Two years ago, Kennedy was the key vote to uphold the University of Texas's affirmative action program and to strike down key provisions of Texas's restrictive abortion law.

Chemerinsky observes that "this term, where Kennedy always voted with the conservatives, is the harbinger of what is to come," and his departure from the bench "means that this type of conservative judicial activism will be here for a long time:"

Richard Nixon got to pick four justices in the first two years of his presidency, between 1969 and 1971. This ended the liberal era and the Court moved sharply to the right. I think we will come to see that era lasting from 1969 to 2017. [...]

But this era is now over. No longer is there a Stevens or Souter, let alone a Powell or O'Connor or Kennedy to join the liberals. Instead of Powell or O'Connor or Kennedy being the "median justice" ideologically, it is John Roberts who is the ideological middle of the Court. Roberts is much more conservative than Kennedy on the most high-profile and controversial issues. The chief justice wrote a vehement dissent from the Supreme Court decision in 2015, Obergefell v. Hodges, which declared unconstitutional state laws prohibiting same-sex marriage. It is the only dissent that he has read from the bench since joining the Court in 2005. Roberts has voted to uphold every regulation of abortion that has come before him. He is emphatic that all forms of affirmative action are unconstitutional.

"What will it mean," Chemerinsky asks, "to have five very conservative justices whose jurisprudence is based on the Republican platform?"

I have no doubt that there will be five votes to overrule Roe v. Wade, five votes to declare all forms of affirmative action unconstitutional, five votes to eliminate the exclusionary rule as a remedy when police violate the Constitution.

We have seen the beginning of a new era of right-wing judicial activism on the Court, and it is going to be with us for years to come.

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This page contains a single entry by cognitivedissident published on July 2, 2018 1:01 PM.

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