Supreme Court Justice John Roberts: “doctrinaire conservative”

The New Yorker has published a detailed article on the track record of Supreme Court Justice John Roberts. The conclusion is that he is a "doctrinaire conservative." Here's an excerpt:

His jurisprudence, as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

But isn't Roberts simply following the law? There is an incredible amount of existing legal precedent (thousands of cases have been decided by the U.S. Supreme Court, and many thousands of additional cases have been decided by the numerous federal courts of appeals and federal district courts. Careful readings of these cases demonstrate that considerable numbers of these legal holdings conflict in both minor and major ways with one another. This ever-growing sometimes convoluted body of decided cases is the backdrop the work of judges, and they are charged to follow precedent, except when they choose not to, and--this is a critical point--their breaks from precedent (e.g., Brown v. Board of Education) constitute some of the Court's best moments. This backdrop makes for a strange formula for jurisprudential "rigor." So let's not pretend that judges are simply sitting on the bench to "follow the law" as though they were solving binomial equations. There is immense opportunity to insert one's own personal biases in a legal opinion, thanks to the many paths offered by precedent combined with human ingenuity. Recent examples of legal analysis by Jay Bybee (now JUDGE Bybee) would suggest that there is no limitation at all--that legal reasoning is merely a political power exercised by a person wearing a robe. Lest someone think that this is a hatchet piece on Roberts, I need to point out that I am sympathetic with a few of Roberts "conservative" themes. As one example, I am highly suspicious of judicial remedies for "racial" discrimination where those remedies impose widespread societal changes based on "race." We should be moving away from a belief in "race," not further legitimizing it. My personal bias is that we need to get to the point where we can all proudly say that we are all human beings or even that "We are all Africans." No one denies that Roberts is affable or that he is a lawyer who knows "the law" inside and out. Based on the convoluted set of existing law, though, combined with the immense discretion available to judges (under the cloak of "follow the law"), lawyers and judges can almost always find principles and cases to support almost any position they care to take. Throughout the history of jurisprudence, then, recurring questions are how should a judge choose among competing precedent and how should a judge apply that precedent? The point was illustrated well by Barack Obama, who as a Senator cast a vote opposing the appointment of Roberts:

In his Senate speech on that vote, Obama praised Roberts’s intellect and integrity and said that he would trust his judgment in about ninety-five per cent of the cases before the Supreme Court. “In those five per cent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision,” Obama said. “In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions . . . the critical ingredient is supplied by what is in the judge’s heart.” Obama did not trust Roberts’s heart.

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The Crisis of Credit – visualized!

In my never ending quest to understand more about why we are currently in a recession and why my house is worth less than a brace of Latte's from Starbucks, I seek insight from teh intertubes. I found such insight at the Church of the Apocalyptic Kiwi - (who were also inspirational during the presidential race, fyi) Enjoy!

The Crisis of Credit Visualized from Jonathan Jarvis on Vimeo.

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Andrew Sullivan reviews Robert Wright’s account of the evolution of religion

At the Daily Dish I learned that Andrew Sullivan reviewed Robert Wright's new book, The Evolution of God, in the London Times. Here's an excerpt:

From primitive animists to the legends of the first gods, battling like irrational cloud-inhabiting humans over the cosmos, Wright tells the story of how war and trade, technology and human interaction slowly exposed humans to the gods of others. How this awareness led to the Jewish innovation of a hidden and universal God, how the cosmopolitan early Christians, in order to market their doctrines more successfully, universalised and sanitised this Jewish God in turn, and how Islam equally included a civilising universalism despite its doctrinal rigidity and founding violence.

Fundamentalism, in this reading, is a kind of repetitive neurotic interlude in the evolution of religion towards more benign and global forms.

Continue ReadingAndrew Sullivan reviews Robert Wright’s account of the evolution of religion

A long-time admirer of Israel is disillusioned

In a U.K. Guardian article entitled, "The Paradox of Israel's Pursuit of Might," long-time admirer of Israel Max Hastings writes of his disillusionment regarding Israel's ambitions:

I was a correspondent there in October 1973, during the Yom Kippur war. It was an extraordinarily moving spectacle, to behold the people of Israel rallying to meet what they perceived as a threat to their national survival. One morning I stood on the Golan Heights and watched Israeli tanks duelling with the Syrians, amid pillars of smoke and flame . . . For someone like me, who enjoyed a love affair with Israel 40 years ago, it is heart-breaking to see the story come to such a pass. It is because so many of us so much want to see Israel prosper in security and peace that we share a sense of tragedy that 61 years after the state was born amid such lofty ideals, it should be led by such a man as Bibi Netanyahu, committed to policies which can yield nothing honourable or lasting.

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NYT says “It’s Torture!”

The NYT today published an obituary for a deceased American fighter pilot who was captured by the Chinese:

Harold E. Fischer Jr., an American Flier Tortured in a Chinese Prison, Dies at 83... From April 1953 through May 1955, Colonel Fischer — then an Air Force captain — was held at a prison outside Mukden, Manchuria. For most of that time, he was kept in a dark, damp cell with no bed and no opening except a slot in the door through which a bowl of food could be pushed. Much of the time he was handcuffed. Hour after hour, a high-frequency whistle pierced the air. [...] Under duress, Captain Fischer had falsely confessed to participating in germ warfare.
So - when the Chinese do it it's torture. When the US do it it's "harsh interrogation". We expect more consistency of our major news organizations. We expect more of our own government. It's time to call for a special prosecutor, Mr. Attorney General. [via Glenn Greenwald, and Andrew Sullivan]

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