Thinking Like a Liberal Supreme Court Justice - Or Not

Soon after the Fourth of July, Francis Menton posted How To Think Like A Liberal Supreme Court Justice -- Part II at Manhattan Contrarian:

Just over a year ago, on July 5, 2022, I had a post titled “How To Think Like A Liberal Supreme Court Justice.” The post was occasioned by the then-brand-new issuance (June 30, 2022) of the biggest decision of the Court’s last term, West Virginia v. EPA. Justice Kagan had authored a dissent on behalf of herself and the other two liberal justices (Breyer and Sotomayor). My post also discussed two other significant decisions of the 2021-22 term where the three liberals had again dissented as a bloc: Alabama Association of Realtors v. HHS and NFIB v. Department of Labor.

And now we have several more big decisions just issued with the same 6-3 voting split (Justice Jackson having replaced Breyer). The most significant is SFFA v. Harvard.

So suppose you want to learn how to think like a liberal Supreme Court justice. If so, I submit that there is no better place to look than the dissents in cases where the three liberal justices dissent as a bloc.

. . you would be justified in coming to these dissents expecting to find brilliant insights into our legal system and constitutional order. If so, you will be greatly disappointed. There is nothing complicated about the thinking of a liberal Supreme Court justice. Each of these dissents follows the same rote formula: the heart of the opinion is an appeal to fear and/or guilt, completely divorced from anything about the law. The basic argument is that because of either some looming menace, or your sins, or both, you must cede infinite power to your betters to run things outside the constitutional order. The law? Somewhere in the thousands of statutes and precedents out there, or maybe just from our superior moral compass, we can find something to serve as a pretext to support our desired result. The desired result is always more power to the bureaucrats and/or liberal elites. QED.

SO SIMPLE. Especially considering how long some of those dissents are. But it seems about right to me. Do you agree?

Examples are given. There are some nice notes in the comment about people thinking like the justices, as well. Particularly in academia.

We are in trouble. God Bless America.

Related

Rich Lowry:

Justice Ketanji Brown Jackson's dissent in the Supreme Court's affirmative action case achieved instant legendary status in certain quarters.

Vice President Kamala Harris called it "probably one of the most brilliant dissents that any justice of the United States Supreme Court has ever written."

Takes a brilliant mind to recognize a brilliant mind.

This is incredible. Might be Kamala Harris' best yet. pic.twitter.com/3j5PJWSlui

— Nick Gillespie (@nickgillespie) July 7, 2023

Babylon Bee:

Elizabeth Warren Says Without Affirmative Action, A Native American Girl Like Herself Would Never Have Been Accepted To Rutgers

David Strom:

NPR: Whites fooled Asians into believing affirmative action hurt them

Jonathan Turley:

Rep. Alexandria Ocasio-Cortez bizarrely condemned the Supreme Court for usurping congressional authority by supporting congressional authority in the student loan case.

How NOT to think like a liberal Supreme Court justice

Just be Thomas Sowell:

From Thomas Sowell’s memoir. More evidence that standardized tests should be free and compulsory to identify gifted youngsters from poor and marginalized backgrounds. And that relying on the subjective opinions of teachers is a major blunder. pic.twitter.com/37HnD7u53u

— Rob Henderson (@robkhenderson) July 7, 2023

THE QUEST FOR COSMIC JUSTICE by Thomas Sowell:

In a sense, proponents of "social justice" are unduly modest. What they are seeking to correct are not merely the deficiencies of society, but of the cosmos. What they call social justice encompasses far more than any given society is causally responsible for. Crusaders for social justice seek to correct not merely the sins of man but the oversights of God or the accidents of history. What they are really seeking is a universe tailor-made to their vision of equality. They are seeking cosmic justice.

Ironically, the quest for greater economic and social equality is promoted through a far greater inequality of political power. If rules cannot produce cosmic justice, only raw power is left as the way to produce the kinds of results being sought. In a democracy, where power must gain public acquiescence, not only must the rule of law be violated or circumvented, so must the rule of truth. However noble the vision of cosmic justice, arbitrary power and shameless lies are the only paths that even seem to lead in its direction. As noted at the outset, the devastating costs and social dangers which go with these attempts to achieve the impossible should be taken into account.

Weekend Musing

How is this woman different from a liberal Supreme Court justice?

The brave woman who jumped from one plane to another in the air to changed the landing gear of the plane, 1926.pic.twitter.com/nqVJtM1EJq

— World Of History (@UmarBzv) July 7, 2023

Book Thread Prep

Book review by Wilfred M. McClay
July 3, 2019

Proclaim Liberty Throughout the Land: The Hebrew Bible in the United States, A Sourcebook

It is hard to imagine what the United States might have looked like without the influence of the Hebrew Bible, but there is little point in trying to envision such an extreme counterfactual. Beginning in the 17th century with the migration of English Puritans to New England, biblical narratives and imagery have played a surprisingly large, even outsized, role in the formation of the American national consciousness and institutions. The Hebrew Bible’s unique cosmology, its moral teachings, and its prophetic admonitions were brilliant threads woven into the rich sermons and intense devotional texts produced by these zealous Christian settlers. Its account of the covenant as the ultimate form of binding community in ancient Israel—the community of God and man, as well as that of man and man—would serve as a blueprint for the theological and political structures the New England settlers would go on to create.

But as this valuable new anthology of American political, legal, and ecclesiastical texts from the first half of American history shows vividly, the influence went even deeper than that. As scholars have long understood, but many Americans have forgotten, Puritans identified themselves with ancient Israel. . .

Music and Dance

The crowd was a little ummmm. . . disorganized at the beginning of this video.

Tuba Skinny and NOLA Jitterbuggs

Hope you have something nice planned for this weekend.

This is the Thread before the Gardening Thread.

Last week's thread, Happy Independence Day Weekend

Interesting comments on feudalism, standing armies and quartering armies in Europe late in the comment thread.

Some things I didn't know:

249 A music theory prof told me a few decades ago that Sousa's time was the last period when the language spoken by the best popular composers was the same as that of the cutting edge 'major' composers.

Sousa was a pretty remarkable fellow. Not only was he the March King, but he also wrote operettas and novels. He was also among the greatest trapshooters of his day. Of the sport, he said, "Let me say that just about the sweetest music to me is when I call, 'pull,' the old gun barks, and the referee in perfect key announces, 'dead'."

Hadrian the Seventh

Pertinent to this week's topic:

179 So what is the equivalent of "mansplaining," which Justice Brown is engaging?

Lizzy

Comments are closed on last week's thread so you won't ban yourself by trying to comment on a week-old thread. But don't try it anyway.

A thought from Dr_No:

posted by K.T. at 11:09 AM

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