United They Stand

Just a few days back as a flurry of controversial decisions were announced Andrew McCarthy of NRO  railed against the left-wing voting bloc on the Supreme Court:

Did you notice that there was not an iota of speculation about how the four Progressive justices would vote? There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.

 

How can that be? Jurisprudence is complex. Supple minds, however likeminded, will often diverge, sometimes dramatically, on principles of constitutional adjudication, canons of statutory construction, murky separation-of-powers boundaries, the etymology of language, and much else. Witness, for example, the spirited debate between the Court’s two originalists, Scalia and Clarence Thomas, over a statute that, in defiance of Obama policy, treats Jerusalem as sovereign Israeli territory.

 

But not the Court’s lefties, not on the major cases.

 

And it is not so much that they move in lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.

 

One might infer from his tone that he considers this behavior to be a bad thing. So let's see how a Big Time Legacy Media Reporter makes the same points - this is Adam Liptak in today's NY Times, with my own editorial suggestions included:

 

Right Divided, a Disciplined Left Steered the Supreme Court

 

Who wants to be "divided"? No one. Who wants to be "disciplined"? Everyone! Continuing, with my suggested NRO rewrite in brackets:

 

WASHINGTON — The stunning series of liberal decisions delivered by the Supreme Court this term was the product of discipline [ideological lockstep] on the left side of the court and disarray [diversity] on the right.

In case after case, including blockbusters on same-sex marriage and President Obama’s health care law, the court’s four-member liberal wing, all appointed by Democratic presidents, managed to pick off one or more votes from the court’s five conservative justices, all appointed by Republicans.

They did this in large part through rigorous [rigid] bloc voting, making the term that concluded Monday the most liberal one since the Warren court in the late 1960s, according to two political-science measurements of court voting data.

“The most interesting thing about this term is the acceleration of a long-term trend of disagreement among the Republican-appointed judges, while the Democratic-appointed judges continue to march in lock step,” said Eric Posner, a law professor at the University of Chicago.

Many analysts credit [blame] the leadership of Justice Ruth Bader Ginsburg, the senior member of the liberal justices, for leveraging their four votes. “We have made a concerted effort to speak with one voice [stifle dissent] in important cases,” she said in an interview last year. [Uhh, the cases are not all important? They made it to the Supreme Court!]

The court’s conservatives, by contrast, were often splintered [nuanced], issuing separate opinions even when they agreed on the outcome. The conservative justices, for instance, produced more than 40 dissenting opinions, the liberals just 13.

Ok, fun's fun but this next is a 'to be fair' paragraph which, to be fair, may be making an important point:

The divisions on the right, Professor Posner said, may have occurred in part because the mix of cases reaching the court has invited a backlash. “Conservative litigators who hope to move the law to the right by bringing cases to the Supreme Court have overreached,” he said. “They are trying to move the law farther right than Kennedy or Roberts think reasonable.”

And on the overall measurement of the left/right divide, these paragraphs trouble me:

When the administration ended up on the losing side, it was often because it took a conservative position, particularly in criminal cases, said Adam Winkler, a law professor at the University of California, Los Angeles.

“The administration most often lost the court because it couldn’t hold the liberals,” Professor Winkler said. “The administration’s positions in the Supreme Court were too conservative. Shockingly, the Supreme Court may have been more liberal than the Obama administration this term.” This was so, he said, in cases involving drugs, guns, searches and threats posted on Facebook.

I would be curious to learn which cases he has in mind but it may be that libertarian positions on drugs and searches are being scored as "liberal". I certainly think I would have noticed the howling if a recent Supreme Court decision rolled back gun ownership rights. OTOH, the Supreme Court declined to hear an appeal of this 2014 federal court decision from San Francisco:

 

SAN FRANCISCO –  A federal appeals court on Tuesday upheld two San Francisco gun laws challenged by the National Rifle Association and gun owners who live in the city.

 

San Francisco requires handgun owners to secure weapons in their homes by storing them in a locker, keeping them on their bodies or applying trigger locks. The city also bans the sale of ammunition that expands on impact, has "no sporting purpose" and is commonly referred to as hollow-point bullets.

 

The San Francisco-based 9th U.S. Circuit Court of Appeals said the requirements are reasonable attempts to increase public safety without trampling on Second Amendment rights.

 

Judge Sandra Ikuta, writing for the unanimous three-judge panel, said modern gun lockers can be opened quickly and "may be readily accessed in case of an emergency." She also said that gun owners concerned about safety can carry them around the home as well.

 

As for the ammunition ban, Ikuta said San Francisco residents were free to buy the banned bullets outside city limits. That limitation "imposes only modest burdens on the Second Amendment right," she said.

 

How much that intrudes on Heller is a matter of opinion. And this was a lower court opinion the Supremes declined to review, so it may not be relevant to discerning the court's left/right split.

Comments

[narciso]

well then there's the reality,

http://www.nationalreview.com/article/420564/obergefell-and-constitution

[narciso]

well it's the 9th Circus, but we can't count on the Court to care about the actual law,

[Thomas Collins]

Keep in mind that over the last 50 years or so, and especially during the seventies (the time that folks such as Chief Justice Roberts attended law school), the jurisprudence of "the right" has included a diverse array of viewpoints, including a tendency in many on "the right" to stretch to find a way to uphold federal legislation. It didn't start with Justice Roberts using the taxing power and, in the case of the Medicaid provisions, the interpretive contortion power, to uphold ObamaCare, and then being a super interpretive contortionist in the latest case about the federally established exchanges. On the other hand, the left over the last fifty years has had a fairly consistent line of reasoning: If a decision advances the post-modern view of individual autonomy and the relation between the individual and the state, find any way to reach that result. And if the decision also tends to crush individual enterprise and the mediating institutions between the individual and the state, all the better.

[narciso]

well the Burger Court was a joke and a half, full of travismockashams, the Rehnquist Court did begin to clear the underbrush,

[Threadkiller Mobynatious]

http://www.forbes.com/sites/frankminiter/2015/06/22/is-this-the-gun-case-the-u-s-supreme-court-will-take/

[Cispigmented Heteronormative Microagressive Ignatz]

Do you think any lefty will come away from that story with the understanding "liberals" are mindless, reactionary ideologues bent on advancing their cause regardless of the facts and the truth while conservatives and libertarians have an admirable ability to think and reason and come to competing but rationally arrived at competing views?

Me neither...because they're mindless reactionary ideologues. Duh.

[henry]

I am amused that San Francisco thinks ammunition that expands on impact, has "no sporting purpose" when WI hunting regs require expanding ammo for the deer hunt.

[Old Lurker]

My fantasy dream of the Art V Convention is that it starts out by declaring that all court cases and "precedents" which have been said to modify the original constitution and valid amendments thereto are hereby declared of no consequence in interpreting the Constitution as amended by the Art V gathering so that, for the first time since 1789, all men can know their rights by reading this one document, and the secret code known only to their betters is hereby void. Further ALL rules and regulations crafted by those of our superiors are hereby declared null and void 365 days from this date except for those which are revalidated by direct action by the people acting through their representatives at the appropriate local, state and perhaps federal level during the next year.

Or words along those lines.

:-)

[Cecil Turner]

I found narc's link at 11:24 compelling (and the further link to Kennedy's "flourishes"). Not only is it hard for me to feature a basic right that remained hidden in the 14th Amendment for nigh on 150 years, but the reasoning involved insured nobody reading that document can have any confidence in which way the court's going to jump on any particular case (except that the 4 lefties will vote left, which ain't all that helpful).

It also seems to me that if the same standard were applied as to a criminal law (i.e., impossible for the average person to understand), the entire slate of recent SCOTUS cases would be void for vagueness.

And the lefties and the press applaud: yeah, but it's flourishy.

[Threadkiller Mobynatious]

Maybe Wong Kim Ark would get read as narrowly as it was written as well.

[Cispigmented Heteronormative Microagressive Ignatz]

--I am amused that San Francisco thinks ammunition that expands on impact, has "no sporting purpose" -

I doubt that they think that.

They will ban expanding bullets as unnecessarily destructive and then solids or FMJs as "cop Killer" armor piercing ammo.
Then they'll declare they are all for people owning as many guns as they want because they believe in the 2nd amendment and our valuable traditions.

[Extraneus]

Besides, what the the 2nd Amendment have to do with sports?

[narciso]

what was the name of those vigilantes, that the villain in Magnum Force, referred to in late 19th Century San Francisco,

[stan]

Discipline is a word a lot like loyalty. Both imply a loss of self-determination.