Patterico's Pontifications


David Savage: Drama Queen

Filed under: Court Decisions,General,Judiciary,Law — Patterico @ 10:42 am

David Savage of the L.A. Times is such a drama queen.

In what may signal a generational shift in power, new Chief Justice John G. Roberts Jr. led a confident conservative majority at the Supreme Court this year and moved the law to the right on abortion, religion, campaign funding and racial diversity.

Working with a 5-4 majority, Roberts prevailed in nearly all the major cases.

My goodness! That sounds alarming! (Or heartening, if you’re a judicial conservative.)

But on closer analysis, the accuracy of Savage’s clarion call is questionable. I guess it depends on what the meaning of the word “major” is.

According to Savage, the category of “major” cases includes a dispute over whether some schoolkid can sue his principal for taking a banner reading “Bong Hits 4 Jesus.” But conservative losses in several death penalty cases — including some with the potential to undercut Congressional limitations on habeas petitions — don’t make the cut.

A memo at SCOTUSblog (.pdf file) presents the facts in a more dispassionate manner:

Nineteen of the 5-4 cases broke down along ideological lines and, as in most every recent Term, the Court’s five more conservative members won a greater share of 5-4 victories than the four more liberal justices. The Roberts-Scalia-Kennedy-Thomas-Alito combination prevailed in 13 of 24 (or 54%) 5-4 decisions, while the Stevens-Souter-Ginsburg-Breyer [liberal] grouping prevailed in only six of 24 (25%) decisions.

In other words, liberals won in nearly 1/3 of all ideologically divided cases.

This passage by Savage illustrates his tendency to elevate melodrama over accuracy:

The final week of the term showed Roberts in full control.

On Thursday, he spoke firmly in the courtroom as he demanded an end to racial integration policies that call for “assigning students on a racial basis.” He invoked the famous 1954 Brown vs. Board of Education ruling, saying it established the principle that children must not be turned away “based on the color of their skin.”

But these quotes were all from Section IV of the opinion — a section joined by only three other Justices. This is the second day in a row that Savage has seemingly failed to understand that four Justices do not constitute a majority. It’s hard to see how Roberts could be in such “full control” while reading from an opinion that he couldn’t get a majority of Justices to sign. I don’t care how “firmly” Roberts spoke in the courtroom — Kennedy’s refusal to sign that portion of the opinion speaks louder.

Like I said: Savage is a drama queen.

The fact is that, while conservatives won a lot of decisions, they won them on narrow grounds. Just to take a few examples:

  • Conservatives won the partial-birth abortion decision — but they had to sign onto a Kennedy opinion that explicitly relied on the Roe and Casey precedents. Granted, Justice Thomas wrote a concurring opinion that explicitly rejected those cases. But in a potentially disturbing harbinger of the future, Justices Alito and Roberts refused to join Justice Thomas’s concurrence.
  • Conservatives won the campaign finance decision, and thank God they did. But the famous minimalism of Justices Alito and Roberts cost conservative defenders of free speech — big-time, as VP Cheney might say. As Pat at Stubborn Facts has observed: “Had the Chief and Justice Alito voted with Scalia and the others, we had the votes to overturn McConnell and get the government out of the business of censoring political speech before elections.”
  • Conservatives won the forced integration cases — but the decisions are far less sweeping and far more nuanced than they are being portrayed in the media. Even Chief Justice Roberts’s opinion for the plurality accepts the Grutter precedent, and doesn’t rule out the concept of using race as a factor in achieving diversity. Justice Kennedy’s opinion explicitly leaves race-conscious measures open as a possibility. The ultimate result stands not for colorblindness so much as a rejection of any measures that Justice Kennedy considers “crude” (a word that pops up again and again in his opinion).
  • Conservatives won the faith-based initiative case on standing grounds — but passed on a chance to overrule a Warren Court precedent creating an exception to the general rules on standing for Establishment Clause cases. This prompted Justice Scalia (joined by Justice Thomas) to bitterly observe: “Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future.”

So in all four of the areas mentioned by Savage in his lede — abortion, religion, campaign funding and racial diversity — conservative victories were limited when they could have been sweeping; modest when they could have been bold. In marked contrast to the claims of the disingenuous Erwin Chemerinsky, Justices Alito and Roberts have been exactly what they promised they would be — restrained minimalists.

And in every ideologically divided case of the term, Justice Kennedy cast the deciding vote.

That, and not a new conservative hegemony, is the real story of this Term. And, while it could be worse, it’s not a particularly heartening story. I’m with Ed Whelan, who responds to Savage’s fellow drama queen Linda Greenhouse as follows:

In tomorrow’s New York Times, Linda Greenhouse’s summary of the Court’s term begins: “It was the Supreme Court that conservatives had long yearned for and that liberals feared.” Well, I’ve certainly never yearned for—and no conservative should yearn for—a Supreme Court in which Justice Kennedy provides the decisive vote.

Amen to that.

12 Responses to “David Savage: Drama Queen”

  1. “Well, I’ve certainly never yearned for—and no conservative should yearn for—a Supreme Court in which Justice Kennedy provides the decisive vote.”

    The false logic of assuming absolutes. Conservatives got what they wanted out of Roberts and Alito. That’s the point

    You’re getting pretty sleazy these days pat

    AF (4a3fa6)

  2. The point is that Greenhouse is wrong. Nothing “sleazy” about making that observation. Work on being a bit less unhinged.

    Patterico (2a65a5)

  3. #1: they leave out some major death penalty cases.

    Patterico (2a65a5)

  4. Panetti v. Quarterman?
    It’s there. Look again.
    The four horsemen wanted to kill a lunatic.

    AF (4a3fa6)

  5. AF,

    If you define lunatic to mean a person who is not insane, knows he’s a murderer, and knows that that’s why Texas plans to kill him (as Justice Kennedy acknowledged in the Panetti case), then I agree.

    DRJ (31d948)

  6. Roberts and Alito locked in the minority vote for Hillary and the Dems this year.

    The real question is: Will they lock in the women’s vote for Hillary and the Dems next year?

    I’m betting they will.

    alphie (015011)

  7. The four horsemen wanted to kill a lunatic.

    No, they viewed the procedure to be carried out by the state as being permitted by the Constitution.

    Their own wishes as to what should be done to the convicted murderer had nothing to do with the decision.

    Which, as difficult as this to you to believe, is the way judicial review is supposed to work.

    EricH (419517)

  8. I’m just glad that it isn’t Souter or Breyer at the middle of the Court — something that might have happened if Kerry had been elected.

    Kevin Murphy (0b2493)

  9. The thing I found most disturbing about the Panetti v. Quarterman opinion from the losing “conservative four” was that they considered the court that gave the okay to execute an obviously crazy person as a “neutral” judge of whether he was crazy or not.

    alphie (015011)

  10. In other words, liberals won in nearly 1/3 of all ideologically divided cases.

    25 != 33

    Steve J. (f4f1b2)

  11. “In other words, liberals won in nearly 1/3 of all ideologically divided cases.”

    Won what? A judicial principle victory, or a political victory?

    Semanticleo (10a7bd)

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