NYT Op/Ed: "...real danger the court will do serious damage to important freedoms this term"

[Hissyspit]

http://www.nytimes.com/2007/09/30/opinion/30sun1.html?hp

Editorial
The Roberts Court Returns

Published: September 30, 2007
The Supreme Court begins its new term tomorrow as bitterly divided as it has ever been. There are three hardened camps: four very conservative justices, four liberals, and a moderate conservative, Justice Anthony Kennedy, hovering in between. The division into rigid blocs is unfortunate, because it makes the court seem more like a political body than a legal one. Justice Kennedy’s tendency to vote with the most conservative justices also means that there is a real danger the court will do serious damage to important freedoms this term.

At his confirmation hearings, Chief Justice John Roberts told the Senate he had “no agenda,” and famously compared his role to that of an umpire calling balls and strikes. He has also said he wants more consensus on the court, and fewer 5-to-4 decisions. Those were fine sound bites, but in reality Chief Justice Roberts quickly settled into a bloc with his fellow conservatives Samuel Alito, Antonin Scalia and Clarence Thomas. The controversial 5-to-4 decisions have kept coming.

It is striking how conservative the court is now. On race, it was for decades a proud force for racial integration. Last term, it ordered Seattle and Louisville, Ky., to stop their voluntary efforts to have children of different races attend school together. The court, once an important force for fairness in American society, now routinely finds dubious legal excuses to deny relief to criminal defendants, consumers and workers who have been mistreated.

The Roberts bloc has not adhered to any principled theory of judging. Its members are not reluctant to strike down laws passed by Congress, as critics of “judicial activism” are supposed to be, or reluctant to overturn the court’s precedents. The best predictor of how they will vote is to ask: What outcome would a conservative Republican favor as a matter of policy?

The court’s 4-to-4 split means that, on virtually any controversial question, Justice Kennedy decides what American law is. Last term, he was in the majority in all 24 cases decided by 5-to-4 votes. His opposition to abortion rights and affirmative action has pushed the court further to the right on those issues.

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[charlie]

1. Kennedy a "moderate conservative"

Pfft. The idiot who accepted Bush v Gore and cast the tie-breaker when he had no business doing so, is either a hyper-partisan or a useful tool for the Right. Either way, he has no claim to "moderation" of any sort. He's part of the reactionary Judicial Activist wing of the court.

[TreasonousBastard]

2. You realize, of course, that there is no reason that...

the Court could not be expanded to 11, or 17, Justices. It was left up to Congress to decide the composition of the Court, and it could be changed simply with a vote and a President who went along. The Court has not always been 9 Justices.

Alas, FDR tried that, and gave the whole idea of an expanded Court a black eye even to this day. But, it still could be done.

Perhaps everyone whining about a do-nothing Congress can put this in the hat, too, and blame Pelosi for not expanding the Court.