As I keep saying, so many great things are being written these days. Below is a link to a recommended piece by Nicholas Quinn Rosenkranz article about one of the Supreme Court’s decisions that got a lot less attention, Los Angeles v. Patel, “a case that is ostensibly about unreasonable searches under the Fourth Amendment, but that is, more fundamentally, about the proper structure of judicial review.”
But first, here are a couple of excerpts from a post by Andrew McCarthy following the infamous Supreme Court opinions handed down on back-to-back days, June 25 and 26:
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.
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.
It is simply accepted that these justices are not there to judge. They are there to vote. They get to the desired outcome the same way disparate-impact voodoo always manages to get to discrimination: Start at the end and work backwards. Guiding precedents are for the quaint business of administering justice. In the social justice business, the road never before traveled will do if one less traveled is unavailable.
But there’s a problem. Once it has become a given that a critical mass of the Supreme Court is no longer expected, much less obliged, to do law, then the Court is no longer a legal institution. It is a political institution.
That is where we are. We should thus drop the pretense that the Court is a tribunal worthy of the protections our system designed for a non-political entity — life-tenure, insulation from elections, and the veil of secrecy that shrouds judicial deliberations.
If the justices are going to do politics, they should be in electoral politics. If John Roberts is going to write laws on the days when he isn’t posing as powerless to write laws, if Anthony Kennedy truly believes the country craves his eccentric notion of liberty (one that condemns government restraints on marriage 24 hours after it tightens government’s noose around one-sixth of the U.S. economy), then their seats should not be in an insulated third branch of government. They should be in an accountable third chamber of Congress.
Read McCarthy’s entire article here.
Here is the link to the article by Nicholas Quinn Rosenkranz: Los Angeles v. Patel and the Constitutional Structure of Judicial Review.
Image credit: Senate Conservatives Fund PAC.