The right is always riffing about “activist” judges the Dems pick to park bench on the High Court. Here’s some “ball and strike” calling zealotry from the Roberts Court that makes the Warren Court appear incrementalist. I quote Toobin at length hoping to perk your interest. It’s an amazing story.
“The new majority opinion transformed Citizens United into a vehicle for rewriting decades of constitutional law in a case where the lawyer had not even raised those issues. Roberts’s approach to Citizens United conflicted with the position he had taken earlier in the term. At the argument of a death-penalty case known as Cone v. Bell, Roberts had berated at length the defendant’s lawyer, Thomas Goldstein, for his temerity in raising an issue that had not been addressed in the petition. Now Roberts was doing nearly the same thing to upset decades of settled expectations.”
“Souter accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.”
I didn’t for a second buy Roberts “umpire” palaver during his conformation charade. Did you? But this level of rule changing is akin to forcing the National League to adopt that bastard—the designated hitter— midseason and over night. It changes the game completely.
“As the senior Justice in the minority, John Paul Stevens assigned the main dissent to Souter, who was working on the opinion when he announced his departure, on April 30th. Souter wrote a dissent that aired some of the Court’s dirty laundry. By definition, dissents challenge the legal conclusions of the majority, but Souter accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.”
I learned a great deal about the court and Federal Law watching Souter’s conformation. A little weird and old school, but Souter had a solid legal game and judicious temperment. Bet your ass Roberts was concerned about Souter breaking all western on the court in dissent. But our supreme—Supreme found a way to corral all that.
“Roberts didn’t mind spirited disagreement on the merits of any case, but Souter’s attack—an extraordinary, bridge-burning farewell to the Court—could damage the Court’s credibility. So the Chief came up with a strategically ingenious maneuver. He would agree to withdraw Kennedy’s draft majority opinion and put Citizens United down for rearmament, in the fall. For the second argument, the Court would write new Questions Presented, which frame a case before argument, and there would be no doubt about the stakes of the case.”
So Roberts found a way to masterly mulligan the matter. Sorry. More like a cheap chip shot to sandbag the whole of the political process with long, long green. Sorry, again.
“The proposal put the liberals in a box. They could no longer complain about being sandbagged, because the new Questions Presented would be unmistakably clear. But, as Roberts knew, the conservatives would go into the second argument already having five votes for the result they wanted. With no other choice (and no real hope of ever winning the case), the liberals agreed to the rearmament.”