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Posted by on Jul 2, 2016 in Abortion, Law, Politics | 4 comments

How The Supreme Court Has Changed Without Scalia. (Hint: It’s For The Better.)


I have written that if I could take only one Supreme Court reporter with me to a desert island, it would be Dahlia Lithwick, who year in and year out writes the most penetrating analyses of the top court. This observation from a Slate magazine piece following a draconian Texas abortion law being overturned nails it:

It seems clear the court is experiencing the same searing anxiety the rest of the political system is seeing — anxiety about race, and sex, and religion, and guns, and immigration, and money, and making America great again — and the justices are playing out the same big themes we are dealing with in the presidential race, only using their big-kid voices (in the main) and more footnotes.
“The real betrayal of the court’s right wing may lie in the mere fact that Justice Kennedy seems to have become more aware that racism is a real thing and that you can’t lie about women’s health. It doesn’t make him liberal. It makes him open. . . . Justice Kennedy doesn’t seem angry about all of this, by the way. If anything he seems more unruffled now than ever. I find it strangely soothing, amid all the shouting. Maybe the only thing cooler than being the swing justice of a nine-member court is being the swing justice of an eight-member court. It’s a nice metaphor for the end of term. Furious dissents from the right, hopeful surges from the left, and Kennedy at the center poker-faced, playing the role of a justice.”

I happen to think that the court still has a helluva long way to go before its constitutionally-mandated role is fully restored and the extra-judicial recklessness of the Roberts era is tamped down. But in the meantime, thank you Ms. Lithwick and most especially Justice Kennedy.


Cross-posted from Kiko’s House

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  • GrantS

    It was likely that Scalia held some influence in Kennedy’s voting patterns. It would be fascinating to know what sways a justice.

    • JSpencer

      Yes, it sure would – other than ideological bent.

      Also agree with Shaun, the court is better, but still has a long way to go before sanity is restored.

  • rudi

    The SC suffered from decades of Republican conservative judges replacing liberal SCOTUS. Thurgood Marshall being replaced by Clarence Thomas, is now considered balancing the Court.
    The Democrats should have delayed CT appointment, just as the Rethugs are doing today.

    n 1987, Marshall gave a controversial speech on the occasion of the bicentennial celebrations of the Constitution of the United States.[23] Marshall stated:

    The government they devised was defective from the start, requiring several amend ments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.[24]

    In conclusion Marshall stated:

    Some may more quietly commemorate the suffering, struggle, and sacrifice that has triumphed over much of what was wrong with the original document, and observe the anniversary with hopes not realized and promises not fulfilled. I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.[24]

  • Refreshing for a SCOTUS justice value the evidence of the particular case over political ideology.

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