HOW CONSERVATIVE LEGAL DOCTRINES HAVE BECOME DOCTRINES OF CONVENIENCE

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• “Rucho: A Sinkhole Dangerously Close to the House” (7/01/19): By declaring partisan gerrymandering to be a nonjusticiable political question in Rucho v. Common Cause, the Court continued to cherry-pick judicial reasoning in service of Republican aims. In its decision, the Court employed similar logic to the since-overruled 1946 case Colegrove v. Green, and failed to acknowledge how, since 1962’s Baker v. Carr, “the Court has become deeply involved in redistricting, policing racial vote dilution under the Voting Rights Act, and racial gerrymandering under the Equal Protection Clause.” That makes Rucho’s “return to ‘Colegrovesque’ reasoning quite bizarre” and creates a “sinkhole” through which future claims of civil rights violations may fall.
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Balkinization: Rucho: A Sinkhole Dangerously Close to the House

• “Neil Gorsuch Is No Friend to Criminal Defendants” (6/26/19): After siding with defendants in several criminal cases during his first two terms on the Court, a media narrative has arisen that Neil Gorsuch is a friend of criminal defendants. Yet, an examination of Justice Gorsuch’s record demonstrates he is likely only “as good for criminal defendants as the least-criminal-defendant-friendly Democratic appointee” on the Court, which “hardly makes him a hero.” Instead, “the need to spin a defendant-friendly narrative about Gorsuch reflects a desire for counterintuitive narratives, particularly in a time when we are likely to see ideologically polarized voting in high-visibility, ideological cases.”
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Neil Gorsuch Is No Friend to Criminal Defendants

• The Supreme Court has Failed the Constitution (6/28/2019): In Rucho v. Common Cause, the Court refused to hold partisan gerrymandering as judicially reviewable under the guise of the political question doctrine.“That sudden reluctance to get involved in political matters is especially rich coming from the court that struck down a century of campaign finance law in Citizens Unitedand gutted the Voting Rights Act in Shelby Countya few years after that.”
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Opinion | The Supreme Court has failed the Constitution

• Mike Pence Blew the Lid Off Trump’s Strategy for the Courts: “Mike Pence had an idea to float before the Federalist Society about how to improve the federal judiciary.” In a speech addressing the Federalist Society, Vice President Pence argued that “our administration has been unfairly hit with more nationwide injunctions than the first 40 American presidents — combined … The Supreme Court of the United States must clarify that district judges can decide no more than the cases before them.” Read more:

Mike Pence Blew the Lid Off Trump's Strategy for the Courts

• New Memo Reveals the Census Question Was Added to Boost White Voting Power: Despite newly discovered documents revealing that the proposed addition of census citizenship question was intended to disadvantage Democrats and advantage Republicans and non-Hispanic Whites, conservative justices appear willing to accept the government’s unsupported pretextual justification that the question is necessary to protect Hispanic voters.
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New Memo Reveals the Census Question Was Added to Boost White Voting Power

• How a Sex Offender’s Case Before the Supreme Court Could Bring Down the Administrative State: In two upcoming cases, “sex offenders and steel importers may get some relief, but at the risk of giving the conservative legal movement a legal cudgel to weaken ambitious schemes to rebuild our economy and halt the rise of inequality.”
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How a Sex Offender's Case Before the Supreme Court Could Bring Down the Administrative State

• [A] Franchise Tax Board v. Hyatt: An Unnecessary Overruling: Dean Alan B. Morrison responds to the Supreme Court’s recent judicial activism in Franchise Tax Board, explaining that “there was no basis to overrule Hall, because that case was both correct and readily distinguishable from this one.”
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Franchise Tax Board v. Hyatt: An Unnecessary Overruling

• Scalia’s Infidelity: A Critique of “Faint-Hearted” Originalism:Conservative originalist scholar Randy Barnett contends that Scalia is “not really an originalist at all.”
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• The Death of Judicial Conservatism: “One of the lessons we have learned in the wake of the Bush Administration’s appointments to the Supreme Court is that judicial conservatism no longer exists in any significant form.”
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• Conservative Judicial Activism: The Politicization of the Supreme Court Under Chief Justice Roberts: A troubling and unmistakable trend has developed over several decades, and accelerated in recent years, of extreme judicial activism within the conservative bloc of Justices on the Supreme Court — reaching a new pinnacle under Chief Justice John Roberts.
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• The Real Reason John Roberts Just Offered a Low-Stakes Win to Workers: Why did the court grant review of a straightforward case without a circuit split, only to unanimously affirm the lower court? A cynical theory to explain a mysterious, suspicious cert grant.
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The Real Reason John Roberts Just Offered a Low-Stakes Win to Workers

• Brett Kavanaugh’s Dangerous Right-Wing Activism: Although Kavanaugh would no doubt deny it, his judicial record makes clear that he is a conservative judicial activist whose decisions correspond closely to his political preferences, overturn laws passed by the democratically elected legislature, and ignore and distort precedent.
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Brett Kavanaugh's Dangerous Right-Wing Judicial Activism

• When it Comes to the Laws of Democracy, the Supreme Court’s Conservative Majority Often Abandons its Own Core Principles:Judicial conservatives have long accused their more liberal colleagues of ignoring these principles, and — especially in cases involving contentious social issues — imposing their personal preferences in the guise of judicial rulings. But that begs the question: Have the Court’s more conservative members themselves been faithful to the principles they espouse? At least when it comes to decisions about the rules of democracy, the answer too often is an emphatic no.
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When It Comes to the Laws of Democracy, the Supreme Court's Conservative Majority Often Abandons…

• Erwin Chemerinksy on Conservative Judicial Activism: “Today’s Court — the Roberts Court — is a conservative, activist Court . . . The Court has replaced the deference of twenty years ago with a very different brand of judicial conservatism.”
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Supreme Court-October Term 2009 Foreword: Conservative Judicial Activism

• Citizens United and Conservative Judicial Activism: “In Citizens United, the Court, in a five-to-four decision, held unconstitutional a key provision of the Bipartisan Campaign Reform Act of 2002 (BCRA). The specific provision the Court invalidated limited the amount of money that corporations could spend in certain circumstances to support or oppose the election of named candidates for federal office. The decision raised fundamental questions about the nature and legitimacy of conservative judicial activism.”
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https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2954&context=journal_articles

• Scalia’s Contradictory Originalism: Justice Scalia’s originalist theory elevated the ideal that judging should be a non-partisan, neutral act; however, in recent decades it has acted as a cover for opinions that were clearly partisan.
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Scalia's Contradictory Originalism

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