Linda Greenhouse On the Intense Aggressiveness of Conservative Legal Movement Justices and Judges
Former longtime NYT Supreme Court correspond, current biweekly Times columnist, and habitual woman-after-my-own-heart Linda Greenhouse, has a column today titled “Let’s Legislate From the Supreme Court Bench” about how very fond movement conservatives became a while ago of legislation from the bench.
She makes the point that legislation from the bench is an absolutely essential component of the Conservative Movement.
I’ve made that point, or tried to, roughly 879 times at AB since I began posting here in 2010. But she’s Linda Greenhouse, and I’m, well, nobody. But at least I’m in good company in recognizing how ridiculously underappreciated—how thoroughly unknown, actually—this critical fact is.
What “legislation from the bench” are cons supposedly “fond of”?
Certainly you cannot mean Roe v. Wade, which was certainly legislating from the bench. Neither can one mean NFIB v. Sebelius, which set historical precedent by overturning a prior decision in the same decision (It’s NOT a tax, so we can rule on it; it IS a tax, so it’s constitutional.) Neither can one mean King v. Burwell, in which the Supremes ruled that when the ACA specified a particular section of the Act, it did not really mean THAT section of the Act.
It’s more than legislating from the bench. It’s constitutional rewrite.
I think the point, Warren, is that conservatives typically rail against legislating from the bench and call it illegitimate, but then do it and approve of it themselves when they’re doing it. And they often do it in bizarre ways,
And my question is, when have cons done it?
Um, preventing Florida from recounting the presidential vote in 2000 despite “state’s rights” and declaring Bush injured by the recount and declaring him the winner.
Um, declaring states had a right to decline Medicaid expansion and still keep former Medicaid funds.
Um, getting rid of Voting Rights Act.
Bush v. Gore — a statewide manual recount would not have similar standards for legal ballots from one county to another, and thus the Equal Protection Clause (14th Amendment) would be violated. (That was a 7-2 decision — quite bi-partisan.) The big question was what to do about it. The deadline for a statewide manual recount with a uniform standard was the following day, and the controversial decision (5-4) was that no manual recount could be constitutional in that timeframe. Of course, if Gore had managed to win his own home state, it would not have been an issue.
NFIB v. Sibelius — The first time a Supreme Court decision has been overturned in the same decision. You really think it is constitutional for the feral government to unilaterally change the terms of an agreement with the States? Well, then, I don’t have much hope for you.
Shelby County v. Holder — The Voting Rights Act had expired. The 2006 renewal kept the same penalties in continuation for 25 more years, but based on the actions of 40 years previously which no longer obtain. That makes the extension an ex post facto law, and therefore unconstitutional.