I have myself defended a similar view of the Constitution: that it aim to create what I called a “partnership” rather than a majoritarian form of democracy by insisting that all citizens are entitled to an equal role and voice in their self-government, that government at all levels must treat citizens with equal concern, and that government must leave individual citizens free to make the personal decisions for themselves that that cannot yield to others without compromising their self-respect.
This more “pragmatic” approach, which lets a judge’s sense of how the case should be decided govern the method of interpretation he uses to decide it, rather than the other way around, is the most open invitation possible to result-driven adjudication, that is, to a judge putting his own policy preferences into his decision rather than trying to filter them out.
Overruling Roe would suddenly make abortion again an urgent national political issue for many millions of women who have come to take for granted the right that women have enjoyed for two generations and who now vote to express their views on other issues, often for Republicans.
He [Judge Alito] said that the question of how far Congress can control the president might fall under the “political question” doctrine: the doctrine, as he described it, that the Supreme Court should not intervene in disputes that should be resolved between the other two branches of government. But if the Court appeals to that doctrine and refuses to declare that the president has no right to disregard legislation, then it hands victory to the president because Congress has no way of checking the president without judicial enforcement.
Roberts said, in his confirmation hearings, that he would not overrule a past decision unless it had proved “unworkable” or its basis in law had been eroded by other Supreme Court decisions. Stenberg v. Carhart was not unworkable and has not been eroded, but he voted to overrule it without even offering an explanation.
It [this right-wing phalanx] [Chief Justice John Roberts, Justice Samuel Alito, Justice Antonin Scalia and Clarence Thomas] seems guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance.
The most threat to our democracy is now the grotesque and increasing dependence of politicians on rich individual and corporate donors.
In the WRTL case, Roberts had declared that issue ads have First Amendment protection if they can reasonably be interpreted as not recommending a vote for or against a candidate they mention; in First Amendment cases, he insisted, ambiguities should be resolved in favor of protection. In the Frederick case he declared the very opposite: if student speech can be interpreted as advocating a criminal act, even though other interpretations are at least equally plausible, the speaker may be punished. Ambiguities are to be resolved against protecting free speech….In his moving dissenting opinion Stevens warned that the consequences of this attitude for future First Amendment jurisprudence are frightening.
The establishment clause is different: when government violate that clause by spending money in support of religion, the expenditure is not just a means to some further harm. The expenditure is itself the harm. It is part of people’s right to freedom of conscience that their government, acting on their behalf and in their name, not support any religion or religious institution.
Skilled corporate litigators think ahead like pool players: they argue for their clients on narrow grounds hoping for incremental victories that turn into much bigger ones latter.
The worst is yet to come.