I missed this article – Originalists, Politics, and Criminal Law on the Rehnquist Court by Rachel Barkow – when it came out, but I thought this part of the abstract was interesting: By reviewing all of the Rehnquist Court's criminal opinions in argued cases during the ten-year period from the October 1994 Term through the 2003 Term, this Article shows that the Justices' votes in criminal cases do not fit neatly into the attitudinal model. [Mike Rappaport insertion: the attitudinal model holds that the votes of the Justices are based on their political views, not the law.] While a review of…
The Solicitor General is the Executive Branch’s officer in charge of litigation before the Supreme Court. The incumbent, Donald Verrilli, recently gave a speech in which he reflected on the difficulty of his post. “We’re at a time when a majority of the Supreme Court has a strong ideological perspective different from the president,” he said, adding that, “aside from the New Deal, this is probably the greatest amount of friction between the executive and judicial branches.”
The Supreme Court justices—all of them—believe they are applying the law in deciding cases, not indulging their political ideology. Even if Verrilli thinks otherwise and believes judges are essentially politicians in robes, it is foolish for the Solicitor General to impugn the self-conception of the justices he must persuade. .
And the claim that there are more fundamental differences between the Obama administration and any other Court except in the New Deal era is wrong. Begin at the beginning: the Jefferson administration so strongly opposed the review of its executive acts by the Supreme Court that it declined to participate in Marbury v. Madison, raising the prospect that it would not comply with an adverse decision.
Jonah Goldberg, as is his wont, notes that the Lefties always seem to think that "ideology" is what other people have. People who agree with them are "reasonable" and "practical." The latest example of this conceit is Ezra Klein’s new blog. As Goldberg notes, Lefties: Cheat by denying their ideological motivations — even to themselves. Indeed, it is a constant trope of liberalism to believe — dogmatically, ideologically — that they are just empiricists and fact-finders doing what is right and good in a battle against dogmatic ideologues on the right. The more honest approach would be to simply admit your…
Bureaucracy helps enable both larger and more left-wing government because that kind of government accords with the preferences of most bureaucrats and makes them better off. Classical liberals and conservatives neglect this problem at their peril. Even when the President leans to the political right, the permanent government of the left provides a powerful counterweight to the realization of his objectives.
The political beliefs of the median federal government employee lie to the left not only of the median Republican, but also the median Democrat. This imbalance should not surprise, because individuals enthusiastic about using government power will self-select to become government regulators. In some departments, like the Environmental Protection Agency or the Civil Rights Division at the Department of Justice, the effect is particularly pronounced. Missions of such intensity often attract those of missionary zeal.
It might be thought that an administration in favor of more limited government could recalibrate the bureaucracy during their tenure by hiring more conservative government workers.