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The "Liberal" Post Dispatch has printed an interesting Conservative Article from the WaPost [1]

['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']

Date: 2023-07-10

The St. Louis has a reputation for being “liberal”. However in spite of that, this article appeared in the July 9th 2023 edition .

There is an article from Henry Olson of the Washington Post in the opinion section. (Click on article)

Spare me complaints of conservative Supreme Court bias

I would like to make some counter-arguments of selected sentences in this article.

Democrats have been lambasting the Supreme Court and questioning its legitimacy because, as they argue, its conservative majority is shamelessly partisan. That's laughable. The court's Democratic-appointed justices are clearly more partisan than their Republican-appointed counterparts.

I guess “partisan” mean bringing this country out of the 18th century.

They are unanimously pro-abortion rights, unanimously pro-affirmative action

Could that be because the Republican justices are all “originalists”, that is they want to take us back to a time when only white landowners had rights, when women were disenfranchised, and when most of them had slaves?

and unanimously in favor of interpreting the Second Amendment to permit significant regulation of guns.

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Historically, there has always been regulation of guns. In fact, the purpose of the 2nd amendment was not to give unlimited freedom of the people to be armed, but the right of the people in the “well regulated Militia, to keep and bear Arms, shall not be infringed.”

www.law.cornell.edu/…

…..some scholars point to the prefatory language "a well regulated Militia" to argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. Scholars call this theory "the collective rights theory." A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right. In 1939 the U.S. Supreme Court considered the matter in United States v. Miller, 307 U.S. 174. There, the Court adopted a collective rights approach, determining that Congress could regulate a sawed-off shotgun which moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated militia . . . ." The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.

Regardless of many court decisions over the years, especially after the Equal Rights Amendment, the present court has decided that there is no longer any need for the principle stare decisis: The doctrine or principle that precedent should determine legal decision making in a case involving similar facts.

It is very rare for Democratic-appointed justices to break ranks in a major, politically charged case to rule against the Democratic Party's preferred outcome. After asking my colleague Ed Whelan at the Ethics & Public Policy Center, an ardent court-watcher, to come up with an example, the best he could come up with was National Federation of Independent Business v. Sebelius, the 2012 case in which two of the four Democratic justices joined the majority to rule that Obamacare's Medicaid expansion was unconstitutional. But even that decision did not significantly deter Democratic objectives. The court did not strike down the Medicaid expansion; it simply gave states the option to expand the program without risking the loss of all of its federally provided Medicaid funds. To date, 41 states and D.C. have done so, and even deep red-states such as Missouri and South Dakota have adopted the expansion.

I live in “deep red state Missouri”. Our veto-proof Republican legislature did not elect to freely provide Medicare to it’s residents. The people passed an initiative petition to require the state to expand Medicare. In spite of that, the state refused to fund Medicare expansion.

Republicans and conservatives have complained for decades that justices have pursued their own policy agendas at the expense of the Constitution. Now that Democrats can taste some of their own medicine, perhaps it's time for everyone — regardless of their party affiliation — to reconsider what the courts ought to be deciding.

People used to actually argue cases before the Supreme Court. Case that were decided by lower courts and then appealed to the Supreme Court. That rarely seems to happen, now. Now there are decisions made in the shadow docket.

The Supreme Court makes almost all of its decisions on the 'shadow docket.' An author argues it should worry Americans more than luxury trips. The majority of the court's rulings come not on the merits docket — the list of cases that receive oral arguments and are resolved with written opinions — but on the court's "shadow docket," where supposedly temporary emergency rulings are increasingly being implemented as the law of the land with little legal explanation from the life-appointed justices. The modern shadow docket is home to cases brought by a legal party, be it a state, individual, or the federal government itself, when they have lost a ruling in the lower courts process and then elevate the case to the Supreme Court, asking the top justices to block the lower court's initial order while the case proceeds through the appeals process. Emergency docket decisions were historically meant to offer a temporary pause as the case played out in lower courts, but the modern Supreme Court has increasingly used the shadow docket to implement final and far-reaching laws, , Vladeck writes. Decisions on the shadow docket are neither preceded by the standard oral arguments we typically associate with the Supreme Court, nor accompanied by a written decision explaining the justice's legal thought process, exemplifying the symbolic "shadows" where these decisions are made. Perhaps the most impactful shadow docket cause and effect, Vladeck argues, can be traced back to a September 2021 unsigned decision by the Supreme Court not to stop Texas' six-week "heartbeat" abortion ban that violated Roe v. Wade. Less than a year later, the court would overturn Roe, wiping out 50 years of abortion precedence along with it. During the combined 16 years of the Obama and Bush presidencies, the two administrations asked for emergency relief from the Supreme Court just eight times total and were granted it four times. The Trump administration, meanwhile, asked for emergency relief a whopping 41 times and got its way 28 times. "The conclusion is all but inescapable that the Court was just as responsible for enabling the rise of the shadow docket as the Trump administration — and that it did so in a manner that specifically tended to advance Republican policies rather than conservative legal principles," Vladeck writes.

For years, Republicans have been complaining that (liberal) courts have been legislating. Now that they control the Supreme Court, it all seems to be ok, now.

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[1] Url: https://www.dailykos.com/stories/2023/7/10/2180367/-The-Liberal-Post-Dispatch-has-printed-an-interesting-Conservative-Article-from-the-WaPost

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