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On judicial philosophy, liberal vs conservative — 12 Comments

  1. Roberts is a fool. Trump is brutally honest about the real world and the real, morally depraved nature of Democrats.

    Roberts and his foolishness have made America much worse. He is a real danger to the rule of law and the survival of the nation. To the extent he has tried to protect the judiciary as an institution, he has failed miserably. He’s done immense damage.

    I think there is a real chance that Roberts will go down as the worst CJ in history. Both for the failure of logic reflected in his opinions and the failure of courage that underlies his machinations.

    And finally, if the crazies among the Democrats succeed in packing the court, Roberts will see the destruction of his institution and bear a good bit of responsibility.

  2. Last night’s refusal by SCOTUS to consider the case brought by more than a dozen attorneys general of states which properly carried out their counting of votes is disgraceful beyond words, and it is predicated upon the ridiculous assumption that, despite the countless irregularities and all the anomalies in states participating in a national election (with consequences for all the other states), these other states, clearly affected, have no “standing.” It is likely, though, that this act of abject cowardice was motivated by personal fear of social ostracism from the DC swamp and by concern over the inevitable violence from enraged leftist mobs.

  3. Neo, I had never heard the term critical legal studies and I wish that I hadn’t. In saying that I do not mean that you are not doing a service by bringing it to our attention.

    From time to time I have used the term “Dictatorship of the Black Robe”. I meant it sort of tongue in cheek. From your description of this movement, and its philosophical roots, I fear that it is closer to reality than imagined.

    Recently I have used the term “Banana Republic”; again with the conscious assumption that I was going over the top. On refleciton I wish that were the case.

    It appears that the Democrats will not have to go to the trouble of packing the court. Whenever a controversial case is to come before the court, they only need to mobilize their street thugs to threaten violence and chaos.

  4. Oldflyer:

    Critical legal studies started in the late 70s, so it’s been around for approximately forty years, and yet most people outside law don’t know about it. It has affected legal education hugely, and has spawned critical race studies, which has led to so many of our current racial problems. I own a book called Beyond All Reason: the Radical Assault of Truth in American Law, that was written in the late 90s by two liberal law professors who were alarmed at the influence of critical legal studies and wrote the book as a warning. Although the book is more than twenty years old, it is quite terrifying and disturbing to read, and things have only gotten worse since then.

  5. The notion of a “living constitution” is a sick joke.
    It means that any term or language in the Constitution can have a meaning never intended by the framers and can attain a meaning consistent with what the prevailing legal/political climate may be.
    Basically, there is no Constitution.

    For instance, individual rights could be abolished for certain groups of people if these people are not identified as ” people;” (e.g. Jews in Hitler’s Germany, blacks in the USA during the days of slavery).
    Or acceptable free speech can now be defined (by somebody else, but not you) as that which is not “hate” speech.
    But who gets to decide what constitutes hate speech (or the “wrong” speech)? Would that be Facebook and Twitter; or would it be Black Lives Matter or ANTIFA,; the CPUSA; or would it be the demokrat party; or the Nazi Party??

    Liberal progressives HATE the Constitution because it restricts the power of Govt. So one “remedy” is to invent the (Leftist) notion of a living Constitution.

    ALL leftist ideologies aims to increase the power and authority of a central government and restrict the rights of the citizenry. A “living” Constitution is just another academic / Marxist / Leftist invention to attain this goal.

    Liberal progressive court judges are all for interpreting the Constitution based upon their political ideology.
    Some day – who knows when – they will regret this. When the “other” side has absolute power and the other side invokes the notion of living Constitution, those on the left may find themselves in real bad situation.

    I will not shed a tear for them.
    What goes around, comes around.

  6. j e (2:51 pm) concluded:

    “It is likely, though, that this act of abject cowardice was motivated by personal fear of social ostracism from the DC swamp and by concern over the inevitable violence from enraged leftist mobs.”

    Something that abjectly cowardly?

    Hmm, pretty nice home / family ya got there.
    Shame if somethin’ happened to it, ya know?

  7. I’ve done two courses in the history of American law. The first, a graduate course by one of the field’s founders. (His specialty was civil liberties.) One of his early students went on to write a new textbook of the field, Kermit Hall who’s “The Magic Mirror: Law in American History” riffs on Oliver Wendell Holmes who riffs on Herodotus, but angled towards then trendy cultural history.

    But in my first round, our textbook was by the prolific Lawrence M Friedman (34 books?), “A History of American Law.” He’s 90 years old and has outlived all of the scholars in the field that I’ve known. But I believe CLS in legal history got going with Morton Horwitz, “The Transformation of American Law…to 1860.” So I read him, too.

    What did I find? As a major in the history of political thought? The usual Marxism: hypostasising class conflict, denying or ignoring contrary facts and evidence, reducing something worth awe and respect to the callow, grubby, and opportunistic.

    In short, Horwitz applies Noam Chomsky style polemics, because facts only exist as convenient tools to “prove” one’s point. And thus law is only about public policy and power to impose it.

    The CLS types thus trod the stereotypical Marxist path of polemic opportunism combined with denigration of objectivism in knowledge to elevate subjectivism.

    Yeah. I found the “just so” circular logic boring. Then came Robert Barnes, explicating on the thinking of Judge Emmett Sullivan versus Mike Flynn last May.

    Barnes explained to viva frei how the 10th circuit Judge was an intellectual captive of his law clerks steeped in CLS. Namely, they are taught to take a case, define their desired resulting conclusion, and then fill in all the steps needed to get there.

    In other words, Sullivan was led by ideologues using opportunistic “reasoning” to gain radical ends, instead of Truth seeking, rooted in the evolved order and its institutions.

    Aha! So, this explains why SWJs are too often immigration lawyers today — using and abusing civil rights laws to import new socialist loving citizens who are the New Vanguard for la Revolution! Si, comrade?

    That light bulb went off only days before the George Floyd fake murder happened (fentanyl overdose killed him), and before the Communist Sunrise Movement — which authored the Green New Deal — was exposed as the motor for $400 million loss in riots and arson destruction in Minneapolis (see MillennialMolly for video documentary on this.)

    Which also reminds me of a John Hinderaker photo he posted to PowerLine blog, some 5 or 6 years ago: the books table at the annual national teacher’s NEA convention then in Minneapolis: books upon books, all showing Marxist pablum.

    We have met the enemy, and the Enemy is the Fifth Column we’ve bought through massive subsidies of ‘Educrats’ at every level.

    And thus, this is why I’ve remained surprised by the Nine Lives of Trump, despite my deep pessimism for America’s future: we are raising generations of Traitors to Liberty.

    The only blessing to be found there is their deep ignorance of the past. And that itself is a very low bar because everything that matters to supporting Liberty is above these credentialed morons through their vast ignorance.

    Four years of Trump and still we have no strategy better that withdraw and work around this endemic internal indoctrinated and institutionalised subversion. And yet all of this goes on flying in the face of contemporary abject failures like Venezuela, South Africa, North Korea, Cuba…. And all these manifest failures, in fact, do not penetrate, much less persuade, them.

    I have met “nice” Gen X-ers, Millennials, and such. But I’ve only met one who I could say was not likely to be trapped in the gullible ways I’ve described.

    I wish I could become a Born Again-type of Evangelical preacher. Then I might be likely to Believe in inflicting my optimism upon others, and at least create happy community.

  8. neo,

    “So Roberts is defending what he sees as the integrity of the judicial system”

    Not quite. Roberts, if sincere is defending the judicial system’s reputation. When actual reality demonstrates a distinct lack of integrity, then pretending that integrity remains is, at the least self-deceit and at worst, obstruction of reform and support for the corruption of the judicial system.

    “judges appointed by Democratic administrations usually operate under the idea that the Constitution is a document that must adapt to modern times, and can be stretched and reshaped to find penumbras and intents to fit whatever the left happens to think is a worthy cause.”

    That is by any objective rationale, intellectual dishonesty and a fundamental betrayal of their oath of office. Their ’cause’ may be just and the Constitution makes explicit forms of address to reform injustices. To seek to use the authority of their office to circumvent the very Constitution under which they operate is a fundamental betrayal of their oath, the Constitution itself and the public which they are charged to serve. Prison is the least they deserve.

    If Roberts has failed to grasp the obvious flaws within the “critical legal studies movement”… “the idea that all “law is politics”.” then that alone renders him unfit for the judicial system.

    Arguably, the very first law is that murder is an unlawful act. There is nothing ‘political’ about that fundamental premise nor the laws that extend from that perception. The basis for all law is a society’s moral consensus. Humanity’s moral perceptions and the premises and conclusions that extend from our perceptions existed millenia before politics ever arose.

    Politics is an activity that attempts to create a moral consensus upon the issues of the day. I.E. “it is right that we should do this” or “it is wrong to allow this”.

  9. I actually know two federal judges here in Nebraska. One is a Dem and the other is a registered Republican by not really political. Both of them are great guys and Creighton Law grads. I was on the Creighton Law Review with the GOP guy.

    The Dem found a constitutional right to same sex marriage well before any other district court. Reversed. He will inject his liberal political beliefs into some cases. The other judge is straight by the book. No politics. Pure law.

    The ironic thing is that the GOP judge was appointed by Obama. Our Senators forced him to after a long, long battle. Senator Fischer carried the water.

  10. “Roberts, if sincere is defending the judicial system’s reputation. When actual reality demonstrates a distinct lack of integrity, then pretending that integrity remains is, at the least self-deceit and at worst, obstruction of reform and support for the corruption of the judicial system.” – Geoffrey

    Indeed.

    Parallel situation: Hospitals and medical associations denying the plain evidence of doctors who are killing or injuring patients, rather than admitting that their institutions and members are not perfect. Done, so they claim, so that “people won’t lose faith in us and our (other) doctors” — a specious, fatuous, and ultimately self-defeating position. Much better to throw out the bad apples immediately and declare, “That’s not who we are!” (to coin a phrase).
    Almost all institutions fall prey to this delusion. Law enforcement is at the front of the list right now.

    Notice, however, that the other side of the coin is to support and protect doctors (or judges or police officers) who are accused of “malpractice” either without cause, by honest mistake, or with malice.
    When you throw them out of the sleigh to feed the wolves, all the while declaiming the same “That’s not who we are,” then you are part of the Cancel Culture, not the Integrity Forces.

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