Rightward Ho!

Legal Analyst Andrew Cohen: Court's Conservative Turn Is A Matter Of Math — And Art

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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Whether you believe the Supreme Court is heading toward a precipice or redemption, there is no longer any doubt it is moving, rapidly and intensely, toward the right.

You take a reliably conservative justice and expect him to hold the Supreme Court’s moderate middle and what do you get? Disappointed. You take a moderately conservative Supreme Court and you replace its most pragmatic centrist with a rigid, starboard-facing ideologue and what do you get? The Roberts Court, circa 2007.

Two things are directly responsible for the Court's marked turn to the right this term — and you don't need to be a legal scholar to understand either. One is a matter of math; one is a matter of art. The mathematical equation simply tracks the significant ideological differences between Sandra Day O'Connor, the former politician who ranged the Court's center, and her successor, Justice Samuel A. Alito Jr., who has proven to be able to deliver to his conservative benefactors precisely the votes they had hoped for when they accepted his nomination a year and a half ago.

It was Justice Alito whose vote in Gonzales v. Carhart helped deliver from despair the Congressional ban upon a type of what the law calls a partial birth abortion procedure — and, in the process, undercut the precedent set forth in Roe v. Wade. It was Justice Alito whose vote in Ledbetter v. Goodyear helps hamstring employees seeking remedies for past workplace discrimination. It was Justice Alito who in Bowles v. Russell voted against a man's right to a hearing because the man had relied (reasonably enough, wrote the dissenters) upon federal trial judge's deadline that turned out to be wrong. It was Justice Alito who in Hein v. Freedom From Religion voted to block taxpayers from complaining about the executive branch's self-promotion of religion.

In each of these cases, and many more, the Court's self-professed Hamlet, Justice Anthony M. Kennedy, could have done something to change the outcome — but didn't. The man anointed by deep thinkers in the media — and also me — as the likely "new" swing vote on the Court, the successor-in-interest and moderation to O'Connor, didn't, in the end, look or talk or act like any sort of savior for independent or soft-right causes. Instead, Justice Kennedy voted in the vast majority of cases — the big global warming case and Thursday’s public school affirmative action case being the remarkable exceptions — the way you would expect any appointee of Ronald Reagan to vote.

When you combine Justice Kennedy's general inability or unwillingness to become the new O'Connor model for moderation and add to that Justice Alito's eagerness to tack to O'Connor's jurisprudential right, you get a strong, vibrant Supreme Court majority this term that was even more willing than its recent predecessors to overturn existing precedent to come to a decision — especially when that decision skewed right. This in part thanks mostly to the two newest justices who pledged up one side of the Senate confirmation hearing room and down the other that they would show great deference to the past rulings of the Court. Not so much.

No one should be surprised. It was as predictable as humidity in Washington in August. President George W. Bush promised during the 2004 election that he would, if given the opportunity, turn the Court rightward — and on this promise, at least, he has succeeded. Senate Democrats, especially those on the Judiciary Committee, saw this trend coming, too. They warned over and over again during the Alito and Roberts confirmation hearings that the nominees were playing possum; hyping up their humility while downplaying their ideology. In the case of Alito, especially, they were correct.

It doesn't matter whether you call these folks the Roberts Court, or the Kennedy Court or the Alito Court. The result is a Supreme Court that this past term consistently sided with big business interests over consumers; with employers over employees; and with law enforcement goals over individual rights. It is a Court that is more conservative than was the Rehnquist Court, which was more conservative than its predecessor, the Warren Burger Court, which of course was more conservative than the Earl Warren Court. When a Reagan appointee like Justice Kennedy is the last best hope for moderates, you know where you can find the gravity of the Court.

In fact, even on the last day of the term, while most of the country's attention was riveted upon immigration reform and the justices' own tepid and ambiguous pronouncements on schools, the Court's conservative majority overturned a 96-year-old legal precedent that had until Thursday outlawed minimum-price deals between manufacturers and distributors. It's no small wonder then that Justice Alito was heralded last week by a business publication for his service to the cause; the man sided with the U.S. Chamber of Commerce in 13 out of 14 cases this term, Bloomberg reported.

It's also no shock that tension rippled to the surface on the last day of the term. Justice Stephen Breyer reportedly appeared ready to leap out of his chair when Chief Justice Roberts compared the "victims" of current school policies in Seattle and Louisville, Ky., with the "victims" of the nation's odious "separate but equal" policy toward schools that was famously erased in 1954 and later by Brown v. Board of Education. Justice John Paul Stevens called Roberts' remarks — citing Brown to rule against integration — a "cruel irony."

Let there then be no more silly and condescending talk from the Chief Justice about trying to bring consensus and even unanimity to the Court. It is today as fractured as it has been in a generation, with no apparent relief in sight. Let there also be no more talk as we head into another election cycle about the significance of presidential contests in shaping the makeup of the Court and therefore its jurisprudence. Whether you believe the Court is heading toward a precipice or redemption, there is no longer any doubt it is moving, rapidly and intensely, toward the right. Its newest members are leading the way, and its center has not held. The nation has the Court it said it wanted — and, indeed, the Justices it deserves.

[yeshuas_lion]

Sam,

If you read my blog again, you will see that I was correct, by your own admission, on all accounts.

But anyway, I am happy to hear you are Concentrating on your education. The workplace is rapidly changing,(in just 2-3 decades there will be computer brain implants-no more keyboards at all-you will simply THINK things into existence)... and you'll need a good education to get the best job possible.

Remember, I did say that ADD is not necessarily a bad thing. People can retrain their brains. You train your brain to become ADD, but you can retrain it not to be ADD. Trauma, instability at home, divorce-- can all reek havoc on a kids brain.

Good luck to you!

Slow down, Enjoy Life, focus on one thing at a time, eat well, (salmon, olive oil, good fats), no junk food and soda!and take up art, especially drawing. The focus and concentration does wonders for the brain.

[samthetvcat]

Yeshuas_lion

Well you're finally right about one thing - I do have ADD, which is in fact why I can read the computer and listen to the television at the same time and absorb information from both. I didn't know other people can't do that.

Actually it's the ADD that's at the root of my 'angle'. Before it was diagnosed I was placed in special ed along with all the other kids who were labelled 'stupid', 'lazy' and basically being written off as 'trouble-makers' and none of us were any of those things. Kids don't have the perspective to realize that teachers who end up in special-ed aren't always competent and are blaming you for their short-comings so it's very easy to start to believe what they're telling you. It was a very painful, traumatic experience, not just to be treated like you don't have the ability to contribute to society or that you don't have any worth, but also to feel like people in authority are rejecting of you rather than people you can trust for support. Maybe having a quality teacher with more personal attention wouldn't have made a difference to all of us, but I feel like maybe it would have helped some of us because all it takes is for one person to care to counterbalance all the rest.

I don't know how anybody goes through that without wanting to help. Charles Schwab actually started a foundation to help at-risk kids and both he and Richard Branson are constantly talking about how counterproductive it was to be written off by teachers.

[samthetvcat]

pt 2
So what's your deal? How do arrive at the conclusion that people who care about other people have issues? What's with your preoccupation with wanting to call people uneducated? Selfish guy who didn't have the chance to go to college who's now feeling guilty about not having more empathy and who feels like maybe he missed out on education?

I'm not sure why education exactly is the path to a better future because clearly people don't necessarily need to attend an academic institution to gain skills or knowledge. Most people don't even use what they learned in their jobs. I think sometimes workplaces just need a cut-off point for certain jobs and that's the way that's developed. Like why in the military is it used to distinguish rank? That being said, for at-risk kids the Harvard study did find that educational achievement does lead to greater prosperity in life, and the lack of it lead to greater risk of falling through the cracks. That's the only reason I'm focusing on education.

PS And ritalin isn't addictive if you take it to treat ADD - if you stop taking it you just get less done. I think Paris and Britney are using it as a cocaine substitute and a weight-loss tool.

[yeshuas_lion]

Sam,--

Well at least you know that a Great Book means the Bible...But actually I was thinking of the passage, "Thou shall not kill."

I would again suggest that you work harder in school regarding Math, Art, History and especially English.

Read back over your writing. You make many mistakes, and the points you try to make are not really germaine to the topic.

You seem very scattered in your thinking. You might try being more focused, but then again maybe you have A.D.D., which isn't necessarily a bad thing, but Ritalin is addictive, you know, and TV makes it all worse.

Just trying to offer up suggestions to help you and be caring, as you yourself describe it. You seem to see yourself as a type of saviour for the "less fortunate." Children of priveledge tend to do that. I would suggest you work on yourself, your own skills and gifts first. Education is key. You might try reading Milton, Tolstoy or even Bradbury. You'll be more effective in the long run.

[samthetvcat]

"If you want to be real, maybe the first place to start is to turn it off and become informed by reading a "Great" Book."
Posted by Yeshuas_lion at 11:35 PM : Jun 30, 2007

Oh you mean like the one that tells us "Do not keep talking so proudly or let your mouth speak such arrogance, for the LORD is a God who knows, and by him deeds are weighed"?

PS Some of us multi-task . . . apparently you don't (?)

[yeshuas_lion]

It seems that you watch TV alot.

If you want to be real, maybe the first place to start is to turn it off and become informed by reading a "Great" Book.

[samthetvcat]

PS My precious little sammy cat is a boy, but I'm a girl . . . and we both like to watch tv - ha ha

[samthetvcat]

Well yes I am a liberal but not a fan of Mr. Cohen's work. I can't speak for him, but with regards to the partial birth abortion ban, some issues I had with the Supreme Court's ruling was that they didn't mention the fact that the alternative procedure which was not covered by the ban was even more barbaric. Nor did they mention any concern for the lives that might coming into being as a result of the greater restrictions on availability of abortion procedures. My criticism of those lobbying to get this procedure banned was that they were too satisfied with themselves for seeking to reduce the reliance on the procedure with a ban rather than with adressing the issue of how women get into the position of needing a late-term abortion in the first place - there's a high correlation to poverty. The religious right has since tried to address the issue by advocating adoption, which I suppose would help on some level, but that raises issues of its own. I mean like the religious right was claiming that because they advocated a ban on partial birth abortions that they were 'pro-life' but were at the same time not giving two hoots for the lives that their stance was creating. It's like they like feeling morally superior but lack the empathy to make sure their decisions result in the scenarios that they envision or something? Bush being example number one . . .

[yeshuas_lion]

Mr. Sam, you state,

"But the first step is to care."

Did you happen to see it in Mr. Cohen's article? Perhaps when he stated, "...the Congressional ban upon a type of what the law calls a Partial Birth Abortion procedure--and, in the process, undercut the precedent set forth in Roe v. Wade," did you observe a sense of liberal caring then, when he talks about the most barbaric procedure ever known to man in mere clinical tones? Is this the type of "caring" you are looking for?

[samthetvcat]

"Unfortunately, Mr. Sam, you have missed the point.

It is not entirely a money issue, it is a spiritual issue, and the fact that the black community is spiritually broken.

At risk boys aren't looking for a Dr. Phil. They are seeking after their fathers. The Black community has become a matriarchal society. It may work in Britian with the Queen, but it does not play out well in an American Harlem."
Posted by Yeshuas_lion at 03:38 PM : Jun 30, 2007

I get that point, but I'm realistic enough consider what can be done in spite of that fact . . . ideally every child would have active, interested, quality parental involvement from both a mom and a dad, but you haven't offered any solutions yourself on how to achieve that. Isn't it kind of a vicious cycle . . . like if the dad is a 14 year old and is starting to get involved in gangs, how exactly is he going to offer parental guidance when he himself is just a child and on the wrong path and HIS dad is in jail a hundred miles away? If he truly saw education as the key enough to counsel his kid, then wouldn't he be practicing what he preaches? I suppose you could blame the dad in jail, but he was probably in the same spot 14 years ago and is also probably not in any position to practice what he preaches either. I mean, I'm trying to stay real . . .

[yeshuas_lion]

Again, Mr. Cohen doesn't come close to making a point and bringing forth evidence to support his original thesis statement. (This is just basic freshman English.)

He states that the reason for the Court's conservative shift was two-fold and due entirely to math and art. He touches briefly on math, but doesn't touch on art at all.

This is the core problem of liberalism; no intellectual follow-through

Afterall, art takes a thousand different forms and cuts across just as many boundaries to bring meaning in a creative way to thousands of different creatively thinking minds.

It shouldn't be hard to talk about art because afterall ART IS. It just IS, isn't it?

Much like the Logos of the Universe is art.

[yeshuas_lion]

Unfortunately, Mr. Sam, you have missed the point.

It is not entirely a money issue, it is a spiritual issue, and the fact that the black community is spiritually broken.

At risk boys aren't looking for a Dr. Phil. They are seeking after their fathers. The Black community has become a matriarchal society. It may work in Britian with the Queen, but it does not play out well in an American Harlem.

[samthetvcat]

Just to clarify the economic argument in my previous comment, while that same study found that school attendance DID reduce a child's chances of turning to crime it didn't necessarily find that spending more per child on education would guarantee greater interest in school - so I'll concede that much to you Republicons. At the risk of sounding cliche, it takes a village as Hillary said . . . there's also in many cases the poverty aspect, the parental involvement level, the gang culture. Frustrating issue with no easy solutions - but the first step is to care, and I don't see that in this Supreme Court ruling. So are THEY part of the solution or part of the problem? (Not that I'm sticking up for Andrew Cohen - I didn't want to make an issue of it, but yeah, he does kind of have a tendency to sound powerless and whiny in his writings . . . wasn't sure if it was just me who thought that . . . apparently not . . . )

[samthetvcat]

Supposedly the natural tendency for all of us is to focus on those above and how we're not measuring up (like it's a striving mechanism that motivates us) so people will tend to instead look at all the legacy kids like Bush who take up spots at the elite colleges and then go on to become President and draw inward to compete. I'm optimistic though because when people heard about all the kids displaced by Katrina people really held their hands out to help.

When I was scanning for the Harvard study there was another one that mentioned that in the rich neighborhoods of NYC schools spend $22k per kid while other neighborhoods where many kids end up joining gangs and whatnot spend half that. They also pointed out that if it costs $30k per year to incarcerate an individual, then if education can prevent a child from turning to crime it would actually be more cost-effective to invest the money at the outset.

I've also read stuff about how having class sizes of 20-25 increases performance...don't know whether all schools have managed to achieve that or not. Also, maybe if there's a brain-drain with teachers they need to consider having members of industry come in and teach a class or two. And maybe each school ought to have a resident Dr. Phil to help the at-risk kids rather than relying on teachers who are already overworked and underpaid.

Too bad teachers don't have the lobbying power of the Insurance industry! Grrr

[yeshuas_lion]

Mr. Cohen states with confidence, "Two things are directly responsible for the Court's marked turn to the right this term--math and art."

Mr. Cohen forgot to insert the third and most important reason into his oblique equation,(or shall I say bleak equation)-- himself.

Mr Cohen whines and complains but fails to come up with the winning plan or equation,(afterall with math the answer is either right or wrong), so naturally, like most liberals at this point in time, he is the one put on the defensive for his failed dogmatic philosophies.

"Defensive Moves" look much like mr. mike nifong's illegal, wrongful and malicious prosecution,-there were many accusations thrown about but absolutely no evidence to back them up and when the "light" was finally shined upon the entire sham and debacle the only thing left for him to do was to resign in disgrace.

[incog-nito]

If we want our education system to be equal everywhere, then why don't we spend an equal amount of money on every child? Why is school funding based mainly on local property taxes? This only means that richer neighborhoods will have better schools, and vice-versa. Isn't the goal of public education is to provide equal opportunity for every child. The current system is so obviously, egregiously, idiotically wrong that it's amazing that people put up with it.

[samthetvcat]

"The question is what is the total impact to ALL students? Busing usually means as somebody gets bussed in - somebody else gets bussed out."
jimmyc1955

Another finding from that same study:

"We were astounded to see how great an
influence attending a public school has on minority male%u2019s success in early adulthood. For minority men, going to a public versus a private or magnet school yields a devastating effect on their early adult SES. Net of controls, the odds of being off track in early adulthood, are nearly six times greater for minority men who attended public school as opposed to a private/magnet school in adolescence. The effect of going to a public school has no significant effect on early adult socioeconomic standing for both minority women and whites."

[samthetvcat]

"My reading of the Harvard study is that the prime determinant of academic success isn't how much money we spend but how much follow up is there at home for stressing the homework and study."
jimmyc1955

Do you have a link to that study because the one I found directly contradicts the finding you cited above (http://www.ksg.harvard.edu/inequality/Summer/Summer00/papers/Furstenberg.PDF, "Peer group influence is especially important for understanding the later life achievement of minority youth. Even though studies of adolescent achievement generally point to the family as the single most important influence in the domain of socialization, race differences in achievement are not fully explained as a result of within-family factors. In fact, Steinberg and
Darling found that peers are stronger sources of influence than parents...They also reported that the peers of black students seem to not encourage academic achievement and therefore counterbalance parent encouragement of school success") thx

[walt1944-2009]

I have just learned that the Supreme Court has ruled tht the world isn't round after all; that indeed, it is as flat as your kitchen table. Dismissing tons of evidence submitted by NASA to prove that the earth is round, the Court instead chose to accept evidence as presented in the latest Disney movie "Pirates of the Carribean: At World's End". Chief Justice Roberts, in his written opinion, stated that he believed that pirate Jack Sparrow was better qualified to prove the earth is flat rather than dozens of left-wing NASA scientists. Justice Alito concurred and in his opinion, writing that he believed the "round Earth" theory was a liberal plot designed to influence the minds of promising, young, white, right-wing college students. Justice Thomas refrained from making an opinion as he stated the Bible does not state in what shape God did make the world into!

The Court's next case is "Alberto Gonzalez vs. the chicken". The court will attempt to answer a question which has perplexed Emperor Bush and his court since he took the throne in the Oval Office, that being: Which came first; the chicken of the egg?

SIG HEIL, BUSH!!

[jsilver2th]

Really we have Ralph Nader to thank for this- and he's coming back in 2008 when he should be looking for assisted living for the senile- now even Micheal Moore isn't pure enough for Ralph-