The Daily Sandwich

"We have to learn the lesson that intellectual honesty is fundamental for everything we cherish." -Sir Karl Popper

Location: Boston, Massachusetts, United States


Monday, October 01, 2007

The Court Jester

Ahhh, the New Republic. They disappoint me so much these days, but it's hard to let go. A couple of recent posts there remind me why.

First, this account of the dangerous politicization of the Supreme Court in the age of ideological purists. But as a myriad other inconsistencies plague today's GOP, Chief Justice Roberts has called for a new age of unity while presiding over the most ideologically-driven court in decades. Except when the GOP could suffer as a result.

The numbers are stark. In Roberts' first term, according to the Harvard Law Review, the justices disposed of 36 of their 81 cases unanimously and divided 5-to-4 in only nine of them. That 44 percent rate of unanimity--defined as a single opinion with no concurrences or dissents--was the highest in the nearly four decades that the law review has published this particular statistic. What's more, not since the 1987 term had the court split 5-to-4 in a smaller percentage of cases. These data somewhat overstate the love that broke out that year. Because Justice Samuel Alito did not arrive until midway through the term, the justices split 5-to-3 in a few cases that probably would have garnered 5-to-4 splits had the court been fully staffed. And it is marginally easier to reach unanimity with only eight justices than it is with nine. Still, with a new chief and a pending nomination, the court that year put on a display of unity unprecedented in its recent history.

Last term, with the heat of the nomination process turned off, was an entirely different story. The justices managed unanimity (according to the Harvard Law Review's definition) in only 13 of their 73 decisions, a mere eighteen percent. In 23 cases -- or 32 percent of the caseload -- they split 5-to-4. You have to go back to 1980 to find a year in which the court decided a lesser percentage of its cases unanimously, and and not since the Harvard Law Review began tracking 5-4 decisions in 1981 has the rate of such splits exceeded last term's. The court, in other words, lurched from a moment of unusual unity to a particularly dramatic polarization.

That's pretty much been the MO of the Republican party for the last decade: extremism when no one is looking, and ersatz bipartisanship when the public starts catching on. What's annoying is the way the magazine presents it more as a lamentable aspect of politics today rather than the inevitable result of politics by dirty trickery.

Which brings me to article 2, the week's editorial.

In his rush to improve his legacy, Bush seems eager to avoid joining Monroe as the two-term president with the least used veto pen. How else to explain his threat to veto nine of the twelve spending bills just passed by the House and currently under consideration by the Senate?

Bush has sent seven budgets to Capitol Hill. The six times those budgets were received by a Republican- controlled Congress, legislators occasionally sent back spending bills that slightly exceeded his requests. Until now, this was never considered a grave threat to the fiscal health of the Republic--certainly not serious enough to merit a presidential veto. The current bills are no worse. They envision spending a total of $22 billion more than Bush asked for. This amounts to less than 1 percent of the federal budget and is dwarfed by the more than $100 billion per year spent on the war in Iraq.

Now, this is exactly the sort of thing that motivated me (and many others) to start blogging. We were fed up with a party who found it so easy to use rank hypocrisy as a political tool and a press that refused to acknowledge that fact in the name of being "objective," although it was anything but. TNR, of course, fanned the flames by heaping scorn on angry, fascistic bloggers for doing this while uncritically doing foolish things like pushing for war with Iraq. So, while this is a worthwhile piece, it's along the lines of "I coulda told you that six years ago and I don't even get paid for this."