Jul 02 2012

Error or Message in Supreme Court Decision?

So I go away on a cruise for a week and the Supreme Court of the United States decides to put out a series of major decisions that shows the division among the justices and the deepening politicization of the Court. But this is not a Constitutional Law blog. If you want heady analysis about the meaning of the Affordable Healthcare Act decision or the Arizona Immigration Law decision go to my favorite ConLaw blog SCOTUSblog.com.

I just want to pipe in on something curious in the dissenting opinion of Scalia, Thomas, Alito and Kennedy. Throughout their dissenting opinion, they make reference to Judge Ginsburg’s opinion. While that is not unusual, especially for this court which has lately taken to sniping at each other in their opinions, what is strange is that they refer to it as the dissent. In fact, they call it “the dissent” 15 times!

That’s no typo. That kind of mistake would never make its way into a Supreme Court decision that gets reviewed by the judge’s law clerks (who are all the tops of their Ivy League Law School classes) and then by the judges themselves to make sure they are painstakingly accurate. Then to do so on a decision that is as highly anticipated as this one was would never occur in error.

This “mistake” was done to send a message to the conservatives out there that Justice Roberts flipped side at the last minute. It tells the world that Ginsburg opinion was all set up to be the dissent, but when Roberts flipped, it became the concurring opinion instead. But it also tells the world that these justices are not from your father’s Supreme Court. We are witnessing a highly personalized, fractured, politicized court that is not scared to let everyone know exactly where they stand and what is going on behind closed doors. In Judge Kagan’s last few decision, she has openly derided the opinion of Judge Thomas. Alito and others have used harsh words to describe what they see as a court ruling based on “parental instincts” in a case involving juveniles being sentenced to life imprisonment, which I see as a direct dig against the female-heavy left side of the court. So this dissent issue is just the latest salvo in the political battle waging in what is supposed to be a non-partisan (ok at least, less-partisan) branch of our government.

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