Philosophical Apprentice
The constant stream of ‘Trumpology’ that Lowry has produced in how many weeks? has made way for a long and dismal apologetic for the ‘Roberts Court’. If only Lowry possessed a talent for polemic. But the energy with which he imbues his extended comments is surprising- perhaps he was as bored as his readers were? Although there is more ‘life’ here, than his vapid collection of reports on Republican political jousting, such as it was. Let me begin here:
All it has taken to bring the Supreme Court to the brink of destruction, we’re supposed to believe, is a critical mass of justices who try to hew to the U.S. Constitution.
The institution survived Dred Scott and Plessy v. Ferguson, but is now hanging by a thread thanks to the ravages of Justices Clarence Thomas and Amy Coney Barrett.
It is fashionable to say that the Supreme Court has “a crisis of legitimacy.” In this telling, the court has been buffeted by undisclosed luxury vacations paid for by wealthy associates of conservative justices and undermined by “stolen” seats. The court’s polling is terrible and it is now, as Democratic Senate hopeful Adam Schiff put it at a pro-court-packing news conference recently, “a political and partisan court with a reactionary social agenda.”
Of course, many of the people on the left who are lamenting a crisis of legitimacy of the court are hoping to create just such a crisis. It is understandable that they don’t like the composition or drift of the current court after largely having it on their side for decades, but their attacks are meritless.
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https://www.politico.com/news/magazine/2023/06/29/fake-crisis-supreme-court-00104106
This Reader wonders where Lowry’s ‘Left’ is/was? Is he speaking of New Democrat and political hysteric Adam Schiff ? My argument would be that the Republicans and New Democrats, indeed the whole of The American Political Class, the Supreme Court included, are not just in a crisis of legitimacy but are bankrupt: this is an unwelcome assertion to the would be Political Technocrat like Lowry. These next paragraphs are instructive about the evolution of the ‘Lowry Party Line’
No one “stole” any Supreme Court seats. The Senate decides whether and when to confirm a president’s nominee. The Senate majority under Minority Leader Mitch McConnell decided to keep the seat that came open after the death of Antonin Scalia vacant pending the 2016 election. If Hillary Clinton had won that election, the way most people expected, there would have been no “stolen” seat. The same applies if Democrats had won the Senate in 2018 — they would have been able to block former President Donald Trump’s appointment of Barrett after Ruth Bader Ginsburg died.
There’s a difference between losing and being done dirty. The fact is that there was precedent both for a Senate majority blocking the nominee of a president of the opposite party in an election year and for a Senate majority rapidly confirming the nominee of a president of the same party in an election year; Senate control matters.
How convenient that the National Review article is behind a Pay Wall?
As for ethics, even if you think that Thomas and Justice Samuel Alito were imprudent in accepting free flights and nice trips, even if you think they should have disclosed these trips (they didn’t have to under the rules), it’s preposterous to believe that a lifetime of thought and jurisprudence that has been rigorously consistent for decades has been changed or influenced by a couple of vacations.
Should I resort to the notion that Supreme Court Judges should be above suspicion, as a matter of personal ethics? Here Lowry acts as a defence attorney? As for the question of Paul Singer :
Headline: Hedge fund billionaire Paul Singer’s ruthless strategies include bullying CEOs, suing governments and seizing their navy’s ships
Hedge fund managers are rarely the quiet, retiring type, but few are as boldly bare-knuckled as Paul Singer, the founder of Elliott Management.
Singer, who took home $400 million last year, makes his fortune through activist investing. While other investors are content to buy shares or bonds, and wait for them to accumulate value, Elliott Management, which oversees almost $33 billion, specializes in taking stakes in companies or institutions where it can shape the outcome. That can include agitating for changes in leadership, or spending years and million of dollars in court pursuing its interests.
Elliott Management is perhaps most notorious for its 15-year battle with the government of Argentina, whose bonds were owned by the hedge fund. When Argentine president Cristina Kirchner attempted to restructure the debt, Elliott—unlike most of the bonds’ owners—refused to accept a large loss on its investment. It successfully sued in US courts, and in pursuit of Argentine assets, convinced a court in Ghana to detain an Argentine naval training vessel, then docked outside Accra with a crew of 22o. After a change of its government, Argentina eventually settled and Singer’s fund received $2.4 billion, almost four times its initial investment. Kirchner, meanwhile, has been indicted for corruption.
Lowry closes this portion of his essay here, in sum Ginsberg and Breyer did it also- this makes it right?
It’s not unusual, by the way, for Supreme Court justices to take trips funded by others. In 2018 alone, Ginsburg took 14 and Justice Stephen Breyer took a dozen.
Next for Lowry’s consideration is ‘Originalism’:
Originalism, too, isn’t flawless. There are different versions of it, and it’s a function of the difficulty of some of the questions that reach the court that originalists can come down in different places. But originalism is an internally consistent, intuitively appealing theory of how the court should work that hasn’t been matched by any alternate theory of interpretation by the other side, which is why even the progressive justices will sound, at times, like originalists.
Is originalism just a smoke screen for a political agenda? No.
For instance, originalist justices have tended to vindicate what used to be core liberal priorities, from trial by jury to free speech.
The example of the late Antonin Scalia, originalism’s most influential apostle, is instructive. Scalia wasn’t always happy with where his jurisprudence took him. He hated flag burning, yet found, along with the liberal William Brennan, that it was protected speech. He was a law-and-order conservative, yet often ruled in favor of the rights of defendants. If it had been his druthers as a policy matter, he might have been happy to search homes for signs of marijuana cultivation with heat detectors, but he ruled against it. It was with an eye to these matters that David M. Dorsen wrote his book, “The Unexpected Scalia: A Conservative Justice’s Liberal Opinions.”
For another see view of Scalia’s practice of jurisprudence see:
Justice for Scalia
by Robert Post
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For this reason it is all the more important to stress that Scalia’s opposition to the use of legislative history rests on exceedingly shaky theoretical foundations. Scalia readily acknowledges that if the meaning of a text is unclear, “the principal determinant of meaning is context.” In ordinary life the intentions of a speaker are central to the process by which we determine his meaning. If someone casually observes that “Casey has thrown a disc,” I would want to know something about the speaker’s intention in order to understand whether the comment refers to the state of Casey’s back or to the integrity of his CD collection.
Scalia does not dispute this, and he even concedes that there may be extreme cases where legislative history may be consulted in order to determine whether there has been a “‘scrivener’s error,’ where on the very face of the statute it is clear to the reader that a mistake of expression…has been made.” In his commentary, Ronald Dworkin cannily seizes upon this concession and brings out its implications.
Purporting to save Scalia from the inconsistency of allowing “intention to trump literal text,” he reconstructs Scalia’s position as resting on the distinction between what Congress “intended to say in enacting the language [it] used,” which Dworkin calls “semantic intention,” and what Congress hoped to achieve by using that language. Dworkin notes that “any reader of anything must attend to semantic intention, because the same sounds or even words can be used with the intention of saying different things.”
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Unsurprisingly Mr. Lowry underestimates his readership’s knowledge. Like a Neo-Conservative, he drowns The Readers critical faculties in ‘data’, which appears to be a cognate of expertise.
Of course, the court is coming down differently on a range of issues than it did in past decades. If faithfulness to the original meaning of the Constitution and statue is your lodestar, that’s not a bug — or a crisis — but a feature.
Philosophical Apprentice
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