Joel Jacobsen

Here's a one-question quiz to determine whether or not you're a judicial liberal.   Which of the following three choices correctly completes the sentence?

Q.  The judiciary should closely examine the actions of the political branches, and should in proper cases go so far as to assume without further proof that the actions of the executive and/or legislative are unconstitutional, when those branches: 

a.  use the resources of government to intervene in private contractual relations between a landlord and tenant on the ground that the leased premises are unbelievably squalid.

b.  use the resources of government to intervene in private employment contracts when an employer compels employees to work in dangerous conditions.

c.  use the resources of government to intervene when one individual uses physical force to kill, rape, rob or injure another.

If you answered "c", you're a judicial liberal.  At least, that's the word from the news company owned by New York's  Mayor Bloomberg, head of the Forza America party.  Bloomberg (the news service, not the mayor) recently reported: 

President George W. Bush's two U.S. Supreme Court appointees proved as conservative as advertised in their first term, even if they fell short of controlling the outcome in some of the court's highest-profile cases.

Chief Justice John Roberts and Justice Samuel Alito voted during the just-ended term to ... limit the rights of criminal suspects. They consistently allied themselves with the votes, if not always the reasoning, of Justices Antonin Scalia and Clarence Thomas. ...

The Scalia-Thomas wing can point to victories in criminal law. Scalia wrote the 5-4 decision limiting the exclusionary rule, which sometimes bars prosecutors from using evidence found during an illegal search by police.

The assumption, plainly, is that the Scalia-Thomas wing votes in favor of the prosecution and for "limiting the exclusionary rule."  Oddly, however, the reporter didn't mention the stinging defeats suffered by the Scalia-Thomas wing in a couple cases in which the majority opinion was written by ... Justice Scalia.  (See post 127 and post 131.) 

It always seems a bit unfair to pick on Supreme Court reporters, because, after all, their job is to fit the news about the Court into one of the only two possible storylines (the Court is getting more liberal / the Court is getting more conservative).    Still, this particular Bloomberg reporter's tolerance for cognitive dissonance is impressive.  Perhaps he's auditioning for a job as White House spokesperson?

In fairness, the idea that liberals are defined by their hostility to the enforcement of the criminal law is accepted by no less an icon of the American left than Senator Kennedy, in a Washington Post op-ed in which he castigates Alito and Roberts for being conservative, pointing out in particular Alito's penchant for "ruling against individuals in Fourth Amendment cases". 

As to why revealing the truth about crime to juries hearing criminal cases - which is what Kennedy, or the staffer who actually wrote the piece, was referring to - should be considered a self-evidently conservative position ... Well, if you have to ask, you must  have flunked the quiz at the beginning of this post.