would a liberal supreme court be authoritarian in its own way?

[freepcrusher]

I'm sort of politically bipolar. I dislike the conservatives on the supreme court because I see them as vestiges of another era. Like I had always viewed conservatives (especially legal conservatives) as the personification of someone like Greg Marmalard or Doug Neidermeyer in animal house. That and the left as represented by Bluto and his guys.

When the left finally does get a majority on the supreme court (which could presumably happen in the 30s or 40s) - there is a kind of "be careful what you wish for" aspect to it. Because I feel the legal left is no longer the same left as that of the three Williams (Douglas Kunstler and Brennan).

All the stuff over the past few years has me realizing that the left, especially when acting in concert with the media and corporations, has a propensity for totalitarianism. Even with the court we have now, we have a lot of tyranny that I find disturbing:

- the blurring of the lines between public and private.
- big tech censorship
- cities like San Francisco considering something like reparations
- social media and the media in general using moral panics to bankrupt people
- financial censorship (i.e. debanking people)
- ESG and other kinds of corporate totalitarianism

If we did have a liberal court, the above factors could be worse.

[Kahane's Grave Is A Gender-Neutral Bathroom]

The last time liberals had a SCOTUS majority equivalent to the current conservative one, established Miranda rights, protected abortion rights, ended school prayer, and banned segregation.

[Mr. Smith]

Would this be a bad thing?

[freepcrusher]

Would this be a bad thing?

giving the greenlight to hate speech laws would be bad because it would be bad and often selectively enforced.

[MarkD]

If we were to assume that a new liberal majority on the Court would be made up of liberals who were very much like most of the liberals who have served on the Court in the last 70 years, then yes, I think the Court would become quite authoritarian. I have no reason to think that today's liberals are any less liberal than what you call "the three Williams (Douglas, Kunstler, and Brennan)." I think that today's Sotomayor, Kagan, and Brown Jackson could readily be joined by new clones of Douglas, Brennan, and Thurgood Marshall, and they would rambunctiously implement a sweeping package of reforms imposing economic egalitarianism across the country.

I can foresee that a new liberal majority would:
 - Overturn San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1 (1973), thus requiring that per capita spending per pupil in K-12 education must be uniform across all school districts within each state
 - Permanently end the death penalty
 - Overturn Citizens United v. FEC, 558 U.S. 310 (2010), thus allowing Congress and the states to violate the quantity of political speech
 - Declare that any and all "discrimination" against "the poor" must be subjected to strict scrutiny, like William O. Douglas wanted to do during his time on the Court:

Douglas saw nothing unusual about applying the "equal protection of the law" clause to preclude discrimination in legal affairs or the enjoyment of other rights where deprivations were based on no other reason than poverty. Thus he argued in a concurring opinion that Connecticut violated equal protection by requiring all applicants for divorce to pay filing fees regardless of their financial status. To deny poor people the opportunity for a divorce simply because of their poverty was not equal protection of the law.
Douglas dissented ... when a 5 to 4 Court later upheld a requirement that all persons applying for bankruptcy pay a filing fee. For similar reasons, Douglas protested when another sharply divided Court upheld an Oregon filing-fee requirement for appellate review in a case involving a dispute with the state's Public Welfare Division. He asserted that the Court had supported "a scheme of judicial review whereby justice remains a luxury for the wealthy." (Ortwein v. Schwab, 410 U.S. 656 (1973), Douglas, dissenting.)(Entire quotation from Of Power and Right, by Howard Ball and Phillip J. Cooper, published 1992.)

On the other hand, if all modern liberals who served on the Court were clones of Hugo Black, then no, they would not be noticeably authoritarian.

Would this be a bad thing?

That depends on your judicial philosophy. If you're result-oriented and merely want the courts to implement liberal policies all the time, in every case they hear, regardless of whether or not the results were plausibly based on what lawmakers wanted their laws to mean, then it's fine. But you would not be interested in the concept of objectivity in matters of legal reasoning if that were what you wanted. Other than Hugo Black and Felix Frankfurter, most Supreme Court Justices of the last 70 years have not been interested in objectivity. Regardless of whether they're conservative, liberal, or moderate, most Justices have been - consciously or unconsciously - giving in to the temptation to utilize their own values to decide what to do with most cases on the Court's docket. If you lean to the left, you will think this is FINE for all of the Justices to do (so long as they're not conservative - like Scalia and Thomas).

[freepcrusher]

I guess to expand on some of my thoughts - there are a lot of questions that probably fall under the Political Questions doctrine but need to be addressed in some way. This is more first and fourth amendment material but here are the questions -

1) the way small businesses have been harmed over the past several decades has led me to believe that there is clearly a first amendment argument that the right to do commerce has been eliminated. Maybe big box stores have to be common carriers?

2) If you want to own a car like a 50s Thunderbird - do you substantively have the right to have one if there are no parts and they effectively banned a lot of the parts and repair abilities?

3) The internet in general keeps changing things up and if you don't like the format, you don't have any way of remedying it. Aren't you effectively at the mercy of the creators of the product? Like what if they eliminated the copy/paste function on excel?

4) Should the admissibility of surveillance evidence be curtailed? Because if the surveillance merely acts as a way of establishing someone's whereabouts and not the place in question (i.e. traffic surveillance) - you basically have no fourth amendment right. I'm of the view that all video surveillance could only be used to identify suspects at the scene of the crime (i.e. if there was a robbery at a walgreens).

5) I find five over ones to be a plague on our society architecturally. My theory is that government grant money is what is causing them to pop up. Should grant money theoretically come with no strings attached? Because otherwise it's a form of extortion.

6) Should assumptions over residential patterns change? I'm increasingly of the view that there needs to be an innocent until proven guilty viewpoint on this. Like maybe Central-Eastern Brooklyn is the way it is because blacks want to live around each other and South-Shore Long Island is the way it is because Irish/Italian middle class people want to live around each other.

7) should Brandenburg be applied to social media and banking? I think it should be. The only exception would be banks with under 100 employees.

I feel like I'm almost moving in a libertarian direction. I also feel that libertarianism is kind of a two way street that I never understood until recently. I had assumed that what libertarianism was, was a right to do more and more stuff (legalizing drugs, lowering the age of consent). But if you're in somewhere like San Francisco, how much freedom do you really have if you don't want to be around people living on the streets doing drugs. If there are "squatters civil rights" - couldn't that effectively end everyone else's civil rights?

[Donerail]

1. There is no First Amendment "right to do commerce."

2. You do not have a right to a commercial market that supplies parts for particular cars.

3. If you don't like Excel, try Google Sheets?

4. This is the only one of your scenarios where there's an active debate, yes.

5. There is nothing in the Constitution that forbids Congress from attaching conditions to federal funds. You are not being "extorted" if you decline to accept the conditions accompanying free money.

7. Brandenburg is still the governing test for incitement. There are questions about how well it applies to social media. Banks, like any other actor, are governed by Brandenburg.

[politicallefty]

If we were to assume that a new liberal majority on the Court would be made up of liberals who were very much like most of the liberals who have served on the Court in the last 70 years, then yes, I think the Court would become quite authoritarian. I have no reason to think that today's liberals are any less liberal than what you call "the three Williams (Douglas, Kunstler, and Brennan)." I think that today's Sotomayor, Kagan, and Brown Jackson could readily be joined by new clones of Douglas, Brennan, and Thurgood Marshall, and they would rambunctiously implement a sweeping package of reforms imposing economic egalitarianism across the country.

I don't think the liberals on this Court are anything like the ones during the Warren and Burger Courts. Sotomayor probably comes the closest to anything resembling the old left on the Court. Jackson hasn't been on the Court long enough to make a determination one way or the other, but you of all people should appreciate her invocations of originalism. I think Kagan is quite a bit different though. For example, in NFIB v. Sebelius, she joined the opinion that ruled the Medicaid expansion to be an unconstitutional coercion (and therefore must be optional). That ruling alone was a serious change in the Court's jurisprudence.

And while I would agree that overturning Citizens United would be an authoritarian ruling by definition, I do not see how striking down the death penalty meets that definition. There is an intrinsic link between authoritarianism and the death penalty. The death penalty is a uniquely authoritarian punishment and it is one the main tools of an authoritarian government.

When it comes to Justice Black though, it's worth remembering that he was with the majority in the vast majority of cases when the left had control. In the cases of desegregation, he felt the Court wasn't moving fast or being forceful enough. He was certainly an integral part of the Warren Court's jurisprudence.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

When it comes to Justice Black though, it's worth remembering that he was with the majority in the vast majority of cases when the left had control. In the cases of desegregation, he felt the Court wasn't moving fast or being forceful enough. He was certainly an integral part of the Warren Court's jurisprudence.

This is true, but Black was noticeably more dedicated to careful legal reasoning than many of his contemporaries (especially Douglas, yeesh).

[politicallefty]

When it comes to Justice Black though, it's worth remembering that he was with the majority in the vast majority of cases when the left had control. In the cases of desegregation, he felt the Court wasn't moving fast or being forceful enough. He was certainly an integral part of the Warren Court's jurisprudence.

This is true, but Black was noticeably more dedicated to careful legal reasoning than many of his contemporaries (especially Douglas, yeesh).

Very true. I mean, I've mentioned before that I much preferred Justice Goldberg's concurrence in Griswold over the majority opinion. I generally liked how Douglas ruled, but his reasoning wasn't always the best. However, I would say that he and Black had the best interpretation of the First Amendment (apart from the protections afforded to conduct). I think Schlesinger v. Holtzman is where Douglas really went off the deep end. If you're on the left and you have Justice Marshall working to overturn you, you've definitely gone too far. Going to back to Justice Black though, he's written some of the best opinions in the history of the Court (most of which the right-wing have sought or are currently seeking to undermine or outright overturn):

Everson v. Board of Education (1947)
McCollum v. Board of Education (1948)
Engel v. Vitale (1962)
Gideon v. Wainwright (1963)
Wesberry v. Sanders (1964)
Griffin v. County School Board of Prince Edward County (1964)

This quote was apparently attributed to Justice Black with regards to his joining of the majority opinion in Bolling v. Sharpe:

A wise judge chooses, among plausible constitutional philosophies, one that will generally allow him to reach results he can believe in – a judge who does not to some extent tailor his judicial philosophy to his beliefs inevitably becomes badly frustrated and angry. ... A judge who does not decide some cases, from time to time, differently from the way he would wish, because the philosophy he has adopted requires it, is not a judge. But a judge who refuses ever to stray from his judicial philosophy, and be subject to criticism for doing so, no matter how important the issue involved, is a fool.