Part 8 of the series, "The Structure of Lies in Conservative Jurisprudence".
In the previous diary, I reviewed Ronald Dworkin's post-mortem on the Roberts confirmation hearing in which he highlighted two problematic areas illustrating the underlying dangers with his lack of an explicit judicial philosophy: precedent and judicial activism. As it turns out, Dworkin's crystal ball was a lot better at seeing what was going on right in front of him than the Versailles media was.
More recently, the Alliance for Justice has published studies addressing both of these problems in the Roberts Court. The first, “Unprecedented Injustice: The Political Agenda of the Roberts Court” highlights some of the most significant examples of the Roberts Court ignoring and overturning precedent, while the second, “The Roberts Court’s Record of Overreaching,” focuses on judicial activism exemplified by disregarding long-standing procedural norms which no one probably even dreamed of ever asking Roberts about: Taking cases that don't require its intervention, addressing legal questions that aren't squarely before it, settling questions of fact rather than leaving that to trial courts, and making up new law out of thin air.
Let's consider the second paper first, as it helps to the lay the groundwork for us. The pattern of judicial lawlessness it reveals provides us with a context for understanding the aggressive overturning of precedents dealt with in the first paper. While precedents are occassionally overturned—and in cases like Brown vs. Board of Education, for obvious good reason—the norms violated in the second paper are much more clearly defined than principle of upholding precedent. All other things being equal, a court which fails to observe those norms is on much shakier grounds when it strikes down a precedent, because it has already demonstrated a general indifference to judicial restraint, and a carelessness for the consequences of its actions. Such is the case with the Roberts Court, as we are about to see.