What will the five to four conservative Court majority do?

There’s a time bomb in the Declaration of Independence that concerns a Supreme Court which exhibits insufficient deference to political democracy. The Declaration states that our “unalienable rights” derive from “the laws of nature and of nature’s God”; that is, they are prior to any government.

On this ground the Court can, in theory, invalidate any law passed by our Congress, asserting that it violates a Higher Law. We assume that this involves the personal liberty rights enumerated in the Bill of Rights.

But note the following passage from Wikipedia, where property rights seem to exist on the same level as liberty:

“Scholars have noted that when the Fourteenth Amendment was adopted in 1868, 27 out of 37 state constitutions had Lockean Provisos which typically said: "All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring and possessing and protecting property: and pursuing and obtaining safety and happiness."”

In the Lochner era, from the early twentieth century until a few years into FDR’s New Deal, the Court repeatedly struck down such laws as the forty hour week and restriction of child labor as interfering with an employer’s right to do as he wished with his property.

Property rights were also assumed to support the right to refuse service to customers of a given race or ethnicity.

Rising public objection to the Court’s obstructionism toward humanitarian and safety provisions of New Deal legislation persuaded the Court to moderate its position. The question is whether the new five to four conservative majority may usher in a new Lochner era in which the people are unable to effectuate laws improving work, safety, economic, health, and voting conditions.

In the end, it will come down to what we are willing to put up with.

https://en.wikipedia.org/wiki/Lochner_era

On the difference between liberalism and the outlook of the left

>>Part I: 

Since “liberal” and “left” are often treated as synonymous, Historian Fritz Stern’s discussion may be useful:

Fritz Stern was born in Breslau, Germany in 1926, and moved with his family to the United States in 1938 in response to the rising anti-semitism of the Third Reich and became an American historian.

From Fritz Stern Op-Ed New York Times September 4, 1988 (in response to Ronald Reagan's derogatory use of ‘liberal’):

Liberalism—one of “America's noblest traditions,” I insisted, often defined as a state of mind—had “transformed the world . . . 

[I]ts greatest victory has been the American Revolution; its greatest pronouncement, the Declaration of Independence; its greatest bulwark, the Constitution of the United States and the Bill of Rights.” 

It had “stood for freedom against tyranny. At its best … a force for change and progress, seeking the institutional defense of decency.” ... In America's liberal premises the world had seen “the best promise of the West.” - This from Stern’s _Five Germanys I Have Known_

Stern is saying that the Founding was a liberal event. Liberalism is the _raison d’etre_ of the United States. It’s in our DNA. Enlightenment liberalism proclaimed the Rights of Man — immunities which no government can abrogate. Liberalism declared that all are created equal, which over time finally rendered slavery unthinkable, something no society prior to liberal modernity had done.

Part II:

How my own life history taught me that “liberal” and “left” are not alike:

I went to high school during the second Eisenhower administration, and to college during the first Kennedy administration. I thought of myself as liberal/left, and at that time the public understanding of these terms was not as divided as it is now.

By the time I reached middle age, I realized that the left was telling me that white was bad, male was bad, European was bad; and I began searching for a political philosophy that did not require me to hate myself.

I learned that liberalism, unlike the outlook of the left, does not care about identity. If, as the Declaration proclaimed, all are created equal, immutable characteristics that we are born with and can’t change don’t matter.

Can there be anything more unjust than considering a newborn baby guilty because of its race and gender?

There’s much more to be said about this, but if it is understood that any analysis which conflates “liberal” and “left” is necessarily intellectually incoherent, thats a good start.<<

How many divisions does the “Chief Justice” have?

The Roberts Court has delivered its opinion. Now let it enforce it. … How many divisions does the “Chief Justice” have?

“The broad consensus over the court’s authority to interpret the Constitution will crumble. If that all comes to pass, Kavanaugh’s appointment may come to be seen as a Pyrrhic victory not just for Trump but for the entire conservative movement. … The power and legitimacy of the whole institution depend upon the idea that regardless of the political maelstrom surrounding it, the court is doing just fine and always will be.”

Mark Joseph Stern:

By all indications, Brett Kavanaugh is about to be confirmed to the Supreme Court, where he will become part of a five-justice conservative bloc that will swiftly roll back decades of progressive jurisprudence. His confirmation will be a major victory for the Republican Party and its leader, Donald Trump, who will soon succeed in entrenching GOP control over the court for at least a generation.

But as soon as Kavanaugh takes the oath, he will plunge the Supreme Court into a legitimacy crisis that could weaken its power over the long term. This crisis will become particularly acute if Democrats retake Congress and the presidency but find their reforms stymied by a reactionary judiciary.

The broad consensus over the court’s authority to interpret the Constitution will crumble. If that all comes to pass, Kavanaugh’s appointment may come to be seen as a Pyrrhic victory not just for Trump but for the entire conservative movement.

The Supreme Court has always needed buy-in from the political branches to enforce its rulings. As my colleague Dahlia Lithwick wrote in 2016, the court “relies on us to believe that it’s magic. The power and legitimacy of the whole institution depend upon the idea that regardless of the political maelstrom surrounding it, the court is doing just fine and always will be.”

Remarkably, throughout most of American history, this magic trick has worked. It came closest to collapse after 2000’s Bush v. Gore, when five Republican appointees justices indefensibly elevated their preferred candidate to the presidency. At that point, liberals could have declared war on the court, challenging the central role it had assumed in American politics. …

Democratic approval of the court plummeted after the GOP blockaded Merrick Garland, Barack Obama’s final SCOTUS nominee, and instead allowed Trump to appoint the far-right Neil Gorsuch. But while plenty of progressive advocates and politicians insisted that Gorsuch was an “illegitimate” justice in a “stolen” seat, few seriously contested the validity of his votes. That’s probably because Gorsuch didn’t alter the balance of the court and wasn’t a flagrant partisan (despite some ethical lapses). During his confirmation hearing and on the bench, Gorsuch behaved more or less like a judge, not a GOP operative out to do his party’s bidding.

Kavanaugh is different in all respects. He will drag the court far to the right, eroding Roe, marriage equality, campaign finance restrictions, voting rights, affirmative action, and the separation of church and state. Democrats’ respect for the court, already diminished, will plunge to new lows each time Kavanaugh casts the fifth vote in a controversial 5–4 ruling.

But most important is Kavanaugh’s image as both a partisan pugilist and an alleged sexual abuser.

[In the waning days of WW II during a discussion of the future of Eastern Europe British Prime Minister Winston Churchill cautioned Joseph Stalin to consider the views of the Vatican. To this the Soviet leader responded “How many divisions does the Pope have?”

In treating the Court as if it is about power, America’s radical right is making a calamitous category error. The law is the attempt to resolve contention among human beings by reason rather than force.

A court’s only strength is its cognitive virtue. Its respect for evidence and reason. When a Roberts Goresuch Kavanaugh Court holds itself forth as being about political power rather than what Quinta Jurecic calls “civic virtue,” it has sealed its doom.

How many divisions does the “Chief Justice” have?]

https://slate.com/news-and-politics/2018/10/brett-kavanaugh-confirmation-constitutional-crisis.html