Wednesday, February 22, 2012

Supreme Court as Pulp Fiction

Linda Greenhouse calls it a Do-over Season:  the possibility that the Supreme Court might second-guess itself in Citizens United, and also in Grutter v. Bollinger.   Everybody remembers Citizens United: money in politics.  Not everybody remembers Grutter by name, but they may remember the Court nine years ago upheld a scheme of race-conscious admissions at the University of Michigan.

I suppose it's fair to entertain the prospect the Court might back down on both: the court has done so before.  Linda offers the examples of  Minersville School District v. Gobitis (flag salute) and Lawremce v/ Texas (gay rights).  With clarity of vision, she points out that "repudiations of precedent are nearly always the result of a change in membership rather than a change in perception."   But she might also have mentioned the legendary "switch in time [that] saved nine"--Justice Owen Roberts' about-face that softened the court's hard edge in against the New Deal and very likely helped to defang  President Roosevelt's court-packing plan.

So it is hard to improve on Linda's analysis, but a pulp novelist would surely consider one more possibility: that the fix is in.  Okay, we'll give you campaign finance if you give us race-based admissions.  No, I don't believe it but I'm willing to entertain myself by entertaining the thought. 


Anonymous said...

Citizens United was a lawless and baldly cynical attempt to steal the 2012 election for the Republicans. The issue of corporate free speech wasn't even presented - the Court had to tell the parties that they wanted to hear it, and then they came up with the opinion that they'd already had written in their back pockets. The only plausible reason for them to have done that is that they wanted the corporate funding flood-gates to be opened in time for 2012. INHO, the chance that it will be reversed is about as high as the chance that Bush v Gore will be reversed.

Thomas Barton, J.D. said...

I concur with Anonymous and his last sentence. However I must advance a different rationale : it will never be reversed as long as Justice Scalia wears that robe. The other four members of the Citizens United-corporations-deserve-teddy bears-too club fear him and will not confront his wrath.