And even when a majority of the justices rejected conservative arguments, the decision to hear those cases in the first place showed the court’s eagerness to reopen long-settled issues. For example, in last month’s ruling on the Fair Housing Act of 1968, the court held 5 to 4 that discrimination could be illegal under the law even if there was no evidence that it was intentional. This might seem to be a “liberal” result, except that 11 federal appeals courts had agreed on this reading for decades. There was no legal dispute, in other words, only the persistent efforts of some justices to reverse accepted law because they didn’t like it.
In this light, “the string of liberal ‘victories’ represents disasters averted, not new frontiers discovered,” wrote Garrett Epps, the Supreme Court correspondent for The Atlantic.
Breaking Down Ted Cruz’s Plan for Supreme Court ‘Retention Elections’
Most important of all, at a time when Republicans find winning 270 electoral votes in a presidential race challenging, how could conservatives be sure that the justices they prefer — Scalia, Thomas, Alito — would be retained under this proposal?
He says Cruz had been contemplating the issue of reining in judges who read their personal ideological preferences into the Constitution for a long time, and this is only one of several options he’s examining.
.. “If the federal judiciary were to borrow a structural element from the states, I’d go with term limits rather than retention elections,” Shapiro says, pointing to a plan proposed by Steve Calabresi, one of the founders of the Federalist Society, to institute staggered 18-year terms for Supreme Court justices, with a new vacancy arising every two years. That system would guarantee each president two appointments, and end the practice of justices remaining on the court for three decades or more.
After what von Spakovsky calls “the worst week of Supreme Court decisions I can remember since I’ve been in Washington,” the standard claim of GOP presidential candidates that grassroots conservatives need to elect them to ensure the nomination of strict constructionists no longer holds water.
.. Republicans “should only nominate individuals who have proven they are conservatives in hard fights in court, in academia, and in the public square, and have stood up to attacks and the kind of unfair, low-handed criticism that is typical of the mean, vicious Left, and have not backed down.”
The Campaign and the Court
Mike Huckabee vowed that he “will not acquiesce to any imperial court any more than our Founders acquiesced to an imperial British monarch.”
.. Cruz is pressing forward with his plan to provide “the means [of] throwing off judicial tyrants”: a constitutional amendment that would subject Supreme Court justices to a national “retention election” every eight years.
.. Cruz is not just posturing; he is stoking a pervasive and potentially destructive strain of anti-court sentiment within the G.O.P. He is not just attacking particular opinions or judges; he is attacking the judiciary itself as inherently unrepresentative, unaccountable, and in need of restraint. The same mindset can be seen in Kansas Governor Sam Brownback’s threat to wipe out funding for the state judiciary if the state Supreme Court defies him and strikes down a law restricting its own authority.
John Roberts’s Court
He and five other Justices rejected the challenge before the Court on its merits, but some Court-watchers believe that he also voted as he did for the same reason that he cast the decisive vote in upholding the Affordable Care Act in 2012. As the influential federal appeals-court judge Richard Posner put it then, the judgment to allow the statute to stand was “based to a significant extent on the hammering the court would have taken had it struck the law down.” The Court was in the national spotlight, and its legitimacy as a national institution was at stake.
..
To find a right to same-sex marriage in the Constitution, he argued, the Court’s precedents require that it be “objectively, deeply rooted in this Nation’s history and tradition.” Same-sex marriage is not rooted in those ways, so the Constitution cannot be read to compel it: “The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”
Roberts makes a forceful case for judicial self-restraint – for unelected federal judges not reading meaning into the Constitution based on their personal preferences.
..Alito responded to each of Sotomayor’s points, but primarily made a different argument: that the Constitution’s cruel-and-unusual-punishment clause “does not require the avoidance of all risk of pain.”
.. Breyer summarized more than a generation of evidence indicating that states can swiftly impose the death penalty, as the ultimate form of vengeance on behalf of the community. Or they can attempt to apply it reliably, consistently, and fairly—which does not satisfy the urge for vengeance and is much crueler to death-row inmates, who are usually kept for long stretches in solitary confinement. But they cannot do both.
.. Scalia lampooned, “Welcome to Groundhog Day” and then derided, “A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good.”