On what basis might the rightward drag of the Supreme Court be arrested, or at least slowed?

Justice Breyer: Not the easiest read, but worth the effort

by Ken

Those summer issues of the New York Review of Books, when the magazine slows its pace from biweekly to every four weeks, but packs in more content, can offer an abundance of treats, and the August 19 issue has some important pieces on Supreme Court jurisprudence.

There is, to begin with, "On Handguns and the Law," a dense but rewarding excerpt from Justice Stephen Breyer's forthcoming book, Making Our Democracy Work: A Judge’s View, setting out the usefulness of a standard of proportionality in evaluating competing values and burdens and harms, using the record of the Court's misguided landmark gun-rights ruling, District of Columbia v. Hammer --

to explain why judges who interpret the Constitution cannot rely simply upon history. They must also examine values and reconcile competing values by determining whether a restraint is proportionate to need.

(Unfortunately, the Breyer article is available online only by subscription or purchase. If you want to read it, shoot me an e-mail at kenfromdwt@aol.com.)

Then there's "The Roberts Court vs. Free Speech," by Georgetown law professor David Cole, who represented the defendants, the Humanitarian Law Project, in Holder v. Humanitarian Law Project, in which the standard five-justice conservative Court majority suprisingly joined by now-retired Justice John Paul Stevens (not his finest hour, I think we have to say) "ruled that the First Amendment permits Congress to imprison human rights activists for up to fifteen years merely for advising militant organizations on ways to reject violence and pursue their disputes through lawful means."

Professor Cole notes the presumed parallel with the infamous Citizens United decision, which said that "the First Amendment bars Congress from restricting the ways corporations can employ their vast financial resources to drown out the voices of ordinary people in federal election campaigns."

The two decisions purported to apply the same First Amendment standard, but in fact the Court applied that standard in radically different ways. In the Roberts Court’s world, corporations’ freedom to spend unlimited sums of money apparently deserves substantially greater protection than the freedom of human rights advocates to speak.

And then there's a larger-themed piece by NYRB's resident constitutional-law guru, Ronald Dworkin, "The Temptation of Elena Kagan," in which Professor Dworkin draws mournful conclusions about the Supreme Court confirmation process, which he argues was further depressed in about-to-be-Justice Elena Kagan's hearings.

I think we should talk about that a little tomorrow.

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