Litigation

Another week, another dishonest Dahlia Lithwick column

By Ted Frank

The unhingedness of the latest Dahlia Lithwick column is best demonstrated by the fact that the very first case she and Barry Friedman single out as evidence of eeevil conservatives whittling away at our rights is a unanimous opinion with the pretty sensible reading of Miranda that police can re-question someone who waives his Miranda rights three years after the initial questioning if he's been given new Miranda warnings. Friedman and Lithwick are mystified that, though the Court has taken an ever-so-slight rightward turn (while Alito is to the right of O'Connor, Sotomayor is to the left of Souter), the public thinks the Court is still too liberal, though they miss the obvious explanation: the Court is still considerably to the left of the American public. As Brandon Bartels points out, even with the Court moving to the right, the majority of the last decade's "salient decisions"—decisions that made the front page of the New York Times—come out the way the Left would prefer. Throughout the article, when conservative justices reach liberal results, it's because the inherent correctness of the liberal result prevents conservatives from casting the votes they really want to; when liberal justices reach conservative results, it's because of the magic tricks conservatives play on the system. (And, of course, when conservative justices reach conservative results, it's because they're ignoring the law. So why don't they ignore the law when they reach liberal results? Friedman/Lithwick's fevered conspiracy theory has no predictive value.)

Relatedly, Orin Kerr detects some suspicious data-slicing in a New York Times assessment of Justice Breyer.

Update: See also Althouse and Blackman.

Full post as published by Point of Law on October 04, 2010 (boomark / email).