How To Think Like A Liberal Supreme Court Justice -- Part II

July 06, 2023 Francis Menton @ Manhattan Contrarian 

Just over a year ago, on July 5, 2022, I had a post titled “How To Think Like A Liberal Supreme Court Justice.” The post was occasioned by the then-brand-new issuance (June 30, 2022) of the biggest decision of the Court’s last term, West Virginia v. EPA. Justice Kagan had authored a dissent on behalf of herself and the other two liberal justices (Breyer and Sotomayor). My post also discussed two other significant decisions of the 2021-22 term where the three liberals had again dissented as a bloc: 

Alabama Association of Realtors v. HHS and NFIB v. Department of Labor.

And now we have several more big decisions just issued with the same 6-3 voting split (Justice Jackson having replaced Breyer). The most significant is SFFA v. Harvard.

So suppose you want to learn how to think like a liberal Supreme Court justice. If so, I submit that there is no better place to look than the dissents in cases where the three liberal justices dissent as a bloc. These four people (over the two years) represent the very pinnacle of liberal legal thinking. They are the crème de la crème of the liberal legal elite. Three of them have law degrees from Harvard, and one from Yale (Sotomayor). 

Justice Kagan was the Dean of the Harvard Law School, and then Solicitor General of the United States. How could you get more elite than that? The other three were previously judges in the federal appellate courts. In these dissents, they have not compromised their language in any way to attract a conservative vote. Rather, their only purpose in dissent is to set forth their vision of how the Constitution and laws should be interpreted in order to persuade the reader that theirs is the superior approach. In other words, this is how they really think.

Thus you would be justified in coming to these dissents expecting to find brilliant insights into our legal system and constitutional order. If so, you will be greatly disappointed. There is nothing complicated about the thinking of a liberal Supreme Court justice. Each of these dissents follows the same rote formula: the heart of the opinion is an appeal to fear and/or guilt, completely divorced from anything about the law. The basic argument is that because of either some looming menace, or your sins, or both, you must cede infinite power to your betters to run things outside the constitutional order. The law? Somewhere in the thousands of statutes and precedents out there, or maybe just from our superior moral compass, we can find something to serve as a pretext to support our desired result. The desired result is always more power to the bureaucrats and/or liberal elites. QED.

Justice Kagan’s dissent in West Virginia v. EPA was something of an archetype of the over-the-top appeal to a combination of fear and guilt. The subject was a regulatory effort by EPA to take over and transform the electric power sector of the economy in a preposterous attempt to control the weather. Here is a very brief excerpt from the introductory section of Kagan’s opinion:

If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean. See Brief for Climate Scientists as Amici Curiae 6. Rising waters, scorching heat, and other severe weather conditions could force “mass migration events[,] political crises, civil unrest,” and “even state failure.” Dept. of Defense, Climate Risk Analysis 8 (2021). And by the end of this century, climate change could be the cause of “4.6 million excess yearly deaths.” See R. Bressler, The Mortality Cost of Carbon, 12 Nature Communications 4467, p. 5 (2021).

In Alabama Association of Realtors v. HHS and NFIB v. Department of Labor, Justice Breyer wrote for the three liberals. These cases involved sweeping edicts emanating from the bureaucracy during the Covid pandemic — in the first case an eviction moratorium issued by CDC, and in the second, a vaccine mandate issued by OSHA. Clearly the key point would have to be fear. From Justice Breyer’s dissent in Alabama Association of Realtors (August 26, 2021):

To date, the CDC estimates that 38,150,911 Americans have been sickened. . . . 629,139 have died. . . . This week, the CDC calculates average new daily hospital admissions at 12,209. See CDC, New Admissions of Patients with Confirmed COVID–19, . . . The number of patients hospitalized with COVID–19 is up 13.3% from last week. . . .

And from his dissent in NFIB (January 13, 2022):

Every day, COVID–19 poses grave dangers to the citizens of this country—and particularly, to its workers. The disease has by now killed almost 1 million Americans and hospitalized almost 4 million. It spreads by person-to-person contact in confined indoor spaces. . . .

And now in SFFA v. Harvard we are treated to dissents from both Justices Jackson and Sotomayor. In the interest of space I will focus on Justice Jackson’s effort; but Sotomayor’s is not much different. In both, the key appeal is obviously to guilt. The bulk of Justice Jackson’s opinion is occupied with lengthy recounting of statistics on such things as income, wealth and health between and among races. A few brief excerpts:

Just four years ago, in 2019, Black families’ median wealth was approximately $24,000. For White families, that number was approximately eight times as much (about $188,000). These wealth disparities “exis[t] at every income and education level,” so, “[o]n average, white families with college degrees have over $300,000 more wealth than black families with college degrees.” . . . Today, as was true 50 years ago, Black home ownership trails White home ownership by approximately 25 percentage points.

Have you noticed yet that Justice Jackson capitalizes the word “Black” (and also “White”)? Justice Thomas, in his concurrence does not do this. I wonder what discussions might have taken place on that subject behind closed doors.

More from Justice Jackson:

As for postsecondary professional arenas, despite being about 13% of the population, Black people make up only about 5% of lawyers. . . . [A]s the COVID–19 pandemic raged, Black-owned small businesses failed at dramatically higher rates than White-owned small businesses. . .

And on the subject of health:

When tested, Black children have blood lead levels that are twice the rate of White children—“irreversible” contamination working irremediable harm on developing brains. Black (and Latino) children with heart conditions are more likely to die than their White counterparts. Race-linked mortality-rate disparity has also persisted, and is highest among infants. So, too, for adults: Black men are twice as likely to die from prostate cancer as White men and have lower 5-year cancer survival rates. . . . “Across the board, Black Americans experience the highest rates of obesity, hypertension, maternal mortality, infant mortality, stroke, and asthma.”

And on and on and on and on. The whole subject of the law just never seems to come up. And are you wondering yet how allowing UNC and/or Harvard (or other elite colleges) to engage in naked racial discrimination is supposed to fix any of this stuff?

For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.

Whoa now, wait a minute! For that to be true, more than half the babies born to black women with white physicians would have to die. The footnote goes to an amicus brief of the Association of American Medical Colleges. Could all these people really be this innumerate? Justice Kagan — did you read this before signing your name to it?

(John Hinderaker at PowerLine links to Hans Bader at Liberty Unyielding, who traces these statistics back to the original source and finds the actual numbers, which are “99.6839% of black babies born with a black attending physician survived compared with 99.5549% of black babies born with white attending physicians.” That would be a factor of 1.0013, rather than “more than double.” It is hard to believe that the 1.0013 is a statistically meaningful difference.)

Anyway, by now I think that you have plenty of information to enable you to think like a liberal Supreme Court justice. Just copy big pieces of amicus briefs from left-wing advocacy groups into your opinion, citing every kind of irrelevant data to appeal to guilt and/or fear, whichever seems to fit the situation. If it’s numbers, don’t bother to check the arithmetic, because nobody around here can do arithmetic anyway. Follow these simple rules, and you can be regarded by all the coolest people as a brilliant thinker, without ever having to do the hard work of having a single independent thought of your own.

If instead you are interested in learning how to think like a serious Supreme Court justice ought to, I recommend Justice Clarence Thomas’s writings. Start with his concurrence in SFFA v. Harvard. Unfortunately, you will find that learning to think like Justice Thomas is much harder than just appealing to guilt and fear and following groupthink like the liberals do.