{"id":14808,"date":"2012-06-27T10:27:48","date_gmt":"2012-06-27T14:27:48","guid":{"rendered":"http:\/\/cfif.org\/v\/freedom_line_blog\/?p=14808"},"modified":"2012-06-27T11:30:33","modified_gmt":"2012-06-27T15:30:33","slug":"court-analyst-jeffrey-rosen-in-full-on-political-hack-mode","status":"publish","type":"post","link":"https:\/\/cfif.org\/v\/freedom_line_blog\/14808\/court-analyst-jeffrey-rosen-in-full-on-political-hack-mode\/","title":{"rendered":"Court Analyst Jeffrey Rosen in Full-on Political Hack Mode"},"content":{"rendered":"

There was a time when Jeffrey Rosen <\/a>was a thoughtful center-left court analyst, with a constitutional interpretive philosophy clearly to the left of Madisonian\/conservative textualists but nonetheless willing to give credit where due to conservative jurists and to recognize their arguments and their consistency even when he disagreed with them. <\/em>Well, for years it has been clear that those days are long gone, and that Rosen barely maintains the veneer of thoughtful and fair-minded analyst while actually going far down the road that columnist E.J. Dionne long ago traversed, into full-time partisan hackery.<\/p>\n

Witness Rosen’s new analysis <\/a>of the Supreme Court’s ruling on the Arizona immigration case. It is couched throughout in terms of “giving credit where due” to conservative justices. But that stance is just a pose. Look more closely, and you’ll see that he gives credit only when the conservatives agree with him<\/em>. If they agree with him, then they are showing an ability to be “modest and nuanced in tone and substance” while demonstrating a “vision of bipartisan nationalism.” But he warns that if they don’t agree that the ObamaCare individual mandate is perfectly constitutional, then they will suddenly appear “partisan and unrestrained” and will have violated their “previously expressed judicial philosophies.”<\/p>\n

In other words: Agree with me, and you are wonderful. Disagree with me, and you have switched in three days from being wonderful to being a vicious, partisan, right-wing hypocrite.<\/p>\n

This, and so much else that he writes in this piece, is pure and utter hogwash.<\/p>\n

Rosen’s entire frame of reference is skewed, and give absolutely no credit to the actual interpretive philosophies in use on the right. There is no such thing<\/em> as a “vision of bipartisan nationalism” in conservative jurisprudence. What is at play isn’t a results-oriented “nationalism” — which, of course, contradicts many other instance where Roberts and even Anthony Kennedy have stood firmly for state authority vis-a-vis the national government — but instead an honest attempt to apply the original public meaning of the Constitution’s or legislation’s words to the case before them.<\/p>\n

How, pray tell, would it violate Roberts\u2019 \u201cpreviously expressed judicial philosophy\u201d for him to rule the mandate unconstitutional? After all, it\u2019s not as if Roberts hasn\u2019t recognized limits on Congress\u2019 interstate commerce powers before. Remember when he decided the Commerce Clause powers did not extend to protection of a \u201chapless toad (that), for reasons of its own, lives its entire life in California\u201d? And of course Kennedy has recognized Commerce Clause limits both in U.S. v. Lopez<\/em> and U.S. v. Morrison<\/em>. As this new question of a different type of extension of those powers presents an unprecedented question \u2014 because the federal power assertion is itself unprecedented \u2014 there is no reason at all to believe that it would violate these justices\u2019 philosophies or to show an engagement in partisan shenanigans for Roberts and Kennedy to rule against the mandate. Likewise, although conservatives would be hugely (and rightfully) disappointed and even angry if Roberts and Kennedy go the other way, that doesn\u2019t mean conservatives would be right in suddenly finding Roberts to be a sell-out; it would just mean that he applies the law to these particular facts differently than we do.<\/p>\n

But for Rosen, who invents a jurisprudence of \u201cbipartisan nationalism\u201d that is alien in form and substance to everything conservative jurists believe, a judge\u2019s motives or intellectual integrity can be credited or discredited, or both in the same week, completely dependent on whether or not they agree with his conclusions based on a jurisprudential approach that doesn\u2019t even exist.<\/p>\n

What a crock.<\/p>\n","protected":false},"excerpt":{"rendered":"

There was a time when Jeffrey Rosen was a thoughtful center-left court analyst, with a constitutional interpretive philosophy clearly to the left of Madisonian\/conservative textualists but nonetheless willing to give credit where due to conservative jurists and to recognize their arguments and their consistency even when he disagreed with them. Well, for years it has […]<\/p>\n","protected":false},"author":12,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[3665,593,3664,35],"class_list":["post-14808","post","type-post","status-publish","format-standard","hentry","category-posts","tag-anthony-kennedy-john-roberts","tag-commerce-clause","tag-jeffrey-rosen","tag-obamacare"],"_links":{"self":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts\/14808","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/users\/12"}],"replies":[{"embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/comments?post=14808"}],"version-history":[{"count":6,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts\/14808\/revisions"}],"predecessor-version":[{"id":14821,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts\/14808\/revisions\/14821"}],"wp:attachment":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/media?parent=14808"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/categories?post=14808"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/tags?post=14808"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}