Beard Of Wisdom.com

She writes her First Monday article with so many rhetorical flourishes, it’s difficult distinguishing fact from fiction.

CLAIM:

The conservative majority under Chief Justice John G. Roberts Jr. drove the court to the right in a series of high-profile rulings during the term that ended in June.

FACT:

In fact, the evidence does not support this claim. Even the high-profile cases involving racial classifications in public-school assignment, campaign-finance rules, partial-birth abortion, and speech in public schools were, all things considered, narrow in their scope and modest in their reach.

CLAIM:

But the conservative justices clearly have the upper hand in the all-important task of shaping the court’s docket, a process that in effect shapes the country’s immediate legal agenda.

FACT: It takes a vote of four justices to grant cert. Assuming a five-member “conservative bloc” and a four-member “liberal bloc,” which Ms. Greenhouse presumably does, then any grant from the “liberal bloc” may shape the court’s docket.

CLAIM:

They demonstrated their power last week in accepting 19 new cases, an unusually large number

FACT: In the last two years, the court granted nine or eleven cases at the Long Conference, as opposed to this year’s nineteen.  The total case load, however, was approximately forty-seven in 2005 and thirty-seven in 2006, but the “unusually large number” of cases granted at the Long Conference brought the total up to forty-three, within the average docket for the last two years.

CLAIM:

The conservative bloc will not necessarily prevail in every important case.

FACT 1:

There is in fact the genuine prospect that the Court will hold (potentially by a five-to-four vote each time) that the government may ban the possession of pistols (possibly guns altogether, if there is no individual Second Amendment right), that child rapists cannot be executed, that certain federal legislation regulating child pornography is unconstitutional, that the Administration’s treatment of alleged terrorists is unlawful, and that sentences for crack cocaine should be reduced.

FACT 2:

The justices have on their docket a number of cases—cases involving the detention of suspected terrorists, the regulation of child pornography, and the death penalty—in which it is likely that the more ‘liberal’ positions will win out. That is, that they will win out in Justice Kennedy’s mind. When they do, will the end-of-the-year commentary conclude that the court has ‘turned dramatically to the left’? Not likely, and nor should it.

 Much of the article contains sky-falling prophesies and rampant speculation. Nevertheless, on (at least) these points, a series of understatements and misinformation taint Ms. Greenhouse’s First Monday article, and such corrections ought to be made available to interested court watchers.

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