Natan Ehrenreich writes for National Review Online about the absence of a consistent legal philosophy among left-of-center legal analysts.
… [I]t is apparent even to non-lawyers that much of the host of legal “analysts” who attract mainstream attention don’t actually have any beliefs about the law. Take Mark Joseph Stern, who writes at Slate:
The [New York Times] piece lays out the strictures on court employees that ban political signs and bumper stickers, “partisan political activity,” and even “nonpartisan political activity” that “could reflect adversely on the dignity or impartiality of the court.”
The court would not say whether the rules that censor its staff also apply to the justices. But Alito must know how terrible it looks for his own household to breach the decorum requirements imposed on the people who work for him.
Sounds good, right? Here’s the thing, though: Stern doesn’t believe it! Here he is in a 2015 piece defending Elena Kagan and Ruth Bader Ginsburg from the charge that they should recuse themselves from the Obergefell case because they had previously officiated same-sex marriages:
This extreme standard would reflect a disturbing cynicism about the integrity of the court itself. But, even more important, it would be utterly unworkable. The justices are real humans who have real beliefs and real lives, and their legal and personal associations frequently have political overtones. And that is entirely OK. We all know Thomas opposes the constitutional case for gay marriage, and we all know Kagan and Ginsburg support it. There’s no point in pretending otherwise or in trying to game the vote by pressuring a certain justice into recusal. The justices are honorable people. If they felt their personal or financial connections could truly sway their votes, they would recuse themselves. Demanding recusals in blockbuster cases will only encourage Americans to question the legitimacy of the final ruling.
For commentators like Stern, any and all opinions about the law or the Court are subject to “updates” based on political considerations. Does anyone seriously question that he would immediately revert to his 2015 position if it became advantageous to do so in order to advance a leftist cause?
