I think liberals have a strong degree of empathy in their DNA that conservatives lack. It is what makes us want to fix the world and make people's lives better. Conservatives lack this empathy. They have sympathy for winners, for the strong. If a prosecutor wins a case, he should not have to defend it over and over again in appeals and habeas proceeding, and wardens should have to deal with all these complaints from prisoners. And if it just so happens that women are not the strongest negotiators when it comes to salary and get paid less than men, then it is their own fault. (oh how they want to bring back Lochner).

You are right is is not a legal theory to say we should be nice. But conservatives' theory is equally affected by their underlying biases.

But more important, it is a legal theory that says that the Constitution contains certain rights to protect those who are not powerful. That is why we have voting rights, and equal protection and the establishment clause. Conservatives don't like these things so they come up with reasons to limit access to them (and that is why standing jurisprudence is a mess, because it gets thrown around as an excuse to duck cases that are hard and bounce cases conservatives don't like).

But what we allowed was conservatives to win the debate. Bork didn't get confirmed, but his ideological spawn are now on the bench. And that is what needs to be appreciated. Modern conservative legal theory is crazy. Whackjob, loony-toon crazy. They make stuff up out of whole cloth (see state immunity from suit) and spin weird theories of original intent that talks about states rights as if the civil war did not happen. We needed to stand up and say that Roberts and especially Alito are nuts as is the entire Federalist Society hymnal they are singing from. And good liberals like Walter need to stop giving credence to things like standing and executive power without pointing out that these ideas have been hijacked by the whackjobs. Yes, they are important principles, but the core principle bears no relationship to memos that say the President can torture or establish a state religon using his own appropriated funds (I know I mixing up the cases and the theories here, but it is not like it would matter, if they didn't win these things on standing, they would move to executive immunity and then unitary executive stuff).

We needed to be strong about pointing out how deranged these ideas were, and how people who espoused them were not serious jurists. We needed to be a jerk about it like Orrin Hatch was when he told Clinton that Tribe and his ilk are not going to be confirmed. If we had done the same, then there might be at least one more swing vote on this court. If we don't start soon then we will all have to live with Justice Yoo in a few years.

While I agree that a lack of compassion, or "feeling for the little guy" may be a part of what's going on with the Supreme Court, as a liberal, and an attorney, I have a somewhat different take on the Roberts court. Could it be that the Court's recent decisions reflect an underlying collective belief that Congress has to a great extent abdicated its proper role in the lawmaking process and rendered itself largely irrelevant? In my view, the conservatives on the Court may be acting not from an inherent insensitivity to people; rather, they are signaling that they will no longer be as willing to insert their opinions for those that they believe should be expressed by Congress via the laws they receive for review. I often say that "activist judges equal lazy legislators". Because the politicians in Congress are unwilling to deal with the political heat they would have to face if legislation were written in ways that clearly define each bill's goals and objectives, they have often used "waffle words" or such general terms that the courts have been forced to define the terms, thus opening judges to claims that they are "making law". In reality, in some cases, this has been the only way the Supreme Court (as well as lower courts) have been able to make decisions at all.

It seems to me that one can argue that the Roberts Court is forcing Congress' hand. They are saying to Congress: "You are the representatives of the people; if you want the people to benefit from legislation, you had better spell it out for us, so our decision will have to reflect the will of the people, rather than the will of the Justices."

Let's spend our energy on getting the folks we elect to Congress to reclaim their power and write laws that don't give the Justices the room to be heartless.

That's an excellent analysis, Ruth, but if that's the majority justices' goal, I don't see them being successful. Congress passes the tough questions off to the Court so that the justices can take the heat when they fill in the specifics. Members of Congress are focused on winning elections, and they're not going to voluntarily take the heat if they don't have to - even if that's their job.

You may be right, certainly over the short run. However, the more unsettled the people become with the way the Supreme Court decides things, I am hopeful that the more they will pressure their representatives to "control" the Court's influence. The only way to do that is to fashion legislation that tightens things up. And the only way to do that is to elect and retain people in office who are willing to write laws that way. Perhaps we can hope that the demands of democracy will ultimately prevail and this strong system of government we have the privilege to live under will self-correct...once again, over time. Thanks for the kind words about my posting.

<<They make stuff up out of whole cloth (see state immunity from suit)>>

Case(s)? Specifics? Seminole Tribe...?

<<We needed to be a jerk about it like Orrin Hatch was when he told Clinton that Tribe and his ilk are not going to be confirmed.>>

1) Bork fiasco predates this (i.e. goose/gander).

2) Didn't the Democrats have the Senate at the time?

3) Ginsburg got voted through just fine and I doubt she could have the label centrist. It would seem in recent history, the liberals are less "open-minded" than conservatives, at least as far as the Supreme Court nominations go.

I've never been certain where I stand, exactly, on the division between conservative and liberal. I'm pro-gun ownership, and pro-abortion. I believe in racial equality, but I don't see how affirmative action amounts to racial equality. I thought the court was wrong in its ruling on the student's free speech delivered this week, but correct in its ruling on campaign advertising delivered this week. So I'm not certain if I'll be considered "conservative" or "liberal" in making the following statement.

Conservatives are not less compassionate, and care no less about humanity, than liberals. They just view compassion differently.

Conservatives reject the idea of "positive freedoms" like FDRs "Freedom from want." That idea of freedom, necessitates that some people must be subjected to coercion — taxed — in order to provide what others want or need.Coercion is not compassionate.

Liberals believe that it enhances freedom to have such "positive freedoms" and that it is necessary to coerce some (or all) for the benefit of many (or all). That necessarily entails coercion, which can scarcely be seen as compassion.

In short, the compassion issue is a wash. Conservatives believe you should be able to keep what you pay for, and allowing you to keep it is compassionate. Liberals believe everyone deserves certain basics, and it is compassionate to take from all to provide to all. This requires that involuntary giving be seen as compassionate, because it contributes to a more positive society for all (in the liberal view).

So it matters little whether SCOTUS or the executive branch is run by "whackjobs" or geniuses, as the difference in fundamental viewpoint is so widely separated.

Re: Bork and Hatch. My point is that Bork was and is a whackjob. He rightfully did not belong on the court. But after that fight, we liberals caved. 30 years ago Rehnquist was the strident conservative. Now there are 4 justices more conservative than him. Liberals should have stopped those judges and demanded reasonable centrists. And I would argue that Ginsburg is about as liberal as O'Connor was conservative. There is no one as liberal as Brennan, Marshall or Warren on this Court, but the conservatives are much more ideologically extreme than any of those three.

And yes, I'm talking about the state immunity cases. The 11th amdt does not prohibit all suits, and Congress can determine jurisdiction in federal courts, but conservatives in their "activism" have found some penumbra to say it is there. Or as Rehnquist put it in Seminole:

"we long have recognized that blind reliance upon the text of the Eleventh Amendment is "‘to strain the Constitution and the law to a construction never imagined or dreamed of.'" Monaco, 292 U.S. at 326, quoting Hans, 134 U.S. at 15.

When the text places too much of a strain on your constitutional ideas just make them up and ignore the text. Or as the Court said in Alden v. Maine:

"sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself"

It is from such ideas of immunity spring crackpot theories that the president can authorize torture and the vice president is not part of any branch.

It is not Mean or Crazy, but Dumb and Stupid. If a defense lawyer argued that "My client, your Honor, NO longer beats up his wife therefore there is no need for legal remedies." Paraphresing what Chief Justice Roberts said, that "to end discrimination by race is (merely) necessary to stop discrimination by race" and proposed no remedies at all, your Honor, Sir." Such a lawyer would, or should, be disbarred for being incompetent.

What if Chief Justice Roberts had presided over the Nuremberg Trials at the end of WWII. His logic would dictate that releasing the Auschwitz survivors would be enough and would rule against any compensation to help and arm survivors returning to the Holy Land. Sorry, to bring up such a painful subject that led to the death of a million or more, but it is in the extreme implications that the nature of the beastly decision is revealed for evaluration.

The worst indication of his intellectual or moral limitations is that he fails to see the issue of discrimination for what it really is, it is a set of values inculcated on children by their parents and culture. The hypocrisy that denies their half-brothers as members of their real family is part of their culture. In the many years I lived in the South, except for a handful of books (most by "yankees"), no one ever mentioned that nearly all in the South had "white" blood, some more than others. The African-American expressin "Brother" is truly universal.

The failure ot the Chief Supreme Justice to see the issue is an EDUCATION issue, with a remedy that can be conducted ONLY by schools. Schools not only ignored their purpose but have even argued that schools are not free to teach any values and only families can. Perhaps, we are doomed to remain ignorant of the meaning of Human Nature, [surely, nobody thinks every father is a philosopher able to rediscover all that is known, that would be crazy! It would make every rapist a genius like Plato -impossible to contemplate] which means we will never learn in school what we must know,to be able to define Human Freedom. Therefore, we dumb down our children and make them susceptible to the lure of drug pushers and others with worse malevolent intentions, you know, even "terrorists".

So, how will we able to "convert" our neighbors who happen to be Muslim? Did, Chief Justice Roberts unintentionally reveal the national incapacity to consider and accept the meaning of Human Nature, therefore the inability to define Human Freedom and, by implication point to a fundamental shortcoming (in his part) to understand "Democracy"?

It is all one package of values that we all claim to share but our Supreme Court Chief Justice does not seem to understand. Maybe that is why he was picked for the position.