Look, I'm not a Constitutional Law Professor, I only play one on Monday nights at a local law school. And I don't pretend to have any kind of neutral, non-baised take on what happens in those hallowed halls. As far as I can tell, it's mostly a BYOB frat party.
I have two favorite stories from teaching Con Law to the poor pathetic souls who file in at 6 pm on Mondays to my class. The first is about former Chief Justice William Rehnquist. I don't hate the guy. Granted, while Thurgood Marshall spent his pre-Supremes days arguing Brown v Bd of Education on behalf of the NCAAP, Billy Boy spent his pre-Supremes day with a bullhorn outside Arizona polling places trying to convince Latino votes that they'd all go to IRS hell if they voted, and, really, that's pretty much all you need to know about the difference between the two.
But one interesting fact about Chief Justice Bill (besides his decision to pimp himself to RMN in exchange for appointment) is his really interesting decision in the Virginia Pharmacy case on commercial speech for First Amendment rights. On the one hand, you had the folks on the Supremes willing to give commercial (that is, business) speech some little amount of Constitutional protection. On the other hand, you had Bill -- interestingly enough -- advocating for zero protection for commercial speech, especially for pharmacies. His argument, and it wasn't a bad one, is that because pharmacies peddled drugs -- some of which were painkillers -- they didn't really need any extra protections and allowing them to advertise lower prices might actually encourage folks to abuse painkillers. The rest of the Court seemed a little taken aback by that. So what? It's free speech babies -- everybody ought to have access to equal info.
Interesting thing was...turns out Chief Justice Bill Rehnquist had himself quite a little predilection for painkillers and knew damn well the dangers of letting folks know where you could get that stuff cheaper. No one else on the Court really knew that. Bill ended up in rehab, and if you want to read about it, check out Jeffrey Toobin's "The Nine" for some great Sup Ct gossip.
I got nothing bad to say about Bill's perspective. Sounds right to me. From his perspective, commercial speech out not be provided any real protections at all -- as opposed to political speech -- which deserves full on protection b/c it's integral to the functioning of our democracy -- or at least our republic form of democracy.
God I miss those guys. Say what you will about Bill and his bull horn outside Arizona polling places, or Sandra D and her role as a Goldwater Girl -- these folks actually gave a shit about the Constitution and wanted to make sure that the protections that were provided in that document remained true today.
Our fuckwads on the Court today could care less. The recent decision on Title V of the Voting Rights Act is an abject disgrace. Even Bill -- wacked out on Vicodin. Even Sandra Dee -- from Stanford, Arizona and Barry G. Even folks like Lewis Powell and Warren Burger. None of them would have signed on to this shite.
Conservatives used to complain about the kinds of judges who would simply overturn democratically elected decisions for their own ideological goals. Fair enough. Laws criminalizing birth control. Struck down. Lucks criminalizing abortion. Stuck down. Luck segregating schools and public places. Struck down. Laws criminalizing inter-racial marriage. Struck down. All these laws -- passed by the representatives of the people -- in the ideal manner of republican for democracy -- all struck down by an "activist" court which purported to know better than the people. I got it. I get it. There's a principled basis for that criticism.
What happened today is a conservative court that crapped on that whole concept. And I'm disgusted. Not surprised. Just disgusted. And I think Sandra D, and (if he were alive) Bill R and Lewis P and Harry B (who, btw, voted agains the Pentagon Papers case), all would agree. Let alone my judicial heroes -- William Brennan, Thurgood Marshall, Earl Warren and William O Douglas.
Don't ever let anyone -- Rose Perot, Rand Paul, Ralph Nader. Don't let anyone tell you that election's don't matter, that Democrats are the same as Republicans. We saw the difference today..