Transcript
BEN WITTES: The biggest blockbuster cases of the term, which I think most people would regard as Boumediene, which dealt with detainees at Guantanamo, and Heller, which came down yesterday and struck down our local gun ban, handgun ban in the District, sort of look a great deal like last year. They’re both 5/4, they both divide the court in a sort of conventional ideological manner with Justice Kennedy as the key swing vote. They both involve some pretty strong rhetoric.
So in Boumediene, Justice Scalia writing in dissent talks about how Americans will die as a consequence of the decision. And there is no shortage of similar rhetoric with respect to Heller yesterday from the liberal dissenters. So this Heller yesterday prompted Stuart to write me an email posing the following question; if nine smart, more principal than average people with all the time in the world and brilliant staffs of clerks split along predictable liberal-conservative lines, not only on the bottom line of this and almost every other big case, but also on every component of the analysis, doesn’t it drive one toward the conclusion that the justices are simply politicians on the bench, and all the reasoning and the opinions are conscience, are subconscious, sophistry, driven by preconceived conclusions. More broadly, is there any hope that any – that reasonable people of diverse ideologies will ever be able to come to empirically driven consensus about anything important? So those are at sort of the top altitudes that review cases.
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