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Legal scholar tracks down the bizarre origins of the right-wing phrase Justice Kavanaugh used in a new opinion

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- Commentary

Justice Brett Kavanaugh was appointed to the Supreme Court by President Donald Trump for one clear purpose: to fortify the majority of conservative justices than can protect the right-wing agenda through the judicial branch.

And while there’s plenty of evidence to suggest that Kavanaugh will be a dutiful player in this role, there always remains a possibility that a justice will go rogue once appointed and fail to follow the wishes of the party behind his or her nomination. But in a new majority opinion announced on Monday, joined by the other four Republican appointees on the court, Kavanaugh sent a clear signal that he’s a party man to his core.

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The decision came in the case of Manhattan Community Access Corp. v. Halleck, where the court was faced with the question of whether a public access television channel is a state actor and thus bound by the First Amendment. The five conservative justices said the non-profit organization functions as a private actor in its role and is therefore not hampered by the Constitution, while the four liberal justices disagreed.

But legal scholar Michael Dorf of Cornell University, who blogs at Dorf on Law, pointed to one peculiar bit of phrasing Kavanaugh used in authoring the majority opinion that is worth examining:

It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case. [Emphasis mine]

On Twitter, Dorf noted out that the phrase in bold is not obvious, and its origins were left unclear.

“I never heard anyone say this, and the opinion provides no citation, so I Googled it and found the Twitter feed of the Ayn Randian Atlas Society,” he wrote. “But what is the origin of this saying?”

He continued: “It appears to be an aphorism coined by a libertarian talk show host named Dennis Prager (who originally referred to ‘citizen’ rather than ‘individual’). Various libertarian candidates for office have used the phrase, with or w/o attribution.”

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Kavanaugh’s choice to use this phrase with no citation or discussion of its origins suggests two equally troubling possibilities: He was trying to conceal the blatantly right-wing nature of its origins, or he is so steeped in right-wing ideology that he assumes conservative truisms are essentially uncontroversial.

But as Dorf argued, there’s nothing obviously true about this claim; in fact, a little reflection shows that at least a simplistic understanding of the assertion is plainly false.

“The claim is false insofar as it asserts a linear relationship between the size of government and the ability of individuals to flourish. Ask Hobbes how well individuals do when one shrinks government down to nothing,” he explained. “The claim conflates government’s size and its reach. Govt could be large in terms of taxes or spending/GDP ratio but small in its intrusion on people’s lives. Welfare states need not be and generally have not been totalitarian states.”

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The incident demonstrates a larger issue that deeply concerns me about the court. While discussion about the ideological divides on the court is common, I think it’s often underestimated the significant role of the justices’ information diets — where and how they consume news, in particular — affects their world views and rulings. To put it bluntly, I fear that the conservative justices, in addition to having ideological biases just like anyone else, consume Fox News disinformation and related propaganda regularly that gives them a distorted view of the world. This one opinion shows how unsophisticated slogans can fester in the mind and potentially influence major decisions. If the right-leaning justices rely on the cesspool that is conservative media to make their judgments about the world, especially at a time when conservative media is increasingly disconnected from reality, we should be deeply concerned about where the court will take the country.


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