Quantcast
Connect with us

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

Published

on

- 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.

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]

ADVERTISEMENT

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.”

ADVERTISEMENT

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.”

ADVERTISEMENT

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.


Report typos and corrections to: [email protected]. Send news tips to: [email protected].
READ COMMENTS - JOIN THE DISCUSSION
Continue Reading

Breaking Banner

Racism, Inc.: How Donald Trump profits from xenophobia

Published

on

Several of the headlines emerging from the fallout of President Donald Trump’s recent racist behavior claim that fascism is coming to America. It’s perplexing to read them, because they seem to suggest that there is something new to the blatant and unapologetic racism and xenophobia of the Trump camp.  But there really is nothing new here.  No surprises whatsoever.  Just Trump and his team and his supporters doing exactly what they have been doing since before he announced his candidacy in June 2015.

Continue Reading

2020 Election

Do politicians actually care about your opinions? This researcher says no

Published

on

Earlier this month, a New York Times op-ed written by two political science professors, Ethan Porter of George Washington University and Joshua Kalla of Yale, discussed their troubling research findings: State legislators, the two claim, don't much care about the opinions of their constituents, even if they're given detailed data regarding their views.

This article first appeared in Salon.

Continue Reading
 

Commentary

The best Civil War movie ever made finally gets its due

Published

on

On Sunday and on July 24, Turner Classic Movies and Fathom Events are presenting big-screen showings in theaters nationwide of “Glory,” in honor of the 30-year anniversary of its release. The greatest movie ever made about the American Civil War, “Glory” was the first and, with the exception of Steven Spielberg’s “Lincoln,” the only film that eschewed romanticism to reveal what the war was really about.

The story is told through the eyes of one of the first regiments of African American soldiers. Almost from the time the first shots were fired at Fort Sumter, S.C., the issue of black soldiers in the Union army was hotly debated. On Jan. 1, 1863, as the country faced the third year of the Civil War, Abraham Lincoln issued the Emancipation Proclamation, rapidly accelerating the process of putting black men into federal blue.

Continue Reading
 
 
 

Copyright © 2019 Raw Story Media, Inc. PO Box 21050, Washington, D.C. 20009 | Masthead | Privacy Policy | For corrections or concerns, please email [email protected]

Join Me. Try Raw Story Investigates for $1. Invest in Journalism. Escape Ads.
close-image