The media consults “experts.” And then get the story completely wrong.
There’s a deeper story at work right now, and it is simply this: all the action on constitutional interpretation now is on the right—the reverse of circumstances of the Warren Court era in the 1960s, when elaborate new liberal theories beloved of the “living Constitutionalists” were spinning forth from law schools every day. Today’s reversal is not merely because of the current split of Supreme Court justices, though that is part of the story. There is lively debate on the right about various aspects of constitutional “originalism,” while the pure results-oriented jurisprudence of the “living Constitution” left has made them intellectually flabby, as we saw in the embarrassing questions and comments from the Democrat justices last week.
As a practical matter, appellants arguing before the Supreme Court right now need to calculate their briefs and arguments to appeal to two or three of the conservative justices. In other words, all of the action now is on the right. Anyone think today’s left-leaning law schools are teaching their future lawyers the ins-and-outs of conservative perspectives on constitutionalism? Heh. But the media will continue to call on the same liberal “experts” who will be routinely wrong about the Court’s direction. Someone else might even call this “fake news,” but I’ll just go with stupidity and newsroom groupthink.
Chaser—another fine moment in media self-awareness: