The Volokh Conspiracy - Lithwick on What's Wrong With the Roberts Court:

Over at Slate, Dahlia Lithwick is trying to figure out why she has such strong objections to the Roberts Court. Lithwick notes that among liberal commentators, it is widely believed that the problem with conservative Justices is that they are "just plain mean." Lithwick suggests the problem may be elsewhere; perhaps the conservatives are not so much personally mean as lacking in some other quality. But she can't quite figure out what that quality is. She writes:

  Now maybe the Roberts Five [Roberts, Scalia, Kennedy, Thomas, & Alito] really are bilious and rageful. In which case I guess we should call them that. But I didn't think calling conservatives "mean" was a smart tactic during those confirmation hearings, and I don't think it's smart now. Still, I am struggling now as I was back then to define what judicial quality Roberts and Alito seemed to lack.
  . . . So is that what the court needs today? More pragmatists? Some of the Fray posters have suggested it simply needs fewer lawyers. Or perhaps it just needs fewer lawyers who came up (forgive me) through the executive branch? I have come to believe that it definitely needs more women and people of highly divergent life and career experiences—and no, Harvard vs. Yale law schools is not "highly divergent." But is there a name for this thing we liberals want to see more of on the court? Something that isn't merely the opposite of "mean"?
  My view is that focusing on a judge's personal "niceness" or "compassion" or affection for "the little guy" is a mistake. That's not a legal theory so much as what I look for in a babysitter. I think that the meanness we're seeing, to the extent you can call it that, has to do with the Roberts Court's very cramped and unforgiving view of the role of courts. I once wrote that Roberts seems to believe that there was "no problem too big for the courts to ignore." I wonder if that is part of the sea change we are witnessing.

Perhaps VC readers can help Lithwick identify the elusive quality she is trying to articulate?

UPDATE: Reader suggestions probably should be phrased to allow the narrative to flip 180 degrees tomorrow when the school cases are handed down.

	[Orin Kerr, June 27, 2007 at 6:27pm] Trackbacks Lithwick on What's Wrong With the Roberts Court: Over at Slate, Dahlia Lithwick is trying to figure out why she has such strong objections to the Roberts Court. Lithwick notes that among liberal commentators, it is widely believed that the problem with conservative Justices is that they are "just plain mean." Lithwick suggests the problem may be elsewhere; perhaps the conservatives are not so much personally mean as lacking in some other quality. But she can't quite figure out what that quality is. She writes: Now maybe the Roberts Five [Roberts, Scalia, Kennedy, Thomas, & Alito] really are bilious and rageful. In which case I guess we should call them that. But I didn't think calling conservatives "mean" was a smart tactic during those confirmation hearings, and I don't think it's smart now. Still, I am struggling now as I was back then to define what judicial quality Roberts and Alito seemed to lack. . . . So is that what the court needs today? More pragmatists? Some of the Fray posters have suggested it simply needs fewer lawyers. Or perhaps it just needs fewer lawyers who came up (forgive me) through the executive branch? I have come to believe that it definitely needs more women and people of highly divergent life and career experiences—and no, Harvard vs. Yale law schools is not "highly divergent." But is there a name for this thing we liberals want to see more of on the court? Something that isn't merely the opposite of "mean"? My view is that focusing on a judge's personal "niceness" or "compassion" or affection for "the little guy" is a mistake. That's not a legal theory so much as what I look for in a babysitter. I think that the meanness we're seeing, to the extent you can call it that, has to do with the Roberts Court's very cramped and unforgiving view of the role of courts. I once wrote that Roberts seems to believe that there was "no problem too big for the courts to ignore." I wonder if that is part of the sea change we are witnessing. Perhaps VC readers can help Lithwick identify the elusive quality she is trying to articulate? UPDATE: Reader suggestions probably should be phrased to allow the narrative to flip 180 degrees tomorrow when the school cases are handed down.