Dworkin on the Roberts Court

In an essay penned for the New York Review of Books, Ronald Dworkin lays out a persuasive argument in layman's terms about the disposition of the current Supreme Court. Dworkin points out that a series of 5-4 decisions, anchored by the right-wing bloc of Scalia-Thomas-Alito-Roberts and joined by Kennedy (pictured to the left), have undermined almost all the constitutional principles at work in women's rights, racial justice, and freedom of speech issues. While minutely examining the doctrinal defenses of these decisions (and finding them wanting), Dworkin points to a disturbing sub-rosa rationale. He writes:

In their Senate confirmation hearings Roberts and Alito both declared their reverence for precedent; they might be reluctant openly to admit that they deceived the Senate and the people. It is therefore not absurd to suppose that this series of odd decisions covertly overruling important precedents is part of a strategy to create the right conditions for overruling them explicitly later.

Dworkin's argument, as well as his explication of the different opinions in the school assignment decisions that so recently undercut Brown v. Board of Education, is enormously important for anyone interested in race and law, as well as how Supreme Court justices make their decisions. Dworkin ably covers not just school assignment, but also freedom of speech issues (Bong Hits 4 Jesus Case), reproductive rights, and the McCain-Feingold campaign finance reform bill. The article is here. (Note to my students at Georgia State: I will give extra credit to anyone commenting on this post with a critical reading of Dworkin's article.)