CBS Legal Analyst Slams Conservative Court, Kennedy for Key Votes

The following is submitted by Jason Aslinger, a NewsBusters reader and a private practice attorney from Greenville, Ohio. Cohen pictured at right (file photo).

In his June 28 "Court Watch" article, CBS News legal analyst Andrew Cohen laments the conservative bent of the U.S. Supreme Court under Chief Justice John Roberts. But rather than give readers sound legal critiques, Cohen sounds out a decidely political lament.

With a title like “Rightward Ho!” you might think that Cohen would attack the Court’s conservative justices, and he does, dismissing Justice Samuel Alito as a "rigid starboard-facing ideologue" while he derides Chief Justice John Roberts as "silly and condescending."

Cohen lists several cases from the 2007 term in which, in Cohen’s view, Justice Alito delivered the deciding vote. Cohen writes:

It was Justice Alito whose vote in Gonzales v. Carhart helped deliver from despair the Congressional ban upon a type of what the law calls a partial birth abortion procedure — and, in the process, undercut the precedent set forth in Roe v. Wade.

Very few sentences can hold so much bitterness all at once. Most liberals refuse to use the term “partial birth abortion,” and hold the term to be a distortion of the actual procedure.

In the Gonzales decision, Justice Ruth Bader Ginsburg wrote: “Seven years ago … the Court invalidated a Nebraska statute criminalizing the performance of a medical procedure that, in the political arena, has been dubbed ‘partial birth abortion.’”

The pro-choice lobby will say that the procedure in question is a “D&E,” which stands for dilation and extraction. It doesn’t take much imagination to imagine what dilation and extraction mean, however, as with most euphemisms, there is a lot that is left out between the “D” and the “E.”

Nonetheless, Cohen dutifully parrots Justice Ginsburg's sentiment in his blog.

Cohen also complains that the Gonzales decision “undercuts” Roe v. Wade. Cohen’s choice of the word “undercut” is curious from a legal perspective, because it is not one of the usual terms of appellate law such as “affirmed” or “reversed.”

In reality, the Supreme Court in Gonzales followed and affirmed the precedent of Roe v. Wade (as clarified by Planned Parenthood of Southeastern Pa. v. Casey, to be precise), with partial birth abortion being deemed illegal within the framework of the current case law. In other words, the Court crafted Gonzales to lay within the bounds of Roe, it wasn't a radical departure from it.

So much for the Court listing hard to starboard.

In addition to the decision on partial birth abortion, Cohen also blames Justice Alito for voting to help “hamstring employees seeking remedies for past workplace discrimination” and blocking “taxpayers from complaining about the executive branch’s self-promotion of religion,” among other things. These problems are all due to Justice Alito, apparently, despite him being just one of nine justices.

Perhaps because Alito is a Bush appointee, one might say, but that's a decidedly political distinction for CBS's LEGAL analyst.

Cohen’s saves his sharpest criticism, however, for moderate Justice Anthony Kennedy, and again his indignation is based on political, not legal considerations.

Cohen writes:

In each of these cases, and many more, the Court's self-professed Hamlet, Justice Anthony M. Kennedy, could have done something to change the outcome — but didn't. The man anointed by deep thinkers in the media — and also me — as the likely "new" swing vote on the Court, the successor-in-interest and moderation to O'Connor, didn't, in the end, look or talk or act like any sort of savior for independent or soft-right causes. Instead, Justice Kennedy voted in the vast majority of cases — the big global warming case and Thursday’s public school affirmative action case being the remarkable exceptions — the way you would expect any appointee of Ronald Reagan to vote.

When you combine Justice Kennedy's general inability or unwillingness to become the new O'Connor model for moderation and add to that Justice Alito's eagerness to tack to O'Connor's jurisprudential right, you get a strong, vibrant Supreme Court majority this term that was even more willing than its recent predecessors to overturn existing precedent to come to a decision — especially when that decision skewed right.

Prior to her retirement, many Supreme Court opinions were forged by Justice O’Connor casting the deciding vote. Because of this, she was considered the “moderate” or “swing vote.” She retired and was replaced by the admittedly conservative Justice Alito. If you were to score the new Court politically, many would move Justice Kennedy to the “moderate” or “swing” or “#5” position.

From his comments, Cohen now expects Justice Kennedy to become the “new Justice O’Connor.” Cohen apparently wants Justice Kennedy to abandon his convictions and principles for the sake of “changing the outcome” of cases, presumably toward the political leaning of Cohen himself (which coincidentally would not be toward Justice Alito). The mere absence of Justice O’Connor should cause Justice Kennedy to shuffle “leftward,” to continue Cohen’s logic and terminology.

The idea that any legal analyst would expect a Supreme Court justice to adjust his convictions due to the political make-up of the Court is remarkable.

Indeed, his remarks would prove instructive should Cohen ever be nominated for the federal bench himself.

I will give him this, Cohen makes one point with which I will agree, albeit for different reasons: “The nation has the Court it said it wanted — and, indeed, the Justices it deserves.”