Polk Salad Iqbal.

You know how the Herald always runs WP opinion columns two days after they have been published and long after they have been thoroughly discussed and dissected online?

Well that happened again with this stupid column by former Bush speechwriter Michael Gerson.

Gerson -- who helped mislead us into a costly and unnecessary war, who came up with the Orwellian phrase "regime change," who previously had phony vapors over Franken's old jokes -- is now very unhappy over Franken's speech about the Supreme Court to the ACS national convention (what I call the anti-Federalist Society).

It's funny that the Herald published Gerson's dishonest screed about the speech, but never actually covered the speech.

Oh well -- for those who want to evaluate it for yourself, you can see it here.

The best part was the way Gerson got mad over something Franken never said and Gerson just made up:
No, in Franken's view judges should be more like the Committee of Public Safety during the French Revolution -- an unelected group of super-legislators who issue binding verdicts based on their own advanced conceptions of justice and the class warfare.
Huh? You mean Franken wants the Supreme Court to issue orders to send thousands of people to the guillotine?

How totally French of him!

I must have missed that part of the speech.

Franken did say this:

In Stoneridge, it stripped shareholders of their ability to get their money back from the firms that helped defraud them.

In Conkright, it gave employers more leeway to deny workers their pension benefits.

In Leegin, it made it harder for small business owners to stop price fixing under the Sherman Act. Now, the burden is on them--small business owners--to show that price fixing will hurt competition.

In Iqbal, it made it harder for everybody to get their day in court.

In Exxon, it capped punitive damages resulting from the Exxon Valdez oil spill because, get this, having to own up to your mistakes creates "unpredictability" for corporations. Which, by the way, means that BP's liability may be capped because the Court doesn't want to cause an unpredictable impact on its future profitability.

In Rapanos, it cut huge swaths of wetlands out of the Clean Water Act. Wetlands that had been covered for 30 years.

You know what has a lot of wetlands? Minnesota. No, really. You know what else has a lot of wetlands? The Gulf Coast.

I have some problems with this speech, but Gerson is way over the top in his criticism.

BTW, most lawyers who advise large corporations will admit that the Roberts Court is more pro-business than prior Supreme Courts, and perhaps that's a good thing.

And, contrary to Gerson's ill-informed assertions, there is objective evidence supporting this perception:

For its study, the center took a look at 53 cases decided since Justice Samuel Alito joined the court early in 2006 and in which the Chamber of Commerce played a role.

The group won 64 percent of those cases and 71 percent of closely divided cases — those with five-justice majorities, the report said.

Alito has the highest support for the Chamber of Commerce's position, 75 percent overall and 100 percent in the close cases. Justice Anthony Kennedy supported the group's position 67 percent of the time and the other three conservatives, chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas, were between Alito and Kennedy.

More on that here.

Wait a second -- 100 percent in close cases?

Maybe that's the kind of "fair and balanced" ump Gerson likes.


  1. Garvin should do a profile on Gerson.

  2. We need a 'health' post.

  3. Gerson is a genius!

  4. @9:17 am - well played.

  5. But SFL, knowing what the outcome of a case will be ahead of time will greatly increase stability and corporate profitability, which will then trickle down on the rest of us.

    Why even make corporations go to court?

    In turning the entire legal system into one big watersports orgy, SCOTUS is certainly doing gods work.

  6. Seems like Alito is a Chamber ringer.

    Can I get a Shumie Time ruling?

  7. SFL, the Florida Bar had an article about Iqbal and affirmative defenses too.

  8. Franken attacked this assertion in his ACS speech as well, characterizing the conservatives' purported reliance on originalism as little more than a talking point, and it is this particular characterization to which Gerson takes great exception. To Gerson, originalism is not a talking point but ‘a developed, consistent theory of judicial interpretation.' And maybe it is for some academics who are willing to take the theory as far as it will go - including to results that for most Americans would be politically unacceptable. But the fact that Franken is correct and, for most conservatives, reliance on originalism has been little more than a talking point. Not too many conservatives argue that various federal drug laws are unconstitutional, for example, and many contend that federal power has not been expanded enough in the areas of tort reform and property takings. In reality, most conservatives rely on originalist principles only selectively and seldom when it gets in the way of results that they want to achieve. Whatever else the Citizens United case may stand for, the notion that corporations have unlimited rights to spend money to influence elections is no originalist. The Court's rejection of federal affirmative action, whatever else one thinks of the policy, is not originalist. The Court's efforts to place curbs on the ability of local communities to protect the environment or to allow public access to beaches are not originalist. The list goes on.


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