The Supreme Court’s bias for ‘progressive’ plaintiffs – The Hill (blog)

Two new Supreme Court decisions illustrate the point: Even conservative litigants should argue their cases so as to genuflect before the legal elites progressive faith.

Courts are supposed to apply the law neutrally. When construing the Constitution, this means they should apply the original, actual meaning of the document. Yet the Supreme Court often decides cases in ways divorced from that meaning. So it is easier to win your case if your argument accords with the social and cultural values favored among the contemporary elite.

Both Murr v. Wisconsin and Trinity Lutheran Church v. Comer are further illustrations. The Murrs contended that state-authorized zoning regulations had deprived them of property rights without the compensation required by the Fifth Amendment. Trinity Lutheran Church claimed the state had denied the church access to a grant program in violation of the First Amendment.

If the Supreme Court had applied the Constitutions original meaning, both the Murrs and Trinity Church would have lost. Contrary to common illusion, the Constitutions original meaning does not always mandate results conservatives (or liberals) like.

Yet the court (Justice Clarence Thomas excepted) pretty much ignored the original meaning. It ruled for the state in Murr but against the state in Trinity Lutheran.

One reason the Murrs lost is they made a legal blunder by kicking away a grandfather clause that would have protected them. One reason Trinity Lutheran Church won was that it was seeking a government grant for the childrenthat is, to provide a softer surface for a playground.

But if you are considering which cases to bring before the Supreme Court and how to argue them, you cant overlook this: Attorneys for the church played to the legal elites progressive valuesand won. In fact, they won 7-2, carrying with them two of the most liberal justices. The Murrs, on the other hand, defied those values. They lost, 5-3, with even the three more conservative dissenters agreeing with the result.

The Murrs were in a position any progressive would find unsympathetic. They were private landowners (bad). Their land was in an area the state and federal governments deemed environmentally sensitive (worse). They had the cheek to challenge an ordinance that allegedly protected the environment (inexcusable). Their goal was to develop or sell for profit. (Enough said.)

Compare the facts and presentation of Trinity Lutheran:

Observe how many of the lefts ideological buttons the plaintiffs lawyers pushed: non-profit, recycling, mandatory government fee, poverty, disabilities, environmentand that interminably-overused mantra: community.

The lesson: Whatever your personal beliefs, if you are taking a case to Washington, D.C., it helps to ensure that your case does not floutand preferably panders tothe ideology prevalent there.

Rob Natelson is a retired constitutionallaw professor and a senior fellow in constitutional jurisprudenceat Colorado'sIndependence Institute;the Illinois-based Heartland Institute; and the Montana Policy Institute. He is the author of The Original Constitution: What It Actually Said and Meant.

The views expressed by contributors are their own and are not the views of The Hill.

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The Supreme Court's bias for 'progressive' plaintiffs - The Hill (blog)