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For most Supreme Court watchers, the jury is still out on how conservative the Roberts Court will be. Some of the still-pending blockbuster rulings — “partial-birth” abortion and the use of race in public school class assignments, to name two — will shed light on the question. But even then, the answer may not be certain, especially if they produce fractured or extremely narrow rulings. First Amendment attorney and legal analyst Martin Garbus, however, is not waiting for any jury, metaphorical or otherwise, before he proclaims the Roberts Court guilty as charged for upending the Bill of Rights and turning the constitutional clock back, more or less, to the Paleozoic Era. In his new book, The Next 25 Years: The New Supreme Court and What It Means for Americans, Garbus lays out a case that the Court’s new justices, John Roberts Jr. and Samuel Alito Jr. — aided and abetted by the other conservatives, including Anthony Kennedy — are hell-bent on doing irreparable damage to the doctrines we have grown accustomed to. “For at least the next 25 years, a conservative Supreme Court is determined to eradicate much of 20th-century law and establish an imperial presidency while dramatically disenfranchising the voters by cutting down the power of Congress,” Garbus proclaims. FRESH OUT OF LAW SCHOOL? As proof, Garbus runs through a laundry list of offenses that includes Alito’s hiring of Adam Ciongoli, a former top aide to former Attorney General John Ashcroft, as one of his first law clerks. It might be that Alito was just looking for a familiar face — Ciongoli was one of Alito’s former law clerks on the 3rd Circuit — but Garbus implies that Ciongoli was a Bush administration plant installed to keep Alito in line. The fact that Ciongoli had been a policy-maker was a “highly unusual” deviation from what Garbus says is the traditional practice of hiring law clerks either “fresh from law school” or with a year of experience as an appeals court clerk. In fact, law clerks are never hired “fresh from law school.” But that’s just one of numerous factual errors in the book. Garbus rails repeatedly against the infamous 2006 “Herdson v. Michigan” ruling on “knock-and-announce” police searches, but any outraged reader who wants to look up the decision would have a better time finding it under the name Hudson v. Michigan. Likewise, on page 215, when Garbus laments that the end of affirmative action is near, he cites the “Gottinger” decision of 2003 — an amusing mutilation of the decision’s real name, which is Grutter v. Bollinger. (Whatever happened to editing and fact-checking?) Maybe these are nitpicks. Prophets don’t always get their facts straight, and if their clarion call rings true, maybe they don’t need to. Garbus is a distinguished First Amendment attorney who is representing Josh Wolf, the California blogger who’s been jailed for refusing to turn over video to federal authorities. But when it comes to Supreme Court prognostication, it is difficult to give his book great weight when, for example, he states matter-of-factly that Roberts and Alito “probably” think that Plessy v. Ferguson — the 1896 decision upholding “separate but equal” public facilities — was correctly decided. Or when he says that Roberts and Alito are ready, without qualification, to give the president unchecked powers. And probably the lengthiest and most detailed attack in Garbus’ book asserts that the Roberts Court will continue the Rehnquist Court’s pro-state federalism juggernaut. Yet he pays scant attention to the fact that this trend had already fizzled well before Rehnquist died. If you want a 2-by-4 to the head, and if you like your crystal ball gazing dark and apocalyptic, this is a book for you. But it is impossible to imagine that Garbus will be right in much of what he alarmingly predicts. If he is, I won’t eat my hat; I’ll eat my shredded Constitution.
Tony Mauro covers the Supreme Court for Legal Times . He can be contacted at [email protected].

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