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New York Times Article on the Reagan/Meese Revolution in the Courts.--

Adam Liptak has an article in today's New York Times on the consolidation of conservative gains on the Supreme Court.

Conservative lawyers in the administration of President Ronald Reagan had an ambitious agenda. They wanted the courts to pay closer attention to the Constitution's text, to fashion a more limited role for the federal government, to allow religion to have a larger presence in public life, to use skepticism in reviewing race-based classifications in the law and to stop the expansion of protections for criminal defendants.

Many of those ideas, considered bold, and even extreme, at the time, have entered the legal mainstream and now routinely serve as the basis for decisions of the Supreme Court. That means that the Supreme Court's two newest members, both alumni of the Justice Department in the Reagan years, will, if they follow the agenda they helped create back then, largely be consolidating a victory rather than breaking new ground.

Conservatives have high hopes for Justice Samuel A. Alito Jr., who was confirmed on Tuesday, and for Chief Justice John G. Roberts Jr., who joined the court in September. But their to-do list has shrunk.

Some large items, notably abortion, remain, though some conservative lawyers have reconciled themselves to trying to limit rather than overturn Roe v. Wade, the 1973 decision that found a constitutional right to abortion.

My colleague, Steve Calabresi, yesterday was discussing with me the changes since 1982 (when the Federalist Society was founded). He noted that the Court's 4 liberals as a group today are less liberal than the 4 liberals in 1982, who included Brennan, Marshall, and Blackmun. And the 4 conservatives today are stronger as a group than the conservatives in 1982 (even though O'Connor in 1982 had yet to move to the center). But the swing vote in 1982 was Justice Powell, and Calabresi's contention is that Powell was more conservative than the swing vote today, Justice Kennedy.

Liberal Law Student:
The Court's 4 liberals are less liberal than the 1982 group? I don't think the shift is of any great significance.

And I also disagree with his contention that Powell was more conservative than Kennedy. Powell ruled for affirmative action, against religion in the public sphere, probably for CFR. He also tolerated less restrictions on abortion than Kennedy. How is that more conservative than Kennedy?
2.2.2006 5:40am
Al Maviva (mail):
I'm more worried about achieving a majority that follows a textually-oriented approach to interpreting the law. I count five votes that I believe are textually oriented: Scalia, Thomas, Roberts, Alito, and Breyer. When the case presents an opportunity to do so, Breyer will generally choose the option I don't prefer, choosing Big Brother-ism over more libertarian options, but he generally does so using a sound textually oriented interpretive method. I wish there were more prominent liberal jurists like him, and I probably wouldn't complain too loudly if Bush appointed somebody like him to the court. As a practitioner, I value the textually oriented, scholarly approach because it gives me an ability to predict how the court might rule in the future. I cannot stand Kennedy's and O'Connor's and especially Stevens' general approach to the law, because every case falls out of the pattern of past cases, each is a special case, with the result arrived at by piecemeal logic chopping. Sunstein praises O'Connor's "judicial minimalism" and I agree with him. It's a worthy approach... for a district court judge charged with factfinding. I'd rather have a logically sound, predictable result that I disagree with, than a result I like arrived at via a seven part test based on the premise that a case about criminal law is in fact about defining the mysteries of life for one's own bad self.
2.2.2006 7:42am
Ron (mail):
What have they achieved so far ? I'd say nothing.

Both the commerce clause and substansive due process reign supreme, and even keep breaking new ground in decisions like Lawrence.
2.2.2006 8:08am
Medis:
It seems to me that "conservative" and "liberal" get redefined over time as political issues (and partisan positions) change over time. So, comparing Justices from different times--or even the same Justice over a long period of time--in "liberal" or "conservative" terms is rarely going to be simple or uncontroversial.

Indeed, it seems to me that the dominant "conservatives" of today are already significantly different, and sometimes diametrically opposed, to the dominant "conservatives" of Reagan's era. And so it wouldn't surprise me if Alito and Roberts are deemed less "conservative" by today's "conservatives" even if they end up reliably "conservative" in a Reagan Era sense.
2.2.2006 8:22am
anon) (mail):
It is cute when the lay people try and talk law. Even cuter when lawyers repeat it.
2.2.2006 8:48am
Cornellian (mail):
One can hardly doubt that "a more limited role for the federal government" has been struck from the agenda of what today passes for "conservative." Conservatism has also discovered a new found enthusiasm for race based classifications as evidenced by the Fed's position in Grutter.

And the idea that Scalia is "textually oriented" is laughable. He's textually oriented when that gets him the result he likes. When it doesn't, he'll turn to original understanding, precedent that follows neither of those things, or simply make up new doctrine off the top of his head without bothering to provide any explanation of why he preferred one of these over another. He's as activist as any judge on the court, but unlike, e.g. Souter, he's a hypocrite about it.
2.2.2006 8:53am
Daniel San (mail):
The Reaganites defined conservatism in judges in terms of results. A more conservative Justice would overrule Roe, overrule Miranda, soften the warrant requirement, allow more of religion in public life, (at least) hold the line on social issues, roll back affirmative action, and ease restrictions on capital punishment.

My general sense is that the NYTimes is correct; we do have a more conservative court. But, Roe's requirements have been eased in some areas and strengthened in others, Miranda is very secure, the warrant requirement has been softened a bit, some wobble on religion but not a lot of change, Lawrence created a new semi-protected class, affirmative action has been restricted some, and restrictions on capital punishment are more strict, including bans on capital punishment for juveniles and the mentally retarded.

This is the legacy of Nixon and Reagan on the Supreme Court.
2.2.2006 9:20am
Cecilius:
As someone who was playing Pop Warner football at the time of the Reagan Revolution, I was wondering if judges paying "closer attention to the Constitution's text" at that time was really considered as "bold" or "extreme" as people claim. Was the dominant movement then to simply interpret the Constitution in line with (or deliberately against) popular political opinion? I imagine this loose 'Living Constitution' theory was and is still popular among law professors, but were courts consistently using this theory for routine, non-controverisal cases? I understand that the Warren and Burger Courts departed from the text to issue a handful of controversial and high-profile Constitutional opinions, but was eschewing constitutional text really the prevailing method on a day-in, day-out basis in the federal courts? Not trying to make any backhanded points, just looking for an answer from someone old enough to be practicing 25-30 years ago.
2.2.2006 9:29am
Paco (mail) (www):
"He noted that the Court's 4 liberals as a group today are less liberal than the 4 liberals in 1982, who included Brennan, Marshall, and Blackmun." I think that's right. One has a hard time imagining a case like United States v. Whren (court may not inquire as to whether reasons for a stop were a pretext for race) being unanimous with two of those three on the Court, similarly no one is (at least explicitly) dissenting that the death penalty is always unconstitutional.
2.2.2006 10:01am
Justin (mail):
What have they achieved?

I don't know, but consider the following decisions (all wrongly decided in my view):

Bush v. Gore
Alexander v. Sandoval
Garrett v. Alabama

More broadly, the last 20 years have given us decisions that have severely cut back legal costs for public interest litigation, curtailed civil rights for prisoners, permitted the president almost absolute discretion in foreign affairs, interpreted away protections for workers, for the environment, minority voters, etc.

If the question is "How has the conservative movement on the Court created a truly workable, powerful, orignalist and textualist mode of legal authority?" the answer is minimal. If the question is "How has the Supreme Court given victory after victory to the GOP politically, the answer is a ton. Eventually, genuine liberterians and "conservative constitutionalists" who have supported the GOP will figure out, much like Shays and Norwood learned, how easily they were lied to and sold out. Having already been able to say "I told you so" to a numerous amount of ex-Republicans (including my father), I have to say it doesn't give all that much comfort.
2.2.2006 11:50am
Eric Muller (www):
Calabresi's argument just can't be right. If you're the "swing vote" between a larger and more conservative group of conservatives than there used to be, on the one hand, and a smaller and less liberal group of liberals than there used to be, on the other, then how could you, as the "swing vote," possibly be more conservative than the person who used to play that role? I can see how studied in isolation, the new swing voter might tend to "break" conservative more often than "breaking" liberal, but the new swing voter's overall votes are going to more conservative than the old one's.
2.2.2006 12:02pm
Jake:
Suppose you could measure "conservatism" on a scale from one to ten. It's possible that the 1982 court lined up:
1 1 1 2 6 7 7 7 8

And the current court is:
2 3 3 3 4 9 10 10 10

So that the mean level of conservativism is higher, but the median is lower. The median is probably more important when it comes to deciding cases.

I don't know if these are plausible numbers, so I don't know if the observation reported in the original post is right; I'm just saying that it isn't logically impossible.
2.2.2006 12:15pm
KeithK (mail):
Of course, you can't really measure conservatism on a single scale. You'd need many dimensions to span the space. But Jake's example still holds in principle.
2.2.2006 12:38pm
farmer56 (mail):
Justin, Justin, Justin:

Gore v Bush?

Still beating that dead horse?

Try the facts.

SCOTUS Stayed the Florida State supreme Court from ordering a state wide recount, that NO ONE asked for!

The Court in their wisdom determined that the courts, in conflict with the State constitution, that states... The legislative branch has 100% control of elections. Not the judicial branch. See, the judicial branch only decides things based on constitution and or statue.

SCOTUS said: Huh? Do you have a point of state, or federal constitution that gives the court the power to demand a state wide recount. That no one asked for?

You may want to read the response from the Florida state supreme court, back to SCOTUS, more that a month later. For lawyers to give such a terrible response with a month to prepare it. Well it just make you hang your head in shame
2.2.2006 1:02pm
farmer56 (mail):
Justin;

Defend Roe

Defend Miranda

Defend the supremes from determining the proper age for evecuting convicted felons. Seems to me that the legislative body did that, but, Judges thought different, even though the constitution never adresses the issue.

(those things not adressed here shall be left to the states) Ring a bell? Please some respound I need a good laugh
2.2.2006 1:10pm
Gordo:
Who is more conservative, Kennedy or Powell? Interesting question.

On the big issue, abortion, Powell supported Roe v. Wade, and continued to support the Blackmun line on abortion, most notably in the Akron decision of 1982. Kennedy co-authored Casey, which significantly limited Roe, and angrily dissented in Stenberg v. Carhart.

On Federalism issues Powell was part of the Usery v. National League of Cities 10th Amendment revival, while Kennedy joined the Lopez, Morrison, and SWANCC decisions. Kennedy's retreat in Raich was lukewarm.

Powell and Kennedy both seem to walk a fine line on death penalty cases.

Powell was the one vote middle on Bakke, while Kennedy has supported ending affirmative action - most notably he dissented from O'Connor's Bollinger decision.

Where Kennedy probably gets the tag of being more liberal is on gay rights issues, due to the Lawrence and Colorado decisions. Powell supported Bowers v. Hardwick, but wrote a concurring opinion agonizing over 8th amendment issues if the sentence for sodomy was too severe. Powell was 25 years older than Kennedy, and it is hard to underestimate the change in societal opinions toward homosexuality in the past 20 to 30 years. Powell seems to be the type of person who, if were still alive or were Kennedy's age, would have taken the same path on gay rights issues as Kennedy has.
2.2.2006 1:25pm
Gordo:

to fashion a more limited role for the federal government


Ha Ha. John Roberts in Gonzalez v. Oregon sure strayed from THAT reservation!
2.2.2006 1:28pm
Daniel Chapman (mail):
Ease up, farmer... Snarky comments drag the discussion down for everyone. Sometimes you've just gotta let the occasional backhanded Bush v. Gore comment go.
2.2.2006 1:28pm
Medis:
Gordo,

Just to support your point, I believe that after he retired, Powell stated that he regretted his vote in Bowers.
2.2.2006 1:44pm
frankcross (mail):
IMHO, Powell and Kennedy are pretty close overall but certainly vary on given issues and are hard to compare too closely because of different times.

And the median voter stuff is getting too much weight on this blog. The important thing about USSC is opinions, not outcomes. And the median voter doesn't necessarily drive opinion content. Also, getting more votes makes a precedent more powerful. So the 6th, 7th, etc. justices also matter.
2.2.2006 2:00pm
farmer56 (mail):
Sorry Daniel

I did not bring it up. just responded. But. I am very interested in at least on person defending the courts in interjecting themselves in an election....without quoting statute or constitution.

I got this silly notion of seperation of powers, and, checks and balences? Hum?
2.2.2006 2:41pm
Justin (mail):
My colleague, Steve Calabresi, yesterday was discussing with me the changes since 1982

ROE v. WADE. Decided January 22, 1973

MIRANDA v. ARIZONA. Decided June 13, 1966

Wow, that was easy.
2.2.2006 2:56pm
farmer56 (mail):
Justin

Use the law.

What was the jurisdiction of the supremes to overturn a state law?

How 'bout Miranda? Got a legal thought on that?

Shh. you ignored bush v gore shhhh.
2.2.2006 3:11pm
Justin (mail):
The only decision the Court moved "left" on was JDP, Roper v. Simmons. As of 1982, there had been no juveniles executed, so there was no standing on such a question (the first case SCOTUS had standing on for any execution, and took, appears to be 1981. As of 1982, I believe only a handful, 3-5 executions, took place). The first juvenile executed was in 1985. He was convicted in 1974, but standing hadlikely existed at that point (the first case at all to receive standing was 1982. As a matter of note, only *4* executed juveniles (out of 22) were convicted and sentenced before 1982, in Texas, South Carolina, and Louisiana.

Also, if you read Roper, you'll notice the decision was based on the long standing (though not unanimous) view that the 7th Amendment was INTENDED to change based on prevailing norms. And while the death penalty was used fairly widely in the 1970s, even for juveniles, only 7 countries have executed minors since 1990: China (1) (who outlawed the practice in 1997), Congo (1) (who outlawed the practice FOR ALL AGES in 2001), Iran (8) (a bill was recently approved by the legislature to ban the practice, and is currently before the Gurardian Counsel), Nigera (1), Pakistan (3) (outlawed the practice in 2002), Saudi Arabia (1), and Yemen (1) (outlawed the practice in 1994).

In other words, in the last 15 years alone, the practice went from 7 (or 8, there is a dispute as to Iraq - the practice is currently banned), to 3. The 8 countries were repressive enough, and the 3 that remain are amongst the most repressive in the history of the world. The reasoning of Roper v. Simmons is perfectly consistent with Gregg v. Georgia and Coker v. Georgia, if you'd read those two cases.

Note: The death penalty was widely used in 1976, during the second half of the first wave of international abolition. I cannot find statistics on international JDP practices in 1982, but as noted above, this is irrelevant.

So, while you may disagree with Roper (and keep tooting that horn, because it puts you in such great company to advocate for JDP), it's not a "leftward shift" since 1982 by any means.
2.2.2006 3:16pm
Justin (mail):
Defending the correctness of Miranda (which is so minor compared to the broader issues of the 4th, 5th, and 6th Amendment) and Roe (which I think was wrongly decided) is completely irrelevant, for the succinct reason I explained above, to the question at hand. I am not going to engage in an irrelevant academic dog and pony show because you're incapable of treating people who disagree with you (broadly) with the proper respect.
2.2.2006 3:19pm
Justin (mail):
PS - I forgot to note that the US has had more official executions of minors than all other countries combined since 1990 (19 to 16). Clearly, given Gregg's, and Coker's explicitly leaving open the question of the Constitutionality of the death penalty as it applied to certain circumstances open, and the fact that even in 1976 they did not view the cruel and unusual clause as limited to what was outlawed as of 1791, the finding of the Court in Roper that the action was outside the boundaries of humane practice was obviously extremism in all its forms. If you're a Saudi islamofacist.
2.2.2006 3:25pm
Daniel Chapman (mail):
Nice stats, justin... got any information on how many people are ACTUALLY killed by the state in these countries that have outlawed "the death penalty?"

We don't do it often, but we like to keep the option around for cases where people talk about killing an old woman for her ATM card and then tie her up and dump her off a bridge while still alive. Feel free to disagree me on whether this is "cruel and unusual," but please don't try to claim the moral high ground by siding with countries with little or no regard for human life.

You didn't mention Sudan... I assume they've outlawed the death penalty?
2.2.2006 3:29pm
John Herbison (mail):

Sometimes you've just gotta let the occasional backhanded Bush v. Gore comment go.


In other words, pay no attention to those five black robed elephants behind the curtain.
2.2.2006 3:32pm
KMAJ (mail):
From a layman's perspective, when you select periods of time for analysis you can create differing pictures depending on the period selected. To whit, what would the observations and analysis be between pre and post FDR stacking of the Supreme Court ? It can be validly claimed that the court took a very leftward leaning course of jurisprudence, one that came to be accepted as the norm due to its duration. Now, we see the court moving in an opposite direction, those that supported a leftward leaning direction are alarmed as they see a half century of jurisprudence being subject to change.

It seems that many of the arguments on interpretation are not necessarily based actual constitutional text, but on the direction the court had been traveling. Does it necessarily hold that only ionterpretation that maintains a leftward bent is the correct interpretation ? Why would it necessarily be wrong for the court to find in favor of executive branch power in the NSA case ? Can't the argument be seen from the perspective of the legislative branch trying to expand its power ? Couldn't the justices just as easily determine that the AUMF makes this a category 1 under the Jackson tripartite definition ? Why would deciding so necessarily be wrong ?

Historically speaking, judicial thought and interpretation has been subject to ebbs and flows of interpretation. Whether those periods have been good or bad are, for the most part, subjective analysis. For those whose beliefs and views may come from the left, any movement towards the right will be perceived negatively, likewise, those coming from a rightward perspective see the some of the post FDR jurisprudence negatively. Were Roe and Doe sound legal decisions ? Everson ? If they were such rock solid examples of jurisprudence, there would not be the ongoing debates we are still engaging in today. Others, like Brown v. Board of Education overturning Plessy v. Ferguson, are almost universally recognized as outstanding examples of jurisprudence.

Precedence and stare decisis are only as strong as the cases they address. Cases that uphold a more ideological point of view will not weather challenges as well as those that are solidly grounded in clear constitutional intent. They may exist for long periods, as Plessy did, but eventually their flaws do undercut them in the long run. It may not result in an overturning, but in a restriction of application. It is my opinion that is what will happen with Roe and Doe, as even some legal scholars on the left (Dershowitz, Tribe, etc.) admit they are bad law, especially when one of the votes for it states he could find no right to abortion in the Constitution, so he voted with his gut. What kind of jurisprudence is that ? Emanations and penumbras make me as uneasy as invoking international law in making decisions.
2.2.2006 3:57pm
Justin (mail):
Daniel, "unofficial stats" are, obviously, not available. Certainly, even the *concept* of unofficial executions is abhorrant to the Constitution, so its a moot point. Certainly, my position wasn't that we live in a more morally repugnant country than the above listed ones, so if that's why you're concerned about unofficial executions, I think you're in the clear. Yes, the United States is less morally repugnant than China. I question whether anyone who needs to trumpet that fact is any better than those who claim that the United States is MORE moreally repugnant (as a whole).

As far as

We don't do it often, but we like to keep the option around for cases where people talk about killing an old woman for her ATM card and then tie her up and dump her off a bridge while still alive. Feel free to disagree me on whether this is "cruel and unusual," but please don't try to claim the moral high ground by siding with countries with little or no regard for human life."

I have considered your request, and appreciate you saying please, but I think I'll let my facts speak for themselves. Remember, the reason juvenile death penalty is considered "cruel and unusual" is a statement on the defendant's ability to appreciate his action (which we consider higher than an insane person, but lower than a mature adult). And while, yes, it's hard to justify in a closed world why a person at 17y and 355 days should be too immature to pay the ultimate price for his crime, but someone at 18y and 1 day should not be, such has never been an excuse to not use an inexact standard to approximate a reasonable goal (for instance, "the objective man").

Now, of course, I oppose the death penalty in all nonmilitary/nontreason cases, with some agnosticism for those who kill while incarcerated. Furthermore, I do not find retribution to be a justified reason for punishment. So, of course, it's hard for me to exactly see the world through your eyes in terms of the death penalty. But it would seem logical that in a societywhere JDP is generally outlawed and DP is generally *not* outlawed, that the heinousness of the crime be an irrelevant factor in that particular determination.

Anyway, we're way off point. The only relevant point was that Roper v. Simmons cannot be seen as a leftward departure from Gregg v. Georgia or Coker v. Georgia, and is thus not a rebuttal to questions about the movement of the Court since 1982, much less the differences between Powell and Kennedy.
2.2.2006 4:16pm
Justin (mail):
Oh, whoops. Sudan.

According to the source I was using, the Sudan had not executed any minors since 1990. Later research on the point indicates that Sudan has the death penalty, has not outlawed JDP, and has sentenced minors to death (most recently in 2003 according to a google search that might not be accurate), but has not executed any minors as far as Google tells me.

Once again, given that Sudan is in the middle of a Genocide, I'm not sure what that tells us about JDP, and of course nobody here is arguing that the Sudan as a whole has better civil rights than the United States (even limiting ourselves to DP situations, trials in the United States, though often lacking effective assistance of counsel and a competent arbiter of facts, do at least maintain somewhat reasonable levels of due process, whereas Sudan trials are generally shams).
2.2.2006 4:23pm
farmer56 (mail):
Justin?

If you make the rules. You are always right.

Maybe got that Statute that SCOTUS used to define juveniles? Got that in your stats?

I am not respectful? And I suppose a condescending attitude is way better!

And then you do the same as the supremes. Guess what? Iraq does not get a vote in the elections in The United States.

Iran? Pakistan? Saudi Arbia? Yemen? Nigeria? See? I can google too. I see no mention in the constitution that gives any of the countries standing. Nor do I see any mention of these countries mentioned in US statute. Please explain why I care? Please quote me the LAW or CONSTITUITION that apply? To The Execution of convicted criminals. The law or statue or Constitution. Last I checked Juvenile is a term defined by those elected to serve us, not the court.

Last I checked I am governed by American Citizens. But you are entitled to being governed by foriegn governments if you wish. just dont force our veiws on me through the courts.

Oh nice stats

I guess those mass grave with the bodies of more that 100 thousand souls weren't put to death by the govt of Iraq. And that village killed by nerve gas. Nope. Iraq not involved.
2.2.2006 4:25pm
Justin (mail):
If the argument you want to engage in is whether Saddam Hussein's dictatorship in Iraq has a better record on civil rights than the United States, I don't think we're in disagreement.

Your argument is not relevant.

BTW, the text of the Constitution says:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The question, of course, is what defines "cruel and unusual." The reason the answer "societal standards" seems to be highly attractive can also be found in the text. The VERY PREVIOUS amendment states:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

So, if the terms "excessive bail", "excessive fines", and "cruel and unusual" were supposed to be set in stone, the obvious way to do that would be to list exactly what those things were. After all, the drafters seemed to be perfectly capable of doing so when they intended that to do so.

According to your own argument, you are looking for:

"Please quote me the LAW or CONSTITUITION that apply? To The Execution of convicted criminals. The law or statue or Constitution."

Well, does cruel or unusual mean something or not? If it means absolutely nothing, then what's the justification. While I won't go as far to say the argument that "cruel and unusual" can only mean what "cruel and unusual" meant in 1791, your argument seems to be twofold: 1) That it means nothing, because something is only invalid if it is specifically stated as such by "statute or constitution", or 2) That the founders were retroactively FORBIDDEN from using terminology that was meant to reflect general principles or international law (which also would render Article III's reference to their ability to bind America via treaty also null and void).

Ranting aside, the first basic question under Roper v. Simmons is not absurd - How do we go about defining the term "Cruel and Unusual"

Once again, I remind you that we're incredibly off topic.
2.2.2006 5:09pm
farmer56 (mail):
Justin

Constitution is explicit It forbids the govt from taking my life (death penalty) or, freedom, or property, with out due process.

So, the constitution allows the govt to take life after 'due process'. As in a convicted felon as defined by congress, and signed into law by the President.

Its called The Constitution of the United States, Google if you care.

Dont like executing crimminals? Fine with me. Just get one of the fine elected representitives that you elected to office, Bring a bill to the floor.

You are not willing to do that. Or, utterly unable to find a member of congress to take up your cause.

1) That it means nothing, because something is only invalid if it is specifically stated as such by "statute or constitution", or 2) That the founders were retroactively FORBIDDEN from using terminology that was meant to reflect general principles or international law (which also would render Article III's reference to their ability to bind America via treaty also null and void).




AHH? If it is not the purpose of the court to determine what is invalid. (prove a negative anyone?) The court is to apply the law , written by the elected, with the constitution. you got a problem change the law. Do not! hide behind the robes of judges.

The constitution sets down the rule of how are govt is structured and limits the power of the the equal branches of govt.

So want a different slant on the death penalty. Just outlaw it. The court has not a single piece of legal concept to stand on to outlaw it. The court (and you) fail in the worst way to prop up an aurgument defining that point of law that sets the age of a juvenile. Your argument returns to 'putting juveniles to death'. Who defines the term juvenile. Guess what? Not the court.

To Finnish. Treaties? Are you real? What treaty approved by the Senate and signed by the President are you reffering to?
2.2.2006 5:38pm
JJV (mail):
Uh, I think Bush v. Gore was wrongly decided and I like the outcome. It does not seem to me the type of case where there is such an obvious answer that either side can just dismiss the other as wrong and unprincipled. I think we don't know how conservative or liberal this court is b/c Roberts and Alito are just too new. Also, I think Breyer is more liberal than White but less liberal than Stevens or Ginsberg or Souder. I think he may be a swing vote on some issues. But given my view that the Court can't be too conservative I hope in the future (two years or so) there is no dispute that the Court is the most originalist/textualist one ever!

jjv
2.4.2006 12:09am