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How Souter's Replacement Could Change the Court:

The prevailing wisdom is that replacing Justice David Souter will not have a significant impact on the Supreme Court's balance. For most high-profile, ideologically charged issues, this is probably true (at least in the near term). Justice Souter is generally quite "liberal," and anyone President Obama nominates is likely to be quite liberal as well. That said, I think there are two ways in which Souter's replacement could have a significant effect on the Court's balance and doctrinal trajectory.

First, Justice Souter's replacement could alter the balance of the Court on a number of issues on which the Court is closely divided, but does not split along the traditional left-right fault line. Consider, for example, this term's decision in Arizona v. Gant. Justice Stevens' majority limiting the search-incident-to-arrest exception to the warrant requirement was joined by Justices Ginsburg, Souter, Scalia and Thomas. Justice Breyer was in dissent. Other criminal law cases, including the sentencing guideline cases, have produced similar lineups. So, if Justice Souter's replacement were to align with Justice Breyer, instead of Justices Stevens and Ginsburg, we could have a significant shift on the Court. Indeed, replacing Justice Souter with a justice who follows Justice Breyer's approach to criminal law issues could actually move the Court to the "right" (at least on these issues).

Replacing Justice Souter could also have a significant effect is on the Court's decisions on the due process limitations on punitive damages. Justice Souter joined the five justice majorities in BMW v. Gore and Philip Morris v. Williams limiting the award of punitives on due process grounds, and also wrote the Court's majority in Exxon Shipping v. Baker, which limited punitive damages under the federal common law of maritime. Again, "liberal" justices are split on this question. Here, however, if Souter's replacement were to align with Justices Stevens and Ginsburg, it is likely that the Court's recent punitive damages cases could be overturned.

A second way that Justice Souter's replacement could alter the balance on the Court would occur behind the scenes. Adding a new justice inevitably alters the internal dynamic on the Court, and some justices are better coalition builders than others. Insofar as Justice Souter's replacement is more (or less) able to forge consensus and draft opinions that command wide support, this could also have a significant effect on the Court. Even were President Obama to replace Justice Souter with someone who votes identically on every issue, the nomination could still have a significant impact (especially over time) if the new justice is more able to influence his or her colleagues.

Many on the Left say they want President Obama to nominate a "liberal Scalia". I would say they should be careful what they wish for. Justice Scalia's opinions may be well-written and intellectually satisfying, but the same things that can make his opinions fun to read may prevent his opinions in many areas from commanding a majority of the Court. To take one example, documented by Professor Richard Lazarus shows in this paper, Justice Scalia's insistence on stronger bright-line rules for regulatory takings prevented him from creating a workable majority and produced "precedent heavy on strong rhetoric yet light on staying power." It's not an accident there's a book of his opinions called Scalia Dissents. So, perhaps paradoxically, a liberal nominee who demonstrates less ideological fervor, but is more strategic and conciliatory, might be more successful at moving the Court leftward.

ruuffles (mail) (www):

Justice Scalia's opinions may be well-written and intellectually satisfying, but the same things that can make his opinions fun to read may prevent his opinions in many areas from commanding a majority of the Court.

Didn't O'Connor start out voting as a solid conservative but swerve to the middle when Scalia (and later Thomas) joined the court?
5.1.2009 10:32am
frankcross (mail):
There's gossip to the effect that Thomas drove O'Connor to the middle. But the evidence provides only weak support for this. She moderated noticeably the year before Thomas joined the Court and then continued to move to the middle. It's possible, but may have been just coincidental
5.1.2009 10:40am
Anderson (mail):
So, perhaps paradoxically, a liberal nominee who demonstrates less ideological fervor, but is more strategic and conciliatory, might be more successful at moving the Court leftward.

I think that's exactly right.
5.1.2009 10:46am
Dan28 (mail):
You're missing the big picture. What's powerful about Scalia is not his ability to win people over for specific cases, at that, he's pretty bad. What's powerful about Scalia is his ability to forcefully articulate a conservative perspective on the cases he decides, a perspective that was once on the fringe of legal discourse but is now mainstream. Scalia's rhetoric, more than his positions, have pushed the court to the right and inspired a generation of conservative lawyers and judges. On the left, we've had no equivalent of that. Ginsberg is a reliably liberal vote, but her voice is one of moderation and hesitance. Stevens and Souter, again, vote with the liberal bloc (in part because the conservative bloc has moved so far to the right) but they were Republican apointees and in no way see themselves as part of a liberal movement, the way Scalia and Thomas clearly see themselves as part of a conservative movement. Liberal lawyers haven't had galvanizing opinions meant to inspire since Thurgood Marshall retired.

Barack Obama, of all people, surely understands the value in a transformative jurist like Scalia or Marshall.
5.1.2009 11:01am
Robert West (mail) (www):
Right. The model for the left should be *Brennan* ... who was both a transformative jurist *and* someone who was able to cobble together majorities by persuading.
5.1.2009 11:08am
EcoLawyer:
Souter is also a reliable environmental vote, one of only two or three on the court, according to Lazarus, who appears receptive to environmental policy arguments. So environmental law could be another area, paradoxically, where a Souter replacement could move the court to the right.

I find Scalia's opinions as results oriented as any on the court. And his alleged adherence to strict construction goes out the window when faced with issues like standing (Lujan) or statutory interpretation (Mass v. EPA).

The key for Obama's appointments is to shift some of these positions, which as Dan notes were once on the fringe of legal discourse, back to the fringe of legal discourse.
5.1.2009 11:08am
ruuffles (mail) (www):

What's powerful about Scalia is his ability to forcefully articulate a conservative perspective on the cases he decides, a perspective that was once on the fringe of legal discourse but is now mainstream. ... On the left, we've had no equivalent of that.

The LA times just had an article about how a justice's dissents can decades later end up as majorities. Not Scalia, but Stevens.

In 1981, he had warned in dissent that the Supreme Court was taking a "dangerous detour" when it said police could search a car whenever they arrested the driver or an occupant. This "massive broadening" of police power would turn ordinary traffic stops into car searches, he predicted.

It took 28 years, but Stevens spoke for a 5-4 majority on Tuesday, setting aside the earlier decision and limiting car searches during an arrest. The 4th Amendment protects the privacy of Americans against "unreasonable searches," and there is no good reason to permit routine searches inside a car just because a suspect is handcuffed and standing outside the car, he wrote.


In 1989, for example, he dissented when the court upheld the death penalty for murderers who were mentally retarded or under age 18. These defendants deserve to be imprisoned, but they do not deserve the ultimate punishment of executions, he said.

In 2002, he spoke for the court in a decision that abolished executions for the mentally retarded. Three years later, he assigned to Justice Anthony M. Kennedy the 5-4 opinion ending executions for juvenile murderers.

Gay rights followed a similar pattern. In 1986, Stevens strongly dissented when the court upheld a Georgia anti-sodomy law and said gays had no protected rights under the Constitution. Stevens continued to condemn that decision, and in 2003, the court overturned it.

la times
5.1.2009 11:08am
taney71:
Didn't know Marshall's opinions were inspiring. I always thought they were rather poor.
5.1.2009 11:10am
DangerMouse:
Scalia's rhetoric, more than his positions, have pushed the court to the right...

I'll be an annoyance and ask the typical question that comes up here when someone says something like the above: got a cite for the fact that his rhetoric and not his positions have pushed the court to the right?

You don't know if it's his positions or his rhetoric. Could be both, could be one or the other.

As for the desire for a liberal Scalia, I don't think that's really possible. Scalia is good because he sees through the liberal B.S. ediface that libs have constructed. I don't see how a lib is going to have the effect Scalia will have in crafting the court's latest 3-part balancing test...
5.1.2009 11:30am
TerrencePhilip:
While the results and reasoning are what matter most- certainly to the politicians who select judges- I personally hope the president picks someone with great writing ability. There are very few truly good legal writers. Souter's style always struck me as having too much stuffing.

As for Prof. Adler's comment on the behind-the-scenes angle, that is quite true. The fascinating thing is that it's impossible to predict how the other justices will react when confronted with a new personality, both on the personal and professional level. Bush did a pretty good job with Roberts as he wanted someone collegial- as did Clinton with Ginsburg, she seems to have several close friendships on the court.
5.1.2009 11:41am
cmr:
I'm thinking Obama will most definitely pick someone who's a moderate. Obama's sensibilities seem to lie in centrism, almost to a fault. I do hope he picks a woman.

And TerrencePhilip, I agree with you on both accounts -- I hope he picks someone who's a good writer, and Souter's writing did have a lot of stuffing.
5.1.2009 11:48am
Dan28 (mail):

As for the desire for a liberal Scalia, I don't think that's really possible. Scalia is good because he sees through the liberal B.S. ediface that libs have constructed.

Clearly spoken from the perspective of someone who is ideologically committed to the B.S. ediface that conservatives have constructed.

(e.g. that original intent is a meaningful way of determining constitutional meaning as opposed to a convenient way of diguising your own view of what the Constitution should say, that 'judicial activism' applies to those forms of judicial intervention that liberals support but not to judicial intervention that conservatives support [eminent domain, affirmative action, etc], the construction of arbitraty rules on standing and the expansion of executive power with little justification in Constitutional text, etc etc...)
5.1.2009 11:53am
Hovsep Joseph (mail):
Thanks! This is very helpful!
5.1.2009 11:54am
Cato the Younger:
On Scalia's alleged "adherence to strict construction" (which, according to one of the prior commenters, "goes out the window" whenever Scalia wants it to):

"Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be ...."

Antonin Scalia, A Matter of Interpretation 23 (1997).

Perhaps people should make a miminal effort to acquaint themselves with the subject matter before attacking a Justice.
5.1.2009 12:10pm
Specast:
Thanks for the thoughtful analysis, which is necessarily off-the-cuff. One comment, which you may regard as a quibble but I hope you won't regard as an insult. You wrote:

Here, however, if Souter's replacement were to align with Justices Stevens and Ginsburg, it is likely that the Court's recent punitive damages cases could be overturned.

Sentences like that are so hedged as to be meaningless. You're saying that it's "likely" that something "could" happen, which can be said about literally anything that is possible. It's likely that I could win the lottery 3 times in a row, marry Halle Berry and get elected president in 2012 as the Democratic and Republican nominee. Not gonna happen, but there is a better than 50% chance that it is possible.

I bring this up not to zing you, but because lots of writers (especially bloggers, who tend to offer opinions and predictions) use this form to give undue credibility to what would otherwise be seen as speculation or a statement of the obvious. It undermines the rest of what the author has to say.

Which is a shame, because your post has considerably more meat than most quick-analyses on Souter's retirement.

Due respect -- Specast.
5.1.2009 12:22pm
PLR:
Didn't O'Connor start out voting as a solid conservative but swerve to the middle when Scalia (and later Thomas) joined the court?

No.

Will Larry Franklin go to jail now? Or does he have a Get Out Free card?
5.1.2009 12:23pm
DangerMouse:
Dan,

Would YOU get excited over the latest 3-part balancing test? Or would it be more pleasing to hear someone say, "that test is B.S., the founders knew exactly what was meant by X. See these citations for proof."

3-part balancing tests, and all the other artificial edifaces that libs have created in order to impose their views on Americans, are BORING.
5.1.2009 12:23pm
ruuffles (mail) (www):

Or would it be more pleasing to hear someone say, "that test is B.S., the founders knew exactly what was meant by X. See these citations for proof."

Can't wait to see Scalia's opinions on whether [some type of weapon] is "arms" under the 2nd. How would he make that determination with modern weapons?
5.1.2009 12:26pm
Dan28 (mail):

Would YOU get excited over the latest 3-part balancing test? Or would it be more pleasing to hear someone say, "that test is B.S., the founders knew exactly what was meant by X. See these citations for proof."

3-part balancing tests, and all the other artificial edifaces that libs have created in order to impose their views on Americans, are BORING.

I agree, maybe? I'm not sure if I have an opinion about three part balancing tests in the abstract, although I'm not convinced that liberals are categorically more on the side of balancing tests than conservatives. I mean, there are obvious advantages to bright line rules but some situations just don't lend themselves to bright line rules. But maybe that's the point - the fact that the court's liberals are always trying to appear like moderates maybe makes them more likely to go for balancing tests, whereas a liberal Scalia might be more oriented towards liberal bright line rules.
5.1.2009 12:33pm
Penultimately clear? (mail):
When the opinion of the court says that statutory language is unclear and the decision comes down with:

1 Majority joined by 2 others
2 concurring separately
1 concurring separately

Against:
1 dissent by Scalia joined by 1 in whole and 1 in part,
with the in part separately dissenting as well.

Scalia's dissent says: The statutory language is crystal clear. There were 5 opinions and only 3 agree that it is clear.

If you showed a memo to 9 partners and only 3 said your memo was clear, which would you believe? I mean, think about the inverse. 6 partners believe your memo is clear, but 3 think it is unclear.

What do you do? This is another case that could change when Souter retires.
5.1.2009 12:36pm
Chris 24601 (mail) (www):
I don't think the BMW issue is 5-4 anymore, but 6-3--Roberts joined Williams, changing Rehnquist's dissenting vote. Stevens's dissent in Williams isn't disagreement with BMW.
5.1.2009 12:37pm
Nathan Hall (mail):
"Liberal lawyers haven't had galvanizing opinions meant to inspire since Thurgood Marshall retired."

I don't know what the goal of Casey v. Planned Parenthood was, if it wasn't inspiration. The effort to "call the contending sides of national controversy to end their national division by accepting a common mandate [allegedly] rooted in the Constitution," was made, and failed.

Liberal jurisprudence fails to inspire because it has foundation neither in the history of a great nation, nor in principles than can move human hearts to action. This wasn't true in Marshall's time, when racism was a live liberal cause that could inspire, because "all men are created equal." These days, it is not the personality to lead a movement that the left lacks, but principles worthy of a movement.
5.1.2009 12:44pm
Brett Bellmore:

How would he make that determination with modern weapons?


If he weren't determined to uphold longstanding gun control laws such as the NFA, it would be easy: "Is this weapon used by our own military, carried by individual soliders? If so, it's an "arm"."

But he is so determined, so he'll come up with some goofy test with no constitutional basis.
5.1.2009 12:51pm
U.Va. Grad:
DangerMouse:

A "liberal Scalia" would dispense with three-part balancing tests. Those appeal to moderates who are uncomfortable with laying down clear, bright-line rules.

A "liberal Scalia" will favor clear, bright-line rules (and write excitedly about them). But they will, in many cases, be very different from the kinds of rules Scalia goes for.
5.1.2009 12:57pm
U.Va. Grad:
Robert West is right, IMO. If Obama's smart, he'll pick a Brennan, not a Douglas.
5.1.2009 1:00pm
frankcross (mail):
Brett, you think the Constitution guarantees the right of private individuals to own everything carried by our soldiers? RPGs and TOW missile launchers?

Of course, that's just pragmatism, but I am curious also about the originalist support for your position. Insofar as we had no standing army at the time of the approval of the amendment, doesn't it seem odd that such an army would be the standard for what the Amendment provided?
5.1.2009 1:01pm
DangerMouse:
A "liberal Scalia" will favor clear, bright-line rules (and write excitedly about them). But they will, in many cases, be very different from the kinds of rules Scalia goes for.

Clear, bright line rules? Maybe for rules per se, but not for their broader philosophy. Legal reasoning based on penumbras and emanations will never be clear or bright. And they'll never be inspiring because they have no strong roots.
5.1.2009 1:04pm
akatsuki (mail) (www):
Sorry Cato, but even by the standards of textualism, Scalia is well used to being out of sight when it might lead him astray - he is the classic case of deciding by ideology and justifying with rhetoric.

Of course I'd rather they picked someone with a bit more intellectual rigor than the current moderate justices who seem incapable or scared of writing arguments beyond the instant case. Generally that side of the bench just has been mediocre, not just in political goals if that is what people wanted from them, but just in what they have written.

Oh, and bright line rules are dumb beyond belief- for simpletons who can't evaluate context. That sort of thinking brought about mandatory minimums and other disasters. I agree that three part tests aren't ideal from a predictive aspect, but they also can't be gamed.
5.1.2009 1:08pm
rosetta's stones:
I listened to Jennifer Granholm being interviewed this morning. They claimed she was on Obama'a shortlist, and she actually responded to the question, with the usual "I already have a job" prattle. I certainly hope Obama doesn't pull a Miers and seek out any tenderfoots.

I guess we see why Specter made his move. Nothing good could have come out of this for him, only bad. Smart boy, that Specter... knows how to protect his hide for sure.

Souter was on that court for about 20 years, which is twice too long. More turnover would be good for that court. As I recall, Marshall at the end basically told his people "If I die, just prop my body up and keep voting", and I gotta believe that attitude has to start sinking in with people there for decades like that. Rehnquist same way. Souter appears to have his health... good for him... I hope he moves on and does other good works.
5.1.2009 1:09pm
MarkField (mail):

Oh, and bright line rules are dumb beyond belief- for simpletons who can't evaluate context. That sort of thinking brought about mandatory minimums and other disasters. I agree that three part tests aren't ideal from a predictive aspect, but they also can't be gamed.


"I do not think we need trouble ourselves with the thought that my view depends upon differences of degree. The whole law does so as soon as it is civilized… and between the variations according to distance that I suppose to exist and the simple universality of the rules of the Twelve Tables or the Leges Barbarorum, there lies the culture of two thousand years." Oliver Wendell Holmes
5.1.2009 1:15pm
U.Va. Grad:
Legal reasoning based on penumbras and emanations will never be clear or bright. And they'll never be inspiring because they have no strong roots.

I think you're overstating your case.

Griswold might be based on penumbras and emanations, but the rule laid down in that case is clear: there's a right to privacy/sexual autonomy that protects one's ability to buy birth control. Further opinions may have reinterpreted it, but there's a pretty straightforward takeaway from the case. It's no Lemon.

As far as inspiring writing goes: IMO, to a pretty good first approximation, no legal writing is inspiring. Of course, there are exceptions, e.g., Justice Jackson's opinion in Barnette. I think most people would also consider Warren's opinion in Brown I inspiring, even though most people acknowledge that it obviously goes against the original understanding of the scope of the 14th Amendment. It might be easier to write an inspiring opinion by grounding it in solid law. But (again, IMO) whether an opinion is inspiring has a lot more to do with the skill of the writer and the subject matter of the case than the specific legal doctrine employed to reach a result.
5.1.2009 1:19pm
ANDKEN (mail) (www):
Souter is a mediocre Justice, like most of the others liberal Justices... I don´t remember any good decision that he wrote. If Obama can choose a more articulated Justice liberals will win. The liberal mastermind at the Court has 89 years, and I think that without Stevens Kennedy would turn right.

Any good liberal jurist in the place of Souter would turn the Court to the left.
5.1.2009 1:49pm
wooga:

Oh, and bright line rules are dumb beyond belief- for simpletons who can't evaluate context. That sort of thinking brought about mandatory minimums and other disasters. I agree that three part tests aren't ideal from a predictive aspect, but they also can't be gamed.

akatsuki,
The purpose for 'bright line rules' is not to dumb down the law for simpletons. The purpose is to reduce the power of the unelected branch. When you have convoluted three part tests, the result always turns, for example, on "what O'Connor feels." That obviously is susceptible to gaming - I do not see why you claim 3 part rules "can't be gamed."

Your post is a fine example of the thinking behind progressives and conservatives (not neocons, mind you). You place faith in a handful of unelected technocrats to hand down the law from on high. You are disgusted with the common man - the mouth breathing simpleton - and presumably are horrified by the thought that he might hold the reigns of power. Let me guess, you hate California's use of public propositions to directly alter the law? On the other side, conservatives fear the centralization of power in unelected persons, for basic 1984 reasons.

The common man is much less efficient at tyranny than the bureaucrat, and the bureaucrat is an amateur at tyranny compared to the judge. This is why the Constitution must be dead law, not living; it should only be altered when the vast majority agrees, and agrees long enough to get an Amendment passed.
5.1.2009 2:14pm
Blue:
"Obama's sensibilities seem to lie in centrism, almost to a fault."

This is a joke, right?
5.1.2009 2:16pm
Oren:

If he weren't determined to uphold longstanding gun control laws such as the NFA, it would be easy: "Is this weapon used by our own military, carried by individual soliders? If so, it's an "arm"."

You know we have a man-portable nuclear rocket launcher, right?


Oh, and bright line rules are dumb beyond belief- for simpletons who can't evaluate context. That sort of thinking brought about mandatory minimums and other disasters. I agree that three part tests aren't ideal from a predictive aspect, but they also can't be gamed.

Of course they can be gamed -- usually by convincing the judge that he wants the results one way and letting him "balance" his way there. Balancing got us Pacifica, BiCRA and all manner of other instances where expedient policy trumps Constitutional right.
5.1.2009 2:24pm
Dan28 (mail):

the bureaucrat is an amateur at tyranny compared to the judge

Oh please. This was clearly a sentence constructed to sound poetic at the expense of any semblence of accuracy. Let me ask you something: what is the worst example of judicial "tyranny" you can name? Roe v. Wade, I imagine? Not exactly Eichman.

Sure the judiciary is the least democratic branch of the government. But judges' ability to create tyranny are inherently proscribed by their limited role, most obviously, by the limitations that a judge can't do a damned thing without somebody bringing a case before him/her. That is not to totally disregard concern about judges making law without accountability, but "tyranny" is clearly not the right word for that. Tyranny is what happens in societies where there are no judges.
5.1.2009 2:26pm
Brett Bellmore:

You know we have a man-portable nuclear rocket launcher, right?


Yup, and I know they don't hand every grunt one when they graduate from boot camp. An assault rifle, on the other hand...
5.1.2009 2:45pm
Oren:

But judges' ability to create tyranny are inherently proscribed by their limited role, most obviously, by the limitations that a judge can't do a damned thing without somebody bringing a case before him/her

Given that legal-action groups exist for the sole purpose of grooming cases with the intent of changing the ideology, I think that's a lame argument.
5.1.2009 2:45pm
frankcross (mail):
Brett, I'm not sure what your standard is. If it is whether every single member of the military is issued a weapon, the 2nd Amendment wouldn't protect much (and its protections could be compromised simply by not supplying weapons to some limited group of soldiers). If it is any member of the military has a weapon, the nuclear rocket launcher would be available to the public.

And I wonder about my questions on TOW missiles and the originalism of your theory in the absence of the existence of a standing army at the time.
5.1.2009 3:01pm
Fat Man (mail) (www):
Lani Guiner!
5.1.2009 3:19pm
rosetta's stones:

"I do not think we need trouble ourselves with the thought that my view depends upon differences of degree. The whole law does so as soon as it is civilized… and between the variations according to distance that I suppose to exist and the simple universality of the rules of the Twelve Tables or the Leges Barbarorum, there lies the culture of two thousand years." Oliver Wendell Holmes


I'm sure we're all grateful that we needn't trouble ourselves with disagreeing with you, Ollie.

This is just impenetrable twaddle.

Or a dry sponge. Take your pick.
5.1.2009 3:21pm
Lucius Cornelius:
Dan28


Clearly spoken from the perspective of someone who is ideologically committed to the B.S. ediface that conservatives have constructed.


Your rudeness is sad. I look for wisdom in the ideas of the people I disagree with. If you are going to refer to conservative ideas as "B.S." then you diminish yourself.
5.1.2009 4:47pm
Lucius Cornelius:
I have to say the same for Dangermouse. I don't think liberal ideas are "B.S." even when I disagree with them.
5.1.2009 4:49pm
Lucius Cornelius:
Dan28, you were responding to Dangermouse. I apologize for calling you rude.
5.1.2009 4:51pm
Lucius Cornelius:
How about a good liberal in the mold of Felix Frankfurter?
5.1.2009 4:54pm
PlugInMonster:
Well we're now fully in a majority liberal court with the 4 dissenters being Roberts, Scalia, Thomas and Alito. I'd expect Ginsberg &Stevens to retire shortly so Obama can replace them with youngish hard-left judges to solidify a left-wing court for the next 15-20 years.
5.1.2009 5:06pm
DangerMouse:
Lucius,

B.S. was my shorthand way of summarizing a potential opinion by Scalia on why he disagrees with his ideological opponents. As you're aware, he doesn't actually talk like that and is very methodical in his approach towards destroying arguments he disagrees with.

I don't think liberal ideological arguments are necessarily B.S. I do, however, think they are evil to the extent they are justifications for abortion, etc.

Dan28: Let me ask you something: what is the worst example of judicial "tyranny" you can name? Roe v. Wade, I imagine? Not exactly Eichman.

Eichman? Let's compare and contrase. One made arguments resulting in the murder of millions of people, the creation of factories designed to murder as many as possible, and the countless ruin of millions of still-living people's lives. The other was the architect of the NAZI holocaust.
5.1.2009 5:12pm
wooga:

Oh please. This was clearly a sentence constructed to sound poetic at the expense of any semblence of accuracy. Let me ask you something: what is the worst example of judicial "tyranny" you can name? Roe v. Wade, I imagine? Not exactly Eichman.

Dan28,
I was thinking more along the lines of the current example of an unchecked judiciary: Iran. They invalidate whatever legislation they like, based on their ever shifting interpretation of the Quran (e.g., homosexual behavior is a capital crime, but when a prominent official was caught, they made an exception for the politically connected and wealthy - sodomy is now okay if the 'bottom' gets a sex change). The president and the legislature are impotent against the courts.

The US still has a restrained judiciary, since it still adheres to the fixed Constitution. However, if you follow the 'living Constitution' theory, the end result is "rule of judges" not "rule of law."

Roe v Wade is not what I meant by judicial tyranny, unless you are talking about state sovereignty (although I know some people will argue that the millions of resultant abortions is a greater crime than anything Eichmann might have done). For 'judicial tyranny,' Dred Scott bests Roe on federalism and several other fronts. Buck v Bell is also a nasty example.
5.1.2009 5:13pm
Dan28 (mail):

Dan28, you were responding to Dangermouse. I apologize for calling you rude.

No problem. For the record, I was being facetious in my post. I do think there's a certain amount of silliness in many people on all sides of arguments when they fail to recognize that we all often start from arbitrarily chosen ideological preferences. I think it's important to have some sophistication about your own views on matters, and not to confuse your one chosen ideological perspective with reality for everybody. But I wouldn't have used the term bullshit to describe that except that I was responding to dangermouse's use of the term.
5.1.2009 5:43pm
Dan28 (mail):

For 'judicial tyranny,' Dred Scott bests Roe on federalism and several other fronts

A good example though: the problem in Dred Scott wasn't that the Supreme Court intervened to liberate Dred Scott, it was that the Supreme Court failed to intervene when it should have. And that, IMO, is the more common way tyranny comes about, when the judiciary shows excessive deference to the other branches and thus reduces the rule of law generally. There are a ton of examples of that.

I don't really know enough about the Iran example to comment on that...
5.1.2009 5:46pm
Dan28 (mail):
erg. i'm in a hurry and that post came out wrong. the problem with Dred Scott was more complex than that. i don't mean to say that the problem with dred scott was excessive deference to the legislature, obviously that wasn't the problem. will clarify later.
5.1.2009 5:50pm
Officious Intermeddler:
And I wonder about my questions on TOW missiles and the originalism of your theory in the absence of the existence of a standing army at the time.


The absence of the existence of a standing United States Army at the precise moment that the Second Amendment was ratified is a complete irrelevancy.

By the amendment's own terms, and consistent with how it was understood at the time it was ratified, its purpose was to help assure an efficacious militia. Thus the amendment protects, at the very least, arms which would be useful in a militia context: the small-arms state of the art. In the eighteenth century this included the Brown Bess and the Kentucky Rifle. Today it includes handguns, assault rifles, and battle rifles.

Regrettably, as Mr. Bellmore points out, the judiciary is determined to salvage the NFA come hell or high water: if the serfs get their hands on militarily-useful weapons they might be able to effectively resist encroachments on their liberty by an overweening government, and we can't have that. Hence the results-oriented charade of Scalia, an alleged originalist, hedging about "dangerous and unusual weapons" in Heller.
5.1.2009 6:28pm
wooga:
Dan28,
Just to clarify, I don't think we've seen "judicial tyranny" in the US like I'm concerned about. My concern is that "living constitution" behavior is really a huge power grab by the judiciary. It does not matter if they are nice and benevolent rulers now. [insert 'power corrupts' boilerplate].

This is why there cannot be a lefty version of Scalia. Scalia's rule is that the federal government (and by extension the Supreme Court) is one of limited, enumerated powers. Conversely, the left side is arguing for MORE judicial power, particularly at the expense of the legislative and executive. It's exceedingly rude to argue like Scalia while simultaneously arguing for more power for you and your four buddies. Marshall and Brennan may have argued for greater Congressional power over the states, but I don't believe they argued for expansion of their own power, as the modern living constitution folks do.
5.1.2009 8:12pm
Oren:

Well we're now fully in a majority liberal court

Yup. Heller. Wisconsin RTL v. FEC. FCC v. FOX. The list goes on and on ...
5.2.2009 10:54am
Nathan Hall (mail):
I do think there's a certain amount of silliness in many people on all sides of arguments when they fail to recognize that we all often start from arbitrarily chosen ideological preferences. I think it's important to have some sophistication about your own views on matters, and not to confuse your one chosen ideological perspective with reality for everybody.



Why do you think the choice of premises is arbitrary? I may choose the premise: all men are created equal [before the law], endowed by their creator with certain inalienable rights. Is this not self-evident? Is it even possible for a statement about all men to be true for me, but not true for everybody?

I dispute the (arbitrary?) premise of your premises-are-arbitrary claim, which is that there are no objective moral facts about how peoples should govern themselves.
5.5.2009 6:26pm

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