Comments on Dorf on Law: Souter the Burkean Versus Scalia the Neocon

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Justice Stevens is often heard to make roughly the...

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Justice Stevens is often heard to make roughly the same protest (about himself). I wonder whether a President should take the temporal scale of SCOTUS nominees into their calculus in a different way. Why not think more in terms of inter-temporal issues like constitutional property?

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judges do have to form a sort of common-law approa...

2009-05-06T16:00:00.000-04:00

judges do have to form a sort of common-law approach for protecting intimidate personal rights.

man, sloppy. I mean "intimate"...

But the liberal justices go far beyond that. Th...

2009-05-06T14:53:00.000-04:00
But the liberal justices go far beyond that. They don't take an expansive reading of the "privacy" clause, they invent it from whole cloth.But the Ninth Amendment specifically tells us that there are whole, inherent rights beyond the enumerated clauses. At the very least, Mike's approach is in play -- i.e., the Ninth tells us that unenumerated rights emanate from existing clauses, via a broad reading of them.

I know we've discussed this in the past, so I'll only say that I think those UN-enumerated rights have equal standing with those specifically listed. And whether you take a more open approach (which I tend to favor), or Mike's more limited reading, privacy (imo) clearly falls within that zone of liberty.

Or put another way, I think the Ninth Amendment tells us that, hard as it may be, judges do have to form a sort of common-law approach for protecting intimidate personal rights. Worst case -- we err too much with the individual, rather than government authority. That in itself is a check on tyranny.

"...in my view there are principles set forth w...

2009-05-06T14:31:00.000-04:00
"...in my view there are principles set forth which are indeed broad by design."And I agree with you to an extent (for example, the word "cruel" is necessarily subjective). But the liberal justices go far beyond that. They don't take an expansive reading of the "privacy" clause, they invent it from whole cloth.

"'Tyranny' to the framers largely meant legislative over-reach..."Tyranny can come from nine people as easily (or more easily) as from several hundred. And it is far more dangerous coming from unelected judges who have no sense of responsibility to their employers.

Regarding the study cited at Media Matters, I'm skeptical that it uses a rational metric. Upholding the will of the people does not mean giving Congress carte blanche to, for example, give the District of Columbia a voting representative. If, hypothetically, unconstitutional legislation is proposed more frequently by liberals than by conservatives, it will skew the results at the Supreme Court when the conservatives vote to strike down the statutes.

A corollary to Mike's observation is that modern c...

2009-05-06T11:13:00.000-04:00
A corollary to Mike's observation is that modern conservatives on the bench have engaged in fairly extensive activism, at least by one measure: thwarting the "will of the people. "

From a Media Matters post:

But a 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder showed that among Supreme Court justices at that time, those most frequently labeled "conservative" were among the most frequent practitioners of at least one brand of judicial activism -- the tendency to strike down statutes passed by Congress. Those most frequently labeled "liberal" were the least likely to strike down statutes passed by Congress.

I don't advocate a "living and breathing" constitu...

2009-05-05T20:43:00.000-04:00
I don't advocate a "living and breathing" constitution detached from its history. I support a form of original intent -- in the sense that we should assess history to determine the founding *principles* in the constitution's language. But unlike an originalist who favors viewing everything through the prism of strict construction, in my view there are principles set forth which are indeed broad by design.

As you'll recall, that's why I firmly believe the constitution protects basic privacy: the ninth amendment (in its original sense) was meant as a warning to future generations *not* to strictly define individual rights. In this way, reading due process widely is a form of originalism; we err on the side of the individual when core liberties are implicated (ensuring we don't relinquish rights).

"Tyranny" to the framers largely meant legislative over-reach -- hence broad terms in the bill of rights (liberty, due process, etc.). And via Federalist 78 (and other sources), it's clear that the courts were intended as a shield against that potential abuse.

Federal and state legislatures certainly have broad powers subject to political control(over commerce, for instance), but at the same time, the courts can't allow that authority to over-run intimate liberties.

"...it has been necessary to make labels 'livin...

2009-05-05T19:43:00.000-04:00
"...it has been necessary to make labels 'living and breathing.'"Not really. One can advocate original intent regardless of what label is used to describe the philosophy.

In addition, one can defend original intent while recognizing that labels change in meaning with the passage of time. When construing contracts, Courts are always careful to ask what the parties intended at the time of contracting - this basic doctrine recognizes that meanings can shift after the fact. And Courts look to the the parties' intent at the time of contracting to avoid forcing upon them an agreement they never intended, or to deny or restrict their rights beyond the scope of mutual agreement.

The same is true of the social contract. The very existence of government necessarily restricts freedom. The Framers were therefore careful to restrict just how much freedom they were willing to give up. Expansive interpretations of federal power through "living and breathing" constructions violate one of the most basic premises of construing written instruments, and do so at the expense of individual liberty.

A judiciary that is fettered only by its own imagination (or a legislature or executive that over-reach their own power) can, therefore, take away rights the citizens never intended to yield. It is tyranny, plain and simple.

There's sort of a weird irony here: in order to ad...

2009-05-05T13:18:00.000-04:00
There's sort of a weird irony here: in order to advocate a static constitution (a relatively recent movement), it has been necessary to make labels "living and breathing."

"My larger point is that these labels themselve...

2009-05-04T16:38:00.000-04:00
"My larger point is that these labels themselves have morphed."I agree with you. After all, there was a time when a "liberal" would not support thug regimes like Hugo Chavez'.

My response is that while the word "conservative" meant something different forty years ago, Souter's legacy is being discussed now. If you acknowledge that the word has changed meaning, then use the meaning most likely to be comprehensible to your present audience. It makes little sense to argue "Souter is a conservative" by explaining that you are using a completely outmoded definition.

Sobek: I don't really disagree with you that Soute...

2009-05-04T15:06:00.000-04:00
Sobek: I don't really disagree with you that Souter is clearly on the liberal side of the currently understood liberal/conservative divide. My larger point is that these labels themselves have morphed. Today's liberals are considerably less liberal (in important ways) than William Brennan and Thurgood Marshall were, while today's conservatives reflect some very different values from those reflected by judicial conservatives like Harlan and Felix Frankfurter in their day. (I make the point about liberals fully aware that this is not universally true: e.g., the current liberals are much more sympathetic to gay rights than were the Justices of the 1960s, when the issue wasn't really on the radar screen of national legal elites.)

"...as pitting purists against pragmatists."
2009-05-04T13:58:00.000-04:00
"...as pitting purists against pragmatists."That is not just the media framing the debate. The conservatives I read (both pragmatists and purists) describe it in the same terms. For example, "I know McCain sucks because of A, B, C and D, but he's more likely to win in the generals."

"...dedicated to conserving the best of the status quo, and thus cautious about, though not irresolutely opposed to, change."You misrepresent modern conservatives by assuming away the question of what constitutes "the best of the status quo."

As to whether Souter is a liberal, let me ask you this: if you had to argue any issue that can reasonably be split along a liberal/conservative axis, and you wanted a liberal outcome, and you only got to argue before one Supreme Court Justice, would you pick Souter, or Scalia? Souter or Roberts? Souter's voting pattern is more than enough to resolve the issue: a man who consistently votes with Ginsburg and Breyer on ideologically-contentious issues is a liberal.

Not that any more evidence is necessary, but conservative justices traditionally wait until a conservative is in the White House before retiring. They do not wait through eight years of a Republican administration until a Democrat gets elected.

As for Justice Stevens (in response to Jamison), I would never describe him as conservative or liberal. He is a Stevens-ist.

Justice Stevens is often heard to make roughly the...

2009-05-04T12:42:00.000-04:00
Justice Stevens is often heard to make roughly the same protest (about himself). I wonder whether a President should take the temporal scale of SCOTUS nominees into their calculus in a different way. Why not think more in terms of inter-temporal issues like constitutional property? Some liberal leanings are for and some against constitutional property and the same goes for conservatives. So it tends to cut across party-line patterns, forcing judges to engage in more reasoned elaboration (one hopes) in their judgments. I'm not sure how President Obama would look for his nominee by sorting them with this concept, but it could be others, too.

Comments on Dorf on Law: Souter the Burkean Versus Scalia the Neocon

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A corollary to Mike's observation is that modern c...

I don't advocate a "living and breathing" constitu...

"...it has been necessary to make labels 'livin...

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