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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Wed Dec 19, 2012 6:11 pm 
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RIP, Robert Bork.

Can you imagine how much different the Court and society would have been if he had taken Kennedy's spot? Considering that we have the DOMA/Prop 8 cases coming up, I'm sure there would have been a lot of discussion as to his successor if he had died in office.


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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Wed Dec 19, 2012 7:51 pm 
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Green Habit wrote:
RIP, Robert Bork.

Can you imagine how much different the Court and society would have been if he had taken Kennedy's spot? Considering that we have the DOMA/Prop 8 cases coming up, I'm sure there would have been a lot of discussion as to his successor if he had died in office.

He's way too political to have not gone out in like '07/'08 with a friendly president.

Changing the subject completely, how would you (briefly) describe your judicial philosophy? Who is the best/worst Justice on the Court today?

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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Wed Dec 19, 2012 11:44 pm 
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4/5 wrote:
He's way too political to have not gone out in like '07/'08 with a friendly president.
You're probably right. Then again, Rehnquist, who like Bork was once in the Nixon administration, rolled the dice on a Bush re-election in 2004 despite being very ill. Lefties must be sick thinking that if only had Kerry won Ohio, he would have appointed someone far different from Roberts and Alito.
4/5 wrote:
Changing the subject completely, how would you (briefly) describe your judicial philosophy?
I dislike the concept of trying to fit one's judicial philosophy into a single overarching narrative. Whether it's originalism, strict constructionism, living constitutionalist, pragmatist, or whatever, jurists are never consistent with their chosen labels. A blatant example of that was Chamber of Commerce v. Whiting, in which all nine justices flip-flopped their normal positions on federal pre-emption. Furthermore, those who share certain labels still end up disagreeing with each other plenty of times. I think that inconsistency is a good thing, by the way--they are human, after all, and we humans all see things differently.

With that said, at least on the con-law front I like to to take it one piece at a time. You can probably guess where I side on many of those pieces. I'm at least as extreme as Black and Douglas on the First Amendment, and quite skeptical of governments skirting their 4th/5th/6th Amendment restrictions. I'd probably be more lenient on the Commerce Clause than Republicans would like, but I do think a line has to be drawn on activities that truly are enclosed within one state (i.e, I think South Dakota v. Dole and Gonzales v. Raich were wrongly decided). If I were on SCOTUS, I'd likely be more willing to forego stare decisis than others to correct cases that I thought were clearly wrong.
4/5 wrote:
Who is the best/worst Justice on the Court today?
I change my mind on this all the time. Currently, Scalia's buffoonery is really wearing thin on me. His dissent in Lawrence was horrible, for example.


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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 12:32 am 
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Green Habit wrote:
4/5 wrote:
Lefties must be sick thinking that if only had Kerry won Ohio, he would have appointed someone far different from Roberts and Alito.


I'd be lying if I said I wasn't hoping a few justices shuffle loose this mortal coil these next 4 years.

Green Habit wrote:
I dislike the concept of trying to fit one's judicial philosophy into a single overarching narrative. Whether it's originalism, strict constructionism, living constitutionalist, pragmatist, or whatever, jurists are never consistent with their chosen labels. A blatant example of that was Chamber of Commerce v. Whiting, in which all nine justices flip-flopped their normal positions on federal pre-emption. Furthermore, those who share certain labels still end up disagreeing with each other plenty of times. I think that inconsistency is a good thing, by the way--they are human, after all, and we humans all see things differently.


Do you think this turns judicial reasoning into ideology?

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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 12:34 am 
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Good job splitting that quote.

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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 12:36 am 
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i am the best!

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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 12:36 am 
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in fairness to me I was trying to do that with Ellie bouncing in my lap

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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 12:37 am 
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This is one of my favorite threads to try and understand.

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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 1:05 am 
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cutuphalfdead wrote:
This is one of my favorite threads to try and understand.

This

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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 2:31 am 
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stip wrote:
Green Habit wrote:
I dislike the concept of trying to fit one's judicial philosophy into a single overarching narrative. Whether it's originalism, strict constructionism, living constitutionalist, pragmatist, or whatever, jurists are never consistent with their chosen labels. A blatant example of that was Chamber of Commerce v. Whiting, in which all nine justices flip-flopped their normal positions on federal pre-emption. Furthermore, those who share certain labels still end up disagreeing with each other plenty of times. I think that inconsistency is a good thing, by the way--they are human, after all, and we humans all see things differently.
Do you think this turns judicial reasoning into ideology?
Before I answer, what are you referring to as the "this" that you say turns judicial reasoning into ideology?


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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 2:42 am 
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the application of different judicial philosophies to different policy issues, areas of the law, etc.

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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 3:11 am 
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stip wrote:
the application of different judicial philosophies to different policy issues, areas of the law, etc.
Hmmm. Well, I think that every jurist has his or her own unique judicial philosophy. (or even people in general: IANAL but I still enjoy following this stuff and I certainly have opinions.) I guess you could call that an ideology, as well. They do issue opinions, after all, and reasonable people can have differing opinions. I'm not sure if I really answered the question--let me know if I'm getting lost.


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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 5:23 am 
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Green Habit wrote:
stip wrote:
the application of different judicial philosophies to different policy issues, areas of the law, etc.
Hmmm. Well, I think that every jurist has his or her own unique judicial philosophy. (or even people in general: IANAL but I still enjoy following this stuff and I certainly have opinions.) I guess you could call that an ideology, as well. They do issue opinions, after all, and reasonable people can have differing opinions. I'm not sure if I really answered the question--let me know if I'm getting lost.



I was wondering if you think the opinions reflect the personal politics of the judge (it's motivated by their larger vision of justice, morality, role of the state in public life, etc), or whether they are actually reflecting a philosophy of constitutional interpretation and meaning that exists independently of those politics? Does the Constitution have substantive meaning that can be known and interpreted independently of the person doing the looking?


I make the argument in my courses that the Constitution is like the Bible insofar as people find in it what they want to find, and use the idea of an absolute meaning (which doesn't exist) to give their particular viewpoint additional moral and political legitimacy both for the purposes of contesting policy and for their own personal political morale. The Constitution is whatever the judges at the time say it is, and the judges make it say what they need it to say to line up with their own personal politics. It's not really that much less politicized than the executive or legislative branch, with the added drawback of it having institutional powers that we'd never justify if not for the belief we collectively have that their judgements are, in some cosmic sense, apolitical and grounded in the truth of the text and law rather than personal ideology. Your comment earlier had me wondering if you agree with that, which struck me as somewhat unusual for a self confessed SCOTUS junkie

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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 1:43 pm 
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stip wrote:
I make the argument in my courses that the Constitution is like the Bible insofar as people find in it what they want to find, and use the idea of an absolute meaning (which doesn't exist) to give their particular viewpoint additional moral and political legitimacy both for the purposes of contesting policy and for their own personal political morale. The Constitution is whatever the judges at the time say it is, and the judges make it say what they need it to say to line up with their own personal politics. It's not really that much less politicized than the executive or legislative branch, with the added drawback of it having institutional powers that we'd never justify if not for the belief we collectively have that their judgements are, in some cosmic sense, apolitical and grounded in the truth of the text and law rather than personal ideology.


You know, this is why I wish I had taken courses other than Business Admin, Comp Sci, and Biochem in college. I so am so ignorant about so many things compared to some of the people who post here...

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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 3:52 pm 
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stip wrote:
Green Habit wrote:
stip wrote:
the application of different judicial philosophies to different policy issues, areas of the law, etc.
Hmmm. Well, I think that every jurist has his or her own unique judicial philosophy. (or even people in general: IANAL but I still enjoy following this stuff and I certainly have opinions.) I guess you could call that an ideology, as well. They do issue opinions, after all, and reasonable people can have differing opinions. I'm not sure if I really answered the question--let me know if I'm getting lost.



I was wondering if you think the opinions reflect the personal politics of the judge (it's motivated by their larger vision of justice, morality, role of the state in public life, etc), or whether they are actually reflecting a philosophy of constitutional interpretation and meaning that exists independently of those politics? Does the Constitution have substantive meaning that can be known and interpreted independently of the person doing the looking?


I make the argument in my courses that the Constitution is like the Bible insofar as people find in it what they want to find, and use the idea of an absolute meaning (which doesn't exist) to give their particular viewpoint additional moral and political legitimacy both for the purposes of contesting policy and for their own personal political morale. The Constitution is whatever the judges at the time say it is, and the judges make it say what they need it to say to line up with their own personal politics. It's not really that much less politicized than the executive or legislative branch, with the added drawback of it having institutional powers that we'd never justify if not for the belief we collectively have that their judgements are, in some cosmic sense, apolitical and grounded in the truth of the text and law rather than personal ideology. Your comment earlier had me wondering if you agree with that, which struck me as somewhat unusual for a self confessed SCOTUS junkie


Is it really?

Article III pretty plainly indicates that the Supreme Court ought to be made up of more than just one judge, so whether that's 3 or 6 or 9 that's a tacit acknowledgement that there are issues that some people will see differently and we need a majority to settle the question.

Even the idea that there must be a court system to interpret the Constitution is an acknowledgement of that, or at least that sometimes various parts of the law may run up against each other.


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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 5:31 pm 
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stip wrote:
Green Habit wrote:
stip wrote:
the application of different judicial philosophies to different policy issues, areas of the law, etc.
Hmmm. Well, I think that every jurist has his or her own unique judicial philosophy. (or even people in general: IANAL but I still enjoy following this stuff and I certainly have opinions.) I guess you could call that an ideology, as well. They do issue opinions, after all, and reasonable people can have differing opinions. I'm not sure if I really answered the question--let me know if I'm getting lost.


I was wondering if you think the opinions reflect the personal politics of the judge (it's motivated by their larger vision of justice, morality, role of the state in public life, etc), or whether they are actually reflecting a philosophy of constitutional interpretation and meaning that exists independently of those politics? Does the Constitution have substantive meaning that can be known and interpreted independently of the person doing the looking?

I make the argument in my courses that the Constitution is like the Bible insofar as people find in it what they want to find, and use the idea of an absolute meaning (which doesn't exist) to give their particular viewpoint additional moral and political legitimacy both for the purposes of contesting policy and for their own personal political morale. The Constitution is whatever the judges at the time say it is, and the judges make it say what they need it to say to line up with their own personal politics. It's not really that much less politicized than the executive or legislative branch, with the added drawback of it having institutional powers that we'd never justify if not for the belief we collectively have that their judgements are, in some cosmic sense, apolitical and grounded in the truth of the text and law rather than personal ideology. Your comment earlier had me wondering if you agree with that, which struck me as somewhat unusual for a self confessed SCOTUS junkie
I'd say I do agree with that, except I'd swap out the word politics for ideology (which you also mentioned earlier). Although appointed by politicians, the Justices themselves (and other federal judges) explicitly are not politicians. They don't have to succumb to the current popular will at the time to do their job, so they don't have to cater their opinions to what constituents might otherwise influence. It's certainly possible for their ideology to coincide with a political platform, but it's not necessary, and on the current SCOTUS, I feel confident that for at least the six most senior justices, it doesn't. (I'm still concerned about Alito, and we really don't know enough about Sotomayor and Kagan yet).

And I'd agree with mray that I'm not sure why you'd find that unusual.


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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 5:37 pm 
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Green Habit wrote:
I change my mind on this all the time. Currently, Scalia's buffoonery is really wearing thin on me. His dissent in Lawrence was horrible, for example.

That's one of my favorite cases to teach. I don't know if you caught it, but he was speaking at Princeton (I believe) last week when a gay student asked him about Lawrence v. Texas and the Windsor/Hollingsworth cases and Scalia stuck to his guns and reaffirmed his belief that if we can't make moral judgements about homosexuality then we can't about murder either. At least he's consistent.

As an aside, in his Lawrence dissent he trots out a parade of horribles including the fear that states would lose the right to make laws about same-sex marriage, bestiality, and masturbation. Now, I get the first two. But are there really state laws against masturbation?!

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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 5:39 pm 
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The Daily Beast has an interesting Cliff Notes version of Bork's book.

http://www.thedailybeast.com/articles/2 ... orrah.html

I found the first point the most interesting:

Quote:
1. Bork made the ‘case for censorship’ to ‘avoid social devastation.’

Bork had a seething contempt for unfettered speech rights. Like Irving Kristol before him, he advocated targeted censorship in hopes of straightening America’s slouch: “Sooner or later censorship is going to have to be considered as popular culture continues to plunge to ever more sickening lows.” If America didn’t limit speech, he argued, it would surely speed the end of Western civilization: “There is, of course, more to the case for censorship than the need to preserve a viable democracy. We need also to avoid the social devastation wrought by pornography and endless incitements to murder and mayhem.” Indeed, the Founding Fathers, Bork claimed, would be appalled by what modern culture had wrought: “Any serious attempt to root out the worst in our popular culture may be doomed unless the judiciary comes to understand that the First Amendment was adopted for good reasons, and those reasons did not include the furtherance of radical personal autonomy.”

Bork underscored that he was, indeed, advocating the censoring of films, pornographic “prose” and images, and the still-new Internet: “I am suggesting that censorship be considered for the most violent and sexually explicit material now on offer, starting with the obscene prose and pictures available on the Internet, motion pictures that are mere rhapsodies to violence, and the more degenerate lyrics of rap music [Ed: emphasis in original].”
Although Bork and Scalia get compared to each other all time time, this is one issue that, if Bork held this view on the Court, he would have disagreed several times with Scalia on. A few examples that came to my mind might include Texas v. Johnson, Reno v. ACLU, Snyder v. Phelps, and Brown v. EMA.


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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 5:44 pm 
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What a douche.

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 Post subject: Re: The Supreme Court Decision Discussion Thread
PostPosted: Thu Dec 20, 2012 5:57 pm 
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4/5 wrote:
Green Habit wrote:
I change my mind on this all the time. Currently, Scalia's buffoonery is really wearing thin on me. His dissent in Lawrence was horrible, for example.
That's one of my favorite cases to teach. I don't know if you caught it, but he was speaking at Princeton (I believe) last week when a gay student asked him about Lawrence v. Texas and the Windsor/Hollingsworth cases and Scalia stuck to his guns and reaffirmed his belief that if we can't make moral judgements about homosexuality then we can't about murder either. At least he's consistent.
I did catch it, and by itself, I didn't find it that bad at all. Hell, I probably agree with him that we have to make moral judgments to form a basis of law. The problem that Scalia runs into here is the fact that codifying certain moral judgments run afoul of more superior judgments that were made in the Constitution. And Scalia knows this fact, as well--disapproval of flag burning or protesting funerals are moral judgments in their own right, but Scalia still saw it fit to strike those down as unconstitutional. That's where it really turns disingenuous on his part.

4/5 wrote:
As an aside, in his Lawrence dissent he trots out a parade of horribles including the fear that states would lose the right to make laws about same-sex marriage, bestiality, and masturbation. Now, I get the first two. But are there really state laws against masturbation?!
That's only scraping the surface of his parade of horribles. His whole quote included "bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity". Of course, since that case is one of your favorites, you probably know how remarkable it is that it made it all the way to SCOTUS in the first place. Even if the law is "uncommonly silly", as Thomas noted in that case, they still shouldn't be on the books because some zealous prosecutor is going to find a way to nail a guy he doesn't like with one of those uncommonly silly laws when he doesn't have any other option.


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