Centerfield

Alito flunks the most pressing test of today and tomorrow

Alito does not even flunk the most pressing test of their own hypothetical. The most important question around the mooted Clinton healthcare scheme is not some ephemeral FOIA claim, but far more importantly, whether such a scheme would be Constitutional. I think it obvious that it is not, and I think it fairly obvious from the hearings and from his opinions that both Alito and our Fearless Leader agree that it is not. Furthermore, I see no evidence - in regard to their second hypothetical - that Alito is unfamiliar with the fifth amendment.

Alito's hearings only looked worrying if one watched them under the presumption that Alito was trying to hide a burning itch to crown America's first king. What everyone else saw was a mild-mannered law nerd trying patiently and diligently to answer ill-formed and ill-founded questions without looking like he was talking down to the people who asked them.

I've not yet chimed in on the Oregon case because I'm really not quite sure what to make of it; I skimmed it the day it was released, and was surprised to discover that at first blush, I agreed more with Kennedy's opinion than Scalia's. This strikes me as being a downright peculiar state of affairs, so I hope to get a chance to re-read it this weekend, with less time pressure.

I've chipped on on Ayotte, however, at several points in this Volokh thread.

Posted by: Simon at January 19, 2006 03:51 PM

FWIW, Bainbridge panned Scalia.

Alito's hearings only looked worrying if one watched them under the presumption that Alito was trying to hide a burning itch to crown America's first king. What everyone else saw was a mild-mannered law nerd trying patiently and diligently to answer ill-formed and ill-founded questions without looking like he was talking down to the people who asked them.

Well, maybe not everyone else, Simon. I find it a wee confusing that you cast liberals as suggesting that Alito might make kings via burning desire. IMO, I think there's a pretty solid hypothesis that a mild-mannered law nerd could act as kingmaker via the shrinking deference of a cowardly technician. That's a hypothesis that FITS the appearance.

"Activism" may entail certain risks, but so does doing nothing but upholding and rubber-stamping unless Thomas Jefferson wrote you a precise step-by-step instruction manual.

Posted by: bk at January 19, 2006 04:10 PM

The fact that Scalia did a complete about face compared to his support of the majority in the Raich case only 7 months ago should be enough to convince anyone that he is as results oriented as anyone has ever dare to call the so-called “Liberals” like O’Conner and Kennedy. Let’s be very clear, there is no principal here as far as Scalia is concerned, he simply uses federalism, States Rights and Originalisum to justify his judicial gymnastics and Alito will do the same.

Ironically, if you buy the theory that Thomas’ dissent is just a big middle finger to the majority and would have went with the majority had they not screwed the pooch in Raich, you would have to say that Thomas is the most principled federalist on the court.

Posted by: Rick DeMent at January 19, 2006 04:15 PM

I guess I find myself with reservations very similar to Brian. As far as the choice of Alito, he is undoubtedly well qualified and many of his past opinions give me hope that he is not an idealogical conservative--at least in his capacity as an Associate Justice. True impartiality would be nice--I don't think that's too much to ask.

That being said, I don't have any doubts as to what GOP voices would be saying if the roles were reversed (Janet Reno vs. John Ashcroft). It seems that many conservative Republicans use the concept of states rights when it suits their political agenda, and are more than willing to cast it aside when it doesn't. To a non-lawyer (always open to intelligent instruction), Scalia does seem to be working towards a desired end result, instead of applying the same concepts consistently.

As far as these particular examples go, I can hear the contention coming "But, our very life's and existence are at stake. We can't deal with terrorism the same way we deal with everything else." I hear the argument, but it frightens me. Ultimately, who gets to make the decision that someone's life is at stake. In the hypothetical situation involving a President Gore, could he not make the argument that children's life's are at stake here? I understand the concept, but it is frightening nonetheless. Once given, it's next to impossible to take power back.

Posted by: AR at January 19, 2006 04:38 PM

My first response to the Orgeon case is disappointment with Scalia's dissent, though I have not yet fully reviewed it. However, I've been working on a post devoted solely to that case and will reserve further comment until then.

As for the President Gore hypothetical, I would note first of all that it involves solely domestic activity as described, not border-crossing communications. The Supreme Court has very long held that border crossings are a very different kettle of fish. For example, you have no 4th amendment right to prevent a customs officer from searching your suitcase on a whim when you return to this country from a trip abroad.

Second, as Simon and I (much more him) have continually pointed out, activism is NOT measured by how many statutes or governmental actions are overturned. For example, I consider the Supreme Court ruling upholding McCain-Feingold to be an activist ruling, because the Court twisted the meaning of the First Amendment in order to allow a policy which it deemed sound.

I feel quite certain that a future Justice Alito would apply well-established law which recognizes both the difference between real, shooting wars (such as we have now) and political wars (such as the one Tipper Gore waged against record companies, and the one Hillary is waging against violent video games) and the difference between law enforcement action against citizens of this country and military action against foreigners and those captured at border crossings preparing to engage in acts of war.

As for the comparison between Senator Clinton's healthcare task force and Vice-President Cheney's energy policy task force, those were not ultimately resolved on the basis of constitutional issues, but rather on an application of the Federal Advisory Committee Act of 1972. Because then-First Lady Clinton's task force explicitly had non-governmental members on it, it was covered by FACA, and its meetings were open and public record. Vice-President Cheney's task force, on the other hand, consisted only of members who were federal employees and was thus not covered by FACA. The plaintiffs who sued Cheney claimed that energy industry representatives were de facto members of the task force, and thus FACA did apply.

Brian, in which of Judge Alito's answers did you spot a hidden desire to crown a king?

Posted by: PatHMV at January 19, 2006 06:02 PM

President Al Gore, in a major speech on "the terrorism of child pornography," orders the Attorney General to use "all the same tools of the War on Terror" in the new crackdown against online smut-peddlers. Soon after, American citizen Jose Blow is detained on "suspicion of planning a snuff film," and is held indefinitely, without charge, and without access to a lawyer.

A strawman to make even Ray Bolger proud. The author left off the part about Congress passing a War Powers Resolution against child pornographers. Has the debate really deteriorated to this level?

Sad.

Posted by: Cylinder at January 19, 2006 08:49 PM

Pat,

Actually I didn't, because I didn't watch. My bad. I was really just responding to Simon's claims about "everyone saw" by pointing out that a King could take power just as well via the abdication of others' responsibility to take power as by seizing. In other words, that the executive could garner undue power not via SCOTUS's eagerness, but by its deference.

I actually don't, on the surface at least, find Alito all that objectionable, and I think he deserves a senate vote, and that he therefore most likely deserves confirmation because the GOP holds the senate. If he's in the mainstream, he's well to one side of it, but I don't see the evidence of the sort of cuckoo whackjob agenda that would justify the democrats going to the mat.

I probably wouldn't vote for him if I were a senator.

And If I were a senator at the next scotus nom, my criteria for "going to the mat" would be different, because there's a solid team scalia at Scotus now of 4 guys who will likely vote as a bloc. How I would vote then (assuning a 4-4 tiebreaker situation)and what I'd advocate who depend on how I thought the next nominees would affect the court, largely on the basis of how the 4-man team scalia had shown its leanings in the interim. Notice that besides Scalia, Thomas, Roberts, and Alitio, the remaining 5 can't really even be classed as a group as reliably liberal, or even reliably moderate. It looks to me like when Alito gets confirmed, there'll be 4 pretty staunch conservatives, and the rest is a mixed bag; there are onew or two who just turned out to be "not conservative enough," and the rest are either moderate or liberal depending on your perspective.

I hope that we get a little break now, so that everyone will get a chance to see where team scalia might be hoping to take us. And let me stress that I'll be watching the team closely, but with a decidely open mind. My main worry is that they'll lead us down a path that's harder for the little guy to get justice, where the wheels grind even more slowly, and where the power of the government , of intrusively paternal nannystaters, and of corporations with highly paid lobbyists continues to accrue.

In other words, it depends on who they smack. :-)

Posted by: bk at January 19, 2006 09:39 PM

Well, Brian, once again you want judges to decide cases based on sympathies ("for the little guy") than on the rule of law. Do try to remember that it was the "liberal" judges on the court who ruled in favor of the government and against the little guy in Kelo. Your best bet is to support judges who will be fairly consistent in their interpretation of the law and who give a constitutionally-appropriate level of deference to the elected branches of government, who are the ones charged in our system with making policy.

Posted by: PatHMV at January 19, 2006 10:34 PM

Yeah Pat, I'm still waiting for the evidence that the approach you advocate is somehow a better guarantee of justice. I expect that this approach may well make our justice system slower and more predictable. But I see no reason to think that it will better provide justice and protect the liberties of the everyday American.

As physicists know, the more slowly and more predictably something moves, the easier it is to control the destination. That means that big power centers can have even MORE impact.

And while I'm at it, there you go once again using hyperbole to mischaracterize my views. I don't want judges to use sympathy as the basis for making decisions. I just want them to occasionally consider it as a factor. The more strongly a given person is drawn to consider it as a factor in a particular instance, the more likely it is that there's some principled moral basis for such a feeling. As you know, any principls with a strong moral basis may well have already manifested itself in an existing, law, statute, precedent, or solid interpretation.

The notion that emotion must necessarily be excised from the legal system for it to provide justice is mistaken, a big lie. Emotion may be a cue. It may suggest a connection to a sound and existing principle, and such a connection may bear very reasonable and just fruit upon further rational examination.

Posted by: bk at January 20, 2006 09:27 AM

BK,

I couldn't disagree more (as you probably guessed). There may be some room for ruling based on equity (i.e. what a judge thinks is "fair") in the lower Courts but there's none in Constitutional Law..... because when SCOTUS makes a ruling on somethings Constitutionality it is a decision which stands for all time and in all instances (not just one).... and that is something far too important and basic to make dependant on the emotional whims of any 5 human beings.

Furthermore you are right when you say that excising emotions from court decisions will make the justice system more predictable. That IS exactly THE POINT. The Justice system or more precisely the Law needs absolute predictability. That is the hallmark of stable governments. The predictability of the law is the only thing that provides average citizens (i.e. you and me) a guide as to whether the behavior they want to engage in is allowable or will wind up putting them behind bars.

Posted by: cengel at January 20, 2006 11:15 AM

Cengel, power adores predictability. For this reason, along with others, it's just NOT an absolute virtue. But I grant that it's often an extremely compelling one.

Constitutionality it is a decision which stands for all time and in all instances (not just one).... and that is something far too important and basic to make dependent on the emotional whims of any 5 human beings.

Meh. I'd say such things are far too important to make solely dependent upon the strict technical application of rules applied precisely over time regardless of the effects of evolution, entropy, and the exact details of particular circumstances. Your argument is one in favor of the automaton, the juggernaut, the righteousness of the accumulated technical force. My argument is merely for the occasional necessity of the timely human circuit-breaker, in rare instances. This is why, for example, the robot in Lost in Space can be shut down by pulling the switch that is opn his back, which he can't reach. Checks and balances, buddy. Every system designed for the ultimate benefit of humans, no matter how precisely, carefully, and lovingly applied, needs a human circuit breaker.

Posted by: bk at January 20, 2006 11:37 AM

Predictability in the law is what gives us as a society stability. If we didn't have that, we'd be like most third-world countries where whether you win or lose depends on who you know and whether the judge likes you or not, not the fair and equal application of the law.

As cengel points out, it is one thing for a lower court to get a little creative to prevent some manifest injust from happening. It is quite another for the Supreme Court to begin establishing constitutional principles that exist nowhere other than the minds of the judges themselves.

Roe v. Wade did not come out of some new-found desire by legislatures to criminalize what had previously been legal. The court was NOT reacting to stem some vicious tide of change brought about by the masses foaming at the mouth to oppress women. Rather, Roe IMPOSED massive social change. That you happen to like the policy result should not force you to defend the illegitimate process by which it was reached. When you dislike the action of some future court which decides to "timely" intervene in a burning societal dispute, as it did with Dred Scott, you will have no credibility to challenge the process, only the result.

Posted by: PatHMV at January 20, 2006 12:26 PM

BK, I'd say we tried the human circuit breaker thing... it was called "monarchy", didn't really work out to well for most people;)

Posted by: cengel at January 20, 2006 12:59 PM

I'd say we tried the human circuit breaker thing... it was called "monarchy", didn't really work out to well for most people;)

And as we know, if one try fails, just give up.

Predictability in the law is what gives us as a society stability. If we didn't have that, we'd be like most third-world countries where whether you win or lose depends on who you know and whether the judge likes you or not, not the fair and equal application of the law.

True, which is why I imply that it has great virtue, but is not a perfect inviolable virtue. Notice that the situation you describe is Not one that lacks predictability. In fact, it's one where power and privilege are directly correlated with one's level of predictability.

How many times will you guys (in refusing to budge even an inch towards the notion of tiny margins for leeway in the margins, used in rare instances) leap to claim the subsequent inevitability of nakedly unjust, whimiscal, autocratic rulings? I keep expecting you guys to be too embarassed to keep it up at some point, but you've kept proving me wrong so far.

A small grant of leeway need not be tantamount to doing just as you please. SCOTUS is subject to checks and balances, at least until they gain control of the budget and the army.

Posted by: bk at January 20, 2006 01:56 PM

One, because it's painfully obvious what you have been doing, Brian.

Two, because every time you get pushed into a corner, you waffle away into vagueness and generalities.

Three, Cengel agreed with you about the possible use of your equity/emotion theory in the lower courts, and then explained why it was entirely inappropriate in the Supreme Court, which does not exist to rectify individual injustices so much as it does to establish the rules by which all other courts must live. You brushed that off and returned to your "emotion in Supreme Court rulings can be good, but I can't give you any rules for deciding when it's good and when it's bad" argument.

Fourth, by conceding the validity of judges using their personal emotions and beliefs to make rulings even "in the margin" (and Roe v. Wade is most decidely NOT "in the margin") and in "rare" instances, you concede the legitimacy of Judge Roy Moore to display the Ten Commandments based on his beliefs. You concede the legitimacy of Tom DeLay seeking to put conservative activists on courts who would ignore decades of established law to keep Terri Schiavo hooked up to her feeding tube. You do, in fact, concede the legitimacy of the Supreme Court to decide Dred Scott as it did, because the court believed it was helping to settle once and for all a contested societal matter and put it behind them, making the political process work more smoothly.

Posted by: PatHMV at January 20, 2006 02:11 PM

By the way, CONGRESS passed a law establishing the standard by which judges are to decide cases. It is embodied in the oath of office which all federal judges must take. 28 USC s. 453

“I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.”

Nothing about favoring the little guy. In fact, the exact opposite, an explicit command to favor nobody based on their personal status or characteristics or wealth.

Posted by: PatHMV at January 20, 2006 02:15 PM

"And while I'm at it, there you go once again using hyperbole to mischaracterize my views. I don't want judges to use sympathy as the basis for making decisions. I just want them to occasionally consider it as a factor."

What is the difference??? Constitutional law isn't about sympathy, it's about upholding the Constitution. Sympathy has no place in a SCOTUS decision - their decisions will affect the other 299,999,999 people that live in this country. If you allow them to consider sympathy as a 'legitimate' concern to render an opinion instead of the actual law - what happens if their sympathy doesn't lie where yours does??? Then you are putting the entire country at the 'whim' of 5 people instead of the actual Constitution and the Amendments that were dually voted on and passed.

Posted by: deb at January 20, 2006 03:36 PM

Pat, every time you think you've pushed me into a corner, (usually by mischaracterizing my views as some absolute, and utterly ignoring whatever inconvenient qualifying details I carefully included), I patiently explain why it isn't the corner you think it is. I can't help it if you won't listen! :-) You think in absolutes and see corners everywhere. but the real world has so few right angles besides the man-made ones. Now of course my arguments MUST look to waffles like you, because all you ever see are squares and corners. :-)

Cengel agreed with you about the possible use of your equity/emotion theory in the lower courts, and then explained why it was entirely inappropriate in the Supreme Court, which does not exist to rectify individual injustices so much as it does to establish the rules by which all other courts must live. You brushed that off and returned to your "emotion in Supreme Court rulings can be good, but I can't give you any rules for deciding when it's good and when it's bad" argument.

Oh, was that my argument? I thought my argument was that a persons emotions may often provide one with a cue to a legitimate underlying moral principle, and that this underlying principle might even be one that was already codified in law, either explicitly or implictly. So that would mean that ignoring or excluding your emotions could leave you insensitive, and thus less likely to detect fundamentally relevant case law. But I suppose that couldn't have been my argument, could it have? Because then you'd have to show why it was wrong. Which is much harder than mistating my argument so as make it seem utterly foolish.

Fourth, by conceding the validity of judges using their personal emotions and beliefs to make rulings even "in the margin" (and Roe v. Wade is most decidely NOT "in the margin") and in "rare" instances, you concede the legitimacy of Judge Roy Moore to display the Ten Commandments based on his beliefs. You concede the legitimacy of Tom DeLay seeking to put conservative activists on courts who would ignore decades of established law to keep Terri Schiavo hooked up to her feeding tube. You do, in fact, concede the legitimacy of the Supreme Court to decide Dred Scott as it did, because the court believed it was helping to settle once and for all a contested societal matter and put it behind them, making the political process work more smoothly.
I long ago conceded that my preferred method was inherently more risky. So I'm untroubled by granting once again that the presence of human circuit breakers necessarily opens the door to possible error. Roy Moore? He lost, based on a SCOTUS ruling that relied on an evolving definition of the establishment clause, so I can't let you claim him for your side of the argument. Ultimately, MY system worked. The original phrasing said "don't pass any law regarding the establishment of a religion." That wasn't what Mullah Moore did. Without seeking out the true spirit, Moore would have won. He didn't.

Tom Delay can legitimately do whatever is within his senatorial powers, emotionally or not. As near as I can tell, his "seeking" is legitimate for a senator. Not being a judge, I am a bit confused as to how he's relevant to this argument, precisely. But he's subject to getting checked and balanced too, thank God.

On Dred Scott, I must beg off, lacking the requisite familiarity with the cases' details. Is it your contention in Scott that the court erred so badly precisely and exclusively because it failed to reason unemotionally in reviewing the relevant case law? If you can point me to a good exec summary, I'll look it over. If your contention is true, that's a solid point for your risk-averse argument, since it would constitute evidence of wild card reasoning that went badly astray. But then, I'm still waiting for you to explain to me why separate is in fact inherently unequal, rather than a convenient and valiant white lie borne of a creative judge.

28 USC s. 453 is not actually part of the constitution, right?

Posted by: bk at January 20, 2006 03:58 PM

Actually, since there are nine Justices, wouldn't it be the other 299,999,991?

Posted by: StantheMan at January 20, 2006 03:58 PM

Not until sometime later this year, March I think. Officially anyway.

I think the separate but equal issue was in Plessey vs Ferguson. So was that decision (and Dred Scott, and Roe v Wade) and might I add, Bush v Gore (sorry, couldn't resist), examples of predictability or emotional decision making?

Is Tom Delay running for Senate?

Posted by: tim at January 20, 2006 04:40 PM

Brian, I've given up trying to figure out what your argument is, because you mix and match to suit the needs of the moment. You start out defending Roe as one of those rare necessary instances where the Court was right to ignore the language of the consitution and 2 centuries of jurisprudence and effectively amend the constitution on the whim of 5 justices. Then you switch to the argument that judges should have emotions and let those emotions help them figure out what the law is. Then you say that you don't mean they should use emotion to decide cases, but just use it as a "factor". Now you say that you only mean that justices shouldn't leave their emotions at the door, and should let their emotions guide them to the right case law.

And of course you say that how you would vote on a particular supreme court nominee would vary based on the precise circumstances and makeup of the court at that moment.

The only conclusion I can come to is that you want the law and the rules to be what feels right to you at the time. There's no arguing with that.

As for separate but equal, I have explained that several times. Your unwillingness to accept or agree with the explanation does not mean I have not explained it. I would invite you to take the same position at a debating forum in the middle of Harlem sometime and see how much agreement you get with it.

My use of Tom DeLay was to indicate that, under your "system", you have no principled grounds to oppose his push to stack the courts with actual conservative activists (i.e., judges who would ignore a proper interpretation of the law to impose their own personal philosophies on the cases before them) other than by saying, "I don't like it" and trying to out-muscle him politically.

As for Dred Scott, read the wikipdeia entry. President-Elect Buchanan wrote to the court, urging them to settle the slavery question once and for all and take it out of the political realm. Chief Justice Taney believed that by delivering a strong ruling upholding slavery (and declaring the Missouri Compromise unconstitutional) would settle the issue for good. Obviously, it produced exactly the opposite result. Note in particular the use by the dissent in Dred Scott of historical actions taken by the Framers and the early Congresses to show that legislation like the Missouri Compromise are constitutional.

Posted by: PatHMV at January 20, 2006 05:50 PM

As for separate but equal, I have explained that several times. Your unwillingness to accept or agree with the explanation does not mean I have not explained it.

You may have addressed it. but you've never, ever, ever shown why inequality inheres in the mere existence of separation. And you know why you've never shown that just as well as I do. Because it doesn't inhere/i>. All I need to do to show that is to cite one single instance where two items are separate, but are equal nevertheless. And I've done that many times, and you've dismissed it every time I've done it.

Many people have come round to the view that there are occasions where separation may actually provide a better remedy for the effects of racism and sexism, by providing single-sex academies, for example.

I don't doubt for a second that racial segration was an egriouslwrong. But it was wrong because the segregation was forced, and because the thinly disguised intent of such policies was to treat blacks as less than fully human. The policy wasn't wrong because separation is inherently unequal.

Then you switch to the argument that judges should have emotions and let those emotions help them figure out what the law is. Then you say that you don't mean they should use emotion to decide cases, but just use it as a "factor". Now you say that you only mean that justices shouldn't leave their emotions at the door, and should let their emotions guide them to the right case law.

Pat those are all basicallty the same argument. You say emotion should have no role. I say that's a foolish pretense. Emotion WILL have some role in each of minds, especially as to monentous decisions, regardless of how well we tell ourselves we've set them aside. You think this means that I'm advocating that judges do "just as they please." I know people well enough to know that they are prone in momentous circumstances to feel driven to follow their consciences, or at least listen carefully to them. I think that tends to be a good thing.

Now you can go to your grave insisting that the judges who decided that separate was inherently unequal had no need to listen to their consciences in arriving at that the decision. That case law was sufficient, and that anyone who arrived at this decision by letting their conscience be any sort of a guide were acting inappropriately. I give them a "Bravo!"

Posted by: bk at January 22, 2006 01:06 PM

Brian, I brought up Plessy v. Ferguson to begin with to show that activist courts who don't follow the plainly written law could reach very, very BAD decisions, not just "good" decisions that you like, such as Roe v. Wade. You responded that it was the Brown v. Board of Education court doing the honorable, activist thing by ruling in a way not mandated by the strict language of the constitution.

My point was only that the Plessy court was the activist one, ignoring the plain language of the equal protection clause. To prevail on that point, I need not show that all separation is inherently unequal, though I see now that my original language took you far off track. If segregation as it was practiced at that time and as it was codified in the Jim Crow laws was plainly unequal, then upholding the statutes in question WAS activist, because those statutes, as passed and as enforced, denied people the equal protection of the law. It took a willful denial of the obvious facts in order to uphold a policy position the justices politcally favored... as Justice Harlan's dissent showed.

I never said the law needs to be divorced from facts... applying the law to the facts at hand is the job of judges.

Posted by: PatHMV at January 22, 2006 01:51 PM

Right. "Activism" (as you call it) CAN you far astray. I've never claimed that anything inherent in activism necessarily makes it lead to better conclusions in each and every instance. My view is only that it's a generally desirable lubricant to have available.

Thanks for the quick history lesson/refresher, too. I'll assume you basically have it right. One question though, insofar as it relates to the activism of SCOTUS on Plessy. As someone far more familiar with the historical practice of law in America, what would you say about how zealously scrupulous past courts and lawyers were in precisely following the rules? MYy uninformed asumption is that in the beginning and on into the late 19th century such zealousness and consistency varied greatly. In other words, judges of this distant past may well have been more prone to doing "as they pleased," or blatantly doing the bidding of the powerful, like if the President sent them some marching orders.That's what Cowboy movies love to suggest, but how true is that?

Even if that's right, or close, I wouldn't go on to suggest that we've necessarily had a steady upward climb as time has passed, but from time to time I wonder if there's some sort of entropy or ossification of the system going on, so that the system could evolve into such a stalemate that if we keep the constitution just as it is without any changes for another century or two, that'll be a problem. We might even end up with internal contradictions in different areas, without real resolution. We could get some sort of balkanization.

But I have no way of knowing, and it is just as likely that activism could lead to balkanization and internal contradiction. What I really wish to see preserved more than anything in the constitution is some plausible logical coherence, but without the result that the little guy gets ground up in the gears of a system too beset by entropy to keep protecting him.

Posted by: bk at January 22, 2006 09:20 PM

Given that this discussion started over your defense of Roe nothwithstanding that it is not supportable as being based on the text of the constitution or the history of the 14th Amendment, I'm not sure what your oft-stated fondness for the "little guy" has to do with it.

Posted by: PatHMV at January 22, 2006 09:36 PM

And in that context, I would point out that a judge with the "conscience" you advocate he use could well decide that a fetus is a "person" under the 14th Amendment from the moment of conception, and thus any law which would ALLOW abortion would be a violation of equal protection. I don't advocate that result, because I don't think that result is warranted by the history and purpose of the 14th Amendment. In the originalist sense, the framers of the 14th did not use the word "person" to include unborn persons (I won't go into here the historical legal reasons for this). But a judge with a conscience could.

Posted by: PatHMV at January 22, 2006 09:41 PM

Pat, my oft-stated fondness for the little guy mostly has to do with being one. And with being very wary of the intrusive power of the federal government, state governments, zealously moralistic do-gooders, and powerful corporations finding ways to dictate employee behavior.

All that has a TON to do with the right to privacy, which is what Roe is ultimately about for anyone that's a civil libertarian.

And in that context, I would point out that a judge with the "conscience" you advocate he use could well decide that a fetus is a "person" under the 14th Amendment from the moment of conception, and thus any law which would ALLOW abortion would be a violation of equal protection.

Pat, how many times do I have to acknowledge that giving judges some creative power entails the risk of both good and bad results? I am not certain it would be the end of the world if we the people were pushed by a judge driven by conscience to step up and decide what rights a fetus has as some sort of person. Suppose a judge were to rule that a fetus is inherently human, and therefore a person. How activist is that really, compared to say, ruling that separate is inherently unequal, which you claim to have NOT been an activist decision? Is a declaration of a relationship of inherence NOT activist when the declaration is something you find obvious and good, but a declaration of inherence can be activist when the declaration is NOT something you find to be an obvious good?

Now I think that the right to privacy established in Roe is one of those good outcomes of what you derisively refer to as activism. Who knows what this finding has served to forestall in the past 30 years? If it were struck down, who knows how much of it we'll ever get back?

I believe in the right to privacy enough that I'd be disappointed to see it struck down by a judge acting fro0m conscience making some plausible ruling, one which you'd call activist. But ultimately, I acknowledge that such possibilities are the price that we'll all occasionally be asked to pay for a system in which it's usually the judges who are called upon to think long and hard and deeply about circumstances which most of the people have largely abdicated there responsibilty to think and feel and consider deeply.

So ultimately my argument for activism is one about accepting the flaws in human nature, yet having some faith in human conscience. I trust these more than elegantly-designed sytems that claim to properly process things in every eventuality. In other words, I see God more in humans than in the systems they design.

Posted by: bk at January 23, 2006 10:09 AM

"So ultimately my argument for activism is one about accepting the flaws in human nature, yet having some faith in human conscience. I trust these more than elegantly-designed sytems that claim to properly process things in every eventuality. In other words, I see God more in humans than in the systems they design."

BK, you are essentialy making the same arguement the defenders of the monarchy did when they opposed a shift to more democratic forms. They argued that a Republican form of government, fettered by all the onerous processes involved in seeking and gaining approval from the populace for governance was doomed to mediocraty. However, a good monarch.... unfettered by all such restictions could achieve heights undreamed of for thier subjects. They happaned to be right, the problem that they neglected to mention was that not all monarchs were good monarchs.....and that bad ones could plunge the nation into the depths of disaster in a heartbeat.

You are right that your system has a higher risk/reward factor then the one Pat and I advocate.... which is exactly why I oppose it. High risk/reward strategies can pay off spectaculary in the short term....but in the long term they tend to be VERY BAD bets. Just like in a game of russian roullette, you pull the trigger enough times.... your bound to get the bullet....and when it comes it's going to be VERY, VERY BAD. Give me mediocraty anyday!

Posted by: cengel at January 24, 2006 12:21 PM

True, but since monarchy is essentially "unchecked" except for the option of a peasant uprising, that's a VERY high risk, which sort of makes the russian roulette analogy an apt one there.

Notice that when I argue for giving SCOTUS judges the leeway to make plausible arguments for what the constitution implies beyond what's actually right there in front of us, I am always quick to add that I'm not arguing for letting the judges do "just as they please," which is what Simon (and I believe Pat as well but maybe not) believe activism is tantamount to.

I think that even with leeway there's substantial checking of the judges prior to them making a ruling, based on the need to make a coherent and plausible case, and the need to come to some agreement with the other justices. Doesn't always work out that way, but it's there. And then after a ruling, there are still checks after that, both by amendment, and by subsequent scotus rulings.

So even if the risks are higher with leeway, my opinion is that since potential errors are correctable and not fatal, leeway is arguably worthwhile.

Posted by: bk at January 24, 2006 03:27 PM

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