A Weblog of Centrist Voices in American Politics
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A Weblog of Centrist Voices in American Politics | |
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June 28, 2006Clear justiceThis is from the redistricting case decided by the Supreme Court today: KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts II–A and III, in which STEVENS, SOUTER, GINSBURG, AND BREYER, JJ., joined, an opinion with respect to Parts I and IV, in which ROBERTS, C. J., and ALITO, J., joined, an opinion with respect to Parts II–B and II–C, and an opinion with respect to Part II–D, in which SOUTER and GINSBURG, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined as to Parts I and II. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined. BREYER, J., filed an opinion concurring in part and dissenting in part. ROBERTS, C. J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which ALITO, J., joined. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which THOMAS, J., joined, and in which ROBERTS, C. J., and ALITO, J., joined as to Part III.I'm so glad they cleared everything up. Posted by Todd Pearson at June 28, 2006 05:10 PM Comments
LMAO. I get dizzy just reading the summary. Yeah, Pat wrote about that over on Stubborn Facts. It reminds me of the time I had to assemble a computer mainframe from unlabelled components, using a mobo manual translated from Japanese by a Frenchman and assembly diagrams in Chinese. You almost have to diagram it out to make sense of it, except it still won't make sense after you diagram it. Posted by: Tully at June 28, 2006 06:05 PMWithin the last couple weeks we've begun to see that Roberts and Alito are, as promised, bringing the Court over to the Right, though Justice Kennedy still reserves the right to be about half as quirky as S.D. O'Connor was when she was on the court. I understand the rationale behind the Tom Delay remapping, but as a strong opponent of allowing parties to work for themselves instead of purely for the people I think it's a bad trend when the states start to redistrict whenever they feel the map is working against them. I am, admittedly, outside the prevailing wind on this site when I have called 2 or 3 times for amendments to the Constitution to deal with certain problems: "Birthright," citizenship, redistricting reform, and term limits, to name a few. The Founding Fathers were the greatest political minds this country has produced, but if they were alive today, I think more than a few would be proposing amendments to strengthen the checks and balances within. And even a Constitutional Convention to do so in the absence of action by Congress. The two most glaring deficiencies in the Constitution are the ineffectiveness of the Impeachment process and the gross manipulation of Redistricting. One sure fire way, to engender greater influence on the extremes from the Center and better deliberation is to have more neutral and competitive House districts. I would have the voters pass on all remapping plans. Failure to get a majority for the plan would require the legislators to go back to square one. No map would go into effect without voter approval. Additionally, any effort to do the map over more often than once a decade by the legislature would have to surpass the strength of the majority that approved it. For instance, if the map was deemed fair by a broad cross-section of the electorate, say 90%, then in order for a new map to be passed under the 10 year mark, a referendum on the new map would have to actually get over 90% of the vote. By contrast, if the map passed with only 55% of voters support then the map could more easily be reformed. And the more likely a remap would actually BE a reform, rather than just a partisan power grab. For those who are quite wary of amending the Constitution for fear of idiot ideas being added, I think the Convention and Ratification processes could be amended to make it a challenge nearly equal to passage through the U.S. Congress by a 2/3rds majority, but just easier enough to facilitate the adoption of term limits for Congress, a simple line-item veto (that is, one requiring only a simple majority of both the House and Senate to override), redistricting reform, and an end to "birth-right," citizenship. I'd also like to see the Attorney General's office be fused with the Vice-Presidency and have it elected in the same manner as the President, in place of the flawed Independent Council law. Many advantages to this. Posted by: Cavalier829 at June 28, 2006 06:29 PMThis whole thing appears to be a jurisprudential mess, with the final verdict being that those redistricting partisan power grabs are legal. I find that revolting. I guess it's legal, but I don't have to like it. Posted by: Rafique Tucker at June 28, 2006 08:40 PMWithin the last couple weeks we've begun to see that Roberts and Alito are, as promised, bringing the Court over to the Right, though Justice Kennedy still reserves the right to be about half as quirky as S.D. O'Connor was when she was on the court.That is rather hard to maintain in light of today's decisions; in the voting rights cases, at very least, the courth as been divided into two implaccably opposed camps; it is highly noticable that the addition of two new Justices to the mix has resulted not in either the Scalia/Thomas camp or the Breyer/Stevens prevailing, or some sort of mushy alliance with the vascillating Kennedy, but rather, the addition of yet another camp, which apparently disagrees with everyone.
[C]laims of unconstitutional partisan gerrymandering do not present a justiciable case or controversy. Justice Kennedy’s discussion of appellants’ political-gerrymandering claims ably demonstrates that, yet again, no party or judge has put forth a judicially discernable standard by which to evaluate them. Unfortunately, [Justice Kennedy] then concludes that the appellants have failed to state a claim as to political gerrymandering, without ever articulating what the elements of such a claim consist of. That is not an available disposition of this appeal. We must either conclude that the claim is nonjusticiable and dismiss it, or else set forth a standard and measure appellant’s claim against it. Instead, we again dispose of this claim in a way that provides no guidance to lower-court judges and perpetuates a cause of action with no discernible content. We should simply dismiss appellants’ claims as nonjusticiable.I agree wholeheartedly. And of course, what tatters of Justice Kennedy's opinion that are still left standing after that blast are themselves flattened by the opinion of the Chief Justice. For all Justice Kennedy's complaints of lack of compactness, that the problem with the new district created by the gerrymander is its (admittedly bizarre) geography (a long narrow stretch of land from the Rio Grande stretching into central Texas): What is blushingly ironic is that the district preferred by the majority — former District 23 — suffers from the same “flaw” the majority ascribes to District 25, except to a greater degree. While the majority decries District 25 because the Latino communities there are separated by “enormous geographical distance,” and are “hundreds of miles apart,” Latino communities joined to form the voting majority in old District 23 are nearly twice as far apart. Old District 23 runs “from El Paso, over 500 miles, into San Antonio and down into Laredo. It covers a much longer distance than … the 300 miles from Travis to McAllen [in District 25].” So much for the significance of “enormous geographical distance.” Or perhaps the majority is willing to “assume” that Latinos around San Antonio have common interests with those on the Rio Grande rather than those around Austin, even though San Antonio and Austin are a good bit closer to each other (less than 80 miles apart) than either is to the Rio Grande.It is sufficient embarrasment that we are forced to rely on Justice Kennedy in cases where he happens to be right, but it is almost intolerable that the disposition of the Court also turns on his view in matters where he is so clearly wrong. * * * Frankly, I have seen nothing in today's decision and subsequent discussions thereof that really pursuades me that my pre-existing views were in error (indeed, I read several things that pursuade me yet further); the courts should, as gracefully (or at least expeditiously) as possible withdraw from this entire messy business, and the expiring provisions of the VRA should be allowed to expire. What began as an admirable and wholly appropriate remedial measure to remove entrenched discrimination has become - with the able and willing assistance of the courts - an institution that "reinforce[s] and preserve[s] for future mischief the [very] way of thinking that produced race slavery, race privilege and race hatred" in the first place. The Fourteenth Amendment was enacted to ensure that blacks and other ethnic groups - or, as it has been construed, any other suspect classification - were not discriminated against; that does not, and in fact, logically cannot be, extended to amount to a requirement for descrimination in favor of. As it has been interpreted by Congress the Court, there is no difference between these propositions, but I think that those who framed the Fourteenth Amendment would be astonished to see that an amendment which -- to paraphrase Our Hero's dissent from Johnson v. Transportation Agency, 480 U.S. -- was intended as a guarantee that race would not be used as a classification to a guarantee that it often will. In my view, the court should recognize this distinction, and hold that as much as Congress has power under §5 to prevent "negative" discrimination, it lacks the authority to enact a scheme of any other kind of discrimination. Naturally, "[i]ndividuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race." * * * Alexander Bickel wrote: The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society ... racial quota derogates the human dignity and individuality of all to whom it is applied; it is invidious in principle as well as in practice. Moreover, it can easily be turned against those it purports to help. The history of the racial quota is a history of subjugation, not beneficence. Its evil lies not in its name, but in its effects: a quota is a divider of society, a creator of castes, and it is all the worse for its racial base, especially in a society desperately striving for an equality that will make race irrelevant.(Bickel, The Morality of Consent, quoted in Richmond v. Croson, 488 U.S. 469) (1989) (Scalia, concurring). For the foregoing reasons, I disagree with what is implicit in the Chief Justice's opinion, and the entire theory underlying the majority's view: I do not believe that a district must concern a certain racial quota to be valid; indeed, I would suggest that if it were shown that it was draw to achieve such a quota, it would for that very reason be invalid. Nor do I believe that the creation of "majority-minority" districts can ever be a compelling state interest, any more so than the creation of "majority-majority" districts can be; "[i]n my view, government can never have a 'compelling interest' in discriminating on the basis of race in order to 'make up' for past racial discrimination in the opposite direction." Consequentially, with regard to the instant case, I would require a showing that district 25 was designed for no purpose other than to discriminate against latinos qua latinos. Since that is clearly not the case here (to the extent there was intentional discrimination, it was against democratic voters, not latinos - who, as Justice Kennedy perversely admits, "have divergent needs and interests, owing to differences in socio-economic status, education, employment, health, and other characteristics," and thus, contra the Chief Justice, neither can nor should be assumed to vote en bloc) I would affirm the judgement of the Court of Appeals. Posted by: Simon at June 28, 2006 08:52 PMI understand the rationale behind the Tom Delay remapping, but as a strong opponent of allowing parties to work for themselves instead of purely for the people I think it's a bad trend when the states start to redistrict whenever they feel the map is working against them.Two more comments are in order on this point: first, it bears noting that the map was working against them; the MSM conveniently omits from their discussion of this case that the GOP gerrymander was in large part a reaction to an even more dastardly gerrymander by the Democrats a decade earlier. The criticism here is not that the GOP redrew the map, it is that instead of simply levelling the playing field again, it went too far in advancing its own interests. Second, I think that far too much of this is a cheap out for the much harder (yet much more practical) fix of imposing term limits. If the concern is - as it should be - a class of professional politicians choosing their own electorate, the appropriate fix for that is simply to ensure that there cannot be a class of professional politicians. If it were left to me, the lines would be drawn in as arbitrary a manner as is humanly (or, in the computing age, digitally) possible, with no regard whatsoever for any factors except geographic compactness or total population. It should be as close to arbitrary as possible, with no consideration of race, gender, income, anything. Period. Posted by: Simon at June 28, 2006 09:11 PMI agree with this part if Scalia's opinion, which really should be blindingly obvious: We must either conclude that the claim is nonjusticiable and dismiss it, or else set forth a standard and measure appellant’s claim against it. They should set forth a standard. They should provide guidance. There's a breach, someone needs to step into it, and the times have conspired to place SCOTUS there. Everyone can't say it's not their problem, it's everyone's problem. Posted by: bk at June 29, 2006 08:53 AM"It is sufficient embarrasment that we are forced to rely on Justice Kennedy in cases where he happens to be right, but it is almost intolerable that the disposition of the Court also turns on his view in matters where he is so clearly wrong." Simon, The Conservative block on the court is more powerful than it has been since before FDR's court-packing scheme, the Republican position prevailed almost completely, and yet you rail against the decision as embarrassing and intolerable? The undoing of the "Living Constitution," is probably only a couple years away with the next couple of vacancies almost certain to come out of the Left (Stevens or Ginsburg) and yet your reaction is not to salivate at the emerging prospect but to rail against the imperfection that is left. Simon, I know this is your issue, but the net result was favorable to the GOP, even if the underlying reasoning was hackneyed. If O'Connor had been on the court, would we even be saying THIS MUCH? I think not. It just feels like its all black and white to you: The throne is in the hands of a usurper and you will not rest until that August seat is returned to the Dauphin. I guess for me its the devil you know vs. the devil you don't. We already know what the Warren Court hath wrought and most of this has been severely impaired by the Rehnquist Court. Now we prepare for the Restoration and I begin to ponder the effect that the past 70 years have had on the Right. If I thought that the Scalito-Thomas wing of the Court was going to restrain ITSELF as much as the minority on the Court I'd have much less intrepidation with regard to the coming change. Instead, we seem to have a very Revanchist Republican Party which isn't really interested in Checks and Balances, but rather in staking their own Divine Right to rule. I don't know if this includes you Simon, but it makes me very nervous when it's the 20% you don't have which is important rather than the 80% you do. If we're not careful we're going to have a situation where the Court bestows the Presidency infinite powers under a state of Emergency and Congress nearly no power at all. I REALLY don't like that. And it bothers me that we have a Republican Party that thinks like this. They didn't think like this back in the 1930's. Bad signs. Posted by: Cavalier829 at June 29, 2006 12:56 PMthe net result was favorable to the GOP, even if the underlying reasoning was hackneyedMy concern is not to whom the net result is favorable, but rather, the underlying reasoning. Hence, it is certainly "embarrassing and intolerable." In any event, I don't think the net result is particularly favorable to the GOP, insofar as it continues to perpetuate the bizarre notion that the Fourteenth Amendment enshrines racial preference instead of enjoining it; such group identity politics is anathema to the GOP's focus on the individual. Thus, while in some superficial way, the decision might comport withe short-term expediency of electoral politics, it certainly does not with the basic principles which the GOP - at least so far as my corner of the tent argues - exists to promote. I would have thought by now that it should be readily apparent to even the most casual observer - and you are far from the most casual observer - that there is no "Scalito". They are different Justices, with different judicial philosophies, and that has been repeatedly demonstrated this term. But then, you maintain that "what the Warren Court hath wrought ... has been severely impaired by the Rehnquist Court," a claim that simply cannot be taken seriously; the Rehnquist court, at best, managed to slow the freight train down, and perhaps uncouple a few of the rear wagons, but it cannot seriously be said to have slowed it down, let alone stopped it dead in its tracks, and still less, to have reversed it. Can you name a single significant decision of the Warren or Burger Courts which has been overturned? Can you name a single doctrine propounded by those courts which has been conclusively and decisively repudiated? You mistake, I fear, a slowing in the rate of evolution for its disanimation. It is far from clear to me that "[t]he undoing of the 'Living Constitution,' is probably only a couple years away," and even less clear that if it were, that which would replace it would be an improvement. Both sides of the court continue to cite legislative history, and as we have seen, thusfar, neither Alito nor Roberts can really be described as Justices "in the mold of Scalia and Thomas" (even allowing, for sake of argument, that those two Justices fit one mold). We will see how events unfold in the next few years, but despite liberal hysteria over this case or over Hudson - and despite the conservative hysteria that will doubtless attend today's Hamdan ruling - it is far from apparent that this is a court moving in the right direction, even if it may be moving right. Lastly, I think it best to conclude on a point on which we largely agree. I think you're absolutely right that in large part, "we seem to have a very Revanchist Republican Party which isn't really interested in Checks and Balances, but rather in staking their own Divine Right to rule." I don't think the majority of the GOP is interested in formalism or methods of judicial activism; indeed, I wouldn't be surprised if the majority of those who claim to want judges in the mold of Justice Thomas have never read a Thomas opinion. It is on display every time you see a Republican claim they want an originalist to apply the original intent - intentionalism being a theory squarely at odds with formalism, discredited and abandoned for over twenty years, and subscribed to by no originalist of whom I am aware. Most conservatives are no more interested in the original intent than they are the original meaning; what they want is conservative judges, and insofar as originalism tends to limit the party in power and more often than not produces conservative results, that's their intellectual cover for what they really want. Of course, that was a neat game when Clinton was in power, but now, the LAST thing Bush wants to do is appoint an originalist to the Supreme Court, which is precisely why he did everything possible to avoid doing so. But none-the-less, Republicans are more likely to accidentally appoint good justices, while Democrats, as I have mentioned before, are sustained and predicated to a large extent on a theory of the Constitution which is at war with the constitution; John Kerry would never have appointed Justice Alito. The best that can be said is that the court is gradually moving to the right. I think that is largely for the best, but it is hardly clear that an overwhelming counterrevolution is underway, or still less, that it is on the verge of victory. Posted by: Simon at June 29, 2006 03:57 PMO.k. Simon, I did go back and look around for your earlier comments on this, because I did remember that you objected to lumping Scalia and Alito together. Please advise me as to any other postings where you have mentioned this. The one I remembered was regarding Zedner vs. U.S. where the issue was the use Legislative history in making Judicial rulings. Scalia is a stickler on this and Alito is not. And Roberts makes you even more nervous. O.k., but have Alito and/or Robert have yet been on the other side of a ruling from Scalia, Thomas, or each other? Even if they arrive at a conclusion from different rationale, they STILL end up forming a block. I accede that you appear to know alot more about the specifics than I do, (partly for lacking where to look, on my part) but if Stevens or Ginsburg are replaced in the next few years by Michael Luttig or Edith Jones, will Breyer, Souter, or Kennedy decide a Supreme Court Case ever again? The current four on the right have yet to break ranks, so is it your point that they'll hold EACH OTHER accountable to their internal differences? Between Scalia & Alito. Alito & Thomas. Roberts & Scalia? I appreciate our common viewpoint regarding the fecklessness of the GOP, but I am still very nervous that this contingent will prosecute the Living Constitution with significant zeal in the next few years. I even mostly agree with you regarding racial preferences as being undesireable, but I find the current right wing thinking on Executive powers to be completely OFFENSIVE, and their commitment to genuine Federalism to be SUSPECT, particularly as it regards the Federal Executive. I'd like to be reassured, but so far, I am not. Posted by: Cavalier829 at June 30, 2006 02:22 PMCavalier, check out my post on U.S. v. Gonzales-Lopez over at Stubborn Facts. Justice Scalia wrote the majority opinion and Justice Alito wrote the dissenting opinion, handed down just this past Monday. The "current four on the right" have indeed broken ranks from time to time. It's not that unusual at all. In Raich, the medical marijuana case, the conservative justices voted that Congress could not criminalize medical marijuana. Scalia joined the more liberal judges in holdig that Congress did have that broad power. In that case, Scalia and Thomas were on opposite sides. That said, the "living constitution" is anathema and should indeed be utterly destroyed as a legal approach. It is entirely undemocratic and involves nothing but a usurpation of power by the Supreme Court from the other branches of government and, most importantly, the people, who reserved for ourselves the right to amend the Constitution way back in 1789. But destroying that as a viable concept does not suddenly mean a rash of unanimous judicial holdings; the proper methods of constitutional interpretation leave ample room for disagreement. Posted by: PatHMV at June 30, 2006 04:00 PMThank You, Pat. And thank you for your post. I'd like to learn as much as I can about this. I have a very rudimentary and general understanding of these things. The internet is seems to be so big sometimes you just don't know where to start, or frankly who to trust (sometimes). Everyone has their own take. I concur with the general thesis of not allowing the Court to become a superlegislature. Where my misgivings come in is when the GOP and the President talk as if they speak for the DECENT people of America and call themselves Judicial conservatives or Constructionists or Originalists and then nominate someone like Harriett Myers who knows only that she wants to overturn Roe vs. Wade. Again, thank you for the leg up. Posted by: Cavalier829 at June 30, 2006 04:35 PMThe people screaming the loudest about Harriet Myers, Cavalier, were the most ardent textualists around. The people who supported President Bush in large part because they wanted more Scalias and Thomases were the ones who got the most upset by that nomination and forced the President to withdraw it. Those are the same people who expect far more from textualist judges than just a vote against Roe v. Wade. Roe v. Wade is a very bad decision from a legal point of view. Poorly reasoned with a poor result, from a justice determined to shape the constitution to his preferred policy choice. But that's a debate for a different day. The one piece of advice I would give is to focus less on what the President or Congress says and more on what they do. To the extent what they say is relevant, then look at the words they actually say, not on what the words their political opponents accuse them of saying. Naturally, that works both ways and is a prescription against being hoodwinked by either side. Stop by Stubborn Facts some time and we'll be happy to educate you to your heart's content. Posted by: PatHMV at June 30, 2006 05:38 PMGonzales-Lopez, as Pat says, and of course Zedner; but also Randall v. Sorrell and League v. Perry, which Alito and Roberts joined Breyer opinions which Scalia and Thomas hated; Youngblood v. West Virginia saw Scalia, Thomas and Kennedy dissent from a per curiam which implicitly included Roberts and Alito, and that's just off the top of my head. There are others. As to whether Souter or Breyer will ever be in the majority again - well, that depends. Just yesterday, we got Clark v. Arizona, written by Souter, joined by Breyer and the "conservatives", dissented from by Kennedy, who was joined by Stevens and Ginsburg. The reality is that even when you see terms full of 5-4 decisions, it really isn't always the same five and the same four. Even Scalia and Thomas, who are so often portrayed as twins, disagree with and dissent from one another's rulings from time to time, on significant doctrinal points. Olympic Airways v. Hussein is a great example of that, as is the case Pat mentioend, Raich v. Gonzales. I even mostly agree with you regarding racial preferences as being undesireable, but I find the current right wing thinking on Executive powers to be completely OFFENSIVE, and their commitment to genuine Federalism to be SUSPECT, particularly as it regards the Federal Executive.Well, those are two different issues. I think we probably agree on the Federalism point, but to be clear: what do you understand to be "the current right wing thinking on Executive powers"? Posted by: Simon at June 30, 2006 06:13 PM Much obliged, Pat. So you find these Textualists to be the unreasonable ones, or the Bush partisans who stuck by Miers? I'm more critical of the latter. For the record I will occasionally confuse people because I'll take rather nuanced positions that place myself outside of either camp. The abortion issue is one. I'm not anti-abortion, but acknowledge the unconstitutionality of the Roe vs. Wade decision, would prefer to see the issue returned to the states, where I believe the choice position would eventually come to predominate. Something that is less likely now after 30 years of having taken the issue out the People's hands, but still, I think probable. Thanks for the invite. Posted by: Cavalier829 at June 30, 2006 06:21 PMSimon, I've always opposed the Bush family. To my mind, W's Presidency has potentially ended Conservatism as I believe it to be. And to be honest, I do lean towards what I understand to be Tom Tancredo's positions on the issues: End Illegal immigration, remove those we can through attrition, and reduce legal immigration to replacement level for a decade. He has also had the balls to vote against BOTH of President Bush's biggest Big Government "Conservative" programs. To actually answer your question, when I say Right-Wing I should probably be consistent by saying Bushite or something like that. And I take his position to be as articulated by Hugh Hewitt that The Consitution gives the President Emergency Powers for as long HE BELIEVES there is an emergency. As I understand the Constitution, the President is authorized to fulfill the terms of the War Resolution passed by Congress. The Constitution gives the President the responsibility to defend the country when attacked, but still obligates him to uphold all laws to which he or any of his predecessors. The Court can invalidate a law of Congress as unconstitutional if it isn't part of its enumerated powers, but what I can not abide is this idea that the President could violate a law simply because HE determines that it hampers him. I don't even think it's within the Court's perview to invalidate a law for this reason. The President's powers to defend the Country are an OBLIGATION not a Presidential Prerogative. He can not prosecute the War on Terror as HE sees fit. Posted by: Cavalier829 at June 30, 2006 06:55 PMI think the Miers defenders got just a bit too bent out of shape about it, but on the whole I felt much more like the critics who held firm for a better nominee. Posted by: PatHMV at June 30, 2006 06:58 PMTo actually complete that sentence that was: ..still obligates him to uphold all laws to which he or any of his predecessors have signed or been overridden on. The President's role in defending the country is not necessarily confined to the law, but can be constrained by it. W., like his father, has contempt for Congress. Even when it is controlled by his own party. Posted by: Cavalier829 at June 30, 2006 07:26 PMI will occasionally confuse people because I'll take rather nuanced positions that place myself outside of either camp. The abortion issue is one. I'm not anti-abortion, but acknowledge the unconstitutionality of the Roe vs. Wade decision, would prefer to see the issue returned to the states, where I believe the choice position would eventually come to predominate.I find myself in a similar position. I am both pro-life and anti-Roe, but I reach those conclusions independently of one another, and they are freestanding. Even if you could pursuade me that abortion is not murder, you will never convince me that Roe should stand. I think that after thirty years of liberal propaganda, it has become very difficult for people to separate out the issues; the proposition has emerged that if one is pro-life, one must be anti-Roe (or, more specifically, one must be anti-Roe in a particular sense: one must be opposed to the result), while if one is pro-choice, one must be pro-Roe. I think that reasoning is extremely silly, because it demonstrates a fundamental incapacity to comprehend the role of the courts. The role of the courts is not to rule on what is or is not good policy, nor to do "justice" in derogation of the law - it is to interpret and apply the laws as they are written. There is no reason why someone's normative view on abortion must control their jurisprudential view of what the Constitution says to abortion. Posted by: Simon at July 2, 2006 02:31 PM Simon, I appreciate your comments, thank you. You asked about my current opinion regarding Executive powers under the Constitution. Does my assessment comport with your understanding of the Constitution? I was watching one of those Fox News programs this weekend when Fred Barnes (a true Yahoo if ever there was one) addressed this very issue. He mentioned how both Lincoln and Roosevelt had availed themselves of extraordinary Wartime authority. I have always been of the opinion that these uses were outside the Constitution and that it simply has no mechanism (outside of an unlikely impeachment) for reigning a President in. Andrew Jackson also ran into something like this and when faced with a Supreme Court decision that was in conflict with his policies. Jackson was reported to have said regarding the Chief Justice, "Let him enforce the decision." 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