Monk

I see the old American jurisprudential debate beats on, whether the U.S. Constitution can be interpreted by justices on strictly textual and historical grounds, or whether the Constitution embodies a living spirit that is to be interpreted by the best lights of each new generation. The subject was one of my passions during my own school days decades ago. It seems kind of dead to me now, but perhaps not entirely. The flashpoint in the debate today is between Justice Antonin Scalia and Judge Richard Posner. We'll get a taste of it from a third-party observer, albeit one who sides entirely with Posner, as I do, believing that 'conservatives' or right-wingers, such as Justice Scalia, simply like to claim more legitimacy and objectivity for their positions than is genuinely warranted and merited.

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The sources of constitutional law are vague (due process, liberty, equal protection, etc.,), the history of provisions almost always contested (does the Second Amendment apply to just militias or to people), and the Court is not bound by its own cases and frequently the law of the Constitution changes as the Justices and their politics change. The reason why Justices Scalia and Ginsburg (they are friends) disagree on almost every contested issue of constitutional law is not because one applies better canons of construction than the other or one is a better legal interpreter than the other, but because they embrace different personal values and life experiences. Posner knows this, described how the Justices decide cases in his book How Judges Think, and being an appellate judge himself wants to set the record straight when it comes to the relationship between judicial discretion and the resolution of hard legal issues. Posner knows that Scalia's public misstatements on this issue carry a great cost.

The drafters of the Fourteenth Amendment did not believe racial preferences for blacks violated the Equal Protection Clause yet Scalia, despite his alleged devotion to originalism, has never voted to uphold an affirmative action program. The drafters of the First Amendment believed that corporations had no legal status separate from the rights given them by the state, yet Scalia claims corporations have the same First Amendment rights as natural persons. And, just to be politically neutral about all this, the founding fathers would not have recognized flag burning as "speech" protected by the First Amendment, yet Scalia voted to reverse the conviction of a flag burner on First Amendment grounds. Scalia relies no more (or less) on text or history than any other Supreme Court Justice; he just indignantly claims that he does.

-- Eric Segall at The Huffington Post

"In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax."

-- Chief Justice John G. Roberts Jr.

Thus spoke the chief justice in the majority opinion upholding Obama's universal healthcare law. Which has been a bit of a shock. Expectations were running heavy that Roberts and the Court would trash the healthcare law with its individual mandate for people to purchase health insurance. Even so, I cannot feel celebratory. This healthcare law is actually more of a Republican animal. It is what the Republicans proposed as a compromise for universal healthcare, that is, until they decided that they might not need to compromise at all. We still keep the pointless middle-men, the private insurers, in the game; we have to get our healthcare through them. Personally, I could not afford their product before and I cannot afford it now. Some are apparently arguing that we may need to re-evaluate Roberts, that maybe he is not a hardline ideologue after all. I don't think we need to do much rethinking. Great, he is not foaming at the mouth like a "Fox and Friends" devotee and Rush Limbaugh dittohead, but conservatives and Republicans need not feel betrayed.


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Many scholars have said that Chief Justice Roberts sought to balance his own conservatism with his desire to build faith in the law and the nation’s legal institutions. But it was still striking to hear Mr. Roberts, who arrived on the court in 2005 appointed by George W. Bush, announce the upholding of the central legislative pillar of the Obama administration. He did arrive on the bench asserting the desire to restore the court’s reputation and reduce partisan rhetoric. But he was seen by many, at least on the left, as a right-winger more devoted to conservative politics than the purity of the law. That could change.

“This could be a huge day in the evolution of Chief Justice Roberts as a great chief justice,” Laurence H. Tribe, the liberal Harvard law professor, said. Mr. Tribe, who taught Mr. Roberts, said he had not opposed his nomination because he believed Mr. Roberts was less of an ideologue than many charged. “I have some sense of gratification,” he said.

In the past, especially on campaign finance law but also on other socially sensitive issues like abortion and affirmative action, Chief Justice Roberts has not shied away from leading a conservative redraft of previously established law, causing some to accuse him of judicial activism.

But in this case, by referring to Congress’s power to impose a tax rather than a mandate, Chief Justice Roberts used the Obama administration’s backup argument about what makes the health care law constitutional.

But in this case, by referring to Congress’s power to impose a tax rather than a mandate, Chief Justice Roberts used the Obama administration’s backup argument about what makes the health care law constitutional.

If President Bush ends up ruing the day he placed Mr. Roberts in his position, he would not be the first. His father appointed David H. Souter to the court and he ended up a mainstay of the court’s liberal wing. Dwight D. Eisenhower was said to have called his appointments of Earl Warren and William J. Brennan Jr. two of his biggest mistakes.

-- Ethan Bronner at The New York Times

I am going to close out my coverage of Jeffrey Toobin's article on Justice Clarence Thomas with his own closing section that draws the general conclusion about Thomas and the real threat that such reactionary jurisprudence has for us, as being the judicial path of wiping out all the progress we have seen with FDR and the New Deal, herding us back to the Raw Deal of the rule of money, as though such would be the true realization of liberty in our country, as though the only faithful measure of liberty is the freedom of the wealthiest people to do as they please with their property, without regard to the social welfare of the general population.

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In today's excerpt, Jeffrey Toobin gives us a pointed discussion on Justice Thomas's provocative judicial philosophy, in which he does not feel bound by decades of precedent, as he comes to the legal cases fresh with his own idiosyncratic understanding of what the Constitution means - a loose cannon rolling around on the deck on the ship of state. All the worse, in spite of being a black man who avows to know injustice and inequity in American society, he take up the most reactionary perspctives on Constitutional history. Toobin goes into some detail on the recent history of the Second Amendment and the right to bear arms, giving us a revealing example of how this reactionary influece can have such a deep and profound impact on our law and society and our sanity. One can wonder if Thomas really is bitter and hate-filled toward this country and is ingeniously seeking to sow the seeds that will tear it apart and destroy it, except no one can believe that Thomas is that smart.

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Jeffrey Toobin, the legal analyst who gave us that great book on the Supreme Court, "The Nine", gives us an extended article on Justice Clarence Thomas, who has to be the most controversial member of our highest court.

Ah, I remember well the tumultuous start, back in the early nineties, when his confirmation hearings in the Senate was itself a firestorm of controversy over Anita Hill's allegations of sexual harassment. We knew then he was a firebrand right-winger, and after twenty years, it is evident that we only underestimated the reactionary force he would become on the Court.

I'm going to serialize the article, breaking it down into parts for multiple posts, which I'll probably start doing from now on when it comes to long articles, instead of forcing it all into one post.

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It's been a while since we've gotten any dope on speculations and hand-wringing over the composition of the Supreme Court. It must be getting close to election year. Hey, it's just another year and a half away. It's like Christmas: you can never begin too soon!

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On election night 1980, after the scope of Ronald Reagan’s landslide became clear, a major television network solemnly reported that Justice Thurgood Marshall had told friends that he planned to step down from the Supreme Court and allow the defeated president, Jimmy Carter, to nominate a successor. I was serving as a law clerk for Marshall at the time, and can state categorically that nothing could have been further from the truth.

This bit of history comes to mind because of the growing chorus calling for Justice Ruth Bader Ginsburg to step down. A recent Associated Press article related what “Democrats and liberals” consider a “nightmare vision of the Supreme Court’s future” -- to wit, that President Obama loses his re-election bid, and Ginsburg, now 78 and the oldest member of the court, retires due to ill health. The horror story continues: “The new Republican president appoints Ginsburg’s successor, cementing conservative domination of the court.” The solution seems to be that Ginsburg (and Stephen Breyer, 72, second-oldest among the justices appointed by Democrats) ought to leave the court now, “for the good of the issues they believe in.”

-- Steven L. Carter for Bloomberg

In a November oral argument about a California law restricting minors from buying violent video games, Justices Scalia and Samuel A. Alito debated whether the ratifiers of the First Amendment would have thought that it protected portrayals of violence.

“What Justice Scalia wants to know is what James Madison thought about video games,” and if “he enjoyed them,” Justice Alito said sarcastically. Justice Scalia shot back, “No, I want to know what James Madison thought about violence.” The dispute will be resolved in the opinion, to be issued later this year.

-- Jeffrey Rosen for The New York Times

It's been while since we've done something on the Supreme Court and originalism. Rosen gives a good overview, including the issue of whether conservatives, such as Scalia and Thomas, only truly favor originalism when it comes to Tea Pary-ish agendas and are willing to turn it aside if a liberal result would be more appropriately called for.

Seeing Sotomayor being discussed this morning, I'm reminded of a concern of mine. She has been fond of noting how important her being a latina woman is for her jurisrudential perspective. The controversy has been on the racial aspect of this, as the right-wing tries to cast her as a racist, or a reverse-racist. But it dawned on me that this Catholic woman could be a vote against pornography, and maybe against such thrills as violence in video games. I have no concrete indication that this is the case, but it would be ironic if the Obama Administration, upon which so many liberal hopes have soared, should be the one that kills the music.

"We can't have a single philosophy. The most dangerous thing in the world is to have a judicial philosophy. And the reason is there's no one philosophical system, at least in my experience, for the interpretation of statutes--and God knows, for the American Constitution--that is going to be able to work regardless of all circumstances."

-- Justice David Souter

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Like the other justices, Breyer knew the famous question that William Brennan used to ask his law clerks. What's the most important law at the Supreme Court? The clerks would puzzle for some time. Freedom of speech?... Equal Protection?... Separation of powers?... until the justice would raise his tiny hand and say, "Five! The law of five! With five votes, you can do anything around here!"

-- The Nine by Jeffrey Toobin

If you haven't jumped on the bandwagon on this one, and you have any appreciable interest in the Supreme Court, it is time to jump and get this book.

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