Constitution in trouble

[Hawkmoon]

I just found an article about a visit by Justice Sotomayor to Northwestern University School of Law:

http://www.nationaljournal.com/sonia-sotomayor-on-dating-deciding-and-being-the-newest-supreme-court-justice-20110308

The part I found (most) distrubing was this, toward the end of the article:

As Robert Bennett, a former dean of the law school, correctly put it later, "This is a woman who speaks her mind, is very open and still gives the impression that she's learning on the job and not ashamed of that."

She was also willing to admit that oral arguments before the court -- even after she and colleagues have done substantial homework on an individual case -- are enormously influential in how she winds up in voting. Other colleagues, such as Justice Antonin Scalia, may often depict matters, such as constitutional questions, as rather straightforward, given their pre-existing interpretation of the constitution.

Sotomayor gave the sense that she's more intellectually open and fluid. "I find that very refreshing," said Bennett, who had introduced the justice to the assembled.

Translation: Sotomayor is one of the "new breed," who view the Constitution as a living document that should be "reinterpreted" to suit her particular social agenda. And the author of the article should be taken behind the woodshed and horsewhipped. To imply that Justice Scalia, one of the greater legal minds currently sitting on the SCOTUS, is somehow shortchanging the process by considering constitutional issues on the basis of what the Constitution says is so intellectually dishonest I'm surprised that even a liberal editor would allow it to appear in print.

Comparing Sotomayor and Scalia and implying that SHE is the more "intellectual" of them is ... is ... is ... words fail me.

[lee n. field]

Translation: Sotomayor is one of the "new breed," who view the Constitution as a living document that should be "reinterpreted" to suit her particular social agenda.

Are you surprised?

[MicroBalrog]

Scalia may be more conservative, and more witty, but he's never struck me as an epic intellectual giant.

[MechAg94]

Scalia may be more conservative, and more witty, but he's never struck me as an epic intellectual giant.

As opposed to whom?

[MicroBalrog]

As opposed to whom?

Clarence Thomas, for one.

[Hawkmoon]

Neither Scalia nor Thomas even approaches being an intellectual giant, but implying that Sotomayor is in any way intellectually superior to Scalia is absurd.

[Perd Hapley]

Other colleagues, such as Justice Antonin Scalia, may often depict matters, such as constitutional questions, as rather straightforward, given their pre-existing interpretation of the constitution.

Sotomayor gave the sense that she's more intellectually open and fluid.

Comparing Sotomayor and Scalia and implying that SHE is the more "intellectual" of them is ... is ... is ... words fail me.

Fret not. You're just looking at this the wrong way. He said that Scalia has a pre-existing interpretation of the Constitution" and that Sotomayor is more "intellectually open." Properly translated, he's saying that Scalia has studied the Constitution, and knows how to interpret it. And "intellectually open," just means "hasn't figured things out yet, so still open to a variety of contradictory interpretations, most of them wrong."

Now he may not realize that he said that, but he's probably a leftist, so you can't expect him to understand much.

[Hawkmoon]

Ah, je comprend. I failed Newspeak 101.

You're saying that "intellectually open" = "hopelessly confused." Got it. (Why don't I feel better now?)

[RoadKingLarry]

Neither Scalia nor Thomas even approaches being an intellectual giant, but implying that Sotomayor is in any way close to being intellectually equal to Scalia is absurd.

FTFY

[De Selby]

Neither Scalia nor Thomas even approaches being an intellectual giant, but implying that Sotomayor is in any way intellectually superior to Scalia is absurd.

How did we measure Sotomayer's intelligence compared to Scalia's?

The "living document" versus "strict interpretation" argument is a bit tired.  There's no one on the Court who thinks the Constitution should be re-interpreted to suit a social agenda; the only Court that ever held that position was the one that yielded the dirty word of Lochner. 

The great irony of the Constitutional debate is that the most obviously agenda-drive decisions have all been in favour of right wing or conservative causes - the "right to freedom of contract" being a prime example.

[MicroBalrog]

The "living document" versus "strict interpretation" argument is a bit tired.  There's no one on the Court who thinks the Constitution should be re-interpreted to suit a social agenda; the only Court that ever held that position was the one that yielded the dirty word of Lochner. 

Seriously now?

Is this a magical America in which Oliver Wendell Holmes was never born? Can I live in that reality? Can I has greencard to magical alternate America plox?

[De Selby]

Seriously now?

Is this a magical America in which Oliver Wendell Holmes was never born? Can I live in that reality? Can I has greencard to magical alternate America plox?

Uh, no, this is the America with the same Oliver Wendell Holmes dissented righteously in Lochner (and decided not so righteously in Buck v. Bell).

[MicroBalrog]

Uh, no, this is the America with the same Oliver Wendell Holmes dissented righteously in Lochner (and decided not so righteously in Buck v. Bell).

O. W. Holmes was a believer - and he stated it numerous times - in a living constitution. This isn't some dubious idea of mine, this is something reflected numerous times in his letters and opinions.

For example:

"The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [252 U.S. 416, 434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved.""

[MicroBalrog]

Uh, no, this is the America with the same Oliver Wendell Holmes dissented righteously in Lochner (and decided not so righteously in Buck v. Bell).

Why is it that you so fiercely want this to be about Lochner?

[De Selby]

Why is it that you so fiercely want this to be about Lochner?

I used that case to refer to the period in the Court's history where it was activist - you seem to be challenging that assertion by citing the example of a Justice from the Lochner Court.  I'm a bit confused; are you disagreeing or agreeing here??? 

That was precisely my point - Holmes & Co. represent the time in the Court's history when it was blatantly activist.  And for the most part, their blatant activism struck right. 

[longeyes]

The "living document" versus "strict interpretation" argument is a bit tired.  There's no one on the Court who thinks the Constitution should be re-interpreted to suit a social agenda; the only Court that ever held that position was the one that yielded the dirty word of Lochner.

The complexity involved in applying law to specific circumstances is not the same thing as relying on one's own personal worldview and set of values rather than the law as written.  Judicial activism is intellectual narcissism.

[MicroBalrog]

I used that case to refer to the period in the Court's history where it was activist - you seem to be challenging that assertion by citing the example of a Justice from the Lochner Court.  I'm a bit confused; are you disagreeing or agreeing here??? 

That was precisely my point - Holmes & Co. represent the time in the Court's history when it was blatantly activist.  And for the most part, their blatant activism struck right. 

I disagree with your idea that Lochner is somehow blatantly anti-constitutional, yes.

But more to the point, in my view, the Court remains blatantly activist. Certainly Scalia is.

[Hawkmoon]

The "living document" versus "strict interpretation" argument is a bit tired.  There's no one on the Court who thinks the Constitution should be re-interpreted to suit a social agenda;

Of course there is. Perhaps the operative word isn't "social agenda," but Breyer and Ginsberg clearly and openly believe that the Constitution needs to be interpreted and applied through the lens of contemporary language and mores rather than viewed in accordance with the original intent. Souter was much the same, as was (to a lesser extent) O'Conner.

[De Selby]

Of course there is. Perhaps the operative word isn't "social agenda," but Breyer and Ginsberg clearly and openly believe that the Constitution needs to be interpreted and applied through the lens of contemporary language and mores rather than viewed in accordance with the original intent. Souter was much the same, as was (to a lesser extent) O'Conner.

That really doesn't explain their jurisprudence.  Rather, you will find that they think the original intent of the document was to suit the times by establishing principles; application of the basic principles only makes sense in reference to current issues. 

They also note, rightly, that original intent is sometimes in dispute.  It's not possible to decide every case with a simple reference to intent; they generally do a good job of reviewing legal histories and acting in accordance, though


Can we get some examples of recent "activist" decisions to discuss?

[MicroBalrog]

Define 'recent.'

Really really recent?

Gonzales v. Raich.

The Heller dicta, to an extent.

Both are examples of why I dislike Scalia, to boot.

[De Selby]

Define 'recent.'

Really really recent?

Gonzales v. Raich.

The Heller dicta, to an extent.

Both are examples of why I dislike Scalia, to boot.

I'm not sure how either of those decisions can be seen as "activist" - Raich was a foregone conclusion before it even hit the court. They would have been reversing law that's been settled since Marshall to rule any other way.  It would have been hard to do that without being activists.

Can we hit on some of the Heller dicta?

Scalia's problem is that he likes rules, bright line ones, so much so that he ignores individual facts to the detriment of the law.  It's not an "activist" approach; it's more judicial management that seems to interfere in his judgments.

[MicroBalrog]

I think both of them are activist in the sense that the Court ignored or avoided the text (I frankly think textualism  is superior to originalism) and/or original meaning of the Constitution to uphold a policy preference. An important policy preference (I say it without irony) but an important policy preference nonetheless.

[De Selby]

I think both of them are activist in the sense that the Court ignored or avoided the text (I frankly think textualism  is superior to originalism) and/or original meaning of the Constitution to uphold a policy preference. An important policy preference (I say it without irony) but an important policy preference nonetheless.

Highly recommend Rakove's Original Meanings on this topic.

Reviewing most of these decisions, I do not see an obvious policy bias.  It may be that greater familiarity with the past case law makes it harder to see a policy, because the outcome is more predictable for any given case.  I would recommend reading all of the citations in these judgments before you make a call on the policy preferences of the authors.

[MicroBalrog]

I am not talking about judicial activism in the sense of 'judges disregarding precedent' or 'judges disregarding the opinion of the legislature'. I have no problem with judicial activism in that vein. This is the judges' job.

Which brings us to the current problem. There is an established body of laws, regulations etc. that has accumulated over decades under an expansive view of the Constitution, started out by those same Holmeses and Braideises in the 1930's. It has gone so far now that had we abandoned the 1940's expansive interpretation of the Constitution now, everything would come crashing down in a pile of smoke and fail.

Clarence Thomas had once explained that up to 70% of the Federal regulations would be unconstitutional in a strict reading. This might be wrong if you evaluate them page by page - I am not an attorney - and perhaps the real number is more like 10%.  What's certain is that this would alter the social fabric of our society in various ways, and the Court would be seen as politically responsible.

This preference by the court to keep the long-standing system, even if it is, on its face, in conflict with the Constitution is in itself a policy preference. With Scalia, we've often seen his policy views as a conservative further bias him (like taking the reverse of the position he took in Lopez during Raich, for example).

[KD5NRH]

It has gone so far now that had we abandoned the 1940's expansive interpretation of the Constitution now, everything would come crashing down in a pile of smoke and fail.

This.  Dump Wickard v Filburn (and subsequent cases based on it) and the lion's share of Federal regulations are in the toilet.  As much as I'd love to see it happen tomorrow, the unholy mess that would happen as states, people and businesses tried to adjust would end up costing trillions.  Several other cases would have similar effects, if to a lesser immediate extent.  The backlash could be so strong as to result in the Constitution being amended to legitimize those abuses, which would be even worse.

The problem is that, unless we can get a court willing and able to reverse things carefully, they're going to keep getting worse until something happens to push it over the edge.