Kagan, the SCOTUS, and You!

Apologies for being a bit slow to react on some political stuff that’s happened lately. Moving is hard, moving is hard. There are many boxes; where the hell is my hammer? (With additional apologies to Li Po for butchering his lovely “The Hard Road” for my own sordid purposes.)

So Elena Kagan has been sworn in as the 112th justice of the Supreme Court. I have mixed feelings about this. Much as I’m glad to see another woman — and a New Yorker! — on the court, I’m concerned that Kagan (despite weeks of Republican freakouts over her “extreme liberalism”) is contributing to the court’s drift to the right. The justice she’s replacing, John Paul Stevens, was a solid liberal; Kagan herself appears to be a centrist. While in a vacuum I’d generally consider a centrist to be a good thing, in the context of this court, I can’t see Kagan as much of a counterweight against the hard rightward drag of Scalia and Thomas. Now, I’m not Scalzi and I won’t even pretend to be a centrist myself… but regardless of my personal politics, I think we all need that counterweight right now, given some of the more blatantly partisan decisions the court’s made lately.

So I’m going to try and focus on the positives… and hope that Kagan, like Stevens, turns out to be the surprise liberal the court really needs right now.

Thoughts on Kagan? Remember, Kate’s just itching for her chance to swing the Mallet, so keep it civil please.

82 Comments on “Kagan, the SCOTUS, and You!”

  1. As a true centrist (Scalzi is clearly left of center), I am amazed at how people interpret court decisions. If they agree with it and it is what they want to happen, then it is a smart decision. If it is not, then it is biased and politically motivated. Lets face it most people do not want the court to make decisions based on constitutional laws, they just want a decision to be what they want.

    Kagan is clearly left of center. Only a total left winger would consider her a moderate. It is similiar to Rush Limbaugh calling John McCain a liberal.

    The court is really not right. It has 4 conservatives, 4 liberals, and Justice Kennedy who is all over the place. Most important decisions will come down to what Kennedy had for breakfast that day.

  2. You crazy Americans and your “supreme” court!

    Ok, so in my country judges have to wear wigs and weird robes, but seriously – supreme judge for life? This is the system that you think makes fair judgement over the most important issues in American society?

    Ha ha, no really, keep them coming. Your notions of left-wing and socialism are also killing us! Comedy gold!

  3. Why Nora, why? I was happy and content with the mallet safely ensconced under my bed!

    *stands ready*

    Just for the record, I will moderate comments with a pretty heavy hand. If I can’t tell you are joking, your comment is getting hit.

    2.)Pete – Let us try to keep it on topic please. We can use your comment as a warning to others. If you can’t discuss the post without attacking well, anything, you don’t get to comment. Nora asked about your thoughts on Kagan and what she means to the SCOTUS.

    3.)Ibid — That comment would totally be a contender for some loving correction, if it weren’t completely ridiculous. :)

    Keep it clean and intelligent people. Most of you have proven that you are capable of doing this. Don’t prove me wrong.

  4. A court that somehow interprets the first amendment free speech as both (a) applying to the spending of money and (b) applying to corporations is… well… beyond words. It was certainly a massive leap off the cliff away from our democratic form of government to a new plutocratic order.

    Unfortunately, there doesn’t seem to be a way to reverse this trend short of something pretty close to 0 on the probability scale happening (for instance, Democrats controlling both the executive and legislative branches for roughly the next 30 years or so, forcing some of the most right-leaning justices to either retire or pass peacefully from this life during a Democratic administration)

    Also… wtf did Kennedy have for breakfast that morning? Because he should be banned from eating whatever it was ever again.

  5. Why do I have this image of Kate as an anime character with an over-sized hammer?

    As for Kagan, anything that makes the States more liberal is good in my books, being that I’m living in Soviet Canukistan (or Canada to those of you who don’t know the reference/joke) :)

  6. @ 6. K.W

    From my Canikistanian perspective (and I might be wrong) it’s not realy about being liberal, it’s about having an affiliation to one of the two powers-that-be that mine the respectability of the decisions the SOCTUS make. Because Kagan was pulled from a Liberal minded side and pui into power, her decisions will always be seen as biased in one way or another.

    Having centrist people anywhere is, in my experience, almost impossible in the US because of the two party system. You’re either right or wrong… depending on where you stand, of course.

    3+ parties systems have their advantages, such as here in Canukistan, but they tend to give us minoritary governments (such as the one we have right now).

    I thin everything in the US has a political meaning at some level or another.


  7. There’s so much talk out there about centrism and how it’s a worthy trait, either in a given president/judge/congressperson, or for an administration/court/congress as a whole. But the problem is, it’s an utterly meaningless word. “Guess” (#1 above) thinks Kagan is left of center, and I’d guess he’d say the same about Obama. But forty years ago they’d both have been considered slightly right of center. In most European countries they still might be.

    But the ‘center’ of American politics is so rightist right now that a president like Obama — whose ACTUAL POLICIES are pretty indistinguishable from a Reagan or a Bush I — counts as a liberal. Shoot, for the far-right-wingers he counts as a *socialist*! Kind of a funny definition for someone who’s given hundreds of billions of dollars to banks and defines keeping fifty thousand soldiers in a country as a ‘withdrawal,’ but there you have it.

    If we’re going to talk about the ramifications of Supreme Court justice appointments we need to talk about their actual positions and histories, rather than using labels that don’t really mean anything any more.

  8. Kate @ #4,

    You know I love you, baby. And just think, swinging the Mallet makes for a fantastic upper-body workout! Or it would, if it actually weighed anything.

    I’ll be ready to swing too, if it seems necessary, but I have faith in the folks here staying sensible.

  9. As Zhou Enlai is said to have answered when he was asked his opinion of the French Revolution, “Too soon to tell.”

  10. Okay, off-topic… and I’m sure this is a known fact, but I just discovered there’s a hidden image of Scalzi on this page that is only visible when I scroll past one of the host’s comments (i.e. blue comments like N.K. Jemisin’s above, in this thread).

    How is that done?

  11. I am worried Kagan will be more open to expansive executive control than Stevens. Hopefully she’ll prove me wrong, but we could see more decisions declaring torture, unfettered wiretapping, and indefinite detention illegal…

    (not valid outside the U.S., inside parts of the U.S., or if the government says so; no, you cannot say you were tortured or had your privacy invaded because its a secret; yes, we both know it happened to you, but its a secret because the government said so…)

  12. It seems unlikely that we can draw any firm conclusions about the SCOTUS of today from the actions of previous Courts. But if I had to project from recent history, it seems to me that the centrist “swing votes” hold the real power.

    Judges on both sides of the political spectrum largely seem to vote in known patterns, but it’s the few in the middle–the ones who are open to persuasion–who can move a 5-4 vote to one side or the other.

    Thus, centrist is a good thing. But how can we know what label to hang on Judge Kagan until we see how she votes over time?

  13. Nick, that holds true only under a balanced court. If the swing vote determines, 6-3 vs. 7-2, it doesn’t matter.

  14. [SNORT] Stevens is no liberal; he is merely a centrist on a right-leaning court that is part of a right-leaning judiciary.

    That said, where justices “end up” on the Court is always a dicey prediction. Blackmun, for example, was appointed as one of the two conservative “Minnesota Twins,” along with Burger, and ended up moving toward the left quickly (Roe v. Wade) and extensively. Stevens drifted slightly left of his centrist appointment, but is still a clear centrist; Breyer has drifted slightly right of his pre-appointment center-left reputation into the hard center. Conversely, Frankfurter was a supposed liberal lion and ended up on the center-right, trending farther right as time went on, while Black was a former Klansman who ended up the most consistent liberal of the twentieth century (except on religion).

    One thing that I can say: The court has desperately needed a true academic lawyer since Frankfurter left! Even when they’re in the minority (or writing “incorrect” decisions), law professors bring a certain academic rigor to opinion-writing that leaves fewer loopholes for those with ill intent to exploit, and that rubs off in a positive manner.

    Yes, I’m one of those liberals with an expansive view of what judicial review means and should do… and who partially rejects the advisory opinion and minimal decision doctrines. I nonetheless thoroughly believe that The West Wing‘s marvelous fifth-season episode “The Supremes” had it right: If we have a court composed only of the like minded (and that definitely includes the center), who will write the stirring dissent that will be unearthed by a law clerk a few years later when changed circumstances require at least reconsideration?

    Let’s wait and let Justice Kagan establish her own legacy… instead of prejudging her. After all, she influences — but cannot determine — the subject matter of what she decides and the quality of lawyering and facts of those cases.

  15. Kagan is fine in my book. She’s qualified, she appears to be of good character, and she’s the President’s pick. Elections have consequences and the President should get who he wants unless there is some serious disconnect.

    And I agree that the Court just got more “conservative” because I think it would be hard to replace Stevens with someone as “liberal” as he was. I mean just about anybody that the President could have picked would have been more conservative than Stevens. And I’m fine with that.

    I mean Stevens was often too liberal for the liberal wing of the court being the lone dissenter in 10 cases in the ’09 session. (The only other justice with that many lone dissents was Justice Thomas.) Justice Stevens was also the Justice who was least frequently in the majority. Only 63% of his votes were with the majority (and he was also least frequently in the majority of divided cases: 52%). When you consider that 71% of the cases in the ’09 session were decided with only 2 or less dissenters, it is clear that Justice Stevens was pretty far out of step with the rest of the Court.

    So it seems to me, it would have been very difficult to have moved the Court to the Left with this appointment.

  16. As others have stated,I can’t get a read on how Kagan will be in the Supreme court as yet. We won’t know till she starts writing opinions on the decisions she’s involved in. The fact she’s already recused herself from some cases that she had a part of developing for submittal to SCOTUS looks good to me.

    She is smart enough to have dodged the various litmus test traps that congressmen had dangled in front of her. But what can you expect from a panel that was more interested in making speeches than actually asking meaningful questions about Constitutional law. Hearings that supposedly are in place to determine suitability for a positon have become meaningless and we can’t tell from the outside if a Senator is voting his informed decision or just playing the party line. It pays to sound as centrist as possible while being intentionally vague as possible.

    Stephen @ 5 I agree, corporate money equaling free speech? I call Bull**** on that one.

  17. @Peter and Kate: I don’t think its too far off topic to wonder why supreme court justices are appointed for life. Does anyone know more about why that decision was made? I can understand why you would not want to allow them to be reappointed. Maybe 10 year terms? Maybe it is because which supreme court appointments are up might affect elections. However, early on the president was not elected by the people. He was elected by state representatives.

    It is an interesting discussion. I do not like lifetime appointments. It just annoys me that someone can have a job as long as they want and the public has to pay them irregardless. They should have terms.

  18. Pete/Guess,

    If I recall my constitutional history correctly, the life appointment was done because it removes the need to curry favor with the administration in power at the time the appointment expires. Presuming one a) can be reappointed and b) wants to be reappointed, then there’s a concern that a judge might make decisions in favor of the president in office when that judge comes up for reappointment. It’s all, theoretically anyway, about judicial independence.

    The entire idea of a supreme court is a checks and balances thing – it prevents Congress and the president from passing laws that violate the constitution and not having to worry about any review. It doesn’t ensure that the court won’t agree with them and allow a law which later generations view as unconstitutional, but it’s another hurdle in the way.

    AS for Kagan, I share a lot of Nora’s thoughts. She seems too centrist to act as a counterweight, but left-center-right is a simplistic way of looking at issues, so we’ll see. Her complete lack of judicial experience (and hence record) was one of my main issues with her appointment. Yes, it avoids the ‘in 19xx she ruled that…’ debates and distortions, but I instinctively dislike the idea of someone becoming a SC justice for 25 or 30 years who has no record. It’s odd and unsettling to ‘hire’ someone with no experience into a position like that.

  19. Stan @ 14 —

    I was assuming there was more than one centrist or swing vote out of nine — a la Kennedy and O’Connor. But I have to admit that “swing vote” is singular, not plural. So in that sense you are correct.

  20. I guess I’ll be the token conservative on this one…but Kagan’s record – what tiny amount of it we can discern from her actions as dean of the Harvard law school and the causes she championed as Solicitor General – is solidly left of center. It’s obvious Stevens hung on until he could be assured of having his seat be filled by a leftist, and he got his wish.

    As for corporate money equalling free speech, the Left supported it for years, in the form of MSM editorials. Why should the MSM get a free ride over other corporations?

  21. As long as she is honest in her opinions it shouldnt matter what her politics are.

    When facts disagree with personal worldview, partisans (on any side) rarely care about them. Stevens certainly didnt.

  22. 18.) Guess – I appreciate your drive to moderate for me. I’ve got it under control. My issue with Pete’s post at no. 2 is not with discussing term limits. Perfectly acceptable.

    What I don’t want is the conversation to start straying into what some people would consider proper or improper definitions of socialism. That wasn’t the question posed by Nora.

    A good rule of thumb when replying to a question is to focus on the subject of the question.

  23. @Jay #21: The comparison misses several key points:
    1) The first amendment specifically protects the freedom of the press*, of which the MSM is a part. That the language of the amendment saw fit to single out a particular industry is evidence in itself that the writers of said amendment saw a difference between the speech of individuals and the speech of organizations.
    2) Editorials/Op-eds are clearly identified as such in the MSM, not as news or facts, but as opinions (Fox News notwithstanding). The bearer of the opinion is clearly identified in the by-line. And the publisher of the opinion is clearly identified in the masthead of the newspaper/name of the channel/etc. None of these qualifications now affect the general spending of corporate money as “free speech”, and Republicans have stonewalled the passage of any new law that might amend the SCOTUS decision with any such qualifications. Thus, the corporations are now allowed to have a disproportionately powerful “speech” while simultaneously remaining entirely anonymous in doing so.

    But #2 is largely beside the point, anyway. Corporations aren’t natural persons: they exist only at the behest of the government (and, by extension, the people) in the first place, vis-a-vis the granting of their corporate charter and laws that allow for such. Conceivably, the people can dissolve such corporations at their own behest. Except, when we start giving corporations the rights of natural and naturalized citizens, the corporate body becomes inviolate. By reason of their size and financial resources and the authoritative power they weild over many actual citizens (i.e. the employer-employee relationship), a corporation granted any of the rights of citizens becomes something greater than a citizen, de facto.

    To conceive of this as being a desireable result is to be entirely out of step with both the intent and vision of the framers of the Constitution, in every conceivable way.

    *I quote, for the benefit of all: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

  24. Kagan should do fine. I rather like the fact that she comes to the court without a judicial background as a judge as she may well ask questions that should be asked during deliberations that the other judges overlook asking because of their strong judicial backgrounds.

  25. @Guess because in 1787 when the Constitution was written life expectancy was around 40 years. A lifetime appointment likely meant 10 years. No one, back then, could have guessed that we could, or would, double the amount of time we have.

    @Frank: Why does it matter how often he voted with the rest of the Court? We certainly don’t want a bunch of cookie cutter opinion makers on the bench. I would take it a (bad) sign that the court will move toward Thomas.

    And a statistical analysis of any judge in a single term is very prone to be way the heck off. They only heard 79 cases. And you don’t mention that the right wing of the Court voted far more in the majority than anyone on the left. Breyer only voted for the majority 2 more times than Stevens.

    Without context, stats revert to Mark Twain: “Lies, damned lies and statistics.”

  26. I think the politics of the SCOTUS judges are more complicated than you’re letting on. Scalia, for instance, is a conservative on many issues, but his near absolutist position on freedom of speech cuts in favor of liberals on many issues (e.g., flag-burning).

    I’m also not sure I agree that the decision you refer to is “blatantly partisan”, since big corporations give as much (sometimes more) to Democrats as Republicans. In general big corporate donors care more about backing the winning horse in a given election cycle than they do about the underlying principles of the particular candidates.

    We could argue about whether that decision blatantly supports our two party system or not, but there is really no evidence that it favors one of the two major parties over the other.

  27. Sorry, “centrist” is another word which has been kidnapped and tortured into false confessions.
    For me, it jumped the shark terminally a few months ago when the most painfully right-wing Democrats were invariably referred to as “centrist” on the health insurance debate, while there was no stock adjective at all for the bulk of the party.
    “Centrist” now means “traditional, semi-sane Republican.”

  28. Nick from the OC @20

    I was assuming there was more than one centrist or swing vote out of nine

    Actually there is. Both Justices Kennedy and Roberts voted with the majority exactly the same percentage of the time: 71%. And both were justices who were in the majority the greatest number of times for the ’09 seating.

    People who are not familiar with the Court except for what they are told by the media have aquired a number of myths about the left-right leanings of the Court. The reality is a lot more squishy. For instance Shady Grove Orthopedics was a 5-4 decision. Justices Roberts, Scalia, Thomas, Stevens, Sotomayor were the majority. That would be 2 from the “left” and 3 from the “right” and none from Justice Swing-voter. Then there is South Carolina v. North Carolina where the majority was Scalia, Kennedy, Alito, Stevens, and Breyer. That’s two, two and swing. And consider Magwood where the majority was Stevens, Breyer, Sotomayor, Scalia, Thomas.

    When you consider that 5-4 decisions only made up 19% of the decisions in the ’09 sitting, and I just recounted 25% of those decisions, it is hard to talk about ideological “wings” in close decisions.

  29. Stephen @24
    “To be entirely out of step with both the intent and vision of the framers of the Constitution.”

    I will add that I expect Kagan to join the court and be entirely out of step with both the intent and vision of the framers of the Constitution, as have many of the judges during its history. Supreme court justices for the court’s history have pretty much redefined a document that set limits on Federal power leaving most power in the hands of the States and people. Now all the power pretty much resides at the Federal level whenever the Feds legislate anything, and the supreme court has redefined the document to let that happen.

    One example will do. The first admendment says “Congress” will make no law. A judicial doctrine of “incorporation” later arose that redefined “Congress” to mean any level of government. We never admended our constitution with an “incorporation” admendment, ever. Originally some states had adopted state religions, which was fine by the writers of the original constitution. They only wanted to prohibit the Federal government from doing that.

    Kagan will likely follow the crowd of justices before her and stare decisis to accept the doctrine of “incorporation” even though we citizens never amended our constitution to “incorporate” restraints on Federal power down to the states from the Federal level.

  30. YuriPup @26

    I would take it a (bad) sign that the court will move toward Thomas.

    Not in my opinion. Did you read his concurring opinion in MacDonald? In my opinion it was a brilliant analysis of how gun control has its roots in post-civil war racism and how it was that the Privledges and Immunities Clause was specifically written to assure full citizenship to former slaves, which was to include the right to defend themselves from the random lynch-mob.

    And you don’t mention that the right wing of the Court voted far more in the majority than anyone on the left.

    While this is true, as I pointed out in #29, they didn’t do it alone. Or even just with Justice Kennedy.

    47% of the cases were decided with a 9-0 majority and another 9% with a 8-1 majority. As I mentioned only 19% were decided with a 5-4 majorityand many of them were mixed between “conservative” and “liberal” votes. Clearly anything with a majority over 5-4 had to have “liberal” help.

    Besides, the point of my analysis in #16 was simply to point out that it would be difficult to get a new Justice that was not more conservative than Justice Stevens.

  31. About Citizen’s United:

    I am not worried that one party or the other will benefit more, but that one or both of the parties will be warped out of recognition and become corporate lapdogs.

    The US spent about 100 times on marketing in ’08 as all the presidential candidates did (around $50B). Do you think Walmart, spending $1M on a local zoning board election could not sway the entire board to vote its way?

    The economic power of the artificial persons far out weights that of the voting public and, in a generation or two there will be far less moral disapproval of big corporate money directly in elections.

    It really is a step toward cyberpunk’s supra-governmental megacorps.

  32. @29 Frank

    The fact that Roberts/Kennedy are the new ‘center’ doesn’t mean that the court isn’t left or right. In fact, it pretty clearly suggests that the court has rather DRAMATICALLY shifted to the right, as Roberts is basically Rehnquist (but younger), and Kennedy has been an old-fashioned GOP conservative with libertarian flavor for his entire career — and consistently on the right of the court until Alito subbed in for O’Conner.

    So your stats aren’t really support for your position that the court still “swings”. Rather, it’s rather strong support that the current court is very far to the right, and with it the numerical ‘center-point’ is also quite far to the right.

  33. @Gary #30:

    You have evidence that you’re willing to share, then, that the framers of the constitution were fine with individual states having established religions? I would suggest that the supremacy clause, granting the Federal government and the Constitution itself the ultimate authority over matters detailed within the Constitution undermines your argument.

    The issue isn’t really judicial activism, per se – although the decision in question is a gross example of judicial activism. The power of the judiciary to interpret law is pretty much a settled issue. The issue is the fundamental redistribution of rights that can only naturally and logically belong to living beings from said beings to non-beings. It’s logically unsound, it’s principally unsound, it’s legally unsound, it’s socially unsound, and it’s constitutionally unsound. If flies in the face of reason. I accept that the SCOTUS had the power to make this decision. But that does not negate the fact that their decision was wrong.

  34. Gary Willis @30

    Kagan will likely follow the crowd of justices before her and stare decisis to accept the doctrine of “incorporation” even though we citizens never amended our constitution to “incorporate” restraints on Federal power down to the states from the Federal level.

    Um, “incorporation” refers to imposing the Bill of Rights on the States. Thus, through incorporation, the States could not pass any laws that infringe upon the freedoms embraced by the First Amendment. The interpretation of the Establishment Clause is the root of the problem to which you are referring, not the “incorporation” of Rights through the 14th Amendment. And even there, your particular example, I think, was not a poor interpretation of the Establishment Clause.

    But regardless, with incorporating the First Amendment, States would have been able to write laws inhibiting freedom of speech including political speech.

    Ken @33

    it’s rather strong support that the current court is very far to the right

    Which to me just means that you disagree with the Court more often than not.

    It is not really a statement of Left-Right as much as its a statement of how you would like to see things resolved.

    And I would point out that the “left” of the Court gave us the decision in Kelo wherein it was decided that a State could take private property from one individual and give it to another private individual by declaring Eminent Domain, and not necessarily paying the first individual a dime. How’s that sit with you?

  35. That should read “without incorporating the First Amendment, States would have been able to write laws inhibiting freedom of speech including political speech.”

  36. My thoughts on Kagan? I don’t think she’s qualified, and I think her actions while dean of Harvard Law School should have disqualified her. I’ve been equally less than impressed by Sotomayor, and I’m hgoping that Barry O will not have another opportunity to appoint a Supreme Court justice during the remaining two years of his term.

    But now that Kagan is on the Supreme Court, I’m rather hoping that she will be the reverse of David Souter.

  37. I have a few thoughts about Kagan.

    First, I had Justice Kagan as my civil procedure professor at University of Chicago and while I didn’t think she was my greatest teacher (I’m look at you Alan Sykes and David Currie), she was good. More than that, she was engaging, open to debate (I recall her keeping me on the spot for about 50 minutes of a 65 minute class defending the logic in a Scalia opinion — it was fun and terrifying all at once) and happy to hear dissenting views from almost anything. I recall dodging her coup de grace in a different discussion (about Asahi Metals v Superior Court) with the rejoinder “Yes, Professor Kagan, but corporations are people too.” To her both annoyance and delight. Granted, it’s civil procedure, so it’s not quite as policy-political as criminal or torts or even contracts, but even though it was pretty clear that her politics were not my own, I haven’t an unkind word to say about her as a professor.

    Second, to the victor go the spoils. I voted for McCain and while that was not with much enthusiasm, I’d have preferred a McCain choice to this one. That said, there is nothing to suggest that Kagan is anything but well-qualified for the Court. But, with the notable exception of Harriet Miers, there really hasn’t been a nomination made in the last 30 years that was not clearly qualified. That, and absent some corruption or moral turpitude, that’s all the Senate should need to understand. But the same sort of partisan nonsense which opposed Kagan was at play in the opposition to Alito and Roberts (without question, the most qualified nominee in the last thirty years). Even as a small-government conservative, I’m glad the statist Robert Bork isn’t on the Court, but that he was voted down is a travesty.

    Third, 90% of cases aren’t decided on the politics at all. A case on water rights or patent law or most other things don’t really break down neatly on party lines and are had to predict. And as noted above, fewer than 20% of the cases are 5-4. And where they do, they come out oddly (Breyer and Ginsburg vote together more often than Thomas and Scalia, btw). On the stuff where there is a real policy/political issue, my guess is that Kagan comes out solidy left on more social ones and a bit more conservative than Breyer/Ginsburg/Sotomayor on the law and order stuff.

    She’s been a very careful woman, politically and academically and career-wise. I’ll look forward to reading her opinions and now that she’s at the top of the heap, more of her real positions will come out.

  38. Yuripup: Life expectancy for anybody who lived past infancy was well past 40. The Constitution sets the minimum age for the Presidency at 35, for crying out loud, and Ben Franklin was 81 when he was a delegate for the Constitutional Convention. Washington was already 55 when he became President, and John Jay 45 when he became the first Chief Justice. They’d have been surprised to learn that none of them were supposed to have lived past 40.

  39. Frank @31, I don’t see “this justice once wrote an opinion where I agreed with the result” is a recommendation for or against that justice’s record as a whole.

  40. Steven @34
    Evidence? I rather remember that when the Constitution was adopted that three of the states had official state religions. The first amendment of the bill of rights did not change that because the constraint was on “Congress” to make no law establishing religion. The states were free to keep their established state religions. Later they disestablished the state approved religions, but again, that was their individual state decisions. Adoption of the Consitution and the Bill of Rights did not force them to disestablish their state religions. I think that fair evidence that the writers of our Consitution and the Bill of Rights were focused more on constraining in the document what the Federal government could and could not do.

    Frank @35 & 36
    Could a state have limited speech or press back then? None did that I know of but I certainly think they could have. Congress could not, but the states at that time had the power to do so as the Consitution and Bill of Rights was written.

    My point is that I see nothing about Kagan and her public statements or career that indicates she will step up to the table and interpret our Consitution as written to set strong limits on Federal power. She, I think, will be right in there with the rest of the judges continuing to support the acretion of power to the Federal government at the expense of the State governments. The tenth admendment to the Bill of Rights reserving powers not given to the Federal government to the States and/or the People will continue to be mostly a dead letter admendment, even though it has never been rescinded (as we did with the Prohibition amendment).

    May be that we as current citizens of the U.S. want our Federal government to become more powerful as each day goes by. Fine. But, I think we shoud amend the Constitution to make that happen, not just redefine its meaning through the fiction (so often) of interpretation. The first amendment that needs the heave-ho is the tenth amendment. And the word “Congress” in the first amendment needs to be struck and replaced with “Federal or State Government” so that its says “no Federal or State Goverment shall pass a law…”.

    I just find it sad that our justices through the last two centuries have continued to interpret the consitution to enlarge Federal power at the expense of the States and People without saying, sorry you need an amendment to achieve that result you seek on appeal to this Supreme Court. The Constitution is supreme, not us. We are merely the court of final resort.

  41. Gary @41, back then there was no 14th Amendment, and there was still a debate – which the 14th was meant to resolve – about whether citizens of a state were also citizens of the United States. I’m also not sure how the Bill of Rights has any meaning if states are free to ignore it.

    That said, you appear to be criticizing Kagan for following the last two centuries of precedent re the 14th Amendment, rather than taking the radical stance of rejecting incorporation entirely.

  42. Gary Willis

    Could a state have limited speech or press back then?

    Yes. Up until the 14th Amendment, the Bill of Rights could only be levied upon the Federal Government. Now it so happens that most State repeated some of the language of the Bill of Rights in their State Constitutions, but things went uncovered. In fact as late as 1833 Chief Justice Marshell dismissed a 5th Amendment takings case against the City of Baltimore holding that the 5th Amendment only restrained the Federal Government from taking the man’s property. Writing for a unanimous Court regarding the 1st 10 Amendments, Justice Marshall said “amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.”

    And that’s the way things stood until the 14th Amendment came along.

    It was in 1947 that the Establishment Clause of the 1st Amendment was incorporated. And while no State picked a single specific “State Religion” six States had a number of State Religions that were actually supported by tax revenue. Everson v the Board of Education ended that.

    My point is that I see nothing about Kagan and her public statements or career that indicates she will step up to the table and interpret our Consitution as written to set strong limits on Federal power.

    To be fair, the right balance between Federal and State power has been debated before the ink was even dry on the Consitution.

    No reason it should be settled with Kagan.

    And I think she’ll execute her duties with integrity even if it is a given that I will disagree with her at times.

    I would love it if I could count on her to be a supporter of 2nd Amendment Rights, but I’m not hopeful. But then again, I couldn’t count on Stevens vote either.

  43. Left or Right, are rather meaningless as terms when describing a persons/institution’s political persuasion because they are largely dependent upon your personal political perspective and weather or not you think this person(s) is more or less like you. So I don’t think Kagan is going to bring about any real change to the SCOTUS, unless she follows the precedent of her predecessor and is a closet conservative.

    Either way it doesn’t really matter, I can only hope she can maintain so sort of political independence and preserve our system of governance.

  44. 1) I believe that the Presidency and judicial vacancies are a package deal. I believe that the Senators should vote to confirm any qualified nominee, whether Supreme, appellate, or trial — at least, this is how I interpret the phrase “advise and consent.” I think that Senators are justified in voting down a nominee that they believe to be unqualified (Harriet Miers) or that have a history of unethical activities (Abe Fortas). Although I disagree with many of the positions Kagan has taken in the past, I supported her nomination.

    2) As for the court being “right-leaning” in particular (and as a matter of really broad philosophy in general) I think that the judicial branch of the federal government – appointed, life tenured, no electoral accountability – has to be (small-c!) conservative. What do I mean by that?
    * Judges should look at constitutional and statutory texts first, construing these provisions as the people who drafted them would have, not as the judges would. (Legislative history helps here, but is not dispositive.)
    * Judges should respect the “hierarchy of law” (Federal Constitution > State Constitution > Statute > Executive Order > Regulation); but unless a higher level of law directly contradicts a lower level of law, a judge should let the lower level stand.
    * A judge should not read new rights into a constitution; creating new rights is the job of the legislative branch through the amendment process. Once those amendments have been ratified, they are to be treated as part of the constitution and given full effect.
    * A judge should respect the federal structure of our nation. “The powers delegated by the . . . Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.” If the Constitution is silent on something, that this is to be left to the states. But if the Constitution says something is a federal matter, or prohibits a state from doing that thing, then it is their duty to step up and strike down the offending state action. (Which is why the debate over “judicial activism” is not about the substance of the law, but the process used to make it…)

    In short, the Judicial branch is (small-c) conservative because it has (or should have) no ability to change the text or meaning of the law it interprets. It is bound by what others have said and done. Its job, quoth John Marshall, is to state what the law is, not what the law ought to be. If popular sentiment tries to force the law – on any subject – to move from “is” to “ought” without going through the proper process, the Judiciary’s duty, to borrow from William F. Buckley, is to stand athwart popular sentiment and yell “stop!” Changing the law (whether the Constitution or a statute) is the job of the legislative and (to a lesser extent) executive branches, which should be (small-l!) liberal – open to debates over public policy, free to adopt what works and junk what doesn’t, and reflective the will of the people. Any other way, and we don’t have judges, we have philosopher-kings. And the difference between a philosopher-king and a tyrant can be mighty slim sometimes.

  45. MasterThief, if we’re going to the original intent of the drafters, why isn’t legislative history dispositive? And what do we do if “new rights” are really just a rejection of laws that violated existing Constitutional provisions, but existed because they were popular and traditional?

  46. @ mythago: Congressman (especially modern ones), have the nasty habit of using imprecise language. It would make it so much easier for judges – and the rest of us – if Congress would always use words the way they’re defined in the dictionary. When Congress does, the judge’s job is easy – look at the plain text of the law. When they don’t, judges have to play Mentok the Mind-Taker (oooooWEEEEEooooooOOOOO! ;) ), crack open the Congressional Record, and make their best guess on what the hell Congress was trying to say. Legislative history isn’t dispositive because it’s the court’s best guess. (If Congress doesn’t like it, they should be more precise.)

    And let’s not forget that the people who wrote the Constitution/Bill of Rights (c. 1789) and the 14th Amendment (c. 1868) considered “popular and traditional” laws to be… well, “popular and traditional.” But unless they said otherwise in the legal texts they wrote (e.g. 14a = no denial of rights on the basis of rights, end of discussion), then popular and traditional laws stand until superseded by popular and current laws.

    I’d write more but they’re turning the power off here at work in 5 minutes… >_>

  47. I’m curious about the view in the initial post that the current Supreme Court is “blatantly partisan” in favor of the Democratic Party. Under the Citizens United ruling linked, labor unions have out-spent corporations. It seems odd to argue that the Court is favoring Democratic campaign spending too much and that the Court is too conservative.

  48. Mythago @42
    Frank @43

    I like the 14th amendment. Historically, it was adopted to make it clear that no level of government could pass laws that treated citizens within their jurisdiction unequally. But look carefully at Section One.

    “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    None of that language changes the fact that the first amendment was a constraint on Congress. Our privilege and immunity was that Congress could not do certain things with speech, press, and religion. Even with the above amendment, I think the States could still monkey around with speech, press, and religion rights within their State borders. To bind the States to the first amendment, in my view, requires an amendment to the first amendment language itself–that pesky word “Congress”.

    But no! Supreme Court judges bought the argument of incorporation and frankly amended the first amendment to strike the word “Congress” and replace it with “all levels of Government”.

    See my beef with our constitutional history. Our court has time and again amended our constitution by claiming to interpret its language, when really they were changing the meaning of its language. So, we have unelected, life-time philosopher kings in the judges and we can only pray they do not become tyrants.

    I think Kagan will do well and have no problem with her qualifications to serve. I do not think her participation as a supreme court judge will stop or even slow down the court’s acreting power to the Federal government at the expense of the States. We lost our Federalist system a long time ago mostly through Supreme Court action and live now in a pretty much unitary nation where the Central Goverment holds most all the power.

  49. MasterThief @48: you’re surely not saying that the Bill of Rights was written with tight, unassailable language that nobody could honestly misinterpret, and that sloppy statutory construction is a modern evil. (As for dictionary definitions – c’mon. You know as well as I do that long-standing legal definitions as used in, say, Blackstone don’t always match up with their ‘common’ usage.)

    Popular and traditional laws should not stand if they are in violation of higher laws, such as the United States Constitution. The fact that mandated prayer in government schools was very popular before the mid-20th century was not proof that it conformed to the First Amendment.

  50. Kate – I demand a ban count! I’ve been working all day… how many guilty souls has Fluffy the Ban Kitten been fed today?

    Uh oh… is that purring?

  51. mythago @51
    “The fact that mandated prayer in government schools was very popular before the mid-20th century was not proof that it conformed to the First Amendment.”

    My line of argument is that all those State level mandated school prayers were perfectly acceptable under the First Amendment as that amendment only constrained “Congress” not the various States and their subdivisions. Further, the 14th amendment did not remove the word “Congress” as the agent constrained. Thus those mandated prayers were legal after the 14th amendment and should be legal today, until such time as we amend the first amendment to remove the word “Congress” in Congress shall make no law and replace it with “Goverment at any level” shall make no law. Incorporation of the first amendment to the States by way of interpreting the 14th amendment in reality amended our constitution without going through the constitionally mandated amendment process which requires supermajorities of both Congress and the States.

    By the way I agree with your point even though I quibble with your chosen example. The constitutional language does require interpretation measured against specific facts and circumstances in the real world when up against legislative language. But, I do think our court has time and time again gone way beyond simple interpretation of meaning to the re-definition of meaning and thus amended de facto our constitution without our consent through the proper amendment process.

  52. Zubon @ #49,

    I’m puzzled as to how you think Citizens United favors Democrats — or liberals, which is what I assume you mean since you’re mentioning labor unions. Would you care to provide some evidence of how the CU ruling serves liberal interests? I’m also puzzled as to how you can take the relevant sentence from the article you quote so far out of context as to warp its meaning entirely. “Labor unions have thus far outspent corporations in post–Citizens United spending, but that imbalance will likely be reversed by November” does not equal “labor unions have outspent corporations” period full stop, as you stated, nor does it mean that labor unions will be the primary beneficiaries of the ruling, as you imply. This isn’t Congress, remember; you don’t need to resort to rhetorical gymnastics to make your point. We’re all ordinary folks here, so do us the courtesy of arguing in good faith, please.

    As for the partisanness of the ruling, it was a 5-4 vote along the extant liberal/conservative lines of the SCOTUS. Doesn’t get much more partisan than that.

  53. Gary @53, I understand that you have a quibble with the concept of incorporation of the Bill of Rights. But what I was addressing (and I think you agreed with) was the implication by MasterThief that if a court overturns existing, longstanding law as being unconstitutional, that is activism which creates a “new right”.

  54. Mythago @55
    And I concur that MasterThief goes too far in saying overturning existing, longstanding law as unconstitutional is always activism creating a new right. Emphasis on always. Sometimes surely. When the court overturned Plessy vs Ferguson in Brown vs the Board of Education, that was not activism. That was recognizing that in the real world separate but equal never truly happens. The dominate majority gets the goodies and the minority gets the shaft. When Plessy vs Ferguson ruled as an approved interpretation of the equal protection clause of the 14th amendment, white students got new textbooks all over the south. Their used textbooks were given to the black kids. Yeah, they were separate by law, but they were not treated equally in their separatness. Brown vs the Board of Education said, in short, we screwed up in Plessy vs Ferguson. And they did. But they got it right in Brown vs the Board. That was not activism. No new right was created. A good correction interpretation of equal protection was decided.

    But look at Roe vs Wade in 1972. No where among the enumerated powers in the Constitution can you find a right to an abortion as being within the provenance of the Federal government to decide. So the 50 states each had their own laws. Just as the authors of the Constitution and the Bill of Rights intended: the States could differ on rights reserved to them and the People. Were MasterThief to call Roe vs Wade judicial activism and the creation of a new Federal right, I think I would agree. For the record, for myself I am pro-choice pro-life. Meaning I think a woman should make the choice and I think she should choose life giving up the baby for adoption if she feels unable to be the parent herself. But, I have no problem with the 50 states being all over the map on the issue. Abortion is not a Federal right enumerated in the Constitution as something the Federal government has a say over. Wasn’t in 1972 and not today. It is only a Federal right today because the 1972 court said so. At the time I was surprised that Nixon enforced such a blatently unconstitutional decision by the Supreme Court creating a new Federal right.

    So, in short, I think it can go both ways. Sometimes the court oversteps their authority and makes rulings that are just plain wrong and in violation of our Constitution. Sometimes they get it right–they make a correct interpretation.

    I do not subscribe to the assumption that because the Supreme Courts rules it so, that it is then by definition constitutionally correct. Bad assumption. One of the neglected checks over the supreme court’s power is the inherrent power of the executive branch to disregard the court’s rulings when the rulings themselves disrespect and disregard our constitution. The executive takes an oath to uphold the Constitution itself, not every single ruling of the Supreme Court that comes down the pike. Of course, that check on the court by the Executive scares a lot of people. But the check exists nevertheless and in my view has not been used near enough by our Presidents over the past two centuries.

    Were I a betting man, I would wager that Kagan and the other justices on the court do not agree that a President can choose not to enforce one of their rulings. But as was once observed by a President (Andrew Jackson) who actually used that check on the court, “let the court enforce its own ruling.” Jackson refused to enforce the court ruling he felt unconstitutional.

  55. @ mythago: It’s hard to get any clearer than “Congress shall make no law” (which, BTW, is my favorite phrase in all the English language).

    It may, in fact, be that some popular and traditional laws are unconstitutional. But that is not the default rule or an assumption lightly made; the burden of proof properly falls on the people challenging the law, not those defending it. And unless the challengers can justify every one of their premises with reference to the legal text at issue, or failing that, contemporaneous writings from the drafters explaining the text, the courts are obliged to tell them no. It’s like poker. You can play whatever (textual or interpretive) cards you can fairly get your hands on, but the value of each card is fixed, there are only so many cards in the deck, and the rules say that some hands trump others. If your hand sucks, or your opponent has all the good cards, that’s your problem: either play the hand you’re dealt or fold.

    Let’s remember Gary’s point that as originally written, the BoR only applied to the Federal Government. The 14a was adopted after the Civil War to remedy this. (Granted, they did it piecemeal; I think Black’s position in his dissent in Adamson v. California is much sounder as matter of logic and history.) And let’s take your case as an example. It is no great leap of logic to say that a) the First Amendment establishes a right to free speech (it’s in the text), b) the rights in the BoR include their “negatives” (i.e. as a matter of logic, the freedom of speech includes the freedom to not speak), c) the 14a applies these provisions to the states (“No state shall. . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”), and d) a state-run public school is part of the state (duh), therefore, a public school may not compel its students to speak on any topic for any reason. That’s proper constitutional analysis. It takes statutory text at face value, and uses logic that the drafters of the text would have been familiar with to fill in the gaps. That’s a fair hand well-played.

    Side Note: The case you’re thinking of that prohibited school prayer, West Virginia Board of Ed. v. Barnette, was decided on Free Speech grounds, not establishment clause grounds. The decision where Hugo Black (IMO improperly) read the “wall of separation” metaphor in Jefferson’s Letter to the Danbury Baptists into the establishment clause came four years later in Everson v. [Ewing, NJ] Board of Education, a case that had to do with state transportation subsidies to Catholic schools, not school prayer. By way of synergy, that decision is a perfect example of improper constitutional analysis, because it interprets constitutional text through a much later document written by someone who was not involved in the original drafting and for an entirely different purpose. Jefferson wasn’t even involved with drafting the Constitution or the BoR, he was in France the whole time! And his letter was written for PR and politics 11 years after the damn BoR was ratified. This is the equivalent of slipping an extra ace of spades into your hand when the dealer isn’t looking.)

  56. My line of argument is that all those State level mandated school prayers were perfectly acceptable under the First Amendment as that amendment only constrained “Congress” not the various States and their subdivisions. Further, the 14th amendment did not remove the word “Congress” as the agent constrained.

    No, but it did the trick anyway, quite subtly: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Note that the privileges and immunities of citizens of the _United States_ includes freedom of speech, and it’s clear that the 14th Amendment does specifically enforce freedom of speech at the state level.

  57. 7: 3+ parties systems have their advantages, such as here in Canukistan, but they tend to give us minoritary governments (such as the one we have right now).

    In the sense that of the 40 federal elections since Confederation in 1867, Canada has had 11 or 12 minority governments (depending on how you count 1921 – 1925), IIRC.

    Canadian federal minority governments seem to come in strings, when all of the major parties are squabbling over the idiot-ball; usually it’s just N – 1, where N is the number of parties. I’d go into more detail but I understand there’s a ban-hammer here.

    As far as Kagan goes, I’ve always been a bit dubious about the legality of the Treaty of Paris (1783) and so obviously nothing dependent on that is legal. Until such time as the colonies in disarray can be re-absorbed into the framework of the British North America Act and subsequent legislation and have to muddle on outside a proper legal framework, the colonies could do worse than Kagan. She’s not, for example, advocating building real prisons to house virtual criminals (See: Idiot-ball, Canadian federal politics).

  58. nkjemisin @54

    Would you care to provide some evidence of how the CU ruling serves liberal interests?

    It is pretty clear that Citizens United in theory serves both the interests of Liberals as well as Conservatives; that is unless somehow you think that Big Corporations only support Republicans which is demonstrably not the case.

    True, the myth is that Democrats are the army of little folks fighting the evil Corporations but that is only a myth. And you will not see legislation that will curtail Citizens United in any meaningful way since it does potentially serve all politicians interests.

    That being said, companies in general tend to shy away from the type of blatant political action that Citizens United now allows. Unions, however, are a horse of a different color entirely. They not only advocate for candidates, they also supply foot soldiers. And I have never seen this benefiting both parties equally. Or even close. Or even a little bit.

    silbey @58

    Note that the privileges and immunities of citizens of the _United States_ includes freedom of speech, and it’s clear that the 14th Amendment does specifically enforce freedom of speech at the state level.

    One point: The Court has never incorporated any of the Bill of Rights through the Privileges and Immunities clause: The decision in the Slaughterhouse Cases stopped that line of reasoning dead in its tracks (wrongly in my opinion). Rights have routinely been incorporated through the Due Process clause of the 14th Amendment.

    This was reiterated by the Court this year in MacDonald. One of the teams arguing for 2nd Amendment incorporation through the Privileges and Immunities clause was shot down during oral arguments and the case was decided using the now routine Due Process clause.

    It is worth noting that Justice Thomas in his concurring opinion went a long way in rehabilitating the Privileges and Immunities line of reasoning for incorporation.

    How will Kagan come down on this? Only time will tell.

  59. 57: I’m afraid the “side note” is severely mixing lines of authority. Barnette had nothing whatsoever to do with prayer in schools, or indeed with establishment; instead, it was the overruling-by-effect of Gobitis, and concerned individual student religious objections to mandatory recitation of the pledge of allegiance (note the lower case there — it’s on purpose) and to mandatory flag salutes. I think the correct reference is to the McCollum line of cases, even more so than Lemon.

    On “incorporation” in general: Yes, the formal authority for incorporation is the Fourteenth Amendment… but via the Ninth Amendment, which was a necessary stepping stone toward § 2 of the Fourteenth Amendment. And this is particularly relevant on this board, because the various critical free speech opinions relating to written work — not just Jacobellis and Fanny Hill, but the entire line of libel cases leading up to Sullivan and since — implicitly depend upon concepts in the Ninth (and, to an extent, Tenth) Amendment’s conception that “the rights we guarantee are minimums, not maximums.”

    Too, arguing about “incorporation” doctrine is not really relevant to a particular newly confirmed justice; if you really want to see why, just contrast Frankfurter and Black, or Stewart and Fortas!

  60. C.E. Petit

    Too, arguing about “incorporation” doctrine is not really relevant to a particular newly confirmed justice; if you really want to see why, just contrast Frankfurter and Black

    Good point. On the other hand, Black pretty much prevailed in effect, in the end.

    With the exception of the 3rd and 7th Amendments (and parts of the 5th and 8th) all of the Bill of Rights has been incorporated.

    I would not discount the effect of another advocate for using the Privileges and Immunities clause could have. I mean really, the biggest argument against it is it would be really hard to adjudicate. I mean lord knows what rights people might acquire if that dog ever got out of the cage, eh?

  61. MasterThief @57: Are you arguing that the Framers meant to do away with laws concerning libel, treason and assault? Or that death threats are protected speech? And surely you’re not going to tell me that it’s perfectly clear what the Eighth Amendment means.

    I’m surprised to see you defending the penumbra theory of Constitutional interpretation – which is really what the ‘logical’ extrapolation is in part b) of your analysis. Either you’re a textualist or you’re not, and if we’re going to read in ‘logical’ rights that aren’t specifically enumerated, then, as the joke goes, we’re just haggling over the price.

    Re school prayer, I actually wasn’t thinking of a specific case, but pointing to something that pretty clearly raises constitutional issues (government schools mandating attendance and then requiring prayers of a specific faith) that was, nonetheless, quite popular and the decision of the Supreme Court to overturn that practice was unpopular. Jim Crow laws are another example. Whether a law is “popular” is irrelevant to Constitutional analysis, and whether the issue might be resolved legislatively is also irrelevant to “is this a proper action by the Court?”.

  62. Do you think Kagen was nominated by President Obama because he thought she would strictly construe the Constitution as intended by the Framers?

    No – he knows well that her worldview matches his. If yours does, too, then naturally you find her to be a reasonable choice.

    For those of us who don’t share the President’s vision of how American should be changed, and what it should be changed into, Kagen is a chilling reminder that Obama’s vision will continue to be imposed upon us long after he’s gone.


  63. Do you think Kagen was nominated by President Obama because he thought she would strictly construe the Constitution as intended by the Framers?

    I don’t think ANY of the current occupants of the Court were chosen because the nominating executive thought they would “strictly construe the Constitution”, as opposed to “will rule in line with the wishes of the administration in power”.

    If you disagree with Kagan’s political leanings, that’s fine, but please don’t pretend that Obama is making some radical departure from hallowed tradition. That is, unless you’re one of those folks who foolishly thinks “strict construction” and “politically conservative” are synonyms.

  64. I want everyone to know that I am still watching this thread. I’ve noticed that a few comments are starting to stray into the personal attack arena.

    This is a warning to take a deep breath, rethink and comment according to the policy. See that little link right beside the “Leave a Reply” message?

    Use it.

    I will not tolerate personal attacks and your comment will be deleted.

  65. All that is required to know that the Supreme Court doesn’t interpret but legislates is the phrase “emanations from the penumbra”. Whether you agree or disagree with abortion rights, the decision itself is possibly the worst reasoned decision in SCOTUS history (I would also accept Dred Scot and Kelo in that category). Anyone who reads the dissenting opinion in Heller can easily see that Stevens at least in this case was a partisan hack pushing a particular agenda, not an unbiased interpreter of the law. The total lack of serious scholarship in his opinion was shocking, especially when constrasted with majority opinion.

  66. #68 PapaPete
    Yeah Steven’s dissent on Heller is a true travesty for legal scholarship. And is also historicially false. Furthermore it does not help that others mindlessly agreed with him showing their own hoplophobia.

  67. @61 C.E. Petit: Actually, we’re both wrong. Upon further review, the case that banned school prayer was Engel v. Vitale in 1962. (I should have known this one!) Oh well.

    @64 Mythago: 1. No. The Constitutional Convention’s attendees and the members of the First Congress that proposed the BoR, counted many lawyers among their ranks, every one of which would have been familiar with William Blackstone’s Commentaries of the Laws of England. That was the common-law yardstick that they were operating from. To borrow from the people who actually had the time and resources to look this stuff up:

    Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone. “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects.””

    So no, the First Amendment as the founding generation understood it would not have done away with laws on libel, slander, or death threats (which later Supreme Courts would characterize with the prior restraint/subsequent punishment categories). As for treason, the Constitution’s drafters did define it, and with unusual clarity.

    Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

    As far as what sources the founders were using to interpret the Eighth Amendment – which admittedly, is not the clearest – somebody’s done the work of collecting the original sources. (Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Cal. L. Rev. 839 (1969)). Again, go back, read what the drafters said, and read the sources they would have been familiar with.

    As for calling me a fan of penumbras because I’m a fan of logical statutory construction, you can also call a sheep’s tail a leg if you so choose, but it’s still a tail, and the sheep won’t be walking on his “fifth leg” anytime soon. Explain to me how you can plausibly interpret the First Amendment guarantee of freedom of speech in a way that simultaneously a) allows a person to express any opinion they choose, and b) would also allow government to compel a person to express an opinion of the government’s choosing. I’d love to see this. (To go back to my old poker metaphor, I see you and call.)

    Contrast this with Douglas’s famous emanating penumbra in Griswold v. Connecticut, and break down his logic step by step. a) the First Amendment protects freedom of association, b) The Third Amendment prohibits the government from quartering soldiers in your house, c) The Fourth Amendment says your property cannot be subject to unreasonable searches and seizures, d) the Fifth Amendment says a person cannot be compelled in a criminal case to be a witness against himself, e) the Ninth Amendment states that the enumeration of rights in the Constitution does not deny or disparage any other unenumerated right retained by the people, therefore, f) there is a right of privacy, therefore g) married couples can use contraceptives. (F*cking penumbras, how do they work?)

  68. [Comment deleted. Unfortunately for you Zubon, it’s my charge to protect the guests who post on the Whatever in John’s absence. Crying about moderation injustice doesn’t fly when you are referring to someone who has been invited to share her opinions and moderate the comments on her own posts. – KEB]

  69. Papapete @68, whether or not you agree with its results, Roe is far from the ‘worst reasoned decision’ in the Court’s history (there are some pretty major contenders for that title). It didn’t invent or create the notion of a ‘privacy’ right; that was done in Eisenstadt and Griswold.

    Sadly, creative interpretation is hardly a creature of liberal justices. I highly recomment this analysis of what really is one of the worst-reasoned decisions ever (sadly, the whole article is not free online, but the first page gives you a good idea…).

  70. MasterThief @70: but again, what part of “Congress shall make no law” is unclear? Why should we look to the legislative history for interpretation of such a clear and unambiguous phrase? Otherwise we’re arguing that a clear, unambiguous law must be softened by looking at the legislative intent. That’s a dangerous road to go down.

    Whether or not the Framers meant something specific in the Eighth Amendment has nothing to do with whether it is clear and unambiguous (it isn’t). And arguments about what is an “unreasonable” search or seizure have ensured many of our colleagues of having a profitable livelihood.

    Please note that you didn’t say “logical statutory construction”; the term you used was extrapolation. That’s what penumbras are. I’m sorry, but that ace you’re holding looks more like a three. ;)

  71. You are on an episode of SCOTUS Family Feud.

    Richard Dawson: “Use one word to describe Elena Kagan.”

    Scalzi stand-in Contestant: “Centrist!”

    Richard Dawson (smirking as crowd giggles): “Centrist, oookay. Survey says, (Loud Buzzer) Zero. Sorry honey. Give us a kiss, better luck next time.”

    Next contestant…..

  72. As for the partisanness of the ruling, it was a 5-4 vote along the extant liberal/conservative lines of the SCOTUS. Doesn’t get much more partisan than that

    I’m not sure this is right. When you call a decision “blatantly partisan”, you are not just saying that the justices making it were split along ideological lines. You are saying that the substance of the decision clearly favors one political party over the other.

    Maybe that’s true of Citizens United, but in order to get to that conclusion you have to rely on an assumption that may not be as obvious as you think it is, viz:

    Corporate donors skew clearly to one party or the other – in this case, you are assuming they skew Republican/conservative.

    My understanding is that corporate donors tend to be rather neutral ideologically, and support whichever candidate they think is going to win in the hope of currying favor once the candidate becomes an office holder. I could be wrong about this, but if you have data on the topic I’d be interested to see it.

  73. Andy @76: Corporate donors tend to be pro-business, which in the current climate means a Republican skew.

  74. The grid on which I lay out political positions was formed 60-some years ago, when I was first able to vote. On it, Kagan seems to be so far right-center as to be almost outside the center-fold. And I’d like to see the court have at least one actual Liberal, or two left-center members.

    I’m pretty much okay with Kagan, however, except for her apparent favoring of greater Executive Power — because I think the latter has grown, in recent decades, to the point of threatening the checks&balances approach of the original Constitution.

    On another hand, “judicial activism” doesn’t especially bother me (even when it’s real, rather than just “a decision I didn’t like”). A significant number of Judges have always “interpreted” the Law somewhat according to the contemporary common opinion of what it ought to be. That’s the first step in changing/modernizing Written Law. The framers of the Constitution were perfectly aware of this, and set things up to permit it. Not that it, or anything else connected with Government, works perfectly, of course.

  75. mythago

    Corporate donors tend to be pro-business, which in the current climate means a Republican skew.

    So you say. The evidence is against it.

    Being pro-buisness /= Republican.

    Many, if not most, Democrats are pro-buisness. More Jobs in your district or State is good for a politician. No question. A politician of any stripe that succeeds in being anti-business will not last long in most districts and States in America. Mostly its just a matter of whose ox is being gored.

    Besides, no buisness is going to ignore igratiating themselves to the people who will potentially regulate their buisness. For the past four years that has been Democrats. Prior to that it was Republicans.

    Many buisnesses hedge their bets and donate to both side generally equally.

    Many just don’t donate at all.

    But there are some who are partisan. But when their is partisanship, its not just for Republicans.

    Given the amount of money that Progressive Insurance CEO and the CEO of Soros Fund Management contributed to “liberal” 527s, do you really think they are now not enabled to directly support liberal candidates?

  76. @ 73 mythago :

    1) “Congress shall make no law” is clear. “Freedom of speech or of the press,” not so much. But even that phrase has a specific meaning; the founder’s version of free speech, to paraphrase Blackstone, is that you have the right to say and print pretty much whatever you please, but that doesn’t mean you’re immune from the consequences of what you say or publish.

    2) Ambiguous or not, the entire point of what I’ve been saying is that the 8a – like every provision in the whole Constitution – has a specific, definable meaning.

    3) Speaking of inferring things I did not say, you’re the one using the word extrapolation, not me. But you’re right, penumbras are like extrapolations. The emanating penumbra method takes a few discrete data points (i.e. pieces of statutory text), and uses them to construct new data points far outside the set of known data. (Extrapolations themselves are basically guesses, and highly sensitive to the biases of the extrapolator. Kinda like emanating penumbras.) Statutory/Constitutional construction is akin to interpolation, using pre-defined logical rules to construct new data points within and between a set of discrete data points. (Interpolation is much less subjective, because there is an upper and lower limit to where each data point can theoretically fit.)

  77. MasterThief, as somebody who also believes in judicial rulings based on what the law is rather than what we wish it would be, I actually agree with much of what you’re saying. What I don’t agree with is the view that some inferences are more worthy than others, or that ‘interpolation’ is OK while ‘penumbras’ are bad. (I also really, really disagree with the idea that legislators should use dictionary definitions, whatever those are – OED? Webster? which edition? – rather than accepted legal terms.)

    And again, while it’s obvious that the Framers intended to preserve things like libel, death threats and sedition as criminal and/or actionable, that doesn’t square with the approach of taking the clear language of the statute and ONLY that. “The freedom of speech” doesn’t seem ambiguous to me, nor does the language of the Establishment clause. (Prohibit human sacrifice as required by my faith? Excuse me, what part of “Congress shall make no law” was unclear to you?)

    And then there’s the entire body of Constitutional interpretation to contend with. I know there are many scholars who think we need to roll back to pre-Marbury v Madison and more who would like to junk Equal Protection analysis but, given that higher courts have implemented these as law, what authority does a lower court have to reject these standards?

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