Wow, I'm "regular folks" now! And here I thought I was one of the liberal elites! Cool. Maybe there's a place for me in America after all... passing out black market mifepristone and hoarding progesterone.
Well, "regular" in this case meaning, "not a medical doctor."
Yglesias points out that losing Rehnquist won't change the voting pattern. This, I think, is a good one to lose.
Probably, Bush will back down, and the moral right will be upset with him. Great - internecine fights on the other side are fun. Worst case scenario is that they put an anti-Roe judge on the bench. The vote total doesn't change, your Republican boss realizes he can't depend on us to vote for sanity unless he votes us some real power, and we re-incentivize women to vote Democrat (they gave Bush 6% more votes than they did last time).
I don't know where to stand on this one. The chances of Bush nominating an acceptable SC justice (hello, Miguel Estrada) are somewhere between slim and none, as the Arlen Specter dustup demonstrates quite plainly, but filibustering every nomination from here 'til 2008 doesn't really seem like a workable option.
Democratic senators "owe it to the country" to keep wingnuts off the Supreme Court.
Uh, sorry. Republican senators and the Republican president (and, by the transitive property of equality, Republican voters) are the ones who owe that to the country. Kerry made it clear during the debate that he wouldn't appoint wingnuts; Bush made it plain that he would. At this point, I'd say the country is about to get exactly what it is owed.
Is a judge who thinks Roe was a poor decision as a matter of law a wingnut? Must one judge the death penalty unconsitutional to stay within the charmed circle of acceptible legal views? Just remind me which heresies are acceptible and perhaps I can engage this conversation mroe profitably.
I know your comment was tongue in cheek, but just to answer anyhow... I'm neither here nor there on the death penalty. Some people just ought to be killed. As a matter of law, Roe is indeed flawed. As a matter of policy, overturning it would be worse.
But the wingnut position, for this apostropher's lunch money, would begin with allowing a president to revoke a citizen's right to due process just because he says so. It would then proceed to reallowing teacher-led prayer in schools and allowing the bolting of the Ten Commanments to every piece of government property with a flat surface.
As is happening with disturbing frequency lately, I say, what the apostropher said. Surely you're familiar with some of the Federalist Society's pet issues, the most disturbing of which--the "unitary executive"--has already cropped up on the torture memos. And surely you know that "strict construction" is itself a fiction, a method of interpretation among others, and no less susceptible to "activist" corruption.
As is happening with disturbing frequency lately, I say, what the apostropher said.
Hey, they don't call me the voice of reason for nothing. Come to think of it, they don't call me that when I pay them, either. Damn you, faceless they!
I saw Karl Rove on Meet the Press yesterday, and he was of course going on about "no litmust test," and "strict constructionalist." I just want to vent here about how stupid that is. If there was such a thing as strict construtionalism, then what would we need judges for? If every possible case already has an answer somewhere in our law, then judges are unnecessary. But that of course is not the case - cases which come before courts will occasionaly have no answer in law, in which case judges do their best to decide how the law should behave. Rove wants to pretend that judges can simply be these passive agents, connecting laws to cases like switchboard operators. It's a completely impossible idea.
Obviously, any method of interpretation is a method of interpretation. Thank you deconstructionists, for derailing our entire tradition of literary theory to drive home this stupid point!
But I don't think that original meaning/textualism/formalism as a theory of interpretation is a fantasy, or "just another" theory of interpretation. Rather it seems the method that offers the best principled basis for non-partisan judging and a limited scope for judicial power. It also is the theory of interpretation that matches most closely the practice of written communication. When first reading a text we ask: what was this text suppossed to mean? Not "what interesting thoughts and tone poems does this text inspire in me." That's what separates a book from a sunset.
And formalism/originalism doesn't just accord more closely with judicial restraint *in theory*, either. That's why I asked the question about the death penalty. The constitution was for a time interpreted as prohibiting the death penalty, and even now attempts are being made to argue around the margins (low IQ, juveniles). These efforts strike me as transparently bogus. Not because I care oodles about the death penalty. I don't. But because it's clearly activism and anti-democratic to the point of bad faith. I see very few mainstream left-liberals calling out the court on this, and I see almost no activism of similar magnitude being pitched by Scalia or Thomas. Sorry!
That's not to say conservative activists don't exist. They do, and boo! hiss! to them. Maybe some day someone will convince me that these decisions preventing the federal government from suing the state DMV of Nevada or whatever constitute activism on the same scale as the massive social engineering on abortion, gay rights, right to suicide, death penalty, and criminal due process (coming soon: animal rights!) that have been peddled, and are still being peddled by unrepentant activists on the left. When that happens, you all will be the first to know.
and I see almost no activism of similar magnitude being pitched by Scalia or Thomas. Sorry!
I guess the "almost" is there to explain Bush v. Gore?
Bush v. Gore: a very vexed case. I am not sure what I think about this, but perhaps it is fair to note that the original smackdown of the Florida Supreme Court was 7-2? Can you, or anyone, offer a Roe analogy of putative conservative activism that predates Bush v. Gore?
Some (relatively) recent examples from the Rehnquist Court:
Reading the words "other states" in the 11th Amendment as meaning "other states or same state" in Hans v. Louisiana.
Creating an exception to Hans in Ex Parte Young because Hans prevented conservative judges from enjoining laws that were inconsistent with their particular political values.
Creating completely new federalism doctrines in Seminole Tribe and Alden v. Maine.
Creating and using the "congruent and proportional" test to limit civil rights legislation in Kimel and Garrett.
Restructuring commercial speech doctrine to limit government power to regulate advertising.
Reading the 14th Amendment to require strict scrutiny with regard to race conscious affirmative action.
True, few to none of these raise passions the way Roe did and does, but all exhibit exactly the same kind of "judicial activism", just for causes these particular conservative justices believe in.
Thanks, Mitch, this is helpful. No comments as yet. But let me check it out and see what i think. early returns: none of these pututivelty activist moves, with the exception of the 14th amendment issue, seems as much of a case of big time *policy activism* as the activist line on assisted suicide, gay marriage, death penalty, and abortion. But again, that's an uninformed view, so give me some time...
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