News Souter Confirms Republicans' Worst Fears

[Hurkyl]

I'm still waiting for Russ to explain to us how Souter's comments regarding jurisprudence signals the end of the world (according to Limbaugh and Beck). Apparently, Russ' radio can't get frequencies that carry the news and commentary of normal people. Too bad.

Before you get up on your high horse, you should first admit to yourself that Souter made a rather poor choice of words -- if I were his editor, I would have told him he was using "fair reading" exactly wrongly: it should be applied to the sensible model, not the cartoon model.

I admit when skimming the speech, I probably would not have noticed the term was being used counter-intuitively (and would have had a similar initial opinion as Russ) if it weren't for the fact that his speech is very similar to some arguments I recently made in another forum, thus alerting me to the fact something was weird.

 

[TheStatutoryApe]

I don't see for example, miranda rights as being the same, since the right to a fair trial implies some necessary fairness in the way people are questioned, as well as a logical extension of the intention of the habeas corpus principle.

While I agree with your primary point I would disagree that there is any direct inference as the basis for Miranda. What makes Miranda so singular a decision is that it does not create any law or imply any right. It is a case where the USSC has more or less created a memorandum on procedural conduct extending all the way down to the very lowest rungs of the nation's justice system.

[...]Souter made a rather poor choice of words -- if I were his editor, I would have told him he was using "fair reading" exactly wrongly: it should be applied to the sensible model, not the cartoon model.

I admit when skimming the speech, I probably would not have noticed the term was being used counter-intuitively (and would have had a similar initial opinion as Russ) if it weren't for the fact that his speech is very similar to some arguments I recently made in another forum, thus alerting me to the fact something was weird.

I think that Souter was outlining an ideological divide on constitutional interpretation. The term "fair reading" definitely hints at a preference for the strict textualist approach. Considering his audience I would imagine that he assumed they would be familiar enough with such issues to realize his intent. We can see in the article that some people do not understand the interpretive approaches since the article seemingly notes Plessy v. Ferguson as a case of "judicial activism" (more specifically a departure from the constitution) when it was anything but. Plessy was a classic conservative textual interpretation as there is absolutely nothing in the constitution that would define "equal" to the exclusion of "separate but equal". Brown, that case that the article states vindicated Harlan, is considered a prime example of "judicial activism" as it not only sought to define "equal" outside of any textual or originalist interpretation but also led to the remedial court order which instituted school busing.

More than anything these responses to Souter's comments go a long way in explaining why avoiding public spotlight is so ingrained in the culture of the court.

 

[turbo]

Before you get up on your high horse, you should first admit to yourself that Souter made a rather poor choice of words -- if I were his editor, I would have told him he was using "fair reading" exactly wrongly: it should be applied to the sensible model, not the cartoon model.

My point is that there is no way to apply the wording in the Constitution directly to most modern-day legal problems, and that the reactionaries on the right that tout the all-encompassing infallibility and applicability of a 200+ year old document are either ignorant or lying.

Critics on the right generally claim that their less-radical counterparts are engaging in "judicial activism" and "legislating from the bench" though when their own allies do it there is not a peep. The recent court decision that equates "free speech" with unlimited monetary donations AND extends that right to corporations and other monied interests is a particularly egregious example of such activism. There are a lot of young neo-cons on the court right now, with life-time appointments, so any claims that judges appointed by Obama need to pass some kind of "purity test" ought to be taken with a rather large grain of salt. Really! The thought that a quiet, well-balanced justice like Souter is an "activist" is ridiculous on the face of it.

Moderator's note: tangential discussion on Citizen's United split off into https://www.physicsforums.com/showthread.php?t=411807[/color]

 

[TheStatutoryApe]

This is specifically what I mean. Using case law (or common law) has a history that predates the creation of the US. It would be ludicrous to think there was some assumption that courts wouldn't use case law as precedents when the Constitution was written. It would have had to be specifically mentioned when creating the judicial branch if the Constitution intended to make a sudden change in how the courts operated.

The section of the constitution defining the judicial branch is the shortest, simplest, and most lacking in particulars of any. There was apparently very little controversy in drafting this section and it is believed that since most of the framers were lawyers they had readily assumed the court would take on the general attitude of the british common law system. The Court was more or less left to its own devices and created its own set of procedures. If there is anything anywhere that says the USSC is only to give "fair reading" of the constitution it is among its own policies.

 

[Hurkyl]

[words]

Things would go a lot more smoothly if you would admit that you agree with Russ on the point that the SCOTUS should limit itself to judicial review, rather than engaging in judicial activism.

Your opinions on collection of whatever real or imagined persons you refer to by "reactionaries / critics on the right" probably belong in another thread, however.

The recent court decision that equates "free speech" with unlimited monetary donations AND extends that right to corporations and other monied interests is a particularly egregious example of such activism.

As an incidental aside, this was precisely the issue that was up when I last engaged in this debate: there were an awful lot of people condemning the SCOTUS for failing to ignore that corporations are persons under U.S. law. I even recall one person explicitly condemning the SCOTUS because they should have ruled the other way for the good of the country, no matter what judicial review would have compelled them to do.

This, of course, is one of the kinds of criticism that Souter condemns. People take their own little corner of the law and the constutition, baldly assert their conclusion is obvious (in this case, against Corporate rights) -- i.e. their "fair reading" of the consitution -- and then accuse the SCOTUS of activism because they dared to weigh in other considerations that the critic is staunchly ignoring.

 

[turbo]

Your opinions on collection of whatever real or imagined persons you refer to by "reactionaries / critics on the right" probably belong in another thread, however.

Can you imagine Thomas, Roberts, and Alito (at a minimum) coming down on the side of private citizens as opposed to corporate interests? Even on matters of settled law? If so, please give some examples.

We have a very young neo-con contingent on the SC with life-time appointments. Comments made by Justice Souter regarding jurisprudence on the SC should not be any cause for alarm, despite the rantings of the right-wing media. Souter was a Bush (I) appointment and he is not a radical in any sense of the word. If Obama wants to appoint some moderate judges (I consider Kagan a moderate, BTW) to the court, fine.

Before we draw lines in the sand, I am a fiscal conservative at heart, and voted Republican quite religiously (to the dismay of my father) until Reagan went back on all his campaign promises, stole from the national armory, sold weapons to our sworn enemies (Iran) and used the proceeds to fund an illicit war in central America. Since then, I have had NO party allegiance, because there are crooks and creeps in both parties, and I'm not playing that game anymore. That's a sucker's bet.

 

[Hurkyl]

Comments made by Justice Souter regarding jurisprudence on the SC should not be any cause for alarm, despite the rantings of the right-wing media.

They should be, if by "fair reading model", Souter means the model where the SCOTUS considers the spirit and intent of the constitution and all relevant law in order to fairly review of the case.

Of course, I don't think that's what he means. But can we at least agree that things are alarming if I'm wrong and he really does mean that?

Since then, I have had NO party allegiance, because there are crooks and creeps in both parties, and I'm not playing that game anymore. That's a sucker's bet.

How do you figure you're not playing the game? You take every opportunity you can to derail threads to bash the right wing!

 

[TheStatutoryApe]

As an incidental aside, this was precisely the issue that was up when I last engaged in this debate: there were an awful lot of people condemning the SCOTUS for failing to ignore that corporations are persons under U.S. law. I even recall one person explicitly condemning the SCOTUS because they should have ruled the other way for the good of the country*, no matter what judicial review would have compelled them to do.

This, of course, is one of the kinds of criticism that Souter condemns. People take their own little corner of the law and the constutition, baldly assert their conclusion is obvious (in this case, against Corporate rights) -- i.e. their "fair reading" of the consitution -- and then accuse the SCOTUS of activism because they dared to weigh in other considerations that the critic is staunchly ignoring.

*my emphasis added

Going back to Brown, this is the primary aspect which compelled the court to its decision. The court decided primarily based on the practical outcome of the "separate but equal" doctrine and its perception of the impact of such a policy weighed against the good of the country and its citizens.

The decision in Citizens United is based on a similar principle. Faced with the limited rights afforded to fictional legal entities it was up to the court to consider the practical impact of that limitation of rights and come to a decision based on what it felt was in the best interests of the country and its citizens. Regardless of our divisions in perception of what is best, quite mirrored in the court itself, the court made its decision not based strictly on law but on the practical impact to citizens rights.

 

[TheStatutoryApe]

They should be, if by "fair reading model", Souter means the model where the SCOTUS considers the spirit and intent of the constitution and all relevant law in order to fairly review of the case.

Of course, I don't think that's what he means. But can we at least agree that things are alarming if I'm wrong and he really does mean that?

A brief overview of some interpretive approaches.
http://en.wikipedia.org/wiki/Judicial_interpretation

It is not very hard to see that some may have rather differing opinions on the meaning of "fair reading" and may even want to throw the term out completely due to a perceived bias in approach. Those other than "textualists" and "originalists", particularly "developmentalists" and "doctrinalists", are often portrayed as "activist" depending on the context.

 

[Hurkyl]

*my emphasis added
...
Regardless of our divisions in perception of what is best, quite mirrored in the court itself, the court made its decision not based strictly on law but on the practical impact to citizens rights.

You didn't just add emphasis, you seemed to have dropped a relevant point. (Or, read different things into words than I do)

Since the constitution and various laws protect the rights of U.S. persons, it is the duty of the SCOTUS to consider the practical impact to those rights.

But it is another thing entirely for the SCOTUS to simply ignore whatever protections are guaranteed by law, and instead making a ruling based entirely upon what they think is for the good of the country.

(And, of course, there is a continuous spectrum in-between and beyond)

The example you responded to was advocating the latter sort of thing.

 

[TheStatutoryApe]

You didn't just add emphasis, you seemed to have dropped a relevant point. (Or, read different things into words than I do)

Since the constitution and various laws protect the rights of U.S. persons, it is the duty of the SCOTUS to consider the practical impact to those rights.

But it is another thing entirely for the SCOTUS to simply ignore whatever protections are guaranteed by law, and instead making a ruling based entirely upon what they think is for the good of the country.

(And, of course, there is a continuous spectrum in-between and beyond)

The example you responded to was advocating the latter sort of thing.

The SCOTUS does not do this even though opponents of decisions may paint them as such. Giving momentary credence to the idea that Souter may be subscribing to some cartoonish interpretation to his role as judge is just as irrelevant a line of debate as Souter proposing some cartoonish interpretation of "fair reading". Why you would make such an 'if-then' point I am having a hard time understanding.

 

[BobG]

As an incidental aside, this was precisely the issue that was up when I last engaged in this debate: there were an awful lot of people condemning the SCOTUS for failing to ignore that corporations are persons under U.S. law. I even recall one person explicitly condemning the SCOTUS because they should have ruled the other way for the good of the country, no matter what judicial review would have compelled them to do.

This, of course, is one of the kinds of criticism that Souter condemns. People take their own little corner of the law and the constutition, baldly assert their conclusion is obvious (in this case, against Corporate rights) -- i.e. their "fair reading" of the consitution -- and then accuse the SCOTUS of activism because they dared to weigh in other considerations that the critic is staunchly ignoring.

The decision in Citizens United is based on a similar principle. Faced with the limited rights afforded to fictional legal entities it was up to the court to consider the practical impact of that limitation of rights and come to a decision based on what it felt was in the best interests of the country and its citizens. Regardless of our divisions in perception of what is best, quite mirrored in the court itself, the court made its decision not based strictly on law but on the practical impact to citizens rights.

You didn't just add emphasis, you seemed to have dropped a relevant point. (Or, read different things into words than I do)

Since the constitution and various laws protect the rights of U.S. persons, it is the duty of the SCOTUS to consider the practical impact to those rights.

But it is another thing entirely for the SCOTUS to simply ignore whatever protections are guaranteed by law, and instead making a ruling based entirely upon what they think is for the good of the country.

(And, of course, there is a continuous spectrum in-between and beyond)

The example you responded to was advocating the latter sort of thing.

While I agree with the sentiments expressed in Hurkyl's first post and that some people did (and do) base their entire argument on what they personally feel is good for the country, I think TSA more accurately describes the key point in the Citizen's United case (i.e. - why in the world would a limited legal entity be treated as a human being). Both individual rights and the good of the country have to be considered in their entirety.

While it may not be appropriate to make a ruling based entirely upon what they think is for the good of the country, it's certainly an important consideration. For example, the courts are usually very unlikely to order the government to release classified information in the same way it might order a corporation to release documents necessary for a plaintiff to prove their case against a corporation. In fact, courts generally try to steer away from hearing cases dealing with foreign policy or national security. That, plus not allowing a plaintiff access to the info he needs to prove his case, are both violations of due process, but justified by the fact that releasing classified info would be bad for the country.

 

[mheslep]

The SCOTUS does not do this even though opponents of decisions may paint them as such. [...]

Are you really attempting to dismiss the entire legislate-from-the-bench line of criticism with a declaration, especially given some of those critics are sitting members of the court?

 

[TheStatutoryApe]

Are you really attempting to dismiss the entire legislate-from-the-bench line of criticism with a declaration, especially given some of those critics are sitting members of the court?

The painted picture I was responding to was one in which these judges might make decisions with absolutely no basis in law but only based on what they deem good for the country.

But it is another thing entirely for the SCOTUS to simply ignore whatever protections are guaranteed by law, and instead making a ruling based entirely upon what they think is for the good of the country.

We are talking about intelligent educated judges with decades of experience in law hand chosen by presidents and vetted through congress. It is one thing to use exaggerated terms such as "legislating from the bench" and entirely another to claim that any may in fact absolutely ignore the law in favour of their own personal opinions.

 

[russ_watters]

Sorry, I've been absent since the weekend. I'll try now to take another stab at this. Starting where I left off and with further expansion:

Just to clarify, you are making all of the following assertions?

• There are no ambiguities in the law
• The letter of the law overrules the spirit of the law
• There are no conflicts between laws

As I said before, I'm making none of those assertions, nor do I believe them to be true. While I can't help but acknowledge the reality that what is clear to me is not as clear to you (re: your criticism of my first sentence of the OP), you have nevertheless missed my point so badly I'm not yet willing to concede that Souter's point isn't clear (or that you understand it properly)! What I will acknowledge, though, is that I wrote most of the post based on the op-ed, which has picked quotes and paraphrases to make the argument I'm making. So I got that picture of Souter's speech before I even read it!

Anyway, the idea of bullet points appeals to me to try to gain clarity, so I'll give it a shot, in outline form. This will be a mix of my attempt to present a factual recounting of Souter's speech, plus my opinions about it. Hopefully it will be clear which is which and hopefully I can get people to understand my position (or, more to the point, Souter's) - then discuss its merits or lack thereof. I can't just say things without explanation, though, so these outline points will be long. Not sure if that'll work, but I'll give it a shot. So...

1. Souter's speech is a discussion of two different models of the decision-making process of the courts.

2. The "fair reading model". Souter gives a long discussion of what this entails, but in essence, the "fair reading model" is where the judge faithfully reads the Constitution, the law and the intent of the framers of the Constitution and law and decides fairly based on the words and intent whether they match each other. If they do, the law is upheld. If they don't, the law is struck down. In summary, he says: "On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively."

3. Souter correctly states that the Constitution and the law are not always completely clear and the USSC gets cases where it isn't clear - deciding cases that aren't clear is precisely why you need the USSC. However, imo, this does not give cause to discard the model, it only makes it more important for judges to be impartial and attempt to faithfully follow it. But Souter says:

4. "...for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality." While I certainly agree that in practice, the fair reading model is not followed faithfully, he is arguing that that is the right thing to do...

5. I see it as an acknowledgment that he violated his mandate as I see the "fair reading model" to be the beginning and end of his mandate.

The discussion could practically end here, as the particulars of what model he advocates is only tangentially related to the issue of whether the above really is his mandate. But it is trivially obvious: If you are not faithfully interpreting the law/Constitution, then you are not faithfully interpreting the law/Constitution. Souter saying he doesn't faithfully interpret the Constitution is an acknowledgment that he is violating his mandate. The rest, by Souter, is basically an attempt to argue his way out of his mandate.

But the other model does need to be discussed, as many people (including him) see the "other" model as the true mandate of a judge.

6. The second model is called, by critics, "judicial activism". Souter uses the word "activism", but doesn't connect the two words. He also uses the phrase "making up the law", which matches pretty closely the common term "legislating from the bench". So, imo, he's arguing in favor of this model and against the fair reading model, at least in cases where clarity does not permit/force usage of the fair-reading model. Souter is less clear about the definition of this model than the "fair reading model". Instead of clearly defining it, he argues it via case study:

7. Case 1: The Pentagon Papers. The NYT and Washington Post obtained and began to publish a bit at a time, classified documents regarding the Vietnam war. The government sought to stop them. It was a 1st Amendment case. There was much dissent in the USSC with many justices disagreeing on important points of the issue, but it nevertheless ruled 6-3 in favor of publication. http://en.wikipedia.org/wiki/Pentagon_Papers
As detailed by Souter, the argument came to focus on a literal reading of the first Amendment: "Congress shall make no law...abridging the freedom of speech, or of the press". If this were literally true, then there can be absolutely nothing that the government can restrict you from saying or publishing. The attorney for the government argued: "The problem in this case,” he said, “is the construction of the First Amendment" and "that 'no law' did not mean 'no law'". Though the government lost its case, it won this part of the argument: "no law" does not mean "no law".

Souter argues that this is an example where the "faithful reading" model fails and one that critics would call "judicial activism". Being such a critic, I can say with authority: he's wrong. Everyone (me, Souter, the Papers' Court, the lawyer for the gov't) are in agreement that the 1st Amendment is poorly written. But that does not mean a "fair reading" model should take it to be literally true. Why? Because the fair reading model is not dumb and excessively pedantic, siezing upon well-understood errors. The intent of the framers and the logical rediculousness of "no law" was/is well understood by all. Everyone understands that those literal words are not what was really meant. So this isn't a difficult case, it is one of those unambiguous cases where the intent of the framers was clear, even if the words in the Constitution itself weren't.

In short, this example is not an example of "judicial activism" and so is a red herring argument by Souter.

8. Case 2: Brown v. Board of Education vs Plessy v. Ferguson. These are the two "separate but equal" cases. This one is a perfect example, but he gets it precisely backwards. It truly is the perfect test issue and clearly shows where he is wrong. The Constitution, as originally crafted, did contain moral flaws and logical inconsistencies where civil rights and racism are concerned. I think most people would agree with that (and some already have in this thread). But Plessy was in 1896, after those flaws were corrected. Plessy was decided by an activist court of the reactionary kind, clinging to the already overturned by Amendment, racist interpretation of the constitution that had existed before. Souter's description is "mystifying" in how badly it misses the mark:

For those whose exclusive norm for constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision. Those who look to that model are not likely to think that a federal court back in 1896 should have declared legally mandated racial segregation unconstitutional.

Yes, clearly I wouldn't think a court in 1896 would rule segregation wrong. He doesn't explain why, but I will: the court was racist and didn't faithfully follow the Constitution. So his next sentence is where it gets mystifying:

But if Plessy was not wrong, how is it that Brown came out so differently?

Huh? Plessy was wrong and that's why Brown was right! As I quoted earlier, the lone dissenter, a racist who saw through his own flaw, got it right. He understood and acknowledged that neither the Constitution nor logic allowed the interpretation that the court was using.

The Plessey court erred in that they applied their own (and the originators of the laws' own) racist/twisted morality to the question instead of faithfully interpreting the Constitution. That is the essence of "judicial activism".

Further, there is a clear logical flaw in Souter's argument here. No doubt, he believes the Brown verdict correct and he's arguing that the Plessy verdict was correct for its time. This can only be true under a judicial activism model and the contradiction provides a logical rebuttal of the model. The model is not internally consistent if two contradictory judgements can both be true.

Activist courts still get racism issues wrong, but now the activism has swung in the other direction from Plessy: the courts now favor racist policies in an effort to fulfil preconceived quotas and perceptions, rather than simply making the playing-field level. Policies like school bussing and rejecting test results when the desired racial makeup of those who do best isn't seen are racist have been favored by the courts. But the Constitution does not and should not mandate forced equality of outcome, but merely ensure the playing field is kept level. As Clarence Thomas as put it: "Brown I did not say that "racially isolated" schools were inherently inferior; the harm that it identified was tied purely to de jure segregation, not de facto segregation." What is very disappointing from Souter, is that he does not address cases where "judicial activism" is alleged. I'm not sure if he's doing it on purpose or just doesn't understand peoples' complaints against him and other activists, but he got us close enough in acknowledging the first half: that he doesn't believe in the "fair reading model".

 

[russ_watters]

Here's a long paper on the concept of "legislating from the bench": http://legacy.lclark.edu/org/lclr/objects/LCB_11_1_Peabody.pdf

Highlights:
-The term and belief among Conservatives that the issue exists originates from Reagan's time.
-Unsuprisingly, conservatives use the term more than liberals, to attack liberal decisions not decided in a constructivist way.
-The concept, however, goes back to the time of the Constitution's founding.
-The term has more than one meaning as it is used as a catch-phrase by politicians. Distilling it intellectually yields:
---Policy interference. Ie, giving an opinon based on personal belief of what the policy should be, not based on a fair reading of what the words and intent of the law and constitution are.
---Approaches to rendering decisions not based on "fair reading". The paper gives examples where public opinion was consulted, such as in death penalty cases.
---Content of decisions exceeds discussion of the law itself. Ie, providing commentary beyond the interpretation. This one I'm actually ok with as long as it doesn't creep into the decision. If there is a logical flaw in a law or the Constitution, they should point it out: while still doing what the Constitution requires. This could lead to the seemingly contradictory possibility of upholding a law while stating that it should be repealed.
---Exceeding the scope of the case.
---Responding to special interests. The paper argues that some special interest groups have been shown to be more successful in getting cases reviewed than the merit of such cases would imply they should.
---The paper argues that the concepts of "legislating from the bench" and "judicial activism" are separate, that "activism" whould be more a measure of willingness to overturn precedent. I'm using the words mostly interchangeably, but if this is in error, the term "legislating from the bench" is the broader and preferred term, with "judicial activism" being a subset of it. I'm ok with this distinction, but don't believe it really changes anything here.

Here's an important quote:

As indicated earlier in this Article, the overwhelming number of
statements about legislating from the bench by scholars and political officials
have a decidedly negative tone. Essentially, no one from the academy or the
political arena rises to the explicit defense of this practice.

Now taken from politicians, this is as useless as it is self-evident: The term is used by Republicans to attack Democrats. But taken from academics, it tells us that there is truth to and agreement about the characterization: legislating from the bench is a bad thing. It also tells us that Souter stands nearly alone in his defense of the concept. As I said previously, it was surprising to see - though I will give him credit for being honest, where I think others would just try to cover it up. Nevertheless, it should be clear that by definition and at face value, "legislating from the bench" is a bad thing:

According to one scholar, “the whole idea [of our political scheme]
is for the Court to avoid legislating.”133

Nevertheless, the author positions himself to be one of those dissenters:

In this section, I argue, contrary to the conventional wisdom, that many of
the elements of legislating from the bench previously identified are both
inevitable and desirable.

Those who disagree with me can feel free to find support for their arguments in the paper However, in at least one case, he's using a different definition than I am:

2. America’s Common Law Foundations
Closely related to these observations, the common law foundation of the
United States is another factor that makes legislating from the bench somewhat
inescapable. Among other features, the common law is distinguished by its
reliance on bench-made law.157 Common law systems authorize courts and
judges to speak and even make law where legislatures are silent or don’t speak
clearly. These decisions can be overruled (or codified) by legislatures, but in
the mean time, the judiciary’s steady application of what are concededly
invented, common law rules is supposed to create stability and reliability in our
legal system.158 In many ways, these creative judicial acts seem to reflect the
principles of judicial lawmaking targeted by critics.

As I explained before, the "fair reading" model would faithfully interpret not just the words, but the intent of a passage in the law or Constitution. Doing so requires an understanding of and application of applicable caselaw. So this is not, "legislating from the bench". This may be related to the issue of him using broader definitions than what I am criticizing: "judicial activism" being a subset of "legislating from the bench".

 

[russ_watters]

Some may remember this issue coming up with the Sotomayor confirmation. She was also unusually candid on the subject:

Adopting a trope more often associated with conservatives than liberals, she said repeatedly that judges should simply apply the law, not legislate from the bench. "My judicial philosophy," she declared in her opening statement, is simple: "fidelity to the law. The task of a judge is not to make law. It is to apply the law." And as if to dispel any impression that this was rhetorical boilerplate, Sotomayor returned to the same theme throughout the hearings.

http://www.time.com/time/politics/article/0,8599,1910714,00.html

But that really was just "rhetorical boilerplate" and both she and Time Magazine in that article clearly attempt to have it both ways. While trumpeting her record on the fair reading model, it simultaneously argues in favor of legislating from the bench and provides an example where she did!:

It's too bad that neither Sotomayor nor any of the Senators felt at liberty to say what many scholars and court observers believe to be true: Justices often legislate from the bench, and sometimes that's a good thing.

The idea that the Supreme Court can make policy shouldn't be controversial after its decisions in two of the most contentious cases of the term that ended last month, one involving voting rights and the other affirmative action.

The affirmative action case was, of course, her case that she decided in a "legislating from the bench" way as:

Whether or not you like the decision, there's no question that the court was making policy...

And then as if to confirm that most of what was said to set up the article was a lie (by Sotomayor and by Time):

Why couldn't Sotomayor acknowledge that Justices often legislate from the bench?

Because even though she no doubt thinks she's right, here own personal ambition is more important. So she lied to cover up what she did. And this is, of course, part and parcel of the problem: a lot of judicial activism is ego driven and dishonest.

 

[russ_watters]

I'll be back later to respond to some posts from earlier - I want to give it some time to settle, though, so I don't end up rehasing an obsolte point from earlier.

 

[TheStatutoryApe]

1. Souter's speech is a discussion of two different models of the decision-making process of the courts.

He refers to the "fair reading" model and states the opinion that it is obviously unable to produce decisions in many or most cases brought before the supreme court. He also mentions "judicial activism" as a common epithet for the type of decisions made under these circumstances when one does not agree with the decision despite the alternative approaches being common and necessary.

He never really distinguishes two modes or schools of thought. His point is that what is commonly referred to as "judicial activism" is standard practice in the court on all sides of the ideological divides. That "judicial activism" is merely political rhetoric.

8. Case 2: Brown v. Board of Education vs Plessy v. Ferguson. These are the two "separate but equal" cases. This one is a perfect example, but he gets it precisely backwards.

From your personal perspective perhaps but as far as the standards of interpretive approach and the history of the court goes he has it exactly right. The decision in Plessy was a standard strict and conservative textualist approach leaning on originalism which was the norm for court decisions through most of the history of the US. According to the strict textualist approach if it is not specifically in the constitution it is not there at all. Since nothing in the constitution would define "equal" to the exclusion of "separate but equal" then "separate but equal" is not unconstitutional. And if we take a moment to look back at the intent of those persons who wrote and ratified the sections of the constitution (originalism) we are unlikely to find any reason to believe that it was intended white and black people should live in mixed society.

You are looking at this in hind sight and through a cultural lens, a cultural where it was decided half a century ago that "separate but equal" is not equal.

 

[Gokul43201]

Discussion of gun laws moved here. Some content there may be relevant to those interested in this thread[/color]

 

[Hurkyl]

7. Case 1: The Pentagon Papers.
...

Souter argues that this is an example where the "faithful reading" model fails and one that critics would call "judicial activism".

Can you show me where he used words to that effect? Given the structure of his article, it looks like what he's actually doing is providing an example of

• constitutions have to have a lot of general language
• the Constitution contains values that may well exist in tension with each other, not in harmony
• the facts that determine whether a constitutional provision applies may be very different from facts like a person’s age or the amount of the grocery bill; constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them

thus rebutting the hypothesis that it is reasonable for a hearing to proceed as

• A claim is made in court that the government is entitled to exercise a power, that is set out in the terms of some particular provision of the Constitution.
• The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed.
• Once they have been determined, the facts on their face either do or do not support the claim.
• If they do, the court gives judgment for the claimant; if they don’t, judgment goes to the party contesting the claim.

 

[TheStatutoryApe]

I thought this might be more appropriate here instead of in the separate thread.

There is a link on the bottom of that youtube video (if you click the video and go directly to youtube) that has the full 37 minute interview. He does a very good job in the full interview detailing this.

The full video referenced is http://fora.tv/2009/02/23/Uncommon_Knowledge_Antonin_Scalia for anyone else interested.

You'll note that Scalia calls the "incorporation process" a mistake and disagrees with the idea, strictly speaking, that the 14th amendment requires the states to follow the Bill of Rights. Are you saying that you agree with him on this note? He also states that, by an originalist interpretation, homosexuals have no constitutional right to marriage. Do you agree here as well?

Textualism and originalism are rather deficient on some of these matters. The case cited in this thread earlier, Brown, overturned a 'proper' textual and originalist decision yet some people do not seem to realize that the Plessy case was, in fact, a strict 'traditional' interpretation. This is the dichotomy that Souter seems to be pointing out in his speech. Today we all (or mostly all) agree with the Brown decision and do not see it as being at all "activist" which may lead us to believe that Plessy then was the 'wrong' decision. Based on the fair reading model though Plessy was not wrong at all. Our cultural lens distorts that which we perceive as 'obvious'. If it were not for the likelihood that Scalia would possibly come off as racist I would really like to hear his opinion on these cases and see just how staunchly originalist he really is.

Some issues you may want to consider in regards to strict textualist and originalist interpretations are digital communications and media, phone taps, and the right to privacy. Can you find for me any where in the constitution that it refers to computers, digital media, phones, ect? Do you believe that the prohibition against unreasonable search and seizure extends to these modern technologies despite not being mentioned in the constitution and entirely inconceivable by the framers of the constitution? If you believe that it does then you must agree that some level of "modernization" in interpretation is required of the Supreme Court and that 'traditional' interpretation is deficient in some areas.

 

[Cyrus]

You'll note that Scalia calls the "incorporation process" a mistake and disagrees with the idea, strictly speaking, that the 14th amendment requires the states to follow the Bill of Rights. Are you saying that you agree with him on this note? He also states that, by an originalist interpretation, homosexuals have no constitutional right to marriage. Do you agree here as well?

You're missing his point, or misrepresenting it. It's not a matter of 'if I agree with him.' It's a matter of this is what the constitution says, and, if, you don't like it, go change the constitution. However, Do NOT go around reinterpreting it to suit your needs.

Scallia was painfully clear about this in the interview.

Some issues you may want to consider in regards to strict textualist and originalist interpretations are digital communications and media, phone taps, and the right to privacy. Can you find for me any where in the constitution that it refers to computers, digital media, phones, ect? Do you believe that the prohibition against unreasonable search and seizure extends to these modern technologies despite not being mentioned in the constitution and entirely inconceivable by the framers of the constitution? If you believe that it does then you must agree that some level of "modernization" in interpretation is required of the Supreme Court and that 'traditional' interpretation is deficient in some areas.

I don't understand the point of this comment. The search and seizure has to do with property, no what kind of property.

 

[TheStatutoryApe]

You're missing his point, or misrepresenting it. It's not a matter of 'if I agree with him.' It's a matter of this is what the constitution says, and, if, you don't like it, go change the constitution. However, Do NOT go around reinterpreting it to suit your needs.

Scallia was painfully clear about this in the interview.

I am sure that the vast majority of judges completely agree with the general sentiment of Scalia's position. But Scalia's personal opinion is quite strict and he characterizes anything short of his ideal as improper. Taking such an extreme opinion as the basis for your understanding of the issue is probably not the best idea.

 

[Cyrus]

I am sure that the vast majority of judges completely agree with the general sentiment of Scalia's position. But Scalia's personal opinion is quite strict and he characterizes anything short of his ideal as improper. Taking such an extreme opinion as the basis for your understanding of the issue is probably not the best idea.

It is the best idea, because its exactly what the constitution was intended to mean when they came up with the three branches! The Judiciary does not legislate - it upholds.

 

[TheStatutoryApe]

I don't understand the point of this comment. The search and seizure has to do with property, no what kind of property.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

As you can see it specifies various things. None among them would be digital media or phone conversations. If you wish to include such things under the definitions of "papers", "effects", or one's person the originalist would require that you base said definitions on the intent of the framers and the framers knew nothing of such things so obviously the definition either can not include them or will need necessarily attempt to divine what the framers may have thought of such technologies (which is impossible to do with confidence).

 

[Cyrus]

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

As you can see it specifies various things. None among them would be digital media or phone conversations. If you wish to include such things under the definitions of "papers", "effects", or one's person the originalist would require that you base said definitions on the intent of the framers and the framers knew nothing of such things so obviously the definition either can not include them or will need necessarily attempt to divine what the framers may have thought of such technologies (which is impossible to do with confidence).

You really think that is an exhaustive list? It says 'things' to be seized. That means, anything.

 

[mheslep]

[...]
Textualism and originalism are rather deficient on some of these matters. The case cited in this thread earlier, Brown, overturned a 'proper' textual and originalist decision yet some people do not seem to realize that the Plessy case was, in fact, a strict 'traditional' interpretation. This is the dichotomy that Souter seems to be pointing out in his speech. Today we all (or mostly all) agree with the Brown decision and do not see it as being at all "activist" which may lead us to believe that Plessy then was the 'wrong' decision. Based on the fair reading model though Plessy was not wrong at all.

I think you're conflating terms with different meanings above: textual, original intent, and traditional. They all mean different things. Scalia holds with original intent. If that's what you mean above, then who say's Plessy was a correct example of original intent? Original intent analysis of the 14th amendment leads to the conclusion the discrimination on the basis of race is unconstitutional, end of story. To my mind the separate but equal findings were evasions of that, as by the way are affirmative action findings.

If it were not for the likelihood that Scalia would possibly come off as racist I would really like to hear his opinion on these cases and see just how staunchly originalist he really is.

What? Scalia's a racist? Or those that hold with original intent are racists? Which?

 

[TheStatutoryApe]

It is the best idea, because its exactly what the constitution was intended to mean when they came up with the three branches! The Judiciary does not legislate - it upholds.

Note stare decisis. In a common law system the judicial branch can, and does, in fact, create law.

You really think that is an exhaustive list? It says 'things' to be seized. That means, anything.

That's the clause regarding the necessity of a warrant. The previous clause specifies those "things". Laws and court rulings are to be precise. They can not be vague. They can not leave loose ends fluttering in the breeze under the definition of "anything". There is also an issue for the originalist in whether or not the intent of the framers would extend to phone calls, e-mails, and the like. Such things are not found on ones person or in ones home. They actually leave your home and your possession and are transmitted through publicly owned and federally regulated infrastructure. The framers could hardly have been referring to this sort of situation as they had never thought of it. You note Scalia's reference to gay marriage not being covered by the equal protection clause because no one would have ever thought of such a thing at that time?

I think you're conflating terms with different meanings above: textual, original intent, and traditional. They all mean different things. Scalia holds with original intent. If that's what you mean above, then who say's Plessy was a correct example of original intent? Original intent analysis of the 14th amendment leads to the conclusion the discrimination on the basis of race is unconstitutional, end of story. To my mind the separate but equal findings were evasions of that, as by the way are affirmative action findings.

The question was whether or not separate facilities are "equal". And the 14th amendment only requires "equal protection of the laws", there is no language in the whole of the document regarding "discrimination on the basis of race". As well "Original intent analysis" of the amendment is unlikely to yield any desire on the part of those who ratified it to have white and black people living in mixed society. So defining "equal" to the exclusion of "separate but equal" would have no basis in a strict textualist and originalist interpretation.

And yes, I know that there is a difference in the terms. Textualism and originalism traditionally go hand in hand and for the majority of the history of the court they were, together, the dominant interpretive approaches hence my reference to this philosophy as "traditional".

What? Scalia's a racist? Or those that hold with original intent are racists? Which?

Perhaps you are unfamiliar with the phrase "come off as"? It generally means that ones actions and or words may make them appear to be some certain way regardless of whether or not they really are. For instance Scalia's opinion on affirmative action has likely already garnered him a reputation as racist whether it is deserved or not.

 

[mheslep]

Perhaps you are unfamiliar with the phrase "come off as"?

You believe that somehow attaching a racist mindset to Scalia as a hypothetical or via a 'others might say' proxy will somehow allow you to escape scrutiny, responsibility, and support for that claim, making it all ok?

It generally means that ones actions and or words may make them appear to be some certain way regardless of whether or not they really are. For instance Scalia's opinion on affirmative action has likely already garnered him a reputation as racist whether it is deserved or not.

Reputation is subject in large part to repeated, unsubstantiated claims such as the above. You must see I could take the statement you made above and point it at you, substituting McCarthite perhaps for racist, pretending to hang it on "whether it is deserved or not" so I don't have to support it.