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"Generally, the court is institutionally conservative"
Over at The Volokh Conspiracy, Orin Kerr highlights Barack Obama's recent response to the Detroit Free Press about the sort of Supreme Court justices he'll appoint if elected. Here's a snippet of Obama's answer:
Generally, the court is institutionally conservative. And what I mean by that is, it's not that often that the court gets out way ahead of public opinion. The Warren Court was one of those moments when, because of the particular challenge of segregation, they needed to break out of conventional wisdom because the political process didn't give an avenue for minorities and African Americans to exercise their political power to solve their problems. So the court had to step in and break that logjam.
I'm not sure that you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today.... So when I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology.
I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are very sensible judges. They take a look at the facts and they try to figure out: How does the Constitution apply to these facts? They believe in fidelity to the text of the Constitution, but they also think you have to look at what is going on around you and not just ignore real life.
That, I think is the kind of justice that I'm looking for--somebody who respects the law, doesn't think that they should be making law...but also has a sense of what's happening in the real world and recognizes that one of the roles of the courts is to protect people who don't have a voice.
That's at least a better answer than the one he gave to Planned Parenthood last year, where he described his ideal justice as "somebody who's got the heart, the empathy" to sympathize with society's downtrodden. Occasional adherence to the Constitution is better than none at all, though Obama's slippery position on the Second Amendment shows just how far his "fidelity" to the Bill of Rights goes.
|10.27.08 @ 6:31PM|#
Justice Breyer, a Democratic appointee, are very sensible
judges.
Bwahahahahahahaha!!!!
|10.27.08 @ 6:38PM|#
You have to be a schmuck to believe Obama is telling the truth
now.
He wants gun grabbing, first amendment limiting, discover new
rights anywhere and everywhere judges.
Souter and Breyer sensible? Two senile assholes who never new what
the US constitution meant.
economist|10.27.08 @ 6:39PM|#
Seriously though, do you think this week's South Park episode will be any good?
hotsauce|10.27.08 @ 6:40PM|#
This sounds like a lot of mumbo jumbo that's been poll tested to sound sensible and vaguely appeal to the right -- but with another NAFTA like wink and nod in the other direction. The man will say exactly what it takes to get elected.
squarooticus|10.27.08 @ 6:42PM|#
Souter and Breyer were both on the wrong side of Heller, addressing one of the clearest rights spelled out in the Constitution. 'Nuff said.
SIV|10.27.08 @ 6:46PM|#
Souter and Breyer were both on the wrong side of Kelo and
Raich too. Have they ever been on the pro-liberty side of
anything?
If so,I bet it was for the wrong Constitutional reason.
A Very Well Considered, Studio|10.27.08 @ 6:47PM|#
Obamas gonna take my guns away!
Read it inna newsletter.
Ron Paul!!
|10.27.08 @ 6:53PM|#
Souter and Breyer were both on the wrong side of Heller, ...
Souter and Breyer were both on the wrong side of Kelo and Raich too.
But, but, but ... one was a GOP appointee and the other was a Dem
appointee. Do you two have a problem with bipartisan
authoritarianism?
|10.27.08 @ 6:56PM|#
bipartisan authoritarianism?
Where the only argument is who gets the sloppy seconds.
Mad Max|10.27.08 @ 6:57PM|#
"Generally, the court is institutionally conservative. And what
I mean by that is, it's not that often that the court gets out way
ahead of public opinion."
There *are* some self-proclaimed conservatives who define their
philosophy in this populist manner.
However, there is another line of conservative thought which, in
the context of the U.S. Constutition, takes the extremist position
that conservatism means *conserving the Constitution,* not
upholding the popular whims of the moment. If the Constitution
needs to be changed, amend it.
Just to be clear, *all* government officials, not just judges, take
an oath or affirmation to support the Constitution. The President
specifically promises to "preserve, protect and defend" the
instrument. If some other branch misinterprets, or ignores, the
Constitution - even with popular support - that's no excuse for
other branches of the government to ignore *their* duty.
Following popular opinion (and getting ahead of it on limited
occasions to achieve desired reforms) is not to way to uphold the
Constitution.
|10.27.08 @ 7:06PM|#
And here I thought all this time that it was the job of congressmen and senators to negotiate public opinion, and that it was the job of the courts to ensure that the laws passed by those congress-critters are enforced just as the congress-rats negotiated. Of course, it's a lot easier for life-appointed judges to crush public opinion than it is for congress-demons who have to do distasteful things like run for re-election.
|10.27.08 @ 7:10PM|#
I recall that Souter and Breyer were on the right side on Bajakajian, but that was a decade ago.
SIV|10.27.08 @ 7:15PM|#
I recall that Souter and Breyer were on the right side on
Bajakajian, but that was a decade ago.
As was Clarence Thomas who wrote the majority opinion.
Barack Obama has made his (very negative)opinion of Justice Thomas
quite clear.
Elemenope|10.27.08 @ 7:15PM|#
The man will say exactly what it takes to get
elected.
A man who is running for office is trying to get elected.
Imagine that.
|10.27.08 @ 7:23PM|#
I recall that Souter and Breyer were on the right side on
Bajakajian, but that was a decade ago.
Yeah, well if your jurisprudence is as predictable as a ouija
board, you're bound to get one or two right in a career.
|10.27.08 @ 7:24PM|#
"The Warren Court was one of those moments."
Wow! Way articulate! He's so smart!
hotsauce|10.27.08 @ 7:34PM|#
Very cute, LMNOP. Care to comment on BO's substance free take on judicial philosophy?
|10.27.08 @ 7:35PM|#
OK, I'm getting tired of this retarded bullshit from people who
think that the most important Fourth Amendment cases stop with the
thermal imaging case where the conservatives walked ass backwards
into the right decision.
In point of fact when it comes to criminal procedure, you know,
where the government uses force to intrude into your person,
papers, home and effects and can deprive you of your liberty Breyer
and Souter kick Scalia and Thomas' ass. Just pick up any casebook
on criminal procedure.
|10.27.08 @ 7:38PM|#
Remember that at the heart of the thermal imaging case was that the conservatives have long been against the Katz expectation of privacy doctrine and are for the common law idea of the Fourth applying to actual tresspasses. In this case the conservatives thought the information would fall under this (gotten from the home) while the liberals were dubious. But the Katz doctrine is widely reconized as expanding Fourth Amendment protections, in fact the conservatives on the court bemoan this.
|10.27.08 @ 8:08PM|#
It's funny, but the Supreme Court could end up more conservative
at the end of Obama's term than it was at the beginning.
If his only appointments involve replacing 1-3 of the liberal
geezers with pragmatic, non-ideological centrists, it would
represent a move the right.
|10.27.08 @ 8:14PM|#
Breyer alone in the pro-liberty side of ONLY Fourth Amendment
cases, and then only on famous ones. Jesus, don't get me started on
the 5th and the 6th. I mean really, go read a criminal procedure
casebook and you will be suprised that anyone ever suggested that
Clarence Thomas or Scalia gave a shit about liberty.
Hudson v. Michigan-where the conservatives argued that because the
police were so professional and trustworthy we did not need knock
and announce, Breyer dissented
Hiibel v. Sixth Judicial District Court of Nevada-where the
conservatives ruled that statutes requiring suspects to identify
themselves during police investigations did not violate either the
Fourth or Fifth Amendments, Breyer dissented
Atwater v. Lago Vista-where it the conservatives ruled that an
arrest for violation of seatbelt misdemeanor was not an
unreasonable seizure, Breyer dissented
City of Indianapolis v. Edmond-where Breyer joined the majority
ruling which limited the power of law enforcement to conduct
suspicionless searches, specifically, using drug-sniffing dogs at
roadblocks, the conservatives were all for it
Georgia v. Randolph where Breyer joined a majority that held that
police without a search warrant could not constitutionally search a
house in which one resident consents to the search while another
resident objects, conservatives were all for it
Illinois v. Wardlow-conservatives upheld search, Breyer joined
dissent
Samson v. California-conservatives upheld suspicionless searches of
parolees are lawful under California law and that the search in
this case was reasonable under the Fourth Amendment, Breyer joined
dissent
|10.27.08 @ 8:15PM|#
They believe in fidelity to the text of the Constitution,
but they also think you have to look at what is going on around you
and not just ignore real life.
Translation: They believe in fidelity to the text of the
Constitution when that happens to match up with their personal
opinions of how that document should have been written.
The rest of the time, they're good and ready to shred passages of
the Constitution that don't mesh up with liberal
activism "real life".
It's funny, but the Supreme Court could end up more
conservative at the end of Obama's term than it was at the
beginning.
HAHAHA! Good one!
OK, who's parodying joe there? Even he couldn't believe such
rubbish, yeah?
|10.27.08 @ 8:18PM|#
I'd love to hear the GOP shills that pretend to be libertarians
tell us why the Warren Court criminal procedure cases didn't take
the individuals side vs. the government in the most consistent
fashion ever in the Court's history. By far. And the more liberal
the justice, the more they took the side of the accused against law
enforcement. Scalia alone is one of the more "hey, you can just
trust the police" guys you will ever see this side of 1940.
Sorry for the frequency of posts but I am really tired of this
Scalia/Thomas liberty defenders bullshit. You can only stretch
Kyllo so fucking far nuts.
|10.27.08 @ 8:23PM|#
I like the way you still think standing there with your mouth
agape at the crazy shit I come up with is still a convincing
argument, prolefeed.
It's cute.
economist|10.27.08 @ 8:27PM|#
joe,
I like how you think that Obama would appoint centrist,
nonideological justices.
economist|10.27.08 @ 8:27PM|#
Then again, if "centrist" means "agrees with joe", then I guess you're right.
BDB|10.27.08 @ 8:38PM|#
More conservative? No. It will stay the same. Obama is going to replace the liberal geezers with liberal youngins.
|10.27.08 @ 8:39PM|#
His discussion of Supreme Court cases are the kind of
professional, wonky, talking-shop type of analysis that leads me to
think that he sees the role as essentially technocratic.
Not everybody sees the federal judiciary as primarily an arena for
ideological warfare - although those who do tend to assume everyone
else does, too.
|10.27.08 @ 8:42PM|#
Oh, no question, he's appoint people on the liberal side of
things.
But would he appoint liberals who think their job is essentially
technocratic and consider their greatest loyalty to be to the Law,
or would he appoint liberals who conceive of themselves as
crusaders?
In general, I think liberals who came of age in the 80s and 90s
tend to be more technocratic and less activist than those who came
of age in teh 30s-70s, so replacing geezers with younguns would
represent a movement away from ideology.
SIV|10.27.08 @ 8:44PM|#
Not everybody sees the federal judiciary as primarily an arena for
ideological warfare
The Democrat party senators do joe. The Republican Senators? Not so
much.That is why many of them voted to confirm liberal
nominees.
MJ|10.27.08 @ 8:47PM|#
Wow, what a surprise, Obama's favorite Republican nominated Justice is universally considered by conservatives to be about the worst GOP appointed Justice ever (and perhaps the worst Justice period). That, combined with his low opinion of Thomas does not bode well at all for people whose idea of an "institutionally conservative" means a court who's actually concerned with preserving the Constitution and not questionable precedent.
|10.27.08 @ 8:47PM|#
Jesus Joe is just saying that Obama's appointments will be more Breyer and Souter than Stevens and Ginsburg and so will actually move the court to the center since the latter are more liberal than the former. Prol I grant if you read right wing rags you'd get the idea that there is no distinctions between the four, but that's untenable if you read a lot of opinion. It's the same mistake liberals make when they don't see the differences that exist between say Scalia and Rehnquist or even Nino and Thomas.
|10.27.08 @ 8:50PM|#
The Democrat party senators do joe.
Gee, a guy who uses the term "Democrat party" thinks the
Republicans are better. There's a shocker.
I'd say it depends on the Democratic senators in question. In
general, I think the older ones tend to be more ideological about
the judiciary, and the younger ones more procedural and
law-centered.
Like the judges themselves.
|10.27.08 @ 8:52PM|#
And vice-versa for the Republicans; it's the younger ones who are more activist and ideological about the judiciary, and the oldsters who are more into putting politics aside.
BDB|10.27.08 @ 9:00PM|#
Just a question, will people realize after (if) Obama wins the election that it means Roe v. Wade isn't going anywhere, ever? Can we finally stop talking about abortion then?
Elemenope|10.27.08 @ 9:07PM|#
Very cute, LMNOP.
'Cherubic' is the adjective I prefer.
Care to comment on BO's substance free take on judicial
philosophy?
I don't like it.
|10.27.08 @ 9:27PM|#
I'm rather dubious of claims that Obama is a centrist. Which
Obama is that? The one running in the general election, or the one
running in the primaries? Or Senator Obama? And the current
composition of Congress would likely encourage less centrism, not
more.
If he were to come out openly suggesting an activist court, he'd
lose a good number of votes, so his self-serving remarks are
worthless. Another reason that nominating a cipher was a bad
idea--who the heck knows what he'll do?
|10.27.08 @ 9:44PM|#
Pro
I don't think it matters which he is. He'll govern a lot like Doug
Wilder did in VA when he became the first black governor, which was
very "conservatively" (meaning not many bold measures which could
backfire). He knows all eyes will be on him as the first black
Prez.
BDB|10.27.08 @ 9:50PM|#
I don't think it matters which he is. He'll govern a lot like Doug Wilder did in VA when he became the first black governor, which was very "conservatively" (meaning not many bold measures which could backfire). He knows all eyes will be on him as the first black Prez.
This. And the liberals won't be able to say anything, because that
would be attacking the First Black President (tm) and a good
leftist just wouldn't do that! It sounds crazy but trust me that's
how it will break down.
|10.27.08 @ 9:54PM|#
BDB,
That just pushes the debate on for eternity. As long as Roe v. Wade
stands, the pro life side is going to have a grievance because they
feel (rightly on the narrow Constitutional question) that they are
getting jobbed.
BDB|10.27.08 @ 10:04PM|#
But wouldn't they just realize it's fucking futile? It would be thirty years before they could get it overturned at that point.
|10.27.08 @ 10:21PM|#
Just a question, will people realize after (if) Obama wins
the election that it means Roe v. Wade isn't going anywhere, ever?
Can we finally stop talking about abortion then?
If they did not realize it after 8 years of Bush with 6 years of
Republican control of congress then they will never realize it.
|10.27.08 @ 10:31PM|#
the pro life side is going to have a grievance because they
feel (rightly on the narrow Constitutional question) that they are
getting jobbed.
Hell there are unReconstructed Southerners who still feel they got
jobbed. Can't the pro-lifers just accept they've got God on their
side and all eternity to gloat?
robc|10.27.08 @ 10:51PM|#
A man who is running for office is trying to get
elected.
Imagine that.
Not a legitimate excuse.
robc|10.27.08 @ 10:54PM|#
MNG,
Maybe Raich is more important than any of those cases (combined).
Of course, that still doesnt help Scalia.
However, while Scalia seems to side with the police, isnt he a nit
for prosecutors following procedure?
Tacos mmm...|10.27.08 @ 11:02PM|#
Obama's answer sure as hell beats abortion dogwhistle
conservative candidates have been using for years.
Take Bush's answer to essentially the same question four years
ago:
Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.
That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all-you know, it doesn't say that. It doesn't speak to the equality of America.
And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.
And I suspect one of us will have a pick at the end of next year-the next four years. And that's the kind of judge I'm going to put on there. No litmus test except for how they interpret the Constitution.
Yeah. Give me Obama's answer any day.
|10.27.08 @ 11:24PM|#
Joe, what do you think of this planned parenthood video?
http://www.youtube.com/watch?v=MiFOFUGIhFE
Honestly, I am pro-choice, but you democrats are some messed up
people.
Strike Three!|10.28.08 @ 12:30AM|#
Another reason that nominating a cipher was a bad idea--who
the heck knows what he'll do?
And the more I'm hearing, the less I'm liking. In a real big
way.
Pendulum|10.28.08 @ 1:04AM|#
Souter is pro-liberty on almost every 1st Amendment and 4th Amendment case. If any of the 9 are right about it, that is. Certainly more often than any other justice, except possibly Kennedy.
|10.28.08 @ 1:31AM|#
I'd really like to know how anyone who calls themselves a libertarian could vote for this.
|10.28.08 @ 3:28AM|#
I'd really like to know how anyone who calls themselves a
libertarian could vote for this.
Because the threat of neverending war in the Middle East and the
continued rise of unchecked executive power seems a whole hell of
lot more realistic than the threat of America going commie (or even
just Scandinavian).
Of course, I suppose it's better to vote for a third party.
|10.28.08 @ 8:20AM|#
gabe,
I think that the Planned Parenthood employees are plainly disgusted
with the racist callers, but take the offered money, as they
should.
I think that's a cheap and misleading stunt, and shows how
incredibly unserious the doomed anti-abortion movement is, that
they have to stoop so low.
TallDave|10.28.08 @ 11:26AM|#
Generally, the court is institutionally
conservative.
Well, duh. That just means they generally don't like inventing new
laws to benefit the trendy social cause of the day, no matter how
much of a great idea it seems like at the time. It kind of erodes
the rule of law when the interpreters of the law start seeing
whatever the hell they want in it.
|10.28.08 @ 11:37AM|#
Joe,
Not only do they take the money, but they earmark it for black
babies. I've seen groups get raked over the coals for accepting
less questionable donoations.
|10.28.08 @ 11:45AM|#
Joe, Your absolutely right that SOME of them were personally
disgusted and I'd bet some starting having some cognitive
dissonance about what they were doing. However, the fact is that
the policy was there in the institution to allow for this..the
money was earmarked. If you read about the people that started
these groups you see why.
"We should hire three or four colored ministers, preferably with
social-service backgrounds, and with engaging personalities. The
most successful educational approach to the Negro is through a
religious appeal. We don't want the word to go out that we want to
exterminate the Negro population. and the minister is the man who
can straighten out that idea if it ever occurs to any of their more
rebellious members."
Margaret Sanger's December 19, 1939 letter to Dr. Clarence Gamble,
255 Adams Street, Milton, Massachusetts. Original source: Sophia
Smith Collection, Smith College, North Hampton, Massachusetts. Also
described in Linda Gordon's Woman's Body, Woman's Right: A Social
History of Birth Control in America. New York: Grossman Publishers,
1976.
"Eugenic sterilization is an urgent need … We must prevent
multiplication of this bad stock."
- Margaret Sanger, April 1933 Birth Control Review.
"Birth control must lead ultimately to a cleaner race."
- Margaret Sanger. Woman, Morality, and Birth Control. New York:
New York Publishing Company, 1922. Page 12.
|10.28.08 @ 11:47AM|#
Gabe,
No, they earmark it for black women. Black women who make their own
decisions about the best thing to do for their families, and their
futures, and their lives.
Presumably, said women are not part of a genocidal plot to keep
down the black race, but are, in fact, making a decision that will
allow them to make the most of their lives.
Empowering women to make their own reproductive decisions improves
their lives and communities. Providing reproductive services to
black women helps those women individually, and their communities
as a whole.
Dumbass wingnuts just don't see that, because they don't know or
care about how empowering women like that helps them keep their
families and futures strong.
|10.28.08 @ 11:50AM|#
I don't give a crap about Maraget Singer being into eugenics in
the 1920s, any more than I care about Washington, Jefferson, and
Madison owning slaves in the 1780s.
Those are interesting historical footnotes that tell us nothing
about the modern United States and the modern Planned
Parenthood.
|10.28.08 @ 3:32PM|#
If you think the Constitution is too conservative on some issue,
get 2/3 of Congress and 3/4 of states to agree with you and pass an
amendment.
If you can't do that, maybe the Constitution ISN'T too conservative
after all.
|10.28.08 @ 4:15PM|#
Joe,
I'm pro-choice out of the selfownership principle(basic property
rgiths)and I'm not racist and I agree that it can be a good
cost/benefit decision for some families/women to have an
abortion.
I also can understand that some doctors don't want to kill little
babies and don't think your a wingnut just because the thought of
doing so makes you feel a little immoral. I also have read enough
about these eugenic wingnuts and why they founded planned
parenthood to know that I will never work or give charity to those
guys.
the comparison to jefferson doesn't quite work because I'm not
supporting a charity called "planned slavitude" that was founded by
Jefferson...I just like his opinions on central banks and foreign
policy.
|10.28.08 @ 5:08PM|#
If his only appointments involve replacing 1-3 of the
liberal geezers with pragmatic, non-ideological centrists, it would
represent a move the right.
Like Obama and sixty Dem Senators are going to appoint
non-ideological anybody.
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