The Potter Stewart Standard

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Kerry's suggesting that the right kind of judge is one whose political opinions aren't detectable in his rulings. But in the context of jurisprudence, where "liberal" and "conservative" tend to reflect different interpretive stances rather than policy views, I just don't buy that it's possible. Does a judge make every effort to defer to Congress in the absence of an unambiguous prohibition on the kind of law in question, or does he read terms like "equal protection" or "establishment" more broadly? How can differences like that not be apparent in a decision?

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  1. Isn’t Potter’s neoclassical edifice right here in Sinincincinnati?
    Beyond that, Sanchez, while you’re getting more esoterical, I’m getting more drunker.

    Sweet dreams.

  2. Julian, aren’t laws supposed to be found unconstitutional when there isn’t a provision in the Constitution specifically *granting* Congress the power to enact such a law, rather than allowing laws which there aren’t specific prohibitions against?

  3. David-
    In a better world. But absent Lopez and maybe one or two cases since, that view seems to be dormant for now.

  4. Wouln’t the easy technique for Bush, be to name the judges he nominated, and what Kerry’s vote on them was?

  5. David,

    Depends on how you view the commerce clause. However, don’t expect any Bush appointee to call for a wholescale rollback of the past sixty years of commerce clause caselaw.

    Julian,

    I don’t know if you know much about the abstention doctrines, but the courts are often very willing to fail to exercise jurisdiction when they have an express grant to do so (either constitutional or statutory). This bugs the hell out of me because it allows the courts to make the sorts of decisions about the nature of its jurisdiction that should – at least as I read Art. III – left up to the Congress. Indeed, I see it as merely the flip-side of the courts – as they did in the 1960s and 1970s – creating rights of action or remedies out of whole cloth. However, as you might guess, its the “conservative” justices that tend to favor abstention, and this is large part due to its ability to link up with the federalism fetish concerning the nature of state courts.

  6. I would like to find the quote by Potter Stewart that Kerry used. It seems to me that Kerry took liberties and added to it. Can you help me?

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