"Generally, the court is institutionally conservative"

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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.

Whole thing here. 

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. 

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  1. Justice Breyer, a Democratic appointee, are very sensible judges.

    Bwahahahahahahaha!!!!

  2. Goddammit where’s the f*&^ing whiskey!?

  3. 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.

  4. Seriously though, do you think this week’s South Park episode will be any good?

  5. 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.

  6. Souter and Breyer were both on the wrong side of Heller, addressing one of the clearest rights spelled out in the Constitution. ‘Nuff said.

  7. 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.

  8. Obamas gonna take my guns away!

    Read it inna newsletter.

    Ron Paul!!

  9. 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. What is a Warren Court?

  11. bipartisan authoritarianism?

    Where the only argument is who gets the sloppy seconds.

  12. “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.

  13. 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.

  14. I recall that Souter and Breyer were on the right side on Bajakajian, but that was a decade ago.

  15. 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.

  16. 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.

  17. 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.

  18. “The Warren Court was one of those moments.”

    Wow! Way articulate! He’s so smart!

  19. I guess “one of those moments” lasted 18 years.

  20. Correction:

    I guess “one of those moments” lasted 16 years.

  21. Very cute, LMNOP. Care to comment on BO’s substance free take on judicial philosophy?

  22. 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.

  23. 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.

  24. 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.

  25. 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

  26. 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?

  27. 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.

  28. 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.

  29. joe,
    I like how you think that Obama would appoint centrist, nonideological justices.

  30. Then again, if “centrist” means “agrees with joe”, then I guess you’re right.

  31. More conservative? No. It will stay the same. Obama is going to replace the liberal geezers with liberal youngins.

  32. 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.

  33. 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.


  34. 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.

  35. 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.

  36. 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.

  37. 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.

  38. 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.

  39. 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?

  40. 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.

  41. 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?

  42. 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.

  43. 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 ™ and a good leftist just wouldn’t do that! It sounds crazy but trust me that’s how it will break down.

  44. 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.

  45. But wouldn’t they just realize it’s fucking futile? It would be thirty years before they could get it overturned at that point.

  46. 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.

  47. 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?

  48. A man who is running for office is trying to get elected.

    Imagine that.

    Not a legitimate excuse.

  49. 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?

  50. 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.

  51. 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.

  52. 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.

  53. 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.

  54. I’d really like to know how anyone who calls themselves a libertarian could vote for this.

  55. 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.

  56. 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.

  57. 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.

  58. 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.

  59. 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.

  60. 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.

  61. 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.

  62. 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.

  63. 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.

  64. 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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