Saturday, September 18, 2010
Getting Serious about the Justices
Okay, let me get serious for a moment about our Supreme Court Justices. A few serious, but opinionated comments:
CJ ROBERTS: A consistently conservative CJ, just like his predecessor Rehnquist. Eminently qualified to be CJ. Although he often has opinion-assigning authority, he doesn’t hog it. At his confirmation hearings he showed great knowledge of the Constitution and was able to charm many of the skeptics.
Samuel ALITO: Had trouble coming up with one for him, hence the long reach. In spite of the negative connotation, I was pleased with his nomination and confirmation. He might be one of the few who takes judicial restraint seriously. It’s a big feather in his cap to get authorship of the landmark McDonald opinion. The nickname comes from his tendency to be ruthlessly conservative in his opinions like his namesake was in history as a warrior and ruler. Too much knee-jerk conservatism. On the positive side, without him our Second Amendment rights might still be buried under a liberal smokescreen.
Anthony KENNEDY: IMHO, the Justice most likely to be able to rise above ideology to do real judging. I agree with Kennedy more often than any other Justice. As the most frequent swing-vote, one of the most powerful public officials in America. IMHO, he usually gets the big ones right, e.g., Heller, McDonald, Boumediene and the corporate campaign finance case. Probably the closest thing to a real libertarian on the Court. Perhaps a little too conservative when it comes to the rights of suspects and defendant.
Antonin SCALIA: The most brilliant, witty, perceptive and overall the best writer and researcher. At one time he was my favorite and I thought he was serious about setting aside ideology. He seems to be have become another knee-jerk conservative. He writes too many nit-picking dissents. However, his brilliance came through in his McDonald concurrence which made mincemeat of Stevens’ dissent. No one on the Court comes close to his intellect, esp. the liberals.
Clarence THOMAS: Frequently way out in right-field. Times have changed and precedents have come and gone since the 1800’s. Tends to be a knee-jerk conservative—sometimes an embarrassment. Nickname comes from his tendency to remain totally silent at oral argument.
Stephen BREYER: Most transparently aggressive of the left-wing cultural warriors on the Court. Not impressed with his intellect, but am impressed with his creativity. He can find more arguments that have little or no basis in the Constitution, history or precedent to justify his preferred result than any Justice I’ve seen. Over-sized ego. His huckstering of his book is an embarrassment.
Ruth Bader GINSBURG: I am impressed with her intellect but not with her knee-jerk liberalism. As for the nickname, check out some of her recent photos.
Sonya SOTOMAYOR: Not impressed yet. She will probably turn out to be another knee-jerk liberal.
Elena KAGAN: Too early to tell, but given her background and her nominator, she’ll probably turn out to be another knee-jerk liberal. Too much experience in academe, not enough in areas that should count more.
Finally, the most recent retiree, STEVENS: another nickname would be John Paul, “Don’t burn that flag” Stevens. Some of his later year opinions were weak. Although not as bad as some of the others, generally a knee-jerk liberal.
I’m anxious to hear your opinions on this crew.
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I'd like to believe the conservative justices are not so much knee jerk but rather slapping some constitutional sense into their leftist colleagues' socially progressive politicized fantasies.
ReplyDelete44:
ReplyDeleteYou may be right. However, there is much empirical research that suggests that attitude or ideology is the determining factor in at least the “big” cases such as Heller, McDonald, Boumediene and Citizens United. I would recommend Segal and Spaeth’s book,“The Supreme Court and the Attitudinal Model,” as a starting point. In addition, my reading, teaching and informal research as well as reading opinions for over 30 years suggests otherwise. Part of the problem of teasing it all out is that even an ideologue can get it “right” 50% of the time. In general, the Court has two options: reverse or affirm. A Justice can get it “right,” but for the “wrong” reasons. Of course the rationale of the decision, involves a lot more options.
Let me provide an example of what I am thinking of. Scalia was my favorite Justice for many years. I felt he was sincerely trying to limit judicial discretion and act like a real Justice. However, IMHO he has gotten so wrapped up in the kulturkampf he criticizes, that he has become as bad as the ideologues on the left. He reached the “correct” result in Heller because of his originalist approach which is, in many cases, inherently conservative. Because there was no clear and adequately researched Supreme Court opinion on the meaning of the Second Amendment, his originalist approach led him to the “correct” result. However, not all issues can be resolved by originalism. If the original intent/meaning has already been established, originalism is of little help. However, IMHO his positions in many of the exclusionary rule are contrived and result-oriented, and not the work of a judge who is trying to be impartial.
As a lay observer, it's true my knowledge is limited regarding judicial matters in any forum. This said, My impression of the U.S. congress and supreme court is of legislators judging and justices legislating respectively. Your thought?
ReplyDelete44:
ReplyDeleteThanks for keeping the discussion going. Agreed that legislating and judging are, and should be, separate functions. With regard to the S.Ct., too many justices are interested in imposing their politically based policy choices on the nation. To a certain extent, the Court does unavoidably make law and policy when judging, but those choices should be based on the Constitution and history, not personal preferences.
Well said.
ReplyDeleteThanks,
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