Antonin Scalia

Could you elaborate on your final statement, KB? The one about agreeing with a given Justice on all rulings as evidence that you weren't thinking things through?

Doesn't that belief necessitate that some Justices don't properly think certain issues through, themselves? Or does it intend to mean that they do think them through, but we see the issue with a greater clarity, understanding or depth than they are capable or producing, alone, at least in some instances?

I don't want to assume your meaning, so I ask.

 

The back and forth between Droski and myself has been with regards to point 1.

Point 2 has been touched on without it being articulated in that exact manner. Clarence Thomas is definitely black. And, imho, he is an intellectual Junior Flyweight when compared to his robe-wearing peers. We haven't touched upon how causation issues might be related to the statements from the previous two sentences. And methinks we might should stay away from that one.

 

I don't agree with his concurrence in Cruzan. I don't think ending life-sustaining procedures like feeding tubes is the same as suicide. I do, however, very much agree with his view on deciphering legislative intent and his belief that we can't look to unenacted law such as legislative history, committee notes, various legislator's statements on the statute, etc. I like the view that we determine legislative intent by only looking at enacted law.

 

I took it to mean that we all see the world from a perspective that is skewed by the sums of our experiences. To suggest that we should always agree with the opinion of a particular justice might also suggest that we share the same experiences and perspective. Given that this is unlikely, it might seem highly unlikely one would always agree with a particular justice's take on constitutionality or law.

 

Point well made, and taken.

But I might also offer that, at some point, "thinking it through" to the best and most logical conclusion is (or should be) independent of those factors, or at least to the greatest extent possible. And if the best and most logical conclusion cannot be universally accepted, whether for the reasons you stated or any other, and their is a differing of belief or opinion, then one must be more correct than another, right?

2+2=5, while undoubtedly wrong, is still closer to the truth than 2+2=6.

What I sought to clarify was KB's insuated assumption that always agreeing with a single Justice somehow meant that you weren't think it through. If that was the premise, then I reject it, outright.

For example, I (hypothetically) agree with every position assumed by CJ Roberts - isn't it far more likely that he simply more closely rules in closer favor with my own philosophies / beliefs, rather than I have someone failed to think it through.

And if I had to choose which of the two to place more trust in their ability for impartiality, experience interpreting the law, thinking through the most convoluted and often conflicting legal cases imaginable - be it myself or any one of the nine Justices, were I to find myself agreeing with their every ruling, only the insane would believe it would be best entrusted to the former (John Q. Citizen) instead of the latter (the Justice).

Simply, I don't beliee that agreeing with a single Justice on every ruling automatically conveys some absence of my own intellectual due diligence.

 

I should have put in there that a man that agrees with Clarence Thomas in all cases is thinking through the issues for himself. It's just that his thought process starts and ends with "what would they have done in 1789?".

But sure. I'll simplify here but the reason a case makes it up to the supreme court is because it involves (a) an issue where there is a disagreement between the circuit courts (i.e. we've got a federal law that the people in california are interpreting differently than the people in Wisconsin, or (b) a constitutional issue. These aren't the only two reasons, but let's just roll with it.

So in part (a) we've got very smart people -- federal judges are smart dudes -- in one part of the country who disagree with very smart people in another part of the country. And so the issue gets tossed up to the supreme court where 8 very smart people and one other guy charged with the task of figuring out which group of smart people is right. And so these cases are close. And when cases are close there are a lot of different ways of breaking the tie by framing it this way or that or giving more weight to this policy justification than that other one because of this reason. Or asking what does the text mean? Or asking what did congress actually want it to mean if they did a really bad job with the text? Or asking do I want to have sex with Anna-Nicole Smith? Or asking do I hate Anna Nicole Smith because she is a gold-digging hooker and she's fat to boot? In other words, the way these cases are analyzed isn't without a great deal of nuance. And so just like smart people thinking on their own might disagree on whether '92 Duke was a better basketball team than '96 UK, they will surely disagree from time to when various competing considerations are butting heads and one must weight them and sort them out.

And in part (b) we've basically got a very short document. Constitutions and Treaties only get ratified if they are short and really vague. This way both James Madison and Alexander Hamilton think they got the better of each other, and so they'll persuade their respective peeps to sign off on it so we can scratch the shitty articles of confederation and get our mother [uck fay]ing america on. And so then it is the job of the court to decide whether it was Madison who got the better of Hamilton, or whether the tiny little [uck fay]er actually got his ass whupped (this was no disrespect to Madison. Great american. Little guy.). This of course gets more complicated as centuries pass and a simple phrase like "commerce among the several states" ends up becoming very very important indeed. The text doesn't help you much in interpreting that phrase, so you look at the constitution as a whole and how the document was structured and you see whether that provides any insight into the question. You think stuff along the lines of: well the articles of confederation sucked because the federal government was really weak, and so each of the states were free to basically [uck fay] each other in the ass. Each state basically had alligator arms and couldn't reach outside of its own borders. "Oh, look, there is KidB selling weed to my son and banging my wife without a condom and stealing my negro female house slave and look he's banging her without a condom too. Okay, let's get him. Ahhh...[dadgum]it we live in Georgia and he's just escaped to Tennessee and now we can't do anything because Tennessee is trying to [uck fay] us by not honoring our currency and not enforicing our court orders and it's all because, blah, blah, you get the idea". So what then what we'll do is we'll add into this new constitution a federal government with the powers to do what the states can't do because the states have alligator arms. So the stuff that inherently goes on inter-state is stuff that we can regulate at the federal level. But if it is stuff that the states can take care of themselves, then that will be off limits for us. We can't legislate that stuff, because the states are good with it. They'll do their thing.

And, actually, that is basically my view on how the commerce clause should be interpreted. But, of course, as a supreme court justice you have deal with the existing law of the land -- pesky precedent -- and be mindful fo how much of a departure from the status quo you are willing to let the law make. Of course, if you are Clarence Thomas you ignore that last sentence because that isn't a consideration as it is something other than "what did they do in 1789".

So that was just one example of how tricky constitutional issues are. Another one -- and I'll stop at this one -- is the issue of executive power. And this one is especially tough because the text of hte constituation provides essentially no guidance in telling the courts and the president and congress where the checks end and the balances begin. When does the president have to ask congress for permission? When can he just say "[uck fay] it, congress are a bunch of slow-acting jabbering morons with their procedurally-heavy bicameralism requirement and that [dadgum] C-SPAN network, and so I'm just gonna do the shit myself. If push comes to shove I'll have my lawyers make an executive power argument." The court has to wrestle with issues like this really looking only to the specifics of the situation and the structure of the constitutional document itself for guidance. And all the while the court is being very mindful not to overstep it's boundaries, because really the only authority that the supreme court has it has because it said it had it back in Marbury v. Madison and basically everyone hs just gone along with it ever since. But if it started habitually line-stepping like Rick James to Charlie Murphy in the Dave Chappelle skit, there could eventually be a situation where the president says "[uck fay] you, court, what are you going to do it about it?".

And the constitutional issues are nuanced and complicated for different reasons that the issues that come up as a result of a circuit split, but much of what I said above in that part applies here as well. There are just a lot of reasonable ways of weight these considerations out, and so smart, independent thinkers will rarely come to the exact same conclusion with the exact same way of having gotten to that conclusion.

 

I'm not as familiar with Justice Thomas' perceived lack of intelligence as you are.

In what areas of intellectualism or scholarship has he failed to meet the standard of his peers, exactly?

Frankly, I'm shocked that such a disparity exists, so I'm curious to hear the reasons for your belief that such is true.

And if this cannot be exampled, why would we accuse him of such insufficiencies? Is it because he is he only black Justice?

 

You make an excellent point here. Perhaps your general approach to interpreting the constitution is more in line with CJ Roberts and so you usually agree with his opinions. Kool and the gang. But what will happen is that an issue will arise where it won't be that easy. Maybe you generally lean towards a stronger executive and an originalist based approach. But then a case comes along where your originalist approach leaves the president completely powerless to act when the president really does need to act for the greater good of the nation as a whole. Which one do you ditch?

This is why I actually really like it when I see odd alliances on a SCOTUS case. Like a dissent written by Scalia and joined by Ginsburg. That gives me faith in the Judicial Branch. That it's smart people thinking about the issues and struggling to come up with the best answers, and not pseudo-politicians who happen to wear black robes and favor whatever side appointed them to the bench.

 

Thank you!

Given this, how then do you explain the inarguable phenomenon of Justices who nearly always rule along their own well-known ideologies (liberal or conservative)? if a Justice is a neo-con, they are overwhelmingly likely to see all issues from that framework, and rule accordingly. Would it not then be expected that those rulings would be in agreement with the views of all other neo-cons?

Does that mean that either the Justice or the neo-con hasn't thought a particular issue through?

This most recent case as a fortuitous example - 8 of the 9 Justices have already been safely presumed to fall along their respective beliefs....and this, while oral arguments remain on-going.

My point is this: while the issues are undoubtedly complicated and rife with nuance - how the Jusices vote seems anything but.

 

But if my agreeing to the rulings of Justice Roberts are aligned, would it not stand to reason that they would remain similiarly congruent, even in their deviations and exceptions.

CJR might make a ruling that seems contrary to his typical conservative philosophies, where he belives he must - and perhaps I believe that such is also required.

 

I promise it isn't because he is black. He is radical. He doesn't take a reasoned approach to things. Ever.

 

At some point there will be a divergence in the approach you use to decide what consideration trumps another consideration. The the decision tree will have too many branches. And the only way that you could be always in agreement with Roberts is if you actually studied his approach -- and I mean thoroughly studied every opinion the guy has eve written...and even that might not be enough -- and constructed your own approach strictly in accordance therewith.

 

The predictable 5-4 split cases are the ones I like the least. They happen in certain cases, but they aren't the norm.

 

Here is a document breaking down the alignments for every case in 2009. Harvard Law Review does this each year.

http://www.harvardlawreview.org/media/pdf/vol_12401statistics.pdf

 

I know; it was Unimane's. In the throes of sleep deprivation from spending the night in a window seat with a new baby and recovering wife, I was arguing at him through your post, and although I probably would have worded it differently if I had written it after a nap, I think the point stands.

 

I do not think the terms liberal and conservative, as usually understood in the political sense, fit very well when describing the SC Justices. I think a better way of separating them is to do so according to those who believe that the constitution does and should evolve according to societal changes and those who believe the original intent of the writers should be strictly administered as the law.

The difference between these two philosophies usually shows itself in matters of the scope of the authority of the federal government. Originalists broadly believe that if the Constitution does not expressly grant the authority to do something, the government cannot do it, severely limiting federal authority. This philosophy seeds less power to the federal government and more power to the individual and to the states. The living Constitution folks believe that the document is intended to be dynamic and evolving and point to things like the Interstate Commerce Clause to drastically broaden the scope of the federal government into many areas not otherwise specifically enumerated, shifting power back from the states and the people to the federal government.

Political liberals tend to side with the living philosophy because it allows federal intervention into many social and economic issues in which they would like to broaden federal intervention; political conservatives tend to side with the originalists for exactly the oposite reasons, and there is strong correlation between a particular philosophy and political ideology and many important issues, making the voting blocks on many cases easy to predict.

 

I understand completely. Hope everything is going well with the new addition. Congratulations.

 

"Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," Obama said.

Obama takes a shot at Supreme Court over healthcare | Reuters

WTF?

 

same old same old from obama. everyone that doesnt' bow to his will is doing so purely out of political motivations.

 

I must have misunderstood some words in this particular soundbite, though. I thought "unprecedented" meant something like new or novel, when I'm pretty sure the Supreme Court has overturned laws passed by democratically elected Congress many, many times. In fact, it is one of the main things they do.