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At Least She's More Qualified Than Michael Brown...
by hilzoy
As I said earlier, I would probably have voted to confirm John Roberts, on the grounds that almost anyone this President nominated to the Supreme Court would probably be worse. Unfortunately, today we see what worse would look like: Harriet Miers. Conservatives are, for the most part, upset. Bill Kristol is "disappointed, depressed, and demoralized". David Frum:
"In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met. She served Bush well, but she is not the person to lead the court in new directions - or to stand up under the criticism that a conservative justice must expect."
Andrew Sullivan:
"Think of her as a very capable indentured servant of the Bush family. (...) I think they've found someone whose personal loyalty to Bush exceeds even Gonzales'. And in some ways, I see this very personal, very crony appointment to be a response to being told he couldn't pick his main man, Alberto."
John Podhoretz (before the pick was announced):
"I am going to assume that this is a classic Bush head-fake gambit. If I'm wrong, I will spend the weekend banging my head against a concrete wall. This is the Supreme Court we're talking about! It's not a job for a political functionary!"
Mark Levin:
"But, in truth, we already know what's going on here, and that the president, despite a magnificent farm team from which to choose a solid nominee, chose otherwise. Miers was chosen for two reasons and two reasons alone: 1. she's a she; 2. she's a long-time Bush friend. Otherwise, there's nothing to distinguish her from thousands of other lawyers."
Todd Zywicki:
"At the time, of course, I had assumed that some minimum degree of luminescence would be required, in addition to Presidential trust. Little did I know that being close to the President would turn out to be the sole criteria for nomination to the Supreme Court. (...) I haven't double-checked the transcript from the press conference, but is everyone sure that he said "Supreme Court" and not "Secretary of Transportation"? The latter certainly seems somewhat more plausible..."
Krempasky at RedState:
"Mr. President, you've got some explaining to do. And please remember - we've been defending you these five years because of this moment."
And Erick:
"Me, the sources, everyone it seems was wrong. We've all heard the rumors, but not a one could believe the President would do that. (...) I think I'll let the President fight this battle himself, for now."
And just check out the comments on ConfirmThem.com. "Howls of anguish" doesn't begin to describe it.
(The always reliable Hugh Hewitt, by contrast, writes: "The president is a poker player in a long game. He's decided to take a sure win with a good sized pot. I trust him. So should his supporters." But even he has, essentially, to rely on faith.)
Reaction from the left is best summarized by Matt Yglesias at TAPPED:
"it's tempting to conclude that anyone whom the wingnuts dislike must be a good thing on some level. But au contraire! One of Bush's truly unique abilities is to undertake major initiatives (farm bill, medicare reform, steel tariffs) that conservatives don't like but which simultaneously don't do anything to please liberals. This may be another such case."
Yep. This is a nomination that shows us, once again, how little Bush cares about little things like a person's qualifications to hold a job, and his lack of respect for the Supreme Court. That should not please anyone, and apparently it hasn't.
Posted by hilzoy at 11:26 AM in Law | Permalink
You know, I read the article LJ links to, and I see Reid's picture, and I see him saying to himself in the shower one morning -- these guys are so frazzled after Iraq and social security and Katrina and all, let me mess with their heads a little and see what kind of dumb thing I can get them to do. So he did, and now Miers is nominated.
Nonsense, of course. Couldn't be. Never happen.
But .. now go back and look at the smile on his face.
Posted by: Amos Newcombe | October 03, 2005 at 11:53 PM
My historically informed take.
Posted by: rilkefan | October 04, 2005 at 12:17 AM
I was just worried you might have missed it, from having assured Bob that you were "mildly familiar with Olasky". That not being the case (that you missed it, not about your familiarity with Olasky), I can give an Emily Litell-esque 'never mind'.
Here's the New Yorker article on Reid, which mentions Miers at the top. Keeping idook and Amos in mind, reading the last paragraph of the New Yorker article, and I begin to wonder if Reid just punked Bush.
Posted by: liberal japonicus | October 04, 2005 at 12:26 AM
Olasky: Also a former Marxist-Leninist, as I recall.
Interesting, this constant swerving from radical ideology to radical ideology by the neocon Right. They'd have murdered a lot of people in a less flexible political system.
Posted by: John Thullen | October 04, 2005 at 12:28 AM
"Anyone want to help me out here? Ideally, a supporter of Miers and Olasky"
I saw Olasky spend two hours explaining why Wilson's unrepented adultery in 1905 was the cause of WWII, with references to David & Bathsheba and Bill Clinton. Not certain if it was before or after 9/11, but Olasky is too slick to directly say the blowjob caused the Towers to fall, but he might believe it.
History is the expression of God's will thru the instrumentality of men.
You would have to ask him and his followers about the details, all I was saying is that if Olasky says Miers will not go Souter, many will believe him. He would be among the first to complain if he had doubts.
And yeah, I presume he thinks the faithful will always be righteous.
Posted by: bob mcmanus | October 04, 2005 at 12:46 AM
"My historically informed take."
I can almost grasp what one aspect of what it was like to go to Yale/Harvard insofar (beyond my experiences with Harvard) as I spent a time living in New Haven as the sweetie of a major Yalie, then majorly active, in the late Seventies, in the Party of The Right, thus letting me in on the kids of the day, such as Rick Brookhiser, Scott Griswold, and many more obscure folk, it turns out.
There was, unsurprisingly, a lot of sleeping around, a lot of politicking, a lot of factionalism and conspiring, and a lot of sensing what folks were like, some right and wrong, and some only good for then, not as predictors for the future.
Which is all to say that historical takes are good, and there even lots better when you know the opinions of some of the folks who slept with those who uttered them.
And if that isn't privilege, I don't know what is. And that's pretty much a major difference between being able to hang at Harvard/Yale, in our country, and not.
In my opinion. (And sheesh, um, if Former Sweetie ends up reading this, um, thanks, and I still love you, and apologies, and thanks for not killing me for using our lives this way.)
Of course, I have other sources of input into this sort of thing, and so does everyone reading this.
On the other hand, David Letterman just made fun of Miers because of the insane fact that she hasn't been a judge. So my train of thought is lost, and I'm back there distractedly fighting against morons, mentally, rather than Bush. I blame popular culture. Yes, she's not been a judge. That's reason enough to oppose her. Whatever. Down with Earl Warren!
Posted by: Gary Farber | October 04, 2005 at 12:54 AM
"...(beyond my experiences with Harvard)...."
In case there's any confusion, that's as a visitor, temp employee, participant in student fairs, and the like. Not as an enrolled and admitted student or teacher.
"Here's the New Yorker article on Reid, which mentions Miers at the top."
Well, yes, isn't it, and doesn't it?
Sorry, Gary, I missed where you flagged the bit about Harriet Miers in that article.
"I missed where you flagged the bit about Harriet Miers in that article."
I didn't. I hadn't meant to imply I'd flagged Miers at any time in the past. In my prior mention of the profile of Reid in the NYorker, I'd merely meant to note that I was familiar with it.
"...as I spent a time living in New Haven as the sweetie of a major Yalie, then majorly active, in the late Seventies, in the Party of The Right, thus letting me in on the kids of the day, such as Rick Brookhiser, Scott Griswold, and many more obscure folk, it turns out."
That turned out badly phrased, much as I hate to draw further attention to this. I meant to say that she was involved in the POR, not me. My former phrasing makes that unclear.
the Rapture is at hand
The Rapture is always at hand. It's practically doctrine.
Posted by: Slartibartfast | October 04, 2005 at 09:17 AM
I plan to be Left Behind. (Slarti, you want to be Right Behind?)
Posted by: Jesurgislac | October 04, 2005 at 09:38 AM
In practice, I'm usually just Behind.
Frequently, a Behind.
I meant to say that she was involved in the POR, not me.
I inferred as much. Your prose was clear to me. I'm guessing you're roughly Doug Henwood's age--did you know him at the time?
The Rapture is always at hand.
While you say that, I am sure that God was waiting for this film to be completed.
"Above all else, the film will be something that is just plain exciting to watch!"
I'm sure God's looking forward to it too. Deity likes a good laugh.
Good lord:
Ken Mehlman, chairman of the Republican National Committee, yesterday held a conference call with conservative leaders to address their concerns about Miers. He stressed Bush's close relationship with Miers and the need to confirm a justice who will not interfere with the administration's management of the war on terrorism, according to a person who attended the teleconference.
From the Note
"Not interfere with the management of the war on terrorism?" I don't know what to say.
Posted by: Ugh | October 04, 2005 at 10:59 AM
"Not interfere with the management of the war on terrorism."
I can't wait until the NRA realizes that the next target of the so-called War on Terror is the Second Amendment. Let's just call it the War on Civil Liberties.
Posted by: freelunch | October 04, 2005 at 11:23 AM
Deity wishes that was written by Byron, no doubt.
From today's news conference:
QUESTION: Mr. President, of all of the people in the United States you had to choose from, is Harriet Miers the most qualified to serve on the Supreme Court?
BUSH: Yes. Otherwise, I wouldn't have put her on.
Posted by: CharleyCarp | October 04, 2005 at 12:03 PM
Maybe it was an inadvertent slip, but the salient part of Ken Mehlman's comment, IMO, is italicized below:
"...and the need to confirm a justice who will not interfere with the administration's management of the war on terrorism."
A succint encapsulation of "Bushism" in action: It's all about Dubya, it's all about the power, it's all about keeping that power in the "right" hands, and, as usual, political considerations trump everything else (like say, the quality of the collective judicial intellect of the Supreme Court).
Feh.
Posted by: Jay C. | October 04, 2005 at 12:15 PM
Katherine: McConnell or Glendon seem both much better qualified and harder for the Democrats to attack in good conscience, and MUCH more congenial to the right[.] Though they would not be safe choices for Bush if executive power is the real litmus test.
Which it is, as Ken Mehlman confirms via Ugh's comment at 10:59 above.
(Hey, time stamps are back! Congratulations to whoever made that work.)
This is the serious issue, which is what pains me as Dem partisans welcome Miers as "not so bad" or pretend to. Nice work, giving away the country to a tinhorn dictator backed by a corrupt machine. But who's counting?
Posted by: Nell | October 04, 2005 at 12:27 PM
If she gets confirmed, we could see some very interesting opinions from her when she tries to justify her votes in favor of the Bush Administration, whatever the issue may be or no matter how ridiculous their position might be. And wouldn't it be great to see a discussion between her Scalia and Roberts when Scalia and Roberts won't go the administration's way? And how neat will it be to see her do a complete 180 if a Democrat wins in 2008?
Posted by: Ugh | October 04, 2005 at 12:38 PM
Yes, Mehlman's statement regarding executive powers and the War on Terror is troublesome. "Troublesome" being one of those civil understatements we use to point shyly at scary things.
And, this fetish with personal loyalty? What possible reason could Bush have for desiring rigid loyalty to him from a Supreme Court Justice after 2008? Inquiring minds are probably a little afraid to find out.
Posted by: John Thullen | October 04, 2005 at 01:01 PM
Possibly he thought there might be worse things than utter mediocrity. For instance, the indifference to the plight of the disadvantaged that brought us this.
Seriousness quotient: 0.2 out of 10.
Posted by: Slartibartfast | October 04, 2005 at 01:05 PM
Take it away medium lobster:
these qualities pale before those of the fabled jurist Mr. Bush passed over to nominate [Miers]: the president's favorite rock.
A prized possession passed down through the Bush family, the rock has years of loyal service to its name. It has demonstrated a remarkable versatility over its tenure: it has been lined with felt for desktop use, brandished drunkenly at parties, waved around during cabinet meetings to mouth-powered spaceship noises
"Inquiring minds are probably a little afraid to find out."
Not this one. Nope. This inquiring mind burrows and rolls in such speculative subjects like an otter in shallow water or a hunting dog in roadkill.
Posted by: bob mcmanus | October 04, 2005 at 01:57 PM
"I have said in the past that I would like a nominee with a proven track record on important issues to all Americans and whose judicial philosophy is well-formed. I am not yet confident that Ms. Miers has a proven track record and I look forward to having these questions answered." ...Sen Brownback, today. Bring on those committee hearings!
Sen Brownback:Ms Miers, do you have a proven track record?
Miers:Yes, Senator, I do. 39 seconds, and 88 centimeters
Brownback:And a well-formed judicial philosophy?
Miers:Very well-formed, Senator, if I do say so myself.
Brownback:Good enough for me. I reserve the balance of my time.
There are people, not to be named, who would vote for this boob for President.
Here's a question, what is Bush's reaction if Miers is rejected by the Senate? For a man who places a huge amount of stock in loyalty to have one of his most loyal friends be rejected, I would think he would become enraged. And the question would be how would that rage manifest itself?
Does he just then turn around and appoint Gonzales? Does he try to recess appoint Miers? Any thoughts?
Here's a question, what is Bush's reaction if Miers is rejected by the Senate?
I don't know, but I wouldn't mind finding out.
Posted by: DaveL | October 04, 2005 at 02:35 PM
DaveL:
In any case of a Supreme Court nomination, there is always a certain level of "speculation" involved: I have been reading a lot of blog-commentary on the Miers nomination (yeah, I know, I hafta get a life!) - and one speculation which I have seen crop up a couple of times, is that naming Harriet is actually a brilliant coup on W's part: since, if she is confirmed, he has a loyal family crony on the Court (for years), and if she is rejected, he has the opportunity to then name a real wingnut to SCOTUS - whose (otherwise unpalatable) candidacy will get by (even if by a small margin), since, the theory goes, the Democrats/non-insane-ideologue Republican "opposition" will have shot its wad on Miers; and therefore ANY troglodye who follows will likely be confirmed.
I dunno about these Machiavellian speculations: but if the Bush WH needed to find a loyal "soldier" to volunteer for sacrificial-lamb (or is it a goat?), to allow them to push Scalia/Thomas II for next time Harriet Miers seems to fit the bill just fine.
JayC: I don't buy the odder speculations myself. This nomination has harmed Bush with his base. They are the ones who are most vocal in opposing this, and while they don't really have anywhere else to go, their staying home in the next election cycle could do serious damage to the Republicans. For whatever reason, Senate Democrats have not been nearly as out front in criticizing this, and thus will be (by comparison) more able to block the next one than they would have been had they had to spend a lot of political capital opposing, oh, Janice Rogers Brown.
I think Bush just shot himself in the foot by being petulant.
(Btw, can anyone explain to me why the right-wing blogosphere is so taken with Brown? Isn't there some other way conservative candidate who is a bit better at framing arguments, and a bit less nuts?)
(Btw 2: any conservatives want to comment on Miers?)
Posted by: hilzoy | October 04, 2005 at 03:40 PM
My comment on Miers is that I want a conservative intellectual to help drag back some sense into jurisprudence, I don't want just a reliable conservative vote. Miers appears (at best) to be merely a conservative vote. That doesn't thrill me at all.
Posted by: Sebastian Holsclaw | October 04, 2005 at 03:47 PM
Btw 2: any conservatives want to comment on Miers?
She has hack written all over her.
(I'm on a conservative hiatus until January, 2009).
Not that I have a say, but if I were Reed or Dean, I would try to get all the Democratic Senators to either vote No or abstain, and let Miers pass or fail based soley on the Republican Senate vote. No filibustering necessary.
(I oppose her based on the crony meme -- she's got to know where all the bodies are buried. Not good for the country.)
Posted by: votermom | October 04, 2005 at 04:05 PM
via NYTimes;
"To the best of his recollection, Mr. Bush said, he had never discussed abortion with Ms. Miers."
Ahem..excuse me but what a effing liar.
Posted by: judson | October 04, 2005 at 04:07 PM
Sebastian: that's pretty much how I feel, except for the part about wanting her to be a conservative intellectual ;) -- Though I would be a lot happier with a conservative intellectual than a hack, so long as the c.i. had a genuine commitment to getting the law and the argument right, as opposed to being a conservative intellectual ideologue.
Miers has the potential to finally bridge the gap between left and right, I think. If only she could do it in a good way.
And about the last comment: there are, of course, ideologues on both sides, and I didn't mean to suggest otherwise. None of them make me happy.
There is no such thing as a "conservative intellectual," but other than that, who could have a problem with your request?
Posted by: SomeCallMeTim | October 04, 2005 at 04:29 PM
I have even less to say than you do, not that that's unusual. Except for that I'd be more hesitatant to project any sort of unevidenced reason for the appointment onto Bush. Absent anything solid, though, we have little else. So I continue being baffled: I WANT to comment, but the gun of commentary is unloaded.
JayC, I've seen those speculations, too. I have a very hard time believing that Bush actually planned the nomination to achieve those goals, but it's conceivable that the game could play out that way, which leaves me uncertain what I think about how Democrats in the Senate should deal with the nomination. I'm somewhat sympathetic to the idea that this is a terrible nomination but the next one might be even worse, which would tend to suggest focusing the confirmation hearings on her competence rather than her ideology and letting the Republicans self-destruct over the ideological stuff, but I'm no political strategist (thank God).
"can anyone explain to me why the right-wing blogosphere is so taken with Brown"
For kicks, I'll take a stab.
1)Black woman, reasonably young, quite smart, should be confirmable.
2) Conservatives, IMO, want to change the range of plausible discourse on methods of Constitutional interpretation. An example is taxes, up until the late 80s taxes were simply a policy tool, up, down sideways as needs and whims dictated. Now, to a large extent, it is very difficult to even discuss significant tax increases.
Conservatives have made very little progress in limiting the acceptable methods of Const interpretation. Even Roberts would view his "minimalism" as simply the most intellectually compelling of choices. The strictest of conservatives were hardly excited.
Rogers-Brown frames her Constitutional Theorey as a directly moral crusade. There is a force to her rhetoric and positions that completely devalues the alternatives...not intellectually, or scholarly, but ethically. It is not an intellectual game. And so she might drive the competing theories out of the discourse, out of the range of plausibility. She might be revolutionary.
Just a little more. Jack Balkin has done a great job of showing that Scalia and Thomas have been very "activist" judges, voting to void legislation much more often than their more liberal colleagues.
But Scalia and Thomas can still call their decisions originalist, or literalist, or strict construction, or whatever. And this is useful. However the actual cases might be decided, I guess there is very great value in getting to a point where there is only a very limited language of justification open to justices, when all justices would have to defend their decisions with a conscribed discourse.
It is really kinda Stalinist. No offense, Sebastian.
I thought voiding legislation was a legitimate function of SCOTUS. Well, I've been wrong about this sort of thing before.
"I thought voiding legislation was a legitimate function of SCOTUS"
Oh, cmon. You never heard a conservative professing "great deference" to the legislative branches, seeing as how they are closer to the people. Like Bork, or Roberts recently. Ok, I will believe you have indeed never heard of that.
Wold you like cites on the discussion, in order that you mau inform yourself on "judicial activism"?
I'd like to see some cites, since you're offering.
(I'd been pretty much sticking with the standard leftist moonbat understanding that JRB was a frothing lunatic, and so I overlooked rational underpinnings of any sort to her position.)
Posted by: Jackmormon | October 04, 2005 at 06:28 PM
Bob, you are confusing different understandings of 'activism'. Some define 'activism' as the court taking action against the legislature. Under that definition Scalia is often an activist.
I don't use that definition and frankly I don't thinnk that definition is particularly useful or correct. When a conservative uses the word activism he typically means when the court chooses to act (or sometimes not act) with respect to the legislature in a fashion which is contrary to what the guidance of the Constitution would dictate. To say that the first (bad) definition doesn't get the same result as the second is "Stalinist" is to completely misunderstand what is going on--especially since the view that all court action might be called activist is more recent than the conservative definition. If you are going to use the inflammatory term properly, it would be correct to say that some critics of conservative jurisprudence have wilfully misinterpreted the meaning of 'activist' so as to argue with, purge and then execute a strawman. No more offense intended than your comment.
Sigh. Jack Balkin is not apparently searchable, and he had a pretty good series on the subject. "Judicial activism" is used in a plethora of ways, and the specific arguments dealing with anti-majoritarianism are a little hard to sort from the rest. And Lord knows, lawyers love to argue.
Balkin1 Many included links
Scott Lemieux
Today, Village Voice
Maybe judicial review + activism would give better results. In any case, it was not that directly relevant to my argument, not my answer to hilzoy, which was the original point.
some critics of conservative jurisprudence
And some conservative Congress-people. I'm too lazy to google it, but I seem to recall a lot of chatter (particularly around the time of Schiavo) about whether judicial review was democratic (a fair point of argument) that came out as "we won, the activist courts should rule the way the people want."
So let's not pretend the distinction you're making is obvious or even self-policing.
But Sebastian, would you not agree that "contrary to what the guidance of the Constitution would dictate" is frequently a debatable issue? Even Brother Thomas and Brother Scalia disagree from time to time. And is it not fair to suggest that many conservatives use "judicial activism" to mean "decisions I don't like" as opposed to any really thought-out approach to consitutional interpretation? It seems to me that a lot of popular "originalism" is basically just rosy-eyed nostalgia for an imagined 18th century political order of being left alone by the gummint, and among many other things, it's never seemed to me that that approach makes any serious effort to deal with the impact of the Civil War and its aftermath on our fundamental understandings of government.
And given that conservatives' favorite "originalists" themselves disagree from time to time, and that future justices are likely to have views of their own as to what the framers really meant, isn't it a reasonable to define as "activist" a jurisprudence that believes that any precedent, however long-standing and well-established in our political structure, should be overruled if it's contrary to five Justices' views of original intent?
In case it's not clear, I'm being serious, not snarky. I respect your thinking on these issues, but I'm skeptical.
"To say that the first (bad) definition doesn't get the same result as the second is "Stalinist" is to completely misunderstand what is going on.."
You and Katherine have gone on longer and more deeply on the subject than I could dream of. My use of "Stalinist" was directed precisely on the desire that there be one and only one "correct" definition of judicial activism.
"so I overlooked rational underpinnings of any sort to her position.)"
Believe it or not, I do take arguments against Marshall and Marbury vs Madison seriously enough to read long pieces on the history of judical review, likely without understanding a word.
But there is a universe of discussion of Lochner etc out there, and I wasn't pretending to much knowledge or expertise.
When a conservative uses the word activism he typically means when the court chooses to act (or sometimes not act) with respect to the legislature in a fashion which is contrary to what the guidance of the Constitution would dictate.
Can you cite a case, any case where the Supreme Court intentionally chose to act "in a fashion which is contrary to what the guidance of the Constitution would dictacte"?
How about Lawrence? As Slart says, voiding statutes that conflict with the Constitution is part of the Court's job. You may not think a state anti-sodomy statute conflicts with the 14th Amendment, but I think it does. Not because I'm intellectually dishonest or strictly results-oriented, but because that's what I think "liberty" means. The Constitution doesn't say -- doesn't provide guidance, whatever that means -- that liberty does not include the right to engage in sodomy, nor does it say, or provide guidance, that the scope of the term "liberty" is for all time restricted to what a few rich white men might have thought it meant in 1868. I'm not saying that the Constitution changes, I'm saying that as time goes on we become mature enough, as a society, to realize the full extent of the limits on state intrusion on the rights of individual human beings that we've inherited. Statutes denying marriage licenses to couples of the same gender were made unconstitutional in 1868. It'll be a few years still before we're ready to face up to this, but we will eventually.
If the Constitution was perfectly clear in permitting state regulation of individual behavior, I might be more sympathetic to hearing that courts were disregarding the Constitution. That's almost never the case (although I'd say that the wine import case from last term struck me as an example of what you're calling activism).
I don't expect you to agree with me, Sebastian, about the Constitution. I do expect you to stop slandering people who view the matter as I do. Call me wrong, but don't call me dishonest.
It seems to me that a lot of popular "originalism" is basically just rosy-eyed nostalgia for an imagined 18th century political order of being left alone by the gummint,
AARGH. I know this is the common view, but what the originalists are almost always* arguing FOR is gummint being allowed to interfere in people's lives.
* Except for those few who are still willing to contend that Congress lacked the power to enact Social Security. Not a real popular view out there among the populace, though. Funny thing how that works, your [I'm addressing no one now posting] popular mandate to outlaw flag-burning makes my conclusion that it's unconstitutional to do so activism, while my popular mandate to fund/supplement old people's retirement makes your conclusion that it's unconstitutional to do so principled.
"But Sebastian, would you not agree that "contrary to what the guidance of the Constitution would dictate" is frequently a debatable issue?"
Sure, absolutely, definitely. It is a hard topic--like a fractal shape it can be difficult to find the exact border without doing tedious calculation. That doesn't mean there is no border.
"And is it not fair to suggest that many conservatives use "judicial activism" to mean "decisions I don't like" as opposed to any really thought-out approach to consitutional interpretation?"
Some do, but even they are making a comment on the relationship between judges, legislatures and the Constitution. That comment is not adequately summed up as "over-ruling legislatures is activism which is bad". If you try to sum it up that way, as bob did, you won't get far in understanding what is going on.
"It seems to me that a lot of popular "originalism" is basically just rosy-eyed nostalgia for an imagined 18th century political order of being left alone by the gummint, and among many other things, it's never seemed to me that that approach makes any serious effort to deal with the impact of the Civil War and its aftermath on our fundamental understandings of government."
A lot of popular liberal jurisprudence is about getting the progressive outcome you want. The fact that popular X jurisprudence isn't particularly rigorous is kind of a non-shocking revelation. That isn't the same as providing an actual critique of the way they are supposed to actually operate.
"And given that conservatives' favorite "originalists" themselves disagree from time to time, and that future justices are likely to have views of their own as to what the framers really meant, isn't it a reasonable to define as "activist" a jurisprudence that believes that any precedent, however long-standing and well-established in our political structure, should be overruled if it's contrary to five Justices' views of original intent?"
No. And the idea that might have to do only with original intent is kind of silly. See the recent stupid ruling on execution of people who committed murder at 17 years of age.
Good grief, what have I started here? I blame hilzoy. What time does Katherine get off work, tho I think she swore off the subject a while ago.
The point is that a nomination of Rogers-Brown, or someone like her, would energize a national discussion of judicial theory that is currently lacking, and re-invigorate a respect for the law as law, rather than as source of pre-determined results.
Many people like the results of Roe, many dislike those results, but there is very little real street discussion of why the reasoning is important. Scalia, Thomas, and others could theoretically get plumbers and accountants discussing the intricacies of originalism vs realism vs literalism vs textualism. And the nation saved.
Or something like that.
I'm thinking of the libertarian-leaning "originalists" and would readily concede the existence of other sorts. May I revise and extend my remarks to add "...and a lot more is rosy-eyed nostalgia for an imagined 18th-century political order in which there was a decent respect for proper Christian morals and government of, by, and for the right sorts of people"? ;-)
"I don't expect you to agree with me, Sebastian, about the Constitution. I do expect you to stop slandering people who view the matter as I do. Call me wrong, but don't call me dishonest."
I don't mean to be rude, but I was responding to the insinuation of "Stalinist" so I think you taking umbrage at allegedly being slandered is rather a bit much. I responded ONLY on the definition of activist as it was being grossly misused in statistics about overruling legislatures.
Scalia, Thomas, and others could theoretically get plumbers and accountants discussing the intricacies of originalism vs realism vs literalism vs textualism.
If it is anything like the discussions about the above on this list, kill me now...
Posted by: liberal japonicus | October 04, 2005 at 07:43 PM
OK, I'm now completely unclear on whether we're discussing approaches to jurisprudence, the proper use of the term "activism," or whether Bob was being too snarky. If it's the first, I think we're agreeing that jurisprudence is hard, that the Constitution does not necessarily determine a unique right answer to each issue that may reach the Court, and that trying to interpret the Constitution based solely on "original intent" doesn't work. If it's the second, my point is not that the term "originalism" is often used by sloppy thinkers--you're correct that there's no shortage of sloppy thought about jurisprudence--but that the term "activism" as used by conservatives does not uniquely define a careful, reasoned critique of "liberal" jurisprudence, but is, in common usage, a political buzzword that is fair game for Bob to subvert to his own ends. If it's about snark, I'll try to stand clear.
"that the term "activism" as used by conservatives does not uniquely define a careful, reasoned critique of "liberal" jurisprudence, but is, in common usage, a political buzzword that is fair game for Bob to subvert to his own ends."
It is famously difficult to precisely define what ought to be described as a "chair" but that doesn't mean we should say that "dog" is just as good at describing it. "Activist" may not be a single unique argument about jurisprudence, but what it most certainly is NOT is the idea that all judicial action overruling legislatures is "activist". If bob wants to say that "dog" and "chair" are close enough to be interchangeabley used so be it, but saying that I talk about chairs and it is Stalinist to fail to notice that they crap on the carpet is going to get a rather uncharitable response.
Curiously, Bush chose today (via DKOS) to discuss ridding us of the Posse Comitatus Act to use the military to enforce quarantine in case of a bird flu epidemic.
Nice. Loyalty on the Court will come in handy when the new law is challenged.
Did I mention I'm displaying odd symptoms:
frequent molting, nesting tendencies, and something stuck in my craw?
Before I take wing, I just wanna say I want this man nowhere near commanding the armed forces on a mission inside the borders of the United States.
Although I'm sure Michelle Malkin would feel right at home with an American Marcos.
it is Stalinist to fail to notice that they crap on the carpet is going to get a rather uncharitable response.
Apropos of nothing, Catsy made a similar observation on the Chas iceberg post. I guess this Miers nomination is bringing people together. 8^)
I don't think Bob is confusing dogs and chairs. I think he's making the point that if we were really interested in judges whose primary goal was to follow the law as best they can, judges who are too eager to overrule legislative decisions are at least as scary as judges who explicitly acknowledge that our understanding of the Constitution changes over time, and that reserving the term "activist" for the latter group is giving undue weight to conservatives' political preferences.
"Stalinist," OTOH, was not a good choice of words.
"But Congress needs to take a look at circumstances that may need to vest the capacity of the president to move beyond that debate," Mr. Bush said. One such circumstance, he suggested, would be an avian flu outbreak. He said a president needed every available tool "to be able to deal with something this significant.""
Thullen, you tool, do you think the legislation they have in mind includes the words "avian flu" or "epidemic" or "quarantine"? I'm sure it is more
generic like "national emergency" or "imminent danger" or "election disputes"...ooops...never mind the last one.
Let's just say whenever and whatever CinC feels it is in his interest.
"Stalinist," OTOH, was not a good choice of words."
Ahhh, read the original posts of 5:31 and 5:44. It is not about theories of justiciation or particular judges but about controlling the discourse.
Who decides what "conservatism" and "liberalism" mean. Conservatives get to define those words. Or not.
Sebastian says I am calling a chair a dog when I say there may be multiple interpretations of the words "judicial activism". I say there can be many, Seb says there is only one intellectually acceptable, moral, ethical, decent definition: all else is deviationism and counter-revolutionary.
Lawrence Solum ...On "judicial activism"
Ok, the "Stalinist. No offense, Sebastian."
...was deliberate bait. Bitten as expected, in the hope of proving the point. There are huge sections of the blogosphere devoted to the attempt to get control of the legal language, to make certain ways and kinds of thinking...unthinkable. The fear is that while Miers may provide correct results, she will not further the Orwellian good-think project.
Bob, I understand why you used the word and I basically agree with the point you're making, but it had the predictable effect of ticking Sebastian off, which didn't do a whole lot for getting your point across the political divide.
"Seb says there is only one intellectually acceptable, moral, ethical, decent definition: all else is deviationism and counter-revolutionary."
No. I said that defining "judicial activism" as merely "overturning the legislature" was not correct (or even close to correct). If you define it that way, almost everything becomes activist and the word loses its meaning. Kind of like "enemy of the Party" meaning "anything Stalin doesn't like". You can define it that way if you really want to, but the words are no longer helpful in discussion. We can have all sorts of legitimate differences in our understanding of "judicial activism" without making the term essentially useless. We can argue all sorts of things about what is or is not activist without saying that every non-rubber-stamp action is activist.
"...merely "overturning the legislature" was not correct (or even close to correct)."
And my post of 5:44 did not even imply that the overturning of legislation was the only form of activism. Just it was a kind of activism that Scalia & Thomas engaged in more often than their peers.
Now if your point is that a justifiable overturning of legislation is not activism, whereas an unjustifiable overturning is activism, then activism has just become a synonym for some kinds of bad decisions. Randy Barnett and Balkin(I think, or so Solum claims) would define activism as the injection of personal values into the decision-making, in which case I suppose upholding legislation, upholding lower-court decisions, or even granting or denying cert could be forms of activism. That seems counter-intuitive, and against the simple meaning of the word.
I would prefer a meaning of activism that would include oh, any changes in previous conditions or decisions, and then a step where it is determined to be "good" or "bad" activism depending on the strength of the arguments.
"I would prefer a meaning of activism that would include oh, any changes in previous conditions or decisions, and then a step where it is determined to be "good" or "bad" activism depending on the strength of the arguments."
Ok, but if you use it that way in a discussion on judicial activism no one will expect that you mean that. Humpty-Dumpty language.
Sebastian, I wasn't thinking about Stalinism, and understand your irritation with my language. Your views on this subject have been expressed often, though, and I think it is fair to ask that you consider that there is an intellectually honest view that is contrary to yours. People can differ about what "liberty" means, and about how to figure out what it means.
Your definition of the term 'judicial activism' contains an altogether too subjective quality: it's when the court acts contrary to your understanding of the Constitution. I can use the phrase in the same way, having the same meaning, and it will describe different decisions, because we have different understandings of the Constitution. Thus, unless you have a situation where a court says "I know the Constitution requires X, but I think society would be better off with not-X, so that's what I'm going to decide" the term only describes disagreements of a certain type. I'd be interested in a cite to a decision like that.
There are worse word games in this business, of course. It just cracks me up when I hear that justices should not make law, but should interpret the law. Or that they should just decide the cases that are before them. They pick the cases that they want to decide, often because they want to resolve particular questions in a particular way, and can use the case as a convenient vehicle. Pure cases -- where the choice is not agenda driven -- are by far the exception. This will not change, and cannot change, just by sending different justices to the court. The Chief Umpire may call 'em as he sees 'em, but where he gets to pick the pitcher, catcher, and call the pitches, the metaphor has a different meaning than is meant to be conveyed.
I'm sure that's all very interesting, but given that I haven't uttered the phrase "judicial activism" in this conversation (maybe ever, but who knows?), irrelevant.
"but given that I haven't uttered the phrase "judicial activism" in this conversation" ...slart 11:30
"I thought voiding legislation was a legitimate function of SCOTUS." ...slart 6:03
"the charge of judicial activism is usually made when court decisions are seen to be interfering with the will of the majority as expressed through their elected representatives" ...Randy Barnett
The question at point is whether voiding legislation is "judicial activism" ...always, sometimes, never, or Humpty Dumpty language.
"Ok, but if you use it that way in a discussion on judicial activism no one will expect that you mean that. Humpty-Dumpty language."
"For terms like "judicial activism" and "judicial restraint" to have useful meaning, Sunstein argued, they must be modified. "A court that wrongly invalidates statutes might be said to show unjustified activism," he wrote, while one that frequently makes political decisions not remotely tethered to the Constitution might be held guilty of illegitimate activism. Furthermore, a court that wrongly upholds statutes might be said to show unjustified restraint, while a court that frequently fails to uphold clear Constitutional principles is guilty of illegitimate restraint. (The thrust of Sunstein's article was that the Rehnquist Court is acting with "illegitimate activism" -- as did the Warren Court on some occasions.) Of course, Sunstein concedes, such terms do not eliminate the hard work of evaluating the merits of court decisions."
So I guess Cass Sunnstein(sic?) would understand my "Humpty Dumpty language"
Hopefully, because I sure as hell don't. Me, I thought that judicial activism was the courts changing legislation from the bench, rather than simply voiding it.
Again, I am only an egg in these matters. And given that I rarely understand what you're talking about in general, it's not exactly a big shock that I'm missing you here as well. According to your own words, merely voiding legislation isn't a guarantee of activism. Unjustified voiding of legislation may fit, but the more general voiding doesn't. Again, I thought this was what the courts do.
Here's another party unhappy with Miers. And, not coincidentally, unhappy with Bush.
"According to your own words, merely voiding legislation isn't a guarantee of activism."
Actually, that is what I, and if I may presume, Cass Sunnstein and charleycarp are saying, and what Sebastian is disagreeing with. Perhaps you read quoted material as my own, or I mispoke in some way.
"I can use the phrase in the same way, having the same meaning, and it will describe different decisions, because we have different understandings of the Constitution. Thus, unless you have a situation where a court says "I know the Constitution requires X, but I think society would be better off with not-X, so that's what I'm going to decide" the term only describes disagreements of a certain type. I'd be interested in a cite to a decision like that."
Roper v. Simmons.
Brennan's dissents on the death penalty cases
Roper v. Simmons is especially egregious since they had previously ruled on the same topic within a decade.
"So I guess Cass Sunnstein(sic?) would understand my "Humpty Dumpty language"
Not really. He is specifying different species of what you would call bad activism. He is saying that there are different types of activism that need to be analyzed differently because they are fed by different (bad) impulses regarding the law.
Also, if you read a little further you find a formalism that would not be particularly welcome by Democratic senators who like their Constitutions malleable.
"Actually, that is what I, and if I may presume, Cass Sunnstein and charleycarp are saying, and what Sebastian is disagreeing with."
I don't see Cass Sunstein saying that all Court action is activism. Why not just call it court action?
Posted by: Sebastian Holsclaw | October 05, 2005 at 03:17 AM
And note in that very same link that you have provided:
But judicial activism, says Barnett, "can't just mean striking down decisions of the legislative branch." (The doctrine of "judicial review," enshrined in American jurisprudence by Justice John Marshall in the famous 1803 case of Marbury v. Madison, gives the judiciary the power to override actions of the other branches of government.) "What it ought to mean," says Barnett, "is judicial decisions that conflict with the Constitution, either because they're putting into the Constitution something that's not there, or because they're refusing to enforce what is there."
You wouldn't define 'sexual activity' as all things that human beings do. That is "activity". If you define 'sexual activity' as "all things human beings do" then you have to talk about 'eating sexual activity', 'sleeping sexual activity', 'political sexual activity' and 'talking sexual activity' when you just mean "eating", "sleeping", "politics", and "talking". You haven't added anything to the discussion by doing things that way and you will completely confuse the average listener who understands the normal meaning of "sexual activity". Just because there may be fights about whether blow-jobs count as "sexual activity" doesn't mean that the term is completely unintelligible.
1) I googled two pages because my memory said there were two 'n's in Sunnstein. I found two pages but on further search there appears to be only one.
2) I grant that Sunstein lists two kinds of bad "activism" and two kinds of bad "restraint" without mentioning or implying any opposite formulations, i.e. good "activism" or "good" restraint. If you would grant that Sunsteins imagines there can be no examples of worthy restraint I will grant that the paragraph and discussion is clear. I find it less clear.
For myself, in any cites I gave that mentioned Scalia's "activism" I was not implying an automatic value judgement. They were numerical analyses including all the other justices, so if the authors were asserting that Scalia's activism was bad they were saying that similar decisions by the other justices were bad.
If, as you are saying, they were simply pulling conservatives' chains by using a word in an unconventional way I doubt they considered their articles unintelligable, but rather controversial and confrontational.
Similarly, I would suspect that you consider the liberal's use of the phrase "legal realism" to describe decisions you would prefer to call "judicial activism" to be controversial. Or unintelligible?
It appears to me, as a layman, that the meaning of the phrase "judicial activism" is in dispute, and that the dispute has ideological dimensions and purposes. If the article by Barnett has any authority, it is in declaring that phrase is in dispute. Which was my main point, rather than any attempt to define it on my own. Would you claim that there is no disagreement? Or that any existing disagreement is in bad faith and illegitimate? Then I refer to charleycarp's comment of 11:29.
I always get nervous when I go over to Volokh that they are going to be discussing wine importation.
Sebastian, I didn't read the quote the same (maybe the sexual activity metaphor distracted me because I found myself wondering about how first, second and third base work out on an activism scale)
When Randy Barnett says What it ought to mean, it sounds like he is not citing how the term is used but is suggesting that it is currently misused, which I took to be Bob's point. That seems to be borne out when he quotes this Solum post
The point is that both Jonah Goldberg and Jack Balkin are engaged in a pseudo-debate. The proposition that liberals are more guilty of the sin of judicial activism than conservatives or vice versa is so vague as to be virtually meaningless. This is the kind of debate that invites simplification and rhetorical flourish but resists resolution through reasoned argument.
I do agree, however, that Stalinist is more like chum in the water rather than baiting a single hook. Please put the gaff(e) down, Bob.
) I googled two pages because my memory said there were two 'n's in Sunnstein. I found two pages but on further search there appears to be only one.
Looking here is probably most instructive. And this might wind up being interesting.
Sorry, "here" was supposed to point here.
"Similarly, I would suspect that you consider the liberal's use of the phrase "legal realism" to describe decisions you would prefer to call "judicial activism" to be controversial."
"Legal realism" in the context of a discussion about jurisprudence is a perfectly understandable phrase. To a "legal realist" it is stupid to talk about activism because talking about jurisprudence is silly to them. They only talk about the power of getting 5 votes. Once 5 votes are obtained, a decision cannot be 'wrong' from the point of view of legal realist jurisprudence. All decisions with 5 votes are right.
Someone in "legal realist" theory has given up the ability to say that a decision was incorrect. They can only argue from the consequentialist point-of-view "this is what the decision DOES and I do or do not like it".
They wouldn't bother to describe things the things I call "judicial activism" as judicial realism because absolutely nothing that gains a majority can be activism. I suspect you are coming from a legal realist point of view because by wanting to call everything activism you arrive at the same inability to distinguish between proper and improper roles of the court that they do by calling nothing activism.
So, am I misguided in thinking that a legitimate part of the function of SCOTUS is voiding of legislation? I'm not sure that ever got answered. It looks to ME as if it is, but I have been wrong once or twice before.
So, am I misguided in thinking that a legitimate part of the function of SCOTUS is voiding of legislation?
I'm told that there are conservatives (or at least Republicans) who would disagree with that sentiment, but I've never met one of them personally.
Posted by: Anarch | October 05, 2005 at 11:50 AM
"legitimate part of the function of SCOTUS is voiding of legislation?"
Most people think so;umm, all questions I guess remain forever open and judicial review is still a topic of discussion, perhaps rightly so.
"I suspect you are coming from a legal realist point of view"
Spect so, tho I worry about this justification stuff much less than you do. The fact that I consider the Campaign Finance Law unconstitutional makes no difference to anyone, and in a way is nonsensical. SCOTUS says it is ok fine, and enough people were persuaded that it is followed.
If the country became fervently textualist, legal realist arguments would have no force or legitimacy. There is not a ideal non-political Constitution;there is a nation of political actors.
Due respect, bob, but doesn't this question have a yes-or-no answer?
"Due respect, bob, but doesn't this question have a yes-or-no answer?"
Nope. Robert Bork has said that SCOTUS decisions may be reversed by a mority vote of Congress; there is a clause in the Constitution that some interpret as granting Congress the right to limit appellate jurisdiction, that has been recently used in legislation(not passed?); and, IIRC, judicial review is not in the Constitution, tho discussed in the Federalist Papers.
Voiding federal legislation, state legislation, municipal ordinances?
I am not even entirely positive that the SCOTUS actually ever "voids legislation". I do not know if in theory they can tomorrow declare law X unconstitutional, out of the blue. I do not know why they can't. In any case they usually reverse or remand or decide specific cases brought before them, with explanation. Lower federal courts are bound by SCOTUS decisions, but are state courts? I can certainly imagine SCOTUS declaring legislation unconstitutional, and the rest of us telling SCOTUS to take a leap.
SCOTUS has no army.
No, I consider very little about SCOTUS simple or completely settled.
Over at Yglesias-TPM Matt was complaining that the President was unwilling to come out and say he wanted Roe vs Wade overturned. I pointed out in comments that neither the President or anyone else actually knows what "overturning Roe" means, nor will we until an actual case is granted cert, decided, and the opinions studied. Then legislatures, with likely differing interpretations will legislate within the bounds of the decisions, or not as they so desire, and new cases will come before the court. Or not be granted cert.
I do not consider law separable from politics, in theory or in practice. I guess that makes me a "realist".
Sebastian, I do not think that "legal realism" means what you think it means.
Hmph. There's a good chance the Meirs is a young earth creationist, or very sympathetic to that heresy. Her church's web site apparently links to Carl Baugh, who is infamous for his forgeries of man/dinosaur footprints....
Posted by: gwangung | October 06, 2005 at 09:52 PM
Maybe I'm being naive, but do a lot of people really choose their churches because they run down a doctrinal checklist? I think that there's discussion about how Miers changed churches, but you wonder if she changed because of their position on some doctrine or because they had a bigger parking lot.
"judicial activism" is a lot like "political correctness"; it's an expression that at one point had a relatively narrow meaning (a court going beyond the facts of the case to issue a broader ruling) that mutated, through misuse, to turn into a bludgeon. Now, it's just a buzzword, like "pro-life", designed to restrict the scope of discourse. (what i am, pro-death?)
ye gods, doesn't anyone remember the bellyaching about the Kelo decision? conservatives were begging for judicial activism there, but somehow never quite phrased it that way.
slarti -- Courts are very rarely faced with what are called "facial" challenges to a statutory scheme, i.e. an assertion that the statute can never be constitutional. most challenges are "as applied", and are therefore restricted to the particular facts of the case. Even Lawrence, IIRC, is an as-applied challenge, because it did not raise the issue of the regulation of opposite-sex sodomy.
sometimes when a court strikes down a statute as unconstitutional, the legislature will go back and repeal the law. many times, though, the law sits moribund until a later legislature amends the law.
my problem with originalism is that the justices who use it appear to me to be as results-oriented as the realists. Originalists rely on this apparently neutral theory when it serves their purpose but abandon it when the need arises. My proof is 11th Amendment jurisprudence.
it's late and i'm going home. I'll bicker about this more tomorrow if anyone's interested.
Posted by: Francis | October 06, 2005 at 10:32 PM
SH: Roper v. Simmons
You're proving my point. You think this decision amounts to a knowing and intentional disregard of the Constitution, and is thus activism. The Court, however, said the result was compelled by the Constitution. To anyone who agrees that this is so, the decision does not amount to activism.
A couple of quotes from the syllabus:
The Eighth Amendment’s prohibition against “cruel and unusual punishments” must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework this Court has established the propriety and affirmed the necessity of referring to “the evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be “cruel and unusual.” Trop v. Dulles, 356 U.S. 86, 100—101. In 1988, in Thompson v. Oklahoma, 487 U.S. 815, 818—838, a plurality determined that national standards of decency did not permit the execution of any offender under age 16 at the time of the crime. The next year, in Stanford, a 5-to-4 Court referred to contemporary standards of decency, but concluded the Eighth and Fourteenth Amendments did not proscribe the execution of offenders over 15 but under 18 because 22 of 37 death penalty States permitted that penalty for 16-year-old offenders, and 25 permitted it for 17-year-olds, thereby indicating there was no national consensus. 492 U.S., at 370—371. A plurality also “emphatically reject[ed]” the suggestion that the Court should bring its own judgment to bear on the acceptability of the juvenile death penalty. Id., at 377—378. That same day the Court held, in Penry v. Lynaugh, 492 U.S. 302, 334, that the Eighth Amendment did not mandate a categorical exemption from the death penalty for mentally retarded persons because only two States had enacted laws banning such executions. Three Terms ago in Atkins, however, the Court held that standards of decency had evolved since Penry and now demonstrated that the execution of the mentally retarded is cruel and unusual punishment. The Atkins Court noted that objective indicia of society’s standards, as expressed in pertinent legislative enactments and state practice, demonstrated that such executions had become so truly unusual that it was fair to say that a national consensus has developed against them. 536 U.S., at 314—315. The Court also returned to the rule, established in decisions predating Stanford, that the Constitution contemplates that the Court’s own judgment be brought to bear on the question of the acceptability of the death penalty. Id., at 312. After observing that mental retardation diminishes personal culpability even if the offender can distinguish right from wrong, id., at 318, and that mentally retarded offenders’ impairments make it less defensible to impose the death penalty as retribution for past crimes or as a real deterrent to future crimes, id., at 319—320, the Court ruled that the death penalty constitutes an excessive sanction for the entire category of mentally retarded offenders, and that the Eighth Amendment places a substantive restriction on the State’s power to take such an offender’s life, id., at 321. Just as the Atkins Court reconsidered the issue decided in Penry, the Court now reconsiders the issue decided in Stanford. Pp. 6—10.
Rejection of the imposition of the death penalty on juvenile offenders under 18 is required by the Eighth Amendment. Capital punishment must be limited to those offenders who commit “a narrow category of the most serious crimes” and whose extreme culpability makes them “the most deserving of execution.” Atkins, 536 U.S. at 319. Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. Juveniles’ susceptibility to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Thompson v. Oklahoma, 487 U.S. 815, 835. Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. See Stanford, supra, at 395. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.
Reading Roper got me to reading Weems v. US, which has a worthy discussion of the nature and purpose of the Eighth Amendment:
The law writers are indefinite. Story, in his work on the Constitution, vol. 2, 5th ed. § 1903, says that the provision 'is an exact transcript of a clause in the Bill of Rights framed at the revolution of 1688.' He expressed the view that the provision 'would seem to be wholly unnecessary in a free government, since it is scarcely possible that any department of such a government should authorize or justify such atrocious conduct.' He, however, observed that it was 'adopted as an admonition to all departments of the national department, to warn them against such violent proceedings as had taken place in England in the arbitrary reigns of some of the Stuarts.' For this he cites 2 Elliott's Debates, 345, and refers to 2 Lloyd's *372 Debates, 225, 226; 3 Elliott's debates, 345. If the learned author meant by this to confine the prohibition of the provision to such penalties and punishment as were inflicted by the Stuarts, his citations do not sustain him. Indeed, the provision is not mentioned except in 2 Elliott's Debates, from which we have already quoted. The other citations are of the remarks of Patrick Henry in the Virginia convention, and of Mr. Wilson in the Pennsylvania convention. Patrick Henry said that there was danger in the adoption of the Constitution without a Bill of Rights. Mr. Wilson considered that it was unnecessary, and had been purposely omitted from the Constitution. Both, indeed, referred to the tyranny of the Stuarts. Henry said that the people of England, in the Bill of Rights, prescribed to William, Prince of Orange, upon what terms he should reign. Wilson said that 'the doctrine and practice of a declaration of rights have been borrowed from the conduct of the people of England on some remarkable occasions; but the principles and maxims on which their government is constituted are widely different from those of ours.' It appears, therefore, that Wilson, and those who thought like Wilson, felt sure that the spirit of liberty could be trusted, and that its ideals would be represented, not debased, by legislation. Henry and those who believed as he did would take no chances. Their predominant political impulse was distrust of power, and they insisted on constitutional limitations against its abuse. But surely they intended more than to register a fear of the forms of abuse that went out of practice with the Stuarts. Surely, their jealousy of power had a saner justification than that. They were men of action, practical and sagacious, not beset with vain imagining, and it must have come to them that there could be exercises of cruelty by laws other than those which inflicted bodily pain or mutilation. With power in a legislature great, if not unlimited, to give criminal character to the actions of men, with power unlimited to fix terms of imprisonment with what accompaniments they might, what more potent instrument of cruelty could be put into the hands of power? And it was believed that power might be tempted to cruelty. This was the motive of the clause, and if we are to attribute an intelligent providence to its advocates we cannot think that it was intended to prohibit only practices like the Stuarts', or to prevent only an exact repetition of history. We cannot think that the possibility of a coercive cruelty being exercised through other forms of punishment was overlooked. We say 'coercive cruelty,' because there was more to be considered than the ordinary criminal laws. Cruelty might become an instrument of tyranny; of zeal for a purpose, either honest or sinister.
Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, 'designed to approach immortality as nearly as human institutions can approach it.' The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction. There is an example of this in Cummings v. Missouri, 4 Wall. 277, 18 L. ed. 356, where the prohibition against ex post facto laws was **552 given a more extensive application than what a minority of this court *374 thought had been given in Calder v. Bull, 3 Dall. 386, 1 L. ed. 648. See also Ex parte Garland, 4 Wall. 333, 18 L. ed. 366. The construction of the 14th Amendment is also an example, for it is one of the limitations of the Constitution. In a not unthoughtful opinion, Mr. Justice Miller expressed great doubt whether that Amendment would ever be held as being directed against any action of a state which did not discriminate 'against the negroes as a class, or on account of their race.' Slaughter House Cases, 16 Wall. 36, 81, 21 L. ed. 394, 410. To what extent the Amendment has expanded beyond that limitation need not be instanced.
Judicial activism in 1910?
that was the Lochner era...however, whether you read "unusual" to mean "uncommon" or "excessive" the idea that such a relative word would not change with time makes no sense to me.
If "activist" doesn't have anything to do with taking action, it is just being used as a less-accurate substitute for "wrong". The problem with saying someone is wrong is that:
1) liberals think conservative justices are wrong just as much as the other way around, so you lose your position of privilege
2) you're generally expected to make an argument about why. This, a lot of the most vocal critics of the Supreme Court--your James Dobsons, and whoever it was who wrote that awful bestseller--cannot do.
It's just an epithet, nothing more at this point. It's a word that focus groups badly and can be pinned on us latte sipping new york times reading volvo driving homo loving baby killing terrorist loving etc. etc. etc. ad infinitum liberals.
Hey everyone--I'm a lawyer, no longer just faking! I passed the bar exam! Woo.
Posted by: Katherine | October 07, 2005 at 12:21 AM
Katherine, congratulations, but of course you're not a lawyer til you're sworn in.
Posted by: CharleyCarp | October 07, 2005 at 12:27 AM