Law: November 2005 Archives


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Stuart Taylor examines the claim that Judge Alito is outside the mainstream, concluding that he's well within both the general American mainstream and the legal/judicial mainstream. [Hat tip: SCOTUSBlog]

William Wainwright has updated his Stanford Encyclopedia of Philosophy article on Jonathan Edwards, originally authored in 2002. Most Edwards fans don't look at his philosophy as much as other aspects of his work, so I very much appreciate when a philosopher takes an interest in the first great American philosopher. Wainwright has done a lot to motivate thinking of Edwards as up there with the great early moderns, and I have to agree. Edwards and G.W. Leibniz are by far my favorite early modern philosophers. Edwards anticipated both Berkeley and Hume in interesting ways.

Brooksilver at The Lord of the Blog Rings has a nice post about Christian parables within The Lion, the Witch, and the Wardrobe. I'm beginning to realize how little I remember from those books. I must have been 10 or so when I read them. I highly recommend his blog as a whole, by the way. I discovered it during his recent hiatus when he wasn't posting anything, but he's been a good friend for years, and I intend to read everything he posts now that he's back to blogging.

Two more pictures of the kids: Isaiah prim and proper and Sophia's underwear hat

Eugene Volokh posts about the judicially inactivist decision declaring that the Constitution doesn't talk about parental rights over what public schools can say to students whose parents send them to public school. I blogged about this before. Now the House of Representatives has joined the conservatives in California who pursued the judicially activist result here, even though there's nothing at all in the Constitution that guarantees such parental rights. Yet they call the decision itself activist. I think Volokh is right that 'judicial activism' for these people just stands for results they disagree with. The historical content no longer remains if this counts as judicial activism. I don't think this is true of originalists as a rule, as some have complained, but it's certainly true of many who vote for conservative politicians to get judges who will favor certain results but then say they oppose judicial activism.

Alito on Free Speech

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Eugene Volokh has a nice article about Judge Alito on free speech and free exercise.

It's interesting in two ways. It shows that his differences from some of the justices he's being compared to (most notably Scalia but also Rehnquist), and it shows how the usual categorizations of the justices on the 1994-2005 Rehnquist court don't easily map onto the tendencies on these issues. Scalia is a moderate on free speech, while Thomas and Rehnquist are on opposite ends. Souter is on the same end as Thomas. Breyer is on the same end as Rehnquist. The standard categories or liberal, conservative, and moderate have completely failed us in predicting free speech votes on the Supreme Court.

I came across an interesting except from Abraham Lincoln on the meaning of "all men are created equal", from his debates with Douglas. I got this from a comment here. There seem to be a few typos, but I'm leaving it as the commenter had it.

Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include Negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another. And this is the staple argument of both the Chief Justice and the Senator, for doing this obvious violence to the plain unmistakable language of the Declaration. I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal -- equal in "certain inalienable rights, among which are life, liberty, and the pursuit of happiness." This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. The assertion that "all men are created equal" was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, not for that, but for future use. Its authors meant it to be, thank God, it is now proving itself, a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should re-appear in this fair land and commence their vocation they should find left for them at least one hard nut to crack. I have now briefly expressed my view of the meaning and objects of that part of the Declaration of Independence which declares that "all men are created equal.

This quote is interesting in a number of ways. It serves to distinguish between original meaning and original application, which is why the commenter brought it out in a discussion of those. (For what seems to me to be the right take on those issues, see Larry Solum. The hat tip on all of this goes to Randy Barnett.)

Especially while the Miers nomination was still in play, but still occasionally since then, I've been hearing a mantra from judicial conservatives, and I'm trying to figure out what it means. The line is that a Supreme Court nominee needs to have a comprehensive theory of judicial interpretion. Otherwise, we're going to have someone without any judicial principles who will simply legislate preferred social policies from the bench. See, for instance, Kenny Pearce. I agree with most of what he says, actually, but I'm trying to figure out what counts as a comprehensive theory of judicial interpretation.

Kenny's example is Justice Scalia, whose vote is thoroughly predictable due to having a clear judicial philosophy, while Justice O'Connor has been the opposite. I'm not sure predictability is necessarily a sign of a clear judicial philosophy. Someone might be predictable precisely because they do favor a certain set of outcomes and base their decisions solely on such considerations. Some do accuse Scalia of not being truly consistent with his comprehensive judicial philosophy when he doesn't want to be (which I think is at least a worry with his affirmative action position). But he does have an official one, however consistent with it he may or may not be in practice. So it's not having one that's important. It's following one. And it's not just following any old one, because it would be a comprehensive judicial philosophy to say that we should simply uphold all lower court holdings. What matters is having a good judicial philosophy, not just having any old comprehensive view.

Nonetheless, I'm interested in the question of what it is to have a comprehensive judicial philosophy and why that's even necessary. Does Judge Alito, for instance? He seems not to be an originalist, anyway, at least not in the absolutist way that Justices Thomas and Scalia claim to be. Chief Justice Roberts flatly denies that he's one. Maybe these two are just more honest about other principles that enter into their decision, but the question I have is whether you need to have a comprehensive theory that goes only on some central standard like original meaning or original intent, taking such a principle as absolute. Both would say that they pay attention to a variety of factors. Roberts denies that he has such a comprehensive theory. I'm wondering why this is bad, for one. I'm not even sure it's right to deny it the status of a comprehensive judcial theory, either.



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