Sunday, July 03, 2005
Orin Kerr on the Impact of Justice O’Connor’s Retirement
Interesting points. However, you're clearly wrong when you say that Justice Scalia is the "most activist" justice in the sense of the most willing to overturn settled precedent. Justice Thomas, again and again, has proven even more willing to depart from a long-standing line of cases in order to return to what he sees as the original meaning of the Constitution. In fact, an extremely weak adherence to stare decisis is often taken to be the most distinctive characteristic of Thomas's jurisprudence. In contrast, on many occasions Scalia has described himself as a "faint-hearted originalist."
Examples are legion, but the most recent was one of the Ten Commandments cases, in which Thomas dissented alone to express his view -- which Scalia does not appear to share -- that the Establishment Clause, is at least largely inapplicable to the states under the Fourteenth Amendment.
As an addendum to my comment above, see this post by Randy Barnett, who hopes that Bush's nominee will be more like Thomas (willing to overrule long-standing precedent) and less like Scalia (a faint-hearted originalist). Barnett quotes this passage from Thomas's dissent in Kelo:
When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.
In the real world , that is,
outside of "Supreme" Court,
if a desicion is deemed to be poor, or erronuous, it is overturned as soon as practically possible.
"stare decisis" is an excuse of fools to stick to something obviously wrong.
But thanks for explaining it
By the way, the ridiculously bad title to Orin Kerr's op-ed, O'Connor's Successor Will Likely Be a Swinger, was added by the LA Times editors, not Orin. Orin, you have my sympathy on this one.
Randy Barnett is looking for another no doubting Thomas to help find and restore the lost Constitution. Alas, it is not the Constitution that is lost, but we need not look for either Barnett or Thomas who will remain missing in action while time and change marches on.
Iridium is spot on here with respect to Thomas. I would add on here that adherence to stare decisis in the case of Justice O'Connor is a much dicier thing to weigh than this post suggests.
Justice O'Connor disdained deciding on the basis of rules and preferred "balancing tests" and narrowly tailoring opinions to the facts at hand. This was often lauded as a measure of her restraint as a judge. Ironically, though, it left her free to depart from today's inclinations in the event tomorrows breeze should blow differently. It centralized the role of the judge in society, and lowered the predictability of the law as announced by the court. Hence her gymnastic retreat from Midkiff in the Kelo case. Writing opinions so that they shed very little light on future cases of similar nature leads to a subtler activism; in eschewing clear rules and principles, judges like O'Connor keep for themselves right continually to remake the law without giving indication to other actors where in fact things are headed, and without binding future judges to much by way of precedent.
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