Balkinization  

Friday, June 29, 2007

Worthy Successors?

Mark Tushnet

Let's assume that this week's decisions tell us something about what a conservative Supreme Court does. Borrowing from my mentor Mike Seidman, I ask what are the characteristic modes of decision-making of the conservative Court? A series of "nots": Not committed to a principle of judicial restraint; not originalist in any serious sense; not committed to following precedents even when they are uncomfortable; not incrementalist.

In a full exposition, I'd insert some qualifications and explanations: The integration cases are "originalist" if one pursues original understandings on a high enough level of generality; there's a long-ish explanation of why the distinction proferred in Hein to "save" Flast won't work in light of decisioins purporting to authorize as-applied Establishment Clause challenges to statutes that are facially constitutional; and so on. But, when you put everything together, who are the true predecessors -- in terms of method -- of Chief Justice Roberts and Justice Alito?

I'd say the best candidates are Earl Warren and William Brennan.

Comments:

I ask what are the characteristic modes of decision-making of the conservative Court? A series of "nots": Not committed to a principle of judicial restraint; not originalist in any serious sense; not committed to following precedents even when they are uncomfortable; not incrementalist.

A good samaritan who tacked a purse snatcher, took the purse and returned it to the owner is not robbing the purse snatcher, but rather is returning the purse to its rightful owner.

Originalism is being true to the Constitution as it is written and intended, not to prior Courts. Reversing prior court decisions which exceeded the Constitution and replacing them with decisions which are truer to the Constitution is not activist in the least, it is correcting part activism.
 

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