SCOTUS nominee expected as early as this morning EDIT: looks like it's Garland

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I'd contend that mandating same-sex marriage makes far more sense as an application of equal protection than mandating lax abortion laws does as an application of due process.

Substantive due process is an awfully shaky judicial notion. Unfortunately, it's also the only possible basis for a number of rulings that strike me as morally imperative from a left-wing standpoint. I understand why you wouldn't include Roe v. Wade among those, but surely you would Lawrence v. Texas?

I take O'Connor's position in her Lawrence concurrence that the decision should have been reached on equal protection grounds instead.

O'Connor's position in her Lawrence concurrence would have upheld Bowers v. Hardwick and allowed most sodomy laws to stand as long as they were facially neutral as to sexual orientation, unlike the Texas law.

I'm aware of that. I part with O'Connor in that I would have decided that even facially neutral sodomy laws can be overturned on equal protection grounds if it can be shown (as it obviously can be) that their practical effect is inevitably discriminatory considering the mores of American society. I think that combining a very broad view of equal protection with a pragmatic outlook on the de facto discriminatory outcomes of facially evenhanded laws can accomplish much of what substantive due process accomplishes, and on sounder theoretical grounds. I'd contend that such a principle could be seen as an extension of the jurisprudence developed in Brown. (I realize that under this rubric the argument could be made in Roe v. Wade that strict abortion laws have a practical effect of discriminating against women, since men don't have to undergo pregnancy, and while I'd disagree with that argument I'd accept it as valid constitutional law.)

[Antonio the Sixth]

Well, for one thing, it's more common for a heterosexual couple to practice sodomy than it is for a man to get pregnant.

Of course this is the sort of reasoning that could be weighed against a "compelling government interest", as the Court often does. But that is once again shaky territory. Outlawing abortion is obviously a compelling government interest if it is equated to murder, but how should the Court determine whether it should be? Based on the individual opinions of the Justices? Based on the prevailing social norm? Or should it just accept that abortion can logically be equated to murder and not pronounce itself on the merits of the argument? And if so, how far should the Court go in accepting this kind of arguments? Because many laws can be connected to a "compelling government interest" if one accepts every moral framework as legitimate - including the Texas sodomy ban.

To be honest, when it comes to judicial interpretation, I'm realizing that I lean increasingly toward the literalist approach that Conservatives profess to love (though only when it benefits them). Interpreting constitutional provisions broadly, allowing it to be a "living document" whose implications evolve based on prevailing social norms, just opens up a can of worms that only gets resolved based on one's political biases. Conservatives will take a broad view of the Second Amendment, and use the First as an excuse to allow the rich to control political campaigns. Progressives will claim that the Equal Protection Clause can be used to tear down every unjust law, and use the First Amendment to allow students to say whatever they want on school grounds. Constitutional interpretation shouldn't be just another weapon in political conflict: it should be a last resort to ensure that everyone respects the few mutually-agreed rules of the political process. I realize that it's a view that's a lot more easier to hold in theory than in practice. Being a fair interpreter of the Constitution is hard when so many cases have such a strong moral component, which is why I have a lot of respect for those, like Stevens and O'Connor, who at least tried.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Well, for one thing, it's more common for a heterosexual couple to practice sodomy than it is for a man to get pregnant.

Well, yes, but sodomy laws would invariably be selectively enforced according to existing unjust social standards, and being clapped in irons is more obviously an infringement on liberty than not being permitted to terminate a pregnancy (assuming the mother isn't forced to actually raise the child, which nobody sane is suggesting). Again, though, I could very easily see arguments to the contrary that would be perfectly respectable and reasonable law. (I could also see an argument that strict abortion laws would in practice be discriminatory on the basis of class since they'd be enforced much more stringently and enthusiastically against poor people.)

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This is exactly why I'm leery of the 'compelling government interest' model, although I have no idea what I'd like to see it replaced with. Every possible alternative is just as subjective and susceptible to abuse and hackishness as 'compelling government interest' is. Either way you slice it, you're making subjective moral judgments about which acts do and do not rise to the level of calling for government disapprobation and intervention when you invoke this type of scrutiny (how this works with abortion cases is obvious enough, and incendiary enough, that I don't want to spell it out, so instead I'll use Moore v. East Cleveland, which is my own preferred example of a case where I'm uncomfortable leaving substantive due process in the dust because the conclusion is morally imperative to reach but difficult to reach on other grounds: It's just as much a subjective moral argument to say that extended family members are still family and deserve the right to live together as it is to say that those relationships shouldn't be morally or legally significant). Obviously something above rational basis review has to exist, but I really don't know how to go about that without abuse and hackishness.

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I'd love to agree with this, but my overall political philosophy is different enough from classical liberalism that any set of legal principles that I'd find convincing or morally operative would have to differ from any reasonable interpretation of plain or original meaning in significant ways. My main interest is in making those differences more consistent and giving them a sounder theoretical basis than conventional American liberal jurisprudence (don't even get me started on 'penumbra' bullsh**t).

[Orser67]

http://www.cnn.com/2016/03/24/politics/jerry-moran-merrick-garland-supreme-court-hearing/index.html

Jerry Moran (R-KS) has called for hearings on the Garland nomination. That's three Republicans (but none on the Judiciary Committee).