did Scalia (uninentionally of course) help the left

[Amenhotep Bakari-Sellers]

No, Joe Biden voted for Scalia and he pushed Clarence Thomas thru in a D lead Committee to a floor vote for confirmation which was disgraceful, that's why I don't have him on my Fav Prez list and will donate to Ds other than him for 2022 and 2024

I don't have Bill Clinton or Carter or Wilson ony Fav D's list

[politicallefty]

I'm very comfortable with Miranda v. Arizona, even though some of the constitutional scholars that I most respect have stated that they think the Court went too far in that case.

I'm not as strict and rigid of an originalist as you seem to think I am. It is true that I have a very narrow, strict, and rigid interpretation of the Equal Protection Clause, but that does not mean that I carry that degree of narrowness through with how I interpret all provisions of the Constitution. And I am not sure why you are so certain that decisions such as Gideon and Miranda are not plausibly based on originalist analysis and reasoning. Originalism-based reasoning is not always about identifying specific actions that our Founding Fathers were practicing in order to determine the intended meaning of a provision of the Constitution. Originalists often do rely on nothing more than the text of the Constitution to determine what was intended. That can be and is done with many clauses of the Constitution, depending on how specific they are. So I don't need to see any particular evidence of what the Self-Incrimination Clause of the Fifth Amendment and the Assistance of Counsel Clause of the Sixth Amendment were intended to mean in order to be satisfied that the Court did its job correctly in Miranda.

I suppose I'm trying to pick your mind with respect to the Warren Court. Those are generally decisions that many originalists today find issue with, among others. One of the arguments I've heard against Gideon is that the Second Amendment doesn't require the government to provide you a gun, so why is the government obligated to provide the indigent with counsel? Obviously, I don't agree with that logic for reasons of textual construction and the meanings of each amendment. I feel like the Warren Court largely put meat on the bones, so to speak, in terms of the rights of the accused. I don't feel like that's originalism, although it could be because the definition of originalism has largely been warped by the Federal Society and its progeny.

I suppose another example is the Exclusionary Rule. Like many aspects of the Warren Court's criminal justice jurisprudence, the Founders never conceived of or intended that to be part of our current jurisprudence. Technically, this rule came from Weeks v. United States in 1914, but like Gideon, was incorporated against the states during the Warren Court. It's something routinely attacked by originalists nowadays. I've always felt the Fourth Amendment loses all meaning without the Exclusionary Rule. Justice Black was part of the majority in Mapp v. Ohio and also wrote a concurrence that invoked the Fifth Amendment's protections as well. That's noteworthy as he was joining a decision that overturned a decision 12 years earlier that held the Exclusionary Rule did not apply the states (a decision he had then concurred with).

[MarkD]

I'm quite comfortable with the Warren Court's treatment of the rights of the criminally accused (Mapp, Gideon, Miranda), because of the fact that, going all of the way back to English common law, protecting those rights -- and even proactively creating those rights -- has been a duty for judges more so than the legislative and executive branches of government.

But the Warren Court went too far on numerous other occasions, such as Robinson v. California, Engel v. Vitale and School District of Abington Township v. Schemp, Baker v. Carr and Reynolds v. Sims, Avery v. Midland County, Harper v. Virginia Board of Elections and numerous other "voting rights" cases, Reitman v. Mulkey, Griswold v. Connecticut, and the one I consider to be the worst Warren Court decision, Levy v. Louisiana. The Court's opinion in that one, written by William O. Douglas, is absolutely the worst-written Court opinion I have ever read.

I disagree with Engel and Schemp because I agree with how the Burger Court would later interpret the Establishment Clause in Marsh v. Chambers, and this issue -- regarding the Establishment Clause -- is one in which my dedication to Originalism is as narrow as my interpretation of the Equal Protection Clause.

EDIT: I've thought of two other occasions in which the Warren Court got something wrong.
1) In Loving v. Virginia, Section 2 of the Court's opinion, Earl Warren incorrectly stated that all people have a fundamental right to get married, and that this right is protected by the Due Process Clause of the 14th. It was a "substantive due process" kind of doctrine, and that is always wrong. Not only was Warren wrong to state this is one meaning of the Due Process Clause, but he was also misinterpreting the Court's opinion in Maynard v. Hill, (1888).
2) In Benton v. Maryland, the Court incorporated the Double Jeopardy principle of the Fifth Amendment into the Fourteenth Amendment so that it would be applicable to the states. That conclusion is not what I object to. What I object to is that Justice Thurgood Marshall, writing the Benton majority opinion, stated that the 1937 precedent of Palko v. Connecticut had come to the opposite conclusion -- whether the Double Jeopardy principle is incorporated in the 14th -- and explicitly overturned Palko on that point of law. Marshall described what had happened in 1937 this way,

[Defendant] Palko argued that the Fourteenth Amendment incorporated, as against the States, the Fifth Amendment requirement that no person "be subject for the same offence to be twice put in jeopardy of life or limb." The Court disagreed. Federal double jeopardy standards were not applicable against the States. ...
[W]e today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment. Insofar as it is inconsistent with this holding, Palko v. Connecticut is overruled.

The problem is that when Justice Cardozo wrote Palko, he did not say that the Double Jeopardy Clause is not incorporated in the 14th. He said, in effect, this case is not the right time for us to answer the question of whether or not the Double Jeopardy Clause is incorporated in the 14th. The answer to that question will have to wait to some future case in which a person who was put on trial once and that first trial was fair and did not have any substantial legal errors was then eventually put on trial again. Once we see a case like that, we will address the question of whether the Double Jeopardy Clause is incorporated.
Here is what Cardozo wrote in 1937,

Is that kind of double jeopardy to which the statute has subjected him a hardship so acute and shocking that our polity will not endure it? Does it violate those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions"? The answer surely must be "no." What the answer would have to be if the state were permitted after a trial free from error to try the accused over again or to bring another case against him, we have no occasion to consider. We deal with the statute before us, and no other. The state is not attempting to wear the accused out by a multitude of cases with accumulated trials. It asks no more than this, that the case against him shall go on until there shall be a trial free from the corrosion of substantial legal error. This is not cruelty at all, nor even vexation in any immoderate degree. [Emphasis added.]

Thurgood Marshall couldn't even see past the end of his nose and see the part that I put in italics. Or he saw it and did not comprehend it. So because he claimed, unnecessarily, that Palko was overruled, when anybody reads the Wikipedia page about Palko, they will see that this case has been overruled, and maybe that will make them think they might as well avoid reading it, even though it's a fascinating opinion.

[politicallefty]

We're not going to see eye-to-eye on the Fourteenth Amendment's Equal Protection Clause, so I don't really feel like rehashing that over and over again. However, I'd say the voting rights decision were some of the most profound and important. Even Justice Black joined the majorities in Reynolds v. Sims and Baker v. Carr, both Equal Protection Clause cases. There's also Wesberry v. Sanders, written by Black himself, although it was based on Article I, Section 2.

Robinson v. California? That's an easy Eighth Amendment case if I've ever seen one.

We're definitely not on the same page in terms of the Establishment Clause. The foundation of the Warren Court's jurisprudence predates its inception, really starting with Justice Black's majority opinion in Everson v. Board of Education:

The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."

I could not agree more with those words. Even the dissent in that case agreed with Justice Black's interpretation of the Establishment Clause.

Outside of the Warren Court, how do you view Employment Division v. Smith? While I think Justice Scalia was right in that the Free Exercise Clause is not a way to become above the law, I think the actual facts of that case would've led me to join Justice Blackmun's dissent.

As for Loving, I think people often forget that the laws being struck down went further than simple nonrecognition. There were criminal penalties. I think those violated not just the Equal Protection Clause, but also the First Amendment. With that said, I still think a fundamental right to marriage is supported by the Constitution, even beyond the Due Process Clause of the Fourteenth Amendment. Do you think the First Amendment includes a right to the freedom of association?

As for your last point about Palko v. Connecticut, I would just note Justice Marshall's words:

Insofar as it is inconsistent with this holding, Palko v. Connecticut is overruled.

I think the bold text is relevant. In any event, four other Justices joined his opinion in full and neither the concurrence nor the dissent raised any issues.

[MarkD]

First of all, regarding why I disapprove of Robinson v. California. In my consideration, the Cruel and Unusual Punishment Clause addresses the methods of punishment used and the severity of the punishment. That Clause does not address what things should or should not be punished at all. Is it cruel and unusual punishment for a death sentence to be carried out by squishing the convicted person under a steamroller, feet first? Is it cruel and unusual punishment to impose a 20-year prison sentence for an act of jaywalking, in which the incident that occurred did not result in anyone being hurt and there was no significant property damage? Those kinds of questions are what the Clause addresses. But whether or not drug dependency is something that ought not ever be punished at all is not what the Clause addresses. Imposing punishment on someone for drug dependency is certainly unusual, but I don't see how courts of law can deem that punishment to be cruel. I agree with dissenting Justice White's observation that what the Court had done in Robinson is actually revive substantive due process reasoning and masquerade it behind the Cruel and Unusual Punishment Clause.

Second, regarding the Establishment Clause and Justice Black's paragraph, in Everson, that explains the scope that the Court appear to believe that Clause has. I want to break down that paragraph into its seven component sentences.

1) Neither a state nor the federal government can set up a church.
2) Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.
3) Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.
4) No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.
5) No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.
6) Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.
7) In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."

Sentence 1 has the potential of being troublesome, depending on how we interpret that sentence. If it was meant to convey nothing more than the plain meaning of the words in the Establishment Clause -- that there shall be no adoption of an official state religion -- then that's fine. But what else might that sentence mean when it says do not "set up a church?" Military bases and prisons "set up" chapels so that members of the armed services and prisoners can go to a church, so that they can worship in the chapel. Do military bases and prisons violate the Establishment Clause when they set up a chapel?
Sentences 2 and 5 have the same problem as sentence 1 regarding military base chapels and prison chapels. Doesn't a government "aid all religions" when it creates chapels? Doesn't government "support ... religious activities" with taxpayer dollars when they set up chapels and pay chaplains to perform worship services in the chapels? And sentences 2 and 5 seem to also prohibit legislative chaplains too, which (as I pointed out above) the Supreme Court have explicitly found to not be a violation of the Establishment Clause in the case of Marsh v. Chambers.
There are two minor problems with sentences 3 and 4. One minor problem is that sentence 4 is completely redundant of sentence 3. The other minor problem is those sentences describe the purpose of the Free Exercise of Religion Clause, rather than the Establishment Clause. I certainly don't object to any judges finding those two sentences to be the meaning of the Free Exercise Clause.
Sentence 6 seems odd: does that sentence mean that no government officials can ever go to any churches and "participate in" worship services? That would certainly be a completely contradictory way to interpret both the Establishment Clause and the Free Exercise Clause at the same time. Does the "vice versa" ending to that sentence mean that church officials are not allowed to "participate in" the process of lobbying legislatures, such as trying to lobby against the death penalty, or for more government spending on welfare programs? If those aren't what that sentence means, what does the sentence mean?
Sentence 7 is okay to me, because I have no objection to inferring, from the two religion clauses of the First Amendment, that there is a wall of separation between church and state. I have no objection to the notion that the "wall" requires that governmental entities must remain "separate" from church entities; that the two kinds of entities can never become wedded, or joined together, so that one can have complete control over the other. Government's power to govern the people of the jurisdiction can never be taken over by any churches. So I approve of the Court's conclusion and reasoning in Larkin v. Grendel's Den, Inc.

Third, yes, I approve of Employment Division v. Smith, although I wonder whether the Court has been and will be consistent about applying the doctrine.

Lastly, I don't see a logical connection between the concept of "freedom of association" and the act of getting married. If that were supposed to be a logical connection, then everyone has a right to engage in polygamy, not just bilateral marriage. Back in 1965, when the Court was considering Griswold v. Connecticut, Justice Douglas was trying to connect the concept of freedom of association to the "privacy" of a married couple who wished to use contraceptives. It has been reported that, behind the scenes, when the Justices were deliberating Griswold in their conference session, Justice Black responded to the logic that marital privacy had something to do with the First Amendment by saying, "[The] right of association is for me [a] right of assembly and [the right] of husband and wife to assemble in bed is [a] new right of assembly to me." (Reported in "Of Power and Right," by Ball and Cooper, published 1992, page 286. The authors got that quote from a box of papers stored by Justice Brennan.) And I say again, that the Court's opinion in Loving, Section 2, claimed to infer the fundamental right to marry from nothing more in the Constitution than the Due Process Clause of the Fourteenth Amendment.

[politicallefty]

I would say that it follows that if a punishment can be too severe for a crime, any punishment can be considered too severe for a particular crime. The individual in question was found guilty of a misdemeanor and sentenced to 90 days in prison. I think one of the bigger issues is that this individual was found guilty for holding a certain status, not committing any particular act. You can make the case that there were acts committed that led to said status, but those acts were not the issue at hand.

Something tells me we don't really agree on how to interpret the Eighth Amendment. What are your thoughts on Trop v. Dulles? It's a shame (and almost surprising) we didn't get any good death penalty cases during the Warren Court. I would've loved to have read Justice Black's thoughts on Furman v. Georgia. I find it highly unlikely he would've been on the same page as Justices Brennan or Marshall, but I think the racial aspect would've caught his attention.

As for the Establishment Clause, I'm not going to pick apart each aspect you mention, but I will summarize my thoughts. Like I already said, I agree with the Court's opinion in Everson. I would've been in dissent in Marsh v. Chambers, likely joining Justices Brennan and Marshall. I would say that prisons and the military have specific considerations. One is an involuntary commitment and the other is nearly involuntary once committed. I do not believe the government should be setting up chapels or paying for chaplains. However, I would argue that the First Amendment requires access to religious clergy so that one may freely exercise their rights. The Supreme Court just this year denied a state's request to execute an inmate without his pastor present. As for the military, my first thoughts are that some reasonable accommodation would be necessary. That doesn't mean the government sets up a chapel or pays chaplains. In that instance, it might be okay under certain circumstances to use something such as a recreation room for temporary religious congregation.

As for Sentence 6, I think it is primarily concerned with state or federal actions that involve themselves in religious activity. I don't see how it involves government officials acting in a private capacity. As for vice versa, I think the concern might have been the old fear of the Pope and Catholic Church taking over or becoming an influence in and of itself. I would agree that that's hard to grasp now, but that decision was written in 1947 (prior to the election of JFK and so on). I also see that as a way to keep state and religion apart. Religious officials have no business participating in the affairs of government in their capacity as religious officials. Lobbying is covered under other parts of the First Amendment. I do have to admit that is the weak link in that paragraph (in terms of the vice versa part).

My issue with Employment Division v. Smith is that it works to marginalize minority religions. I think the facts of that case warranted a different result. I think I would've devised a different test. I feel like a better result would be something like that any religious practice that doesn't substantially affect other people is generally exempt from generally applicable laws. That would've mostly stuck with Justice Scalia's majority ruling, but would've allowed for the individuals in the case to use peyote.

I do not agree with you on Loving. Your reasoning seems to be that the freedom of assembly and the freedom of association are one and the same. Once again, I have to ask whether or not you believe there is a separate freedom of association contained within the freedoms and rights of the First Amendment? Moving on, I would certainly argue that anti-cohabitation laws violate the Constitution. As for polygamy, I do not believe there is anything in the Constitution that grants such relations legal status for protections such as taxes, but they are mostly protected in terms of their association to live together (provided all individuals are freely exercising their rights and not compelled by others).

[MarkD]

Just answering your questions:

Since the issue in Trop v. Dulles was whether the punishment was too severe, it was not like Robinson v. California. I don't know whether I agree with the Court's conclusion about whether that punishment was too severe; I would have to spend some more time studying it to decide how I would vote on that issue, but the premise that the Court was inferring from the Cruel and Unusual Punishment Clause was a valid premise.

I believe that freedom of association is inferred from the Freedom of Assembly Clause in the First Amendment, but that freedom is a political freedom - so that people can advance their political goals - and it does not extend so far as to cover marriages and sex acts. That kind of extension was what Justice Douglas was going for in his first draft for Griswold v. Connecticut: freedom of assembly means freedom of association, freedom of association covered the political activities of the NAACP in the case of NAACP v. Alabama, and if the freedom of association covered the political activity of NAACP, it can also be stretched to cover the sexual activity of a married couple. That stretch in logic was too much for Hugo Black to agree with, and it's too much of a stretch in logic for me.

[Amenhotep Bakari-Sellers]

No, if Garland would have appointed not Kavanaugh or Gorsuch or Barrett, Ginsburg was waiting for Hillary to Federalize SSM, End pernamently Citizens United and background checks for Gun control

But, Trump, not Scalia was the single most reason why the D's are back in control he's and Entertainer, not a Politician, that's why he keeps saying Free the Patriots

[politicallefty]

Just answering your questions:

Since the issue in Trop v. Dulles was whether the punishment was too severe, it was not like Robinson v. California. I don't know whether I agree with the Court's conclusion about whether that punishment was too severe; I would have to spend some more time studying it to decide how I would vote on that issue, but the premise that the Court was inferring from the Cruel and Unusual Punishment Clause was a valid premise.

I believe that freedom of association is inferred from the Freedom of Assembly Clause in the First Amendment, but that freedom is a political freedom - so that people can advance their political goals - and it does not extend so far as to cover marriages and sex acts. That kind of extension was what Justice Douglas was going for in his first draft for Griswold v. Connecticut: freedom of assembly means freedom of association, freedom of association covered the political activities of the NAACP in the case of NAACP v. Alabama, and if the freedom of association covered the political activity of NAACP, it can also be stretched to cover the sexual activity of a married couple. That stretch in logic was too much for Hugo Black to agree with, and it's too much of a stretch in logic for me.

I admit I got a little carried away and gave you a lot to chew on, but it was only in response to your long response.

I bring up Trop v. Dulles because it was really the beginning of the Eighth Amendment jurisprudence that we have today (maybe not so much under the current Court, but certainly up to Justice Kennedy's opinions). I mentioned that case because the Court considered both cruelty and unusualness in its decision. The main issue in Robinson was that that state was enacting a punishment for a status or condition, as opposed to actions or conduct. Justice Stewart mentioned a hypothetical of short prison sentence for having a common cold. Maybe it does require looking beyond just the Eighth Amendment in a case like Robinson, because the allowing of status crimes would give the government virtually unlimited power over the individual.

I don't believe the Constitution differentiates between political rights and all others. In terms of the freedom of association, it is one recognized from the far left and the far right on the Court and most in between, depending on the case. Our judicial system has long recognized various rights of marriage, including common law marriages. I believe you once agreed with me that the Constitution grants rights that are beyond the simple text. I would argue that includes rights inherent and necessary in the construction of the text (such as the Exclusionary Rule from the Fourth Amendment), but also some under the Ninth Amendment (you are obviously free to disagree on any and all points). You are one that mostly argues on originalist terms. At what point in the history of this country would marriage not have been considered a fundamental right?

[MarkD]

How about the late Nineteenth Century?

Throughout the the nineteenth century, marriage was considered to be a common law right, not a constitutional right. [Meister v. Moore, (1877).] Common law rights are derived from a combination of judicial pronouncements and custom and are subject to legislative revision or revocation. Marriage therefore was subject to state regulation so long as the state was sufficiently clear that it was intending to alter the common law.
In 1877, in Pennoyer v. Neff, the [Supreme] Court explicitly stated that "The State ... has an absolute right to prescribe the condition upon which the marriage relation between its own citizens shall be created, and the cause for which it may be dissolved." The next year, in Reynolds v. U.S., the Court held that the government had the power to outlaw polygamy and that the marriage contract was subject to state power, as were the terms of any other civil contract. "Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law." Finally, ten years later, in Maynard v. Hill, the Court stated, "Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature."
These early decisions, however, must be read in their historical context. It is not surprising that throughout much of the nineteenth century, the Court declined to call marriage a fundamental right because the concept of unenumerated fundamental rights did not exist at all until the end of that century. Indeed, the Court did not really enforce even many of the rights explicitly guaranteed in the Bill of Rights, such as freedom of speech, until the middle of the twentieth century. The history of constitutional law is riddled with Court cases upholding prison terms for peacefully expressing opposition to war and the draft or for joining the Communist Labor Party. [See, respectively, Schenk v. United States, Whitney v. California.] It would be surprising indeed for the nineteenth century Court to declare marriage, or anything else, a fundamental right. ("Same-Sex Marriage and the Constitution," by Evan Gerstmann, (2003), pages 73-74.)

Prof. Gerstmann says that the first time in which the Court decreed that marriage was a fundamental right protected by the Fourteenth Amendment was in the 1923 case of Meyer v. Nebraska.

Regarding whether "the government" (whichever one that is) should be allowed to have "virtually unlimited power over the individual," I believe strongly in respecting the concept of federalism, which means that the state governments have different powers than the federal government, and that the federal government should only prohibit the states from doing things that the U.S. Constitution explicitly prohibits the states from doing (or which would contradict the federal government's enumerated powers). Of course, I admit that the Fourteenth Amendment is extremely vague about what the states are prohibited from doing (I remember reading somewhere that Justice Frankfurter once said that the Fourteenth Amendment's second sentence has "purposed vagueness"), but surely that should not mean that federal courts have carte blanche to imbue the Ninth Amendment into the Fourteenth, and/or to give the Fourteenth whatever natural law meaning that federal judges feel like giving it. I believe in judicial restraint too, which as far as I'm concerned goes hand-in-hand with originalism.

EDIT: because the second sentence of the Fourteenth is very brief and vague, I am proposing that we adopt a constitutional amendment that rewrites that sentence to make the meaning of it narrower and clearer. That suggestion is in my signature, and I have often asked people in this forum whether they would support my proposal.

[politicallefty]

I would say that numerous common law rights are retained by the people, even if they aren't explicitly written in the text of the Constitution. Those rights apply where the Constitution is otherwise silent or textually in opposition. This is one of the rare times when I would invoke the Ninth Amendment. Marriage was indeed a common law right, but I believe it became a constitutional right under the Ninth Amendment. That does not mean there are per se positive rights or benefits, but the right is retained by the people and it cannot be denied or disparaged. The Fourteenth Amendment is what changed that right from being one of one man and one woman of the same race to two individuals regardless of race or gender.

[David Hume]

Toobin & others have offered a similar such point in their writings, yeah: basically, Scalia simply wasn't willing to concede any sort of substantive ground to those justices whose approach to the law was the opposite of the originalist interpretation which he saw himself as chained to, as said approaches just aren't reconcilable. A justice whose ideology was the opposite of Scalia's could ask Scalia, "Can you give me X in this opinion?," & Scalia's response would be, "sorry, but the Constitution meant Z then & it means Z now," & if the justice to whom he was speaking then wanted to try & see if Scalia would at least be willing to meet in the middle at Y, Scalia would just repeat himself before going on to basically piss in the wind with a dissent. He just lacked an ability to compromise that even Rehnquist - or, at least, Chief Justice Rehnquist - didn't. But that's what can happen when you give lifetime appointments to ideological purists who sit on bottomless wells of self-righteousness, & it's the same with Thomas as well: "THOMAS, J., dissenting" might as well be the same as a bear sh*tting in the woods at this point. In any event, though, it's why Rehnquist was arguably able to achieve far more for the conservative legal movement in terms of outcomes than Scalia was: because Rehnquist, unlike Scalia, was actually willing to compromise, which is what could enable a conservative justice like him to actually have input on the decisions that - although he may not entirely agree with - still matter. It's basically a study of a pretty stark contrast between trying to get the law to where one thinks it should be by either inching one's way there or by rigidly adhering to one's ideological beliefs.

1，What you said actually discribes Thomas more than Scalia. Thomas is a pure originalist ideologue, who will never compromise. Scalia sometimes compromise a little to reach the result he prefers, through stare decisis or something else.

2, Scalia's true contribution to the left, is that his attacking dissents pissed off O'Connor, and to a lesser degree, Kennedy, pushing them to the left. He went as far as saying O'Connor's opinion is "irrational" and "cannot be taken seriously". Rehnquist asked Scalia to come to his office, "Nino, you pissed off Santra again. Stop it!"

3, Rehnquist is indeed the master of compromise. He was able to trade with O'Connor and Kennedy to reach a middle ground.  He would even vote against his belief, in order to avoid the opinion being assigned and written by Brennan and Stevens. One famous example is a case about exclusionary rule, Dickerson v. United States. He voted to strike done the Omnibus Crime Control and Safe Streets Act of 1968, which purported to overrule Miranda for federal criminal cases, assigned the opinion to himself, and wrote a very narrow one. If he voted like Scalia and Thomas, it would be 6:3, and likely written by the most liberal Stevens for a much broader and influential opinion, which would ruin all his efforts to limit exclusionary rule.

4, To be fair, even if Scalia is willing to compromise like Rehnquist, it probably won't change a lot, as long as Thomas was not willing. During Scalia's tenure, there was never enough conservatives. Before Thomas replaced Marshall in 1991, the only reliable conservatives were Scalia and Rehnquist. From 1991 to 2006, there were three reliable conservatives, two conservative leaning swing votes, and four liberals. And after 2006, the famous 4:1:4 (CJ Roberts was relatively reliable during Scalia's tenure.)

5, Scalia definitely knew the situation. His dissents was written for law school students, trying to influence them. And to some extent, he was successful. Originalism gradually becomes the principle of the conservative legal movement. Even moderate conservative like Chuck Grassley, now only vote for judges that would interpret the constitution as was originally written. (Graham is the only one that would vote for a Dem judge at circuit court level, besides Collins and Murkowski).

6, Thomas, finally gets his day when there are enough originalists, himself, Gorsuch, Barrett, and to a less extent, Kavanaugh, plus Alito, who is not an originalist yet willing to join Thomas to achieve the desirable results. This is why I think the rummer that Thomas was retiring was ridiculous.

[David Hume]

Toobin & others have offered a similar such point in their writings, yeah: basically, Scalia simply wasn't willing to concede any sort of substantive ground to those justices whose approach to the law was the opposite of the originalist interpretation which he saw himself as chained to, as said approaches just aren't reconcilable. A justice whose ideology was the opposite of Scalia's could ask Scalia, "Can you give me X in this opinion?," & Scalia's response would be, "sorry, but the Constitution meant Z then & it means Z now," & if the justice to whom he was speaking then wanted to try & see if Scalia would at least be willing to meet in the middle at Y, Scalia would just repeat himself before going on to basically piss in the wind with a dissent. He just lacked an ability to compromise that even Rehnquist - or, at least, Chief Justice Rehnquist - didn't. But that's what can happen when you give lifetime appointments to ideological purists who sit on bottomless wells of self-righteousness, & it's the same with Thomas as well: "THOMAS, J., dissenting" might as well be the same as a bear sh*tting in the woods at this point. In any event, though, it's why Rehnquist was arguably able to achieve far more for the conservative legal movement in terms of outcomes than Scalia was: because Rehnquist, unlike Scalia, was actually willing to compromise, which is what could enable a conservative justice like him to actually have input on the decisions that - although he may not entirely agree with - still matter. It's basically a study of a pretty stark contrast between trying to get the law to where one think it should be by either inching one's way there or by rigidly adhering to one's ideological beliefs.

Quite, though I wonder whether in the long run his oratorical skills have managed to shift "conservative" jurisprudence in the direction of originalism; and hence get more originalists (i.e. any Republican appointee going forward) on the Court.

It's pretty clear to me the massive impact that Scalia's unbreakable commitment to his ideology and infamous loquaciousness in doing so have been massively influential on movement conservatism as a whole, especially in the judicial field. Since Scalia's appointment Republican presidents have largely sought to appoint more in his mold to the Supreme Court and inferior courts, although this hasn't always panned out as intended (Bork getting shot down by the Senate, Scalia associate Gorsuch being a far less ideological textualist, etc).

Gorsuch is actually a pure originalist, probably more than Scalia himself. I would say his judicial philosophy is closer to Thomas than Scalia. The difference is he is less conservative than either Scalia an Thomas.

[David Hume]

Scalia definitely was not hated by his colleagues. I think quite the opposite really, especially when you consider his well-known friendship with RBG. It's worth noting that Rehnquist was the most conservative Justice on the Court for quite some time. Since the late 1930s, probably only Thomas was unequivocally to his right (although Alito comes pretty close). Scalia was more idiosyncratic when you consider outcomes. I wouldn't really say Scalia was to the right of the Rehnquist though.

I would agree that Scalia's ideology was probably off-putting to O'Connor and Kennedy. Those two definitely didn't agree with a rigid ideology, particularly O'Connor. However, I don't believe as some do that Kennedy was a moderate centre-right Justice. On abortion and the death penalty, perhaps. But he wrote Citizens United and Obergefell, both sweeping decisions in their own right. There was nothing moderate about either of those rulings.

If there's one aspect where Justice Scalia didn't help his cause, it was with some of his dissents. He would hit back very hard, almost insulting the majority. In gay rights cases, he definitely appeared to be homophobic. I think homophobia was something that really turned off Justices like O'Connor and Kennedy, not to mention those on the left. Scalia didn't always know when to dial things back a bit when in dissent.

Black was a textualist and cared very little for arguments about "original intent." He was solidly on the court's left at the beginning of his tenure, though I don't know that I'd class him as part of the "activist wing," especially toward the end of his time on the bench. Different times, different issues.

He'd be a hard one to place in the current paradigm. He is probably the closest things to a left-wing textualist, although he believed the Equal Protection Clause to cover only race and alienage. He almost certainly would've voted against the holdings in Roe v. Wade and Obergefell. On the other hand, he definitely would've voted to uphold the ACA in its entirety under the Commerce Clause. He also definitely would not find much in common with the current right-wing of the Court in terms of religion (among other things, he wrote both Everson v. Board of Education and Engel v. Vitale). The current Court seems to want to bring down the "wall of separation between church and state" that was held to exist under Justice Black's ruling.

Hugo Black was a textualist but not originalist, who also adheres to judicial restraint, which is contrary to activism. This means he will defer to legislative process and seldom strike down Acts. I agree with you about him regarding ACA, Roe, ect.

If he were on the court with Scalia, I would rate him to the right of Kennedy and a little left of Roberts. This means he will probably be hated by liberals nowadays.

[Geoffrey Howe]

1，What you said actually discribes Thomas more than Scalia. Thomas is a pure originalist ideologue, who will never compromise. Scalia sometimes compromise a little to reach the result he prefers, through stare decisis or something else.

This is true, but Scalia also had that reputation; especially in comparison to Rehnquist, as you say below.

2, Scalia's true contribution to the left, is that his attacking dissents pissed off O'Connor, and to a lesser degree, Kennedy, pushing them to the left. He went as far as saying O'Connor's opinion is "irrational" and "cannot be taken seriously". Rehnquist asked Scalia to come to his office, "Nino, you pissed off Santra again. Stop it!"

I've read exactly the same thing about Thomas, but this is undoubtedly true for Scalia. His dissents were more biting. You're talking about Casey here?

3, Rehnquist is indeed the master of compromise. He was able to trade with O'Connor and Kennedy to reach a middle ground.  He would even vote against his belief, in order to avoid the opinion being assigned and written by Brennan and Stevens. One famous example is a case about exclusionary rule, Dickerson v. United States. He voted to strike done the Omnibus Crime Control and Safe Streets Act of 1968, which purported to overrule Miranda for federal criminal cases, assigned the opinion to himself, and wrote a very narrow one. If he voted like Scalia and Thomas, it would be 6:3, and likely written by the most liberal Stevens for a much broader and influential opinion, which would ruin all his efforts to limit exclusionary rule.

People say exactly the same about Chief Justice Burger, except he was useless at it. As an example, he tried to control the opinion in Bakke; but ended up in (partial) dissent.

4, To be fair, even if Scalia is willing to compromise like Rehnquist, it probably won't change a lot, as long as Thomas was not willing. During Scalia's tenure, there was never enough conservatives. Before Thomas replaced Marshall in 1991, the only reliable conservatives were Scalia and Rehnquist. From 1991 to 2006, there were three reliable conservatives, two conservative leaning swing votes, and four liberals. And after 2006, the famous 4:1:4 (CJ Roberts was relatively reliable during Scalia's tenure.)

5, Scalia definitely knew the situation. His dissents was written for law school students, trying to influence them. And to some extent, he was successful. Originalism gradually becomes the principle of the conservative legal movement. Even moderate conservative like Chuck Grassley, now only vote for judges that would interpret the constitution as was originally written. (Graham is the only one that would vote for a Dem judge at circuit court level, besides Collins and Murkowski).

6, Thomas, finally gets his day when there are enough originalists, himself, Gorsuch, Barrett, and to a less extent, Kavanaugh, plus Alito, who is not an originalist yet willing to join Thomas to achieve the desirable results. This is why I think the rummer that Thomas was retiring was ridiculous.

Agreed.

[David Hume]

1，What you said actually discribes Thomas more than Scalia. Thomas is a pure originalist ideologue, who will never compromise. Scalia sometimes compromise a little to reach the result he prefers, through stare decisis or something else.

This is true, but Scalia also had that reputation; especially in comparison to Rehnquist, as you say below.

2, Scalia's true contribution to the left, is that his attacking dissents pissed off O'Connor, and to a lesser degree, Kennedy, pushing them to the left. He went as far as saying O'Connor's opinion is "irrational" and "cannot be taken seriously". Rehnquist asked Scalia to come to his office, "Nino, you pissed off Santra again. Stop it!"

I've read exactly the same thing about Thomas, but this is undoubtedly true for Scalia. His dissents were more biting. You're talking about Casey here?

I was talking about a case in 1989.

Thomas, as a person, is very polite and easy going. He is widely respected by people around the court like staffs. He never wrote humiliating dissents like Scalia. I also read O'Connor disliked him a lot, and I guess she disliked Alito as well, but these are for different reasons than Scalia.

3, Rehnquist is indeed the master of compromise. He was able to trade with O'Connor and Kennedy to reach a middle ground.  He would even vote against his belief, in order to avoid the opinion being assigned and written by Brennan and Stevens. One famous example is a case about exclusionary rule, Dickerson v. United States. He voted to strike done the Omnibus Crime Control and Safe Streets Act of 1968, which purported to overrule Miranda for federal criminal cases, assigned the opinion to himself, and wrote a very narrow one. If he voted like Scalia and Thomas, it would be 6:3, and likely written by the most liberal Stevens for a much broader and influential opinion, which would ruin all his efforts to limit exclusionary rule.

People say exactly the same about Chief Justice Burger, except he was useless at it. As an example, he tried to control the opinion in Bakke; but ended up in (partial) dissent.

Burger abused this power, to the extent that Stewart hated him and complained to reporters like the authors of Brenthen.

But to be honest, Burger was in a much tougher situation than Rehnquist. He only has one reliable ally, Rehnquist. But he is facing the legendary Brennan, and Marshall and Douglas would always choose Brennan than Burger. He did contributed to his childhood best friend Blackmun's left shift. I am not sure how much he could have avoided it. Even Blackmun's mother knew their relationship would be in trouble before Blackmun joined the court.
[/quote]

[Geoffrey Howe]

1，What you said actually discribes Thomas more than Scalia. Thomas is a pure originalist ideologue, who will never compromise. Scalia sometimes compromise a little to reach the result he prefers, through stare decisis or something else.

This is true, but Scalia also had that reputation; especially in comparison to Rehnquist, as you say below.

2, Scalia's true contribution to the left, is that his attacking dissents pissed off O'Connor, and to a lesser degree, Kennedy, pushing them to the left. He went as far as saying O'Connor's opinion is "irrational" and "cannot be taken seriously". Rehnquist asked Scalia to come to his office, "Nino, you pissed off Santra again. Stop it!"

I've read exactly the same thing about Thomas, but this is undoubtedly true for Scalia. His dissents were more biting. You're talking about Casey here?

I was talking about a case in 1989.

Thomas, as a person, is very polite and easy going. He is widely respected by people around the court like staffs. He never wrote humiliating dissents like Scalia. I also read O'Connor disliked him a lot, and I guess she disliked Alito as well, but these are for different reasons than Scalia.

3, Rehnquist is indeed the master of compromise. He was able to trade with O'Connor and Kennedy to reach a middle ground.  He would even vote against his belief, in order to avoid the opinion being assigned and written by Brennan and Stevens. One famous example is a case about exclusionary rule, Dickerson v. United States. He voted to strike done the Omnibus Crime Control and Safe Streets Act of 1968, which purported to overrule Miranda for federal criminal cases, assigned the opinion to himself, and wrote a very narrow one. If he voted like Scalia and Thomas, it would be 6:3, and likely written by the most liberal Stevens for a much broader and influential opinion, which would ruin all his efforts to limit exclusionary rule.

People say exactly the same about Chief Justice Burger, except he was useless at it. As an example, he tried to control the opinion in Bakke; but ended up in (partial) dissent.

Burger abused this power, to the extent that Stewart hated him and complained to reporters like the authors of Brenthen.

But to be honest, Burger was in a much tougher situation than Rehnquist. He only has one reliable ally, Rehnquist. But he is facing the legendary Brennan, and Marshall and Douglas would always choose Brennan than Burger. He did contributed to his childhood best friend Blackmun's left shift. I am not sure how much he could have avoided it. Even Blackmun's mother knew their relationship would be in trouble before Blackmun joined the court.

Oh, it's Webster? Burger was in a tougher position, but he was still useless. After all, there were only two reliable liberals after Douglas went; and his behaviour alienated Blackmun a lot (as his mother predicted, but that's another matter).

[Amenhotep Bakari-Sellers]

The consequence for f Trump was that Citizens United remained, we need to get rid of that Law it's a Travesty

[MarkD]

I would say that numerous common law rights are retained by the people, even if they aren't explicitly written in the text of the Constitution. Those rights apply where the Constitution is otherwise silent or textually in opposition. This is one of the rare times when I would invoke the Ninth Amendment. Marriage was indeed a common law right, but I believe it became a constitutional right under the Ninth Amendment. That does not mean there are per se positive rights or benefits, but the right is retained by the people and it cannot be denied or disparaged. The Fourteenth Amendment is what changed that right from being one of one man and one woman of the same race to two individuals regardless of race or gender.

I think that the only kind of common law rights that should be treated as rights protected by the U.S. Constitution are those rights that come under the umbrella heading of procedural due process. The quintessential example of an unenumerated right that is protected by the Due Process Clause is the right of an accused person to be presumed innocent until proven guilty and there must be proof beyond a reasonable doubt. So I disagree with Justice Black's conclusion in In Re Winship. But substantive rights that had been recognized in the common law must not become elevated to the status of constitutionally-protected rights. Substantive issues that the common law addressed have always been treated as if they will be inferior to statutory law once a legislature has passed a statute that clearly indicates the legislature wishes to supplant common law. Even on the various occasions in which the SCOTUS has claimed that the "fundamental right" to get married is constitutionally-protected (Meyer v. Nebraska, Loving v. Virginia, Zablocki v. Redhail, Obergefell v. Hodges), it has never cited common law as any part of the reason why it said that.

The Ninth Amendment.
I'm 56 years old now. I have been thinking about the Ninth Amendment for over half of my life.
I came out of the closet when I was 18, and started participating in the gay community's events when I was 19. The Supreme Court handed down its decision in Bowers v. Hardwick when I was 21. At first, I was on the gay community's bandwagon in wanting to get that decision overturned ASAP. I held onto the desire to overturn Bowers for about 4-5 years after the decision was handed down. I was thinking about using the Ninth Amendment as the basis for overturning Bowers during those years.
But when I read Robert Bork's "The Tempting of America," I started to realize that the SCOTUS had come to the correct conclusion in Bowers, and so I was wrong to want for it to be overturned. Various things that "Tempting" taught me about substantive due process and the "right to privacy" were the reasons I was gradually changing my mind. The only thing that "Tempting" did not teach me was what the Ninth Amendment means. Bork's explanation for what the Ninth means was completely unpersuasive. Bork said that the Ninth maintains the relevancy of the bills of rights in the state constitutions. When I read that explanation in "Tempting," it seemed to lack the ring of truth. So I wanted to learn more about the Ninth Amendment.
Bork's book inspired me to delve into reading the various opinions written by Justices in the 1965 case of Griswold v. Connecticut. Six Justices wrote opinions in that case: four for the majority side and two by the dissenters. Both dissenting Justices were far more persuasive to me than any of the four opinions by the majority Justices, and I have always maintained that Black's dissent is one of the most fascinating, informative, and important Supreme Court opinions I have ever read. But before I quote Black, here is Justice Stewart's explanation of what the Ninth means.

The Court also quotes the Ninth Amendment, and my Brother GOLDBERG's concurring opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion, the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered," United States v. Darby, was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today, no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.

Black indicated that he agreed with Stewart, and explained the Ninth in almost exactly the same way that Stewart had said,

That Amendment was passed not to broaden the powers of this Court or any other department of "the General Government," but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication. If any broad, unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the "[collective] conscience of our people" is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court. This fact is perhaps responsible for the peculiar phenomenon that, for a period of a century and a half, no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. Use of any such broad, unbounded judicial authority would make of this Court's members a day-to-day constitutional convention.

I eventually realized that Black had said one thing wrong in that quote: he made it sound as if the Ninth Amendment and the Tenth Amendment mean identical things. The Ninth does not say anything about the powers of the states, it's the Tenth which refers to those powers. Because the things which Stewart and Black said seemed to me, at the time, to ring much closer to the truth, I decided to read more books that discussed what the Ninth Amendment means. Two of the most important books I read were Bernard Schwartz's "The New Right and the Constitution," and John Hart Ely's "Democracy and Distrust." Neither of those authors convinced me that their interpretation of the Ninth was correct, but they both taught me about what the Ninth was intended to mean by the people who, in 1789-1791, adopted the Ninth Amendment.
Schwartz made it perfectly clear that the Ninth was indeed intended to have the meaning that Stewart and Black described in Griswold. But that didn't matter to Schwartz, because he didn't give a rat's a55 what anything in the Constitution was intended to mean, as he made clear in the first chapter of the book. All Schwartz cared about is what meaning the Court gives to the provisions of the Constitution -- and even then he agreed with the meaning that the Court gives as long as the Court is producing a left-wing outcome, not with any right-wing outcomes. Thus, Griswold and Roe are legitimate decisions of the Court, but the Lochner Era decisions are not.
Ely (who respects the philosophy of Originalism much more than Schwartz) acknowledged that Stewart's and Black's interpretation of the Ninth is the traditional interpretation (he called it the "received" interpretation), but he thought that since Black's interpretation of the Ninth made that amendment and the Tenth Amendment perform redundant functions, then there must be something wrong with the traditional interpretation. He struggled to explain that the Ninth was actually intended to mean two things: one intended meaning is what the "received" interpretation has long said, but the other meaning is that the Ninth protects "rights" that are not the reciprocal of enumerated powers, but are "rights" independent of that reciprocal relationship. He said that "rights can cut across or 'trump' powers," such as First Amendment rights being capable of defeating claims that the federal government can always absolutely regulate any interstate commerce. However, once you understand the whole of his book, you'll recognize that the only meaning he gives to the Ninth is that it is the federal government's Equal Protection Clause, thus providing an alternative basis for validating Bolling v. Sharpe.

Thus, because of what I read in "The New Right and the Constitution" and "Democracy and Distrust," I realized that Black and Stewart were almost entirely correct. Black was wrong only insofar as he tried to treat the Ninth as if it means the same thing as the Tenth. The Ninth and the Tenth do not perform identical functions, but they perform parallel functions. That is so if you care about the original meaning of the Ninth. As Stewart said, that meaning is the only meaning that any member of the Court had ever given the Ninth until the Griswold case came along. And if you do respect that was the original meaning of the Ninth, then the only logical way to incorporate the Ninth into the Fourteenth, and thus have federal courts supervise the validity of state and local laws, is if the federal courts took it upon themselves to interpret state constitutions and local charters, and to determine whether challenged state and local laws exceed powers delegated by each respective state constitution or local charter. But to me, even doing that would seem to go beyond what the ratifiers of the Fourteenth wanted federal courts to do. And I say that as someone who believes in judicial restraint, too.

[politicallefty]

Hugo Black was a textualist but not originalist, who also adheres to judicial restraint, which is contrary to activism. This means he will defer to legislative process and seldom strike down Acts. I agree with you about him regarding ACA, Roe, ect.

If he were on the court with Scalia, I would rate him to the right of Kennedy and a little left of Roberts. This means he will probably be hated by liberals nowadays.

He certainly had some originalist tendencies, but they were generally secondary to his brand of textualism. His view of the Equal Protection Clause is a prime example.

I'm not sure I agree with your characterization of how he would've been compared to other Justices. I've always rejected the conception of Justice Kennedy as a moderate. While he was moderate on some things like abortion and the death penalty, his convictions were strong on many. It's just that he wasn't always on one side. He was firmly on the left on gay rights, but only a solid right-winger would vote to strike down the ACA in its entirety. Justice Black was part of the unanimous decisions in both Wickard v. Filburn and Heart of Atlanta Motel, Inc. v. United States upholding a very expansive view of the Commerce Clause and Necessary and Proper Clause. He also wasn't in support of judicial restraint when it came to the post-Brown v. Board of Education decisions. Justice Black was a hardliner on that issue, supported by Justice Douglas. I also think he would've supported a judicial remedy for gerrymandering. All of that and his views on the First Amendment would place him to the left of Justice Kennedy.

I think that the only kind of common law rights that should be treated as rights protected by the U.S. Constitution are those rights that come under the umbrella heading of procedural due process. The quintessential example of an unenumerated right that is protected by the Due Process Clause is the right of an accused person to be presumed innocent until proven guilty and there must be proof beyond a reasonable doubt. So I disagree with Justice Black's conclusion in In Re Winship. But substantive rights that had been recognized in the common law must not become elevated to the status of constitutionally-protected rights. Substantive issues that the common law addressed have always been treated as if they will be inferior to statutory law once a legislature has passed a statute that clearly indicates the legislature wishes to supplant common law. Even on the various occasions in which the SCOTUS has claimed that the "fundamental right" to get married is constitutionally-protected (Meyer v. Nebraska, Loving v. Virginia, Zablocki v. Redhail, Obergefell v. Hodges), it has never cited common law as any part of the reason why it said that.

I don't believe the Ninth Amendment should be so narrowly construed, although it certainly does have many limits. The Ninth Amendment does not specify between procedural and substantive rights, although I do think it grants both under its protection. You mention In re Winship, but that decision was based on the Fourteenth, not the Ninth. And while I agree with the outcome in Obergefell, I felt the justification could've been stronger with more emphasis on the Equal Protection Clause. However, Justice Kennedy's opinion does mention the history of marriage as a fundamental human right. His opinion does also quote Griswold a number of times. The Loving decision basically mentioned the Due Process Clause in passing, basically not putting any meat on the bones, so to speak.

I eventually realized that Black had said one thing wrong in that quote: he made it sound as if the Ninth Amendment and the Tenth Amendment mean identical things. The Ninth does not say anything about the powers of the states, it's the Tenth which refers to those powers. Because the things which Stewart and Black said seemed to me, at the time, to ring much closer to the truth, I decided to read more books that discussed what the Ninth Amendment means. Two of the most important books I read were Bernard Schwartz's "The New Right and the Constitution," and John Hart Ely's "Democracy and Distrust." Neither of those authors convinced me that their interpretation of the Ninth was correct, but they both taught me about what the Ninth was intended to mean by the people who, in 1789-1791, adopted the Ninth Amendment.
Schwartz made it perfectly clear that the Ninth was indeed intended to have the meaning that Stewart and Black described in Griswold. But that didn't matter to Schwartz, because he didn't give a rat's a55 what anything in the Constitution was intended to mean, as he made clear in the first chapter of the book. All Schwartz cared about is what meaning the Court gives to the provisions of the Constitution -- and even then he agreed with the meaning that the Court gives as long as the Court is producing a left-wing outcome, not with any right-wing outcomes. Thus, Griswold and Roe are legitimate decisions of the Court, but the Lochner Era decisions are not.
Ely (who respects the philosophy of Originalism much more than Schwartz) acknowledged that Stewart's and Black's interpretation of the Ninth is the traditional interpretation (he called it the "received" interpretation), but he thought that since Black's interpretation of the Ninth made that amendment and the Tenth Amendment perform redundant functions, then there must be something wrong with the traditional interpretation. He struggled to explain that the Ninth was actually intended to mean two things: one intended meaning is what the "received" interpretation has long said, but the other meaning is that the Ninth protects "rights" that are not the reciprocal of enumerated powers, but are "rights" independent of that reciprocal relationship. He said that "rights can cut across or 'trump' powers," such as First Amendment rights being capable of defeating claims that the federal government can always absolutely regulate any interstate commerce. However, once you understand the whole of his book, you'll recognize that the only meaning he gives to the Ninth is that it is the federal government's Equal Protection Clause, thus providing an alternative basis for validating Bolling v. Sharpe.

Thus, because of what I read in "The New Right and the Constitution" and "Democracy and Distrust," I realized that Black and Stewart were almost entirely correct. Black was wrong only insofar as he tried to treat the Ninth as if it means the same thing as the Tenth. The Ninth and the Tenth do not perform identical functions, but they perform parallel functions. That is so if you care about the original meaning of the Ninth. As Stewart said, that meaning is the only meaning that any member of the Court had ever given the Ninth until the Griswold case came along. And if you do respect that was the original meaning of the Ninth, then the only logical way to incorporate the Ninth into the Fourteenth, and thus have federal courts supervise the validity of state and local laws, is if the federal courts took it upon themselves to interpret state constitutions and local charters, and to determine whether challenged state and local laws exceed powers delegated by each respective state constitution or local charter. But to me, even doing that would seem to go beyond what the ratifiers of the Fourteenth wanted federal courts to do. And I say that as someone who believes in judicial restraint, too.

This may surprise you, but I'm not a huge fan of Robert Bork. While I greatly respect Justice Black, Griswold is definitely a decision where he and I part ways.

One of the problems I have with certain interpretations of the Constitution, most originalism in this case, is the way some consider the Ninth Amendment to be subordinate to the Tenth Amendment. I don't think I need to remind you of the inkblot comment. Even a parallel function serves to subordinate the Ninth Amendment to state police powers.

I think the Ninth Amendment covers what is not under the enumerated powers granted to the federal government. However, they are also rights that cannot be curtailed under the powers granted to the states under Tenth Amendment. (For example, the First Amendment cannot be used as a defense against being tried under the Treason Clause.) I believe the Ninth Amendment is where fundamental rights should be ultimately derived in terms of protection under the Constitution. Lochner was wrong because it created a new right that ultimately belonged to the federal government. The Commerce Clause presupposes that there is no right to economic liberty or the so-called freedom of contract (the latter would have the potential to reduce government to almost nothing).

I have to admit that sometimes I look at the words of the Constitution and think about it. I was reading the Tenth Amendment and the words "or to the people" struck me. The Tenth Amendment is concerned with powers, not rights, so the words of each must mean something different. Most of us know that Tenth Amendment grants to the states what we know as the reserved powers. However, what does "or to the people" mean? I was thinking about the Guarantee Clause recently and wondered about the initiative and referendum process and the right to a republican form of government. Maybe the Tenth Amendment grants that right. Those words must mean something. I am not one to start deleting words from the Constitution to fit my beliefs, as so many like to do.

[David Hume]

Hugo Black was a textualist but not originalist, who also adheres to judicial restraint, which is contrary to activism. This means he will defer to legislative process and seldom strike down Acts. I agree with you about him regarding ACA, Roe, ect.

If he were on the court with Scalia, I would rate him to the right of Kennedy and a little left of Roberts. This means he will probably be hated by liberals nowadays.

He certainly had some originalist tendencies, but they were generally secondary to his brand of textualism. His view of the Equal Protection Clause is a prime example.

I'm not sure I agree with your characterization of how he would've been compared to other Justices. I've always rejected the conception of Justice Kennedy as a moderate. While he was moderate on some things like abortion and the death penalty, his convictions were strong on many. It's just that he wasn't always on one side. He was firmly on the left on gay rights, but only a solid right-winger would vote to strike down the ACA in its entirety. Justice Black was part of the unanimous decisions in both Wickard v. Filburn and Heart of Atlanta Motel, Inc. v. United States upholding a very expansive view of the Commerce Clause and Necessary and Proper Clause. He also wasn't in support of judicial restraint when it came to the post-Brown v. Board of Education decisions. Justice Black was a hardliner on that issue, supported by Justice Douglas. I also think he would've supported a judicial remedy for gerrymandering. All of that and his views on the First Amendment would place him to the left of Justice Kennedy.

I would say Kennedy is libertarian, but not conservative. What do you think about O'Connor, White, Powell, Stewart? Do you agree that in the currently liberal vs conservative divide, he is closer to these four than Roberts, Burger and the more conservative ones?

[Geoffrey Howe]

I would say Kennedy is libertarian, but not conservative. What do you think about O'Connor, White, Powell, Stewart? Do you agree that in the currently liberal vs conservative divide, he is closer to these four than Roberts, Burger and the more conservative ones?

Yes, I agree. Above all, he interprets the Bill of Rights very broadly - probably the most pro-free speech (in all disputes; campaign finance, open primaries) since Douglas or at least Brennan/Marshall.

I don’t think of O’Connor, White, Powell and Stewart as particularly similar. O’Connor is similar to Kennedy.
White was the opposite of Kennedy in many ways: he consistently made the narrowest interpretations (with the exception of the women’s rights cases), was a staunch supporter of campaign finance restrictions (even more than Stevens would have been in Buckley v. Valeo), and of course he authored Bowers and dissented in Roe.

Powell was completely unpredictable, to me at least; but quite moderate all round. Stewart I think of as a Harlanite at heart - conservative and deferential but not originalist - while being more open to intervention than Harlan II was.

I think all four, except White, would be seen as on the liberal side (albeit moderate); and White as a bit of an oddball dissenting from conservative activism too. It’s worth noting that Stewart developed deep reservations about the application of the death penalty only a little after Gregg, and I suspect he would have come to see it as unconstitutional (for the Blackmun rather than Brennan reason) quite soon.

[politicallefty]

I would say Kennedy is libertarian, but not conservative. What do you think about O'Connor, White, Powell, Stewart? Do you agree that in the currently liberal vs conservative divide, he is closer to these four than Roberts, Burger and the more conservative ones?

I've always hesitated to give Kennedy the libertarian label on account of decisions like Kelo v. City of New London and Gonzales v. Raich. I would definitely agree that Kennedy is closer to the four you mentioned, as all four were moderate or moderate-conservative. Justice Kennedy was probably more conservative than all except Justice Stewart. Justice Powell publicly regretted his vote in Bowers v. Hardwick, but Justice White wrote the majority opinion. That's an interesting group you chose. While certainly not the most conservative, people really don't appreciate that Justice O'Connor was a rather conservative Justice overall.

[David Hume]

I would say Kennedy is libertarian, but not conservative. What do you think about O'Connor, White, Powell, Stewart? Do you agree that in the currently liberal vs conservative divide, he is closer to these four than Roberts, Burger and the more conservative ones?

I've always hesitated to give Kennedy the libertarian label on account of decisions like Kelo v. City of New London and Gonzales v. Raich. I would definitely agree that Kennedy is closer to the four you mentioned, as all four were moderate or moderate-conservative. Justice Kennedy was probably more conservative than all except Justice Stewart. Justice Powell publicly regretted his vote in Bowers v. Hardwick, but Justice White wrote the majority opinion. That's an interesting group you chose. While certainly not the most conservative, people really don't appreciate that Justice O'Connor was a rather conservative Justice overall.

I think it's hard to rank who's more conservative among these five. One reason is their voting pattern shift over time. O'Connor's first few years one the court is probably the most conservative among them, but she shifted significantly to the left later.

It seems easier to rank the solid conservative ones. I would say
1, Rehnquist
2, Thomas
3, Alito
4, Scalia

I know Rehnquist also sh**t left after becoming chief, but this is in my opinion mostly strategic, as I have noted before.

Roberts and Burger are similar, they are both conservative, but voting strategically. I would say Roberts are a little more conservative than Burger.

[David Hume]

I would say Kennedy is libertarian, but not conservative. What do you think about O'Connor, White, Powell, Stewart? Do you agree that in the currently liberal vs conservative divide, he is closer to these four than Roberts, Burger and the more conservative ones?

Yes, I agree. Above all, he interprets the Bill of Rights very broadly - probably the most pro-free speech (in all disputes; campaign finance, open primaries) since Douglas or at least Brennan/Marshall.

I don’t think of O’Connor, White, Powell and Stewart as particularly similar. O’Connor is similar to Kennedy.
White was the opposite of Kennedy in many ways: he consistently made the narrowest interpretations (with the exception of the women’s rights cases), was a staunch supporter of campaign finance restrictions (even more than Stevens would have been in Buckley v. Valeo), and of course he authored Bowers and dissented in Roe.

Powell was completely unpredictable, to me at least; but quite moderate all round. Stewart I think of as a Harlanite at heart - conservative and deferential but not originalist - while being more open to intervention than Harlan II was.

I think all four, except White, would be seen as on the liberal side (albeit moderate); and White as a bit of an oddball dissenting from conservative activism too. It’s worth noting that Stewart developed deep reservations about the application of the death penalty only a little after Furman, and I suspect he would have come to see it as unconstitutional (for the Blackmun rather than Brennan reason) quite soon.

I agree that White is different then the others, who hate substantive due process intensively. I mentioned these four to dress the point politicallefty won't consider Kennedy as moderate. I group the Justices who serve a long time after 1960s into three group:

conservative: Alito, Roberts, Thomas, Scalia, Rehnquist, Burger, Hanlan.

moderate: Kennedy, O'Connor, Powell, White, Stewart.

liberal: the rest