did Scalia (uninentionally of course) help the left
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freepcrusher
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« on: June 11, 2021, 12:36:06 AM »

I don't think he was hated by his colleagues the way Douglas was - but I kind of wonder if his mere presence prevented the Casey Trio from siding with Rehnquist more often (and not just on casey but a lot of cases throughout the 90s).

Ironically, Reagan never assumed he would act as a repellant. They assumed he would serve the same function as William Brennan did (who could sway the Stewarts and Powells to go his way in important cases).
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brucejoel99
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« Reply #1 on: June 11, 2021, 02:17:41 AM »
« Edited: June 13, 2021, 01:53:11 AM by brucejoel99 »

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.
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Geoffrey Howe
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« Reply #2 on: June 11, 2021, 03:31:57 AM »

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.
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Collyridian
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« Reply #3 on: June 11, 2021, 09:41:08 AM »

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).
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Geoffrey Howe
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« Reply #4 on: June 11, 2021, 09:52:54 AM »

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).

I'm really not sure what impact it's had on "movement conservatism" other than getting them to appoint originalists -- the result of which will be a change in jurisprudence; and only an incidental change on what politicians believe.
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Collyridian
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« Reply #5 on: June 11, 2021, 09:57:10 AM »

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).

I'm really not sure what impact it's had on "movement conservatism" other than getting them to appoint originalists -- the result of which will be a change in jurisprudence; and only an incidental change on what politicians believe.

Much of the change lies in appeals to civil religion (see Scalia's use of Biblical allusions in his opinions) and the use of a nebulous and malleable perception of the original meaning of the Constitution as a defense for preconceived ideology, which had been germinating for some time but was brought into the spotlight by Reagan's courts and is now a fundamental part of American conservatism.
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Geoffrey Howe
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« Reply #6 on: June 11, 2021, 10:37:03 AM »

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).

I'm really not sure what impact it's had on "movement conservatism" other than getting them to appoint originalists -- the result of which will be a change in jurisprudence; and only an incidental change on what politicians believe.

Much of the change lies in appeals to civil religion (see Scalia's use of Biblical allusions in his opinions) and the use of a nebulous and malleable perception of the original meaning of the Constitution as a defense for preconceived ideology, which had been germinating for some time but was brought into the spotlight by Reagan's courts and is now a fundamental part of American conservatism.

Of judicial "conservatism" perhaps, but I really don't see what the "original meaning of the Constitution" has to do with political "movement conservatism."
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Collyridian
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« Reply #7 on: June 11, 2021, 11:03:40 AM »

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).

I'm really not sure what impact it's had on "movement conservatism" other than getting them to appoint originalists -- the result of which will be a change in jurisprudence; and only an incidental change on what politicians believe.

Much of the change lies in appeals to civil religion (see Scalia's use of Biblical allusions in his opinions) and the use of a nebulous and malleable perception of the original meaning of the Constitution as a defense for preconceived ideology, which had been germinating for some time but was brought into the spotlight by Reagan's courts and is now a fundamental part of American conservatism.

Of judicial "conservatism" perhaps, but I really don't see what the "original meaning of the Constitution" has to do with political "movement conservatism."


The "original meaning", whatever that means now, is irrelevant, but conservatives have loved to describe themselves as "constitutional" and uphold their perception of the document as an immutable sacred text for quite a while now, and smearing opponents as threats to its sanctity. Judicial conservatism inevitably plays a large role in this given how the courts have become politicized.
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freepcrusher
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« Reply #8 on: June 11, 2021, 06:53:52 PM »

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).

I'm really not sure what impact it's had on "movement conservatism" other than getting them to appoint originalists -- the result of which will be a change in jurisprudence; and only an incidental change on what politicians believe.

Much of the change lies in appeals to civil religion (see Scalia's use of Biblical allusions in his opinions) and the use of a nebulous and malleable perception of the original meaning of the Constitution as a defense for preconceived ideology, which had been germinating for some time but was brought into the spotlight by Reagan's courts and is now a fundamental part of American conservatism.

Of judicial "conservatism" perhaps, but I really don't see what the "original meaning of the Constitution" has to do with political "movement conservatism."


that's the thing. Wasn't Hugo Black sort of a "lefty originalist" by today's standards? Or rather he was a textualist but was still seen as part of the court's activist wing.
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Donerail
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« Reply #9 on: June 11, 2021, 07:17:37 PM »

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.
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politicallefty
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« Reply #10 on: June 12, 2021, 04:53:28 PM »

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.
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« Reply #11 on: June 12, 2021, 05:07:46 PM »

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.

Agreed. Black even opposed "procedural due process."
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politicallefty
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« Reply #12 on: June 12, 2021, 05:20:27 PM »

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.

Agreed. Black even opposed "procedural due process."

Huh? In what way? I know he wasn't a fan of substantive due process, but procedural due process? He was literally part of the Warren Court's revolutionary change in criminal procedure and the rights of criminal defendants. He wrote Gideon v. Wainwright and joined Warren's majority opinion in Miranda v. Arizona. On the other hand, one area where he would be more conservative would be on the Fourth Amendment. It's quite possible he would've been in dissent on Kyllo v. United States.
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Geoffrey Howe
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« Reply #13 on: June 12, 2021, 05:24:16 PM »

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.

Agreed. Black even opposed "procedural due process."

Huh? In what way? I know he wasn't a fan of substantive due process, but procedural due process? He was literally part of the Warren Court's revolutionary change in criminal procedure and the rights of criminal defendants. He wrote Gideon v. Wainwright and joined Warren's majority opinion in Miranda v. Arizona. On the other hand, one area where he would be more conservative would be on the Fourth Amendment. It's quite possible he would've been in dissent on Kyllo v. United States.

He thought the due process clauses weren't restraints on the legislature - i.e. due process simply means any law. This meant he thought it did not enshrine various evidential standards in court, for example. See In re Winship and McGautha v. California.
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« Reply #14 on: June 12, 2021, 07:12:46 PM »

As long as this thread is being derailed into discussing Hugo Black, there's a few comments about Black I have to respond to.

- snip - Wasn't Hugo Black sort of a "lefty originalist" by today's standards? Or rather he was a textualist but was still seen as part of the court's activist wing.
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.
- snip -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.

I agree with freepcrusher that Black is the quintessential example of a liberal advocate of original intent, more so than a "textualist." I believe that there are not a lot of differences between orginalism and textualism, but there are some differences. Would a textualist be likely to say that the Establishment Clause and the Free Exercise Clause create a "wall of separation between church and state," or would that be more likely to come from an originalist? Justice Black, of course, was an advocate for inferring "a wall of separation between church and state," from the First Amendment. Would a textualist support interpreting anything in the Constitution as being a requirement of "one man, one vote"? When I read Black's opinion for the Court in Wesberry v. Sanders, I read an opinion that tries to argue that our Founding Fathers intended for the Constitution to require "one man, one vote" in the distribution of seats in the U.S. House of Representatives (tries to, although IMO it is not successful at being persuasive). It certainly does not seem to be a "text-based" approach to interpreting the Constitution. His argument, in his dissent in Griswold v. Connecticut, about what the Ninth Amendment means was certainly based on an originalist approach, not a textualist approach, to interpreting the Constitution. And when Justice Black handed down a "conservative" dissent from Harper v. Virginia Board of Elections, he certainly argued in that dissent that he believes in adhering to "the original meaning of the Constitution." In Harper, the majority opinion stated, "[T]he Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality. .... Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change. This Court, in 1896, held that laws providing for separate public facilities for white and Negro citizens did not deprive the latter of the equal protection and treatment that the Fourteenth Amendment commands. Plessy v. Ferguson. .... When, in 1954 -- more than a half-century later -- we repudiated the "separate-but-equal" doctrine of Plessy as respects public education we stated: 'In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written.' Brown v. Board of Education."

These statements prompted Black to reply,

Quote
The Court's justification for consulting its own notions, rather than following the original meaning of the Constitution, as I would, apparently is based on the belief of the majority of the Court that for this Court to be bound by the original meaning of the Constitution is an intolerable and debilitating evil; that our Constitution should not be "shackled to the political theory of a particular era," and that, to save the country from the original Constitution, the Court must have constant power to renew it and keep it abreast of this Court's more enlightened theories of what is best for our society. [Footnote: In Brown v. Board of Education, the Court today purports to find precedent for using the Equal Protection Clause to keep the Constitution up to date. I did not vote to hold segregation in public schools unconstitutional on any such theory. .... I did not join the opinion of the Court in Brown on any theory that segregation, where practiced in the public schools, denied equal protection in 1954, but did not similarly deny it in 1868, when the Fourteenth Amendment was adopted. In my judgment, the holding in Brown against racial discrimination was compelled by the purpose of the Framers of the Thirteenth, Fourteenth and Fifteenth Amendments completely to outlaw discrimination against people because of their race or color.] ....

Six years before Harper, Black wrote a letter to a friend in which he stated, "My decision [to find segregation unconstitutional] was not the result of brushing aside history nor on the theory that time had made something unconstitutional that had been so since the Fourteenth Amendment was adopted. Some articles that have been written indicating that we did go against history in that case [Brown] are not in accord with my own views." (Hugo Black; A Biography, by Roger Newman, published 1997, page 438.)

Now, I admit that Black was not perfectly consistent about being an originalist. The fact that he was willing to apply the Equal Protection Clause to instances of discrimination against "aliens" and that he inferred "one man, one vote" from the Equal Protection Clause are examples that he did go beyond the original intent of that Clause regarding those two issues. And, as I noted in parentheses above, Black's argument that "as nearly as practicable one man's vote in a congressional election is to be worth as much as another's" was the intended meaning of Article 1, Section 2 of the Constitution was not persuasive; it was based on his political opinion more than a genuine reading of historical intent. But are any of us perfectly consistent in our approach to interpreting law?

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politicallefty
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« Reply #15 on: June 12, 2021, 07:58:33 PM »

Now, I admit that Black was not perfectly consistent about being an originalist. The fact that he was willing to apply the Equal Protection Clause to instances of discrimination against "aliens" and that he inferred "one man, one vote" from the Equal Protection Clause are examples that he did go beyond the original intent of that Clause regarding those two issues. And, as I noted in parentheses above, Black's argument that "as nearly as practicable one man's vote in a congressional election is to be worth as much as another's" was the intended meaning of Article 1, Section 2 of the Constitution was not persuasive; it was based on his political opinion more than a genuine reading of historical intent. But are any of us perfectly consistent in our approach to interpreting law?

How do you consider his joining Bolling v. Sharpe in establishing reverse incorporation or his majority opinion in Gideon v. Wainwright?

I think it's fair to say we're all people and bring our own histories. I think that's true of Justice Black as well. He was a former member of the KKK, but became one of the foremost advocates for civil rights on account of race. Indeed, he was probably one of the most activist voices in making things happen as soon as possible. He was outright fed up with the South by the time Alexander v. Holmes County Board of Education reached the Court.
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Geoffrey Howe
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« Reply #16 on: June 13, 2021, 03:16:10 AM »

Id add that he was more a textualist than an originalist on First Amendment freedom of speech/of the press.
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« Reply #17 on: June 13, 2021, 03:38:19 PM »

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.

Didnt Scalia care much more about Precedent and stare decisis than Thomas does
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brucejoel99
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« Reply #18 on: June 13, 2021, 04:04:30 PM »

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.

Didnt Scalia care much more about Precedent and stare decisis than Thomas does

It depends: Scalia would often write opinions that were actually inconsistent with originalism & textualism in favor of a traditionalist decision instead, yeah, but at the same time, he was still a guy who was willing to go so far as to write an opinion that literally called for a judicially-imposed abolition of the recess appointment power.
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Geoffrey Howe
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« Reply #19 on: June 13, 2021, 05:06:28 PM »

Thomas believes stare decisis goes against Article III. Even Scalia admitted that was silly.

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.

Meh, still not quite like BRENNAN, J. with whom MARSHALL, J. joins, dissenting.
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« Reply #20 on: June 13, 2021, 11:04:11 PM »
« Edited: June 13, 2021, 11:10:54 PM by MarkD »

How do you consider his joining Bolling v. Sharpe in establishing reverse incorporation or his majority opinion in Gideon v. Wainwright?

- snip -

I've never read the Gideon opinion, but I certainly know what the case was all about, and I have never had any reason to reject the Court's interpretation of the Constitution or its conclusion. Scholars who I respect a lot have never expressed any opposition to the Court's decision.

I do object to the Court's interpretation of the Due Process Clause of the Fifth Amendment in Bolling v. Sharpe (and some other cases before Bolling -- more about that later), but I do not reject the conclusion that there is something unconstitutional about the federal government having racially discriminatory laws/policies.

Before I get into any of that, I want to quote something that Justice Black once said to one of his clerks in response to the clerk pointing out that Black was contradicting himself about the Due Process Clause, giving that clause a racial equality meaning even though he always rejected "substantive due process." Black told his clerk, "A wise judge chooses, among plausible constitutional philosophies, one that will generally allow him to reach results he can believe in -- a judge who does not to some extent tailor his judicial philosophy to his beliefs inevitably becomes badly frustrated and angry. ... A judge who does not decide some cases, from time to time, differently from the way he would wish, because the philosophy he has adopted requires it, is not a judge. But a judge who refuses ever to stray from his judicial philosophy, and be subject to criticism from doing so, no matter how important the issue involved, is a fool." (Hugo Black; A Biography, by Roger Newman, page 435.)

I do not agree with the Court that the Due Process Clause of the Fifth Amendment can plausibly be interpreted to mean that the federal government has to treat everyone equally with its laws and regulations. Bolling was not actually the first time ever that the Court had said so. Bolling was only the first time that the Court had ever come to the conclusion that the rule about racial equality had been violated. But if you read the whole opinion, you'll see that there were prior cases in which the Court had said that the federal government does have to treat everyone equally. The Bolling Court's opinion cited precedents such as Korematsu v. United States, Hirabayashi v. United States, Detroit Bank v. United States, Currin v. Wallace, and Steward Machine Co. v. Davis, all of which were cases in which the Court said that the Due Process Clause does guarantee equal treatment of the federal government's laws, but in all those cases the Court was not treating the rule about equality as being absolute, and that the federal government had a sufficient reason for treating people unequally. In Korematsu and Hirabayashi the Court decided that the fact that the United States was in a state of war against the Japanese government provided a compelling reason for the federal government to engage in discrimination against people of Japanese ancestry. In the other cases -- which did not involve racial discrimination -- the Court had consistently found a rational, non-arbitrary reason for why the federal government would treat people unequally.

Lastly, although I do not interpret the Due Process Clause of the Fifth Amendment as a rule requiring racial equality, I do see something else in the Constitution that forbids the federal government from engaging in racial discrimination. The correct clause to turn to is in Section 5 of the Fourteenth Amendment: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." If the federal government has been delegated the power to enforce the Equal Protection Clause, it surely has a responsibility to obey the rule that it will enforce. In Bolling, the Court said, "In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government." My intuition about the goals and the philosophy of the men who adopted the Fourteenth Amendment is that they would have agree that it is "unthinkable" for the federal government to have any "lesser duty" to treat everyone equally. (I first read about that interpretation of Section 5 of the 14th in the pages of National Review.)

Id add that he was more a textualist than an originalist on First Amendment freedom of speech/of the press.

To Black, the words of the First Amendment were intended to mean exactly what the words say. Black said that he has every reason to believe that the authors of the First Amendment meant exactly what they said.
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« Reply #21 on: June 16, 2021, 06:22:36 PM »

To some degree, yes, in his first 20 years. He alienated O'Connor especially.

She adored Republican-oriented centrist Lewis Powell and was on good terms with right of center Warren Burger. She was deeply skeptical of arch liberal William Brennan and his tactics.

Once they were gone and the liberal wing was represented by the likes of Breyer and the conservative wing by Scalia and Thomas, she felt increasingly drawn to the more liberal wing.

I think Scalia's alienating impact became moot once O'Connor retired. Roberts and Alito did a good job of keeping Kennedy in the fold.

All this being said, Scalia died at the ideal time for conservatives.

He also nearly single handedly led a very consequential legal movement.

Scalia was definitely a net win for the conservatives, though there was a particularly rough patch circa 2001 to 2005 where it looked like he may have been causing more bad than good.
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« Reply #22 on: June 16, 2021, 06:34:31 PM »

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.

I pretty much agree with this. Black would have plenty of problems with the current conservative wing. But he'd have plenty of problems with the liberal wing too. The historical record is clear that he was not at all happy with Goldberg and Fortas, who were basically modern day liberals, near the end of his tenure.
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politicallefty
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« Reply #23 on: June 19, 2021, 05:41:52 PM »

I've never read the Gideon opinion, but I certainly know what the case was all about, and I have never had any reason to reject the Court's interpretation of the Constitution or its conclusion. Scholars who I respect a lot have never expressed any opposition to the Court's decision.

It's certainly not an originalist decision. I think there are those that would argue that the right to assistance of counsel is merely a right to have it, not something the government is required to provide. Gideon was simply the logical end of a reasoning that started with 1932's Powell v. Alabama. I agree that criticism of that decision appears to be quite rare as it's probably generally thought to be under the so-called "super precedent" definition. It's clear from Garza v. Idaho that Justices Thomas and Gorsuch are not fans of Gideon (although I would say it's quite notable that Alito did not join that part of the dissent). Personally, I think the text of the Sixth Amendment, unlike most other constitutional amendments that are negative rights, creates positive rights that commands the government to do certain things.

Maybe a better example in my previous question would be about your thoughts on Miranda v. Arizona, which was joined by Justice Black in full. All in all, the Warren Court (of which Justice Black was around for the entire duration) greatly transformed criminal procedure and the rights of the accused. I think very few have an originalist basis, although Justice Black was writing or in the majority in the vast majority of them.

Quote
Lastly, although I do not interpret the Due Process Clause of the Fifth Amendment as a rule requiring racial equality, I do see something else in the Constitution that forbids the federal government from engaging in racial discrimination. The correct clause to turn to is in Section 5 of the Fourteenth Amendment: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." If the federal government has been delegated the power to enforce the Equal Protection Clause, it surely has a responsibility to obey the rule that it will enforce. In Bolling, the Court said, "In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government." My intuition about the goals and the philosophy of the men who adopted the Fourteenth Amendment is that they would have agree that it is "unthinkable" for the federal government to have any "lesser duty" to treat everyone equally. (I first read about that interpretation of Section 5 of the 14th in the pages of National Review.)

I did appreciate that quote from Justice Black. I think it's a fair point as to why overly strict and rigid judicial ideologies are not good. It's one thing to have a philosophy grounded in certain concepts, but following overly rigid concepts to the letter requires little thought of the issues at hand and does a disservice to the parties involved. That is partly why I find strict originalism to be so objectionable. As I've said before, I consider myself a rather strong textualist and view it as paramount. However, I don't believe textualism to be exclusive of other principles. I think one should look at different concepts when considering how to rule.

I definitely agree that judges must make rulings with which they personally disagree. I think there is no greater recent example than that of Terry v. United States, a unanimous decision decided just a few days ago. I completely sympathize with the petitioner in that case, but the law is what the text says. Congress did not help the lower level drug offenders in the laws cited. I don't know why, but that is not relevant. The text is clear. However, as Justice Sotomayor noted in her concurrence, Congress is fully within its power to correct the injustice.

I'm not surprised to see new interpretations for Bolling. There are many that would disagree with reverse incorporation or finding the rights of the 14th Amendment within the 5th Amendment, but also would want to try find a way to uphold prohibitions on segregation at the federal level. I would say your interpretation is a rather novel one, though I can't say I disagree (although you already know I disagree with you with respect to what the Equal Protection Clause protects). I've been of the mindset that the Supreme Court has overreached and excessively curtailed the Congressional enforcement powers granted under various amendments.
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