did Scalia (uninentionally of course) help the left

[Geoffrey Howe]

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.

[Geoffrey Howe]

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.

[Geoffrey Howe]

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."

[Geoffrey Howe]

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."

[Geoffrey Howe]

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.

[Geoffrey Howe]

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

[Geoffrey Howe]

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.

[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.

[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).

[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.