rickyp wrote:Thank you.
And I suppose we can smoke out the political partisans by identifying decisions where they took contradictory "philosophical positions" on similar cases?

Yes

rickyp wrote:Example: The one anticipated is how Scalia might vote on Health Care, versus how he has ruled on similar cases regarding the Commerce clause in the past...

Again yes but I think we will have different definitions of what would entail Scalia being consistant. For example, a overturning of the ACA would be consistant with his underlying judical philosophy and previous decisions.

Really? Here's what I've read about Scalia:

Six years ago, Justice Scalia helped to further this trend.

The case was Gonzales v. Raich, and the issue was whether the federal government had the right to forbid California residents to grow medical marijuana in their own homes, for their own personal consumption. It was a perfect test case: California law permitted medical marijuana, and the drugs, being illegal for the growers to sell, had absolutely nothing to do with commerce of any kind.

In a 6–3 decision, the Supreme Court sided with the federal government. Scalia fleshed out his views in a concurring opinion that was primarily based not on the Constitution itself, but on the Supreme Court’s ever-loosening interpretation of it.

http://www.nationalreview.com/articles/ ... verbruggen

rickyp wrote:Really? Here's what I've read about Scalia:

You know, I wanted to bring up Raich but my post was getting long and I needed to get back to work. However, I knew you would bring it up and let me knock it down. So thank you very much.

Check out this column written by Randy Barnett who was lead counsel for Raich. In it he says some interesting thing. Such as

Justice Scalia clearly locates the “substantial affects” doctrine of Darby and Wickard, as well as the “essential to a broader regulation of interstate commerce” dicta in Lopez, in the Necessary and Proper Clause, not in the Commerce Clause — and in particular in the word “necessary” in that clause.(snip) if the substantial affects doctrine is viewed as resting on the Commerce Clause, then there is a temptation to add the Necessary & Proper Clause to it as an additional theory of power, and failing to realize that Lopez and Morrison were actually limiting the scope of the Necessary & Proper Clause, not the Commerce Clause. In short, there are judicially enforceable doctrinal limits to the scope of the Necessary & Proper Clause.

and

In Raich, we never denied the proposition that the “essential to a broader regulatory scheme” doctrine was grounded in the Necessary and Proper Clause, but argued instead throughout the litigation that whether a law was “essential” and therefore “necessary” had to be survive greater scrutiny than mere rational basis review. When Justice Scalia adopted a rational basis approach to ascertaining “necessity,” however, we lost his vote.

The Plaintiffs in the ACA case are not arguing for a heighten scrutiny of the necessity of the mandate to a larger regulatory scheme. They are actually making two arguments. First, the mandate is not necessary to Congress's ability to regulate interstate commerce. Second, that however necessary the mandate may be it is an improper means of executing Congress's Interstate Commerce powers. This was an argument never made in Raich. From what Barnett writes in the column, this is exactly what Scalia was looking for but absent from Raich so he couldn't rule on it.

The next important distinction Barnett makes is the difference between Raich and ACA. Specifically,

Raich was an “as applied” Commerce Clause challenge. In Raich, we conceded that Congress had the power to prohibit the interstate commerce in marijuana, but claimed that a subset of the national market in marijuana – namely wholly intrastate cultivation and possession that was authorized by the laws of some states – was outside of the power of Congress to reach. Yet no such challenge has ever succeeded. (Think Wickard, Heart of Atlanta, Perez, etc.) Recently, my colleague, Nick Rosenkranz has argued here that, on textualist grounds, no such challenge should ever succeed. When we litigated Raich the significance of this aspect of the case was not well understood, but I think it accounts for why Justice Scalia was moved to offer the Necessary & Proper Clause analysis he did.

In Raich, we were asking the court to carve out a subset of the class of activities Congress sought to regulate and find that this subset was beyond its power under the Commerce Clause. In his concurring opinion, Justice Scalia was wrestling with the following practical issue: Given the fungible nature of the commodity, what if “to carry into execution” its power to prohibit interstate marijuana, Congress decided it was “necessary” to regulate the subset of activities involving the identical commodity inside a state — regardless of whether it was being bought and sold and was therefore “noneconomic”? He concluded that Congress could draw the circle, that is define the class, as widely as it had a rational basis for believing it needed to be drawn to enable it to effectively enforce its regulation of interstate commerce that is within its powers.

The difference here is that the ACA is a facial challenge which means the law is unconstitutional as written. This is the big difference. In Raich, the defense admitted from the beginning that the law was constitutional as written and that only the application to subset of marijuana was wrong. This is how the ACA case different than Raich and similar to Lopez and Morrison. The plaintiffs are arguing that the ACA is unconstitutional as written because it is both not necessary and not proper, two arguments made in both Lopez and Morrison but not made in Raich.

Also notice the discussion starting in line 5 of the 2nd paragraph in the above quote. The part about giving Congress the ability to regulate subsets would give them the power to regulate noneconomic activity. Scalia voted in Raich to avoid giving Congress that ability. Isn’t that the exact argument being made in regards to the mandate? That the mandate is regulating noneconomic activity.

So a vote by Scalia to overturn ACA would still be clearly consistent with his underlying Judicial philosophy.

freeman2 wrote:I guess President Roosevelt was just plain stupid not to have waited for an ill Supreme Court justice to retire and for Roberts to swing his vote over to the pro-government regulation side. If it was that obvious that Roosevelt was going to get his way, then why the need fofr the court-packing plan at all? And you have not answered the contention that the Supreme Court could have been feeling pressure as soon as November, well before any vote was taken.

Another reason why the Swtich in nine meme is false is I am prettty sure none of the New Deal legislation was defeated on a 5-4 vote. The 3 big Black Monday decisions of 1935 all went down 9-0, the Agricultrual Adjustment Act went down 7-2 and the Guffey Coal Act went down 6-2. I am pretty sure the only 5-4 decisions in New Deal Court cases were those that upheld New Deal Legislation.

Archduke I've read your Raich response twice now.
One question:
when you say this:

From what Barnett writes in the column, this is exactly what Scalia was looking for but absent from Raich so he couldn't rule on it.

How does he know this for certain? Scalia was never explicit about this. Barnett is making an inference isn't he? (I feel a lot of analysis of SCOTUS tends to be inferences and tea leaf reading, becasue they aren';t always explicit.)

Perhaps I get a little lost in the legal density and nuance involved, but I think I get the gist of what you are saying. And I guess you might well be right that the actual leanings of the Justices are best described as judical philosophies and not political leanings. Well, at least for Kennedy and perhaps in this instance Scalia.
But in reality, the popular media doesn't get to this level. And always the popular presentation of the issues is, in order to be accessible, put into the standard right/left meme. Which becomes a self perpetuating problem as that meme is repeated in the selection process of justices and etc.
That sells the judicial process short based on your representation of "judicial; philosophy". Thas fair.
But it also, by selling the process short, somewhat nullifies the impact of the SCOTUS rulings. They don't have the sense of finality if its felt that just appointing the right number of "your guys" can change the ruling....

Ricky's original comment:

An institution which has changed little since its inception, and which seems to have become just another politicized instrument strung between two competing ideologies seems ripe for improvements.

I disagreed by quoting it and wrote:

I believe the majority of the US electorate sees it differently than this.

My "this" referred to "just another politicized instrument".

We then argued for 3 pages over my comment which Ricky vehemently disagreed with, hurling insults and insinuations. Now Ricky writes:

And I guess you might well be right that the actual leanings of the Justices are best described as judical philosophies and not political leanings. Well, at least for Kennedy and perhaps in this instance Scalia.
But in reality, the popular media doesn't get to this level. And always the popular presentation of the issues is, in order to be accessible, put into the standard right/left meme. Which becomes a self perpetuating problem as that meme is repeated in the selection process of justices and etc.
That sells the judicial process short based on your representation of "judicial; philosophy". Thas fair.

Now Ricky agrees that it is not "just another politicized instrument", and that there is some integrity to the process, but that most Americans don't see it.

ray

Now Ricky agrees that it is not "just another politicized instrument", and that there is some integrity to the process, but that most Americans don't see it

.
Right. So I'll amend my statement
An institution which has changed little since its inception, but which seems to most Americans (as evidenced in the poll presented) to have become just another politicized instrument strung between two competing ideologies seems ripe for improvements.

By the way, ifyou think I've been "hurling insults and insinuations" you've got a skin about a micron thick.

rickyp wrote:How does he know this for certain? Scalia was never explicit about this. Barnett is making an inference isn't he? (I feel a lot of analysis of SCOTUS tends to be inferences and tea leaf reading, becasue they aren';t always explicit.)

I am not being snide or condescending when I say this but that is what lawyers do. Legal education in the U.S. can be described as follows. The students read and brief what are considered the seminal cases in each field. The Professor will then ask a student some questions about the case and decision to make sure they know what it is about. Then (s)he will propose a hypothetical that changes something about the case and asks that student how would that effect the ruling. The Prof will then ask another hypo and another and another until the subject is exhausted or the student is reduced to tears. The point is to teach the student how to review a Justice's decision and determine how they would decide in the future.

rickyp wrote:Perhaps I get a little lost in the legal density and nuance involved, but I think I get the gist of what you are saying. And I guess you might well be right that the actual leanings of the Justices are best described as judical philosophies and not political leanings. Well, at least for Kennedy and perhaps in this instance Scalia.

I would say that Thomas, Ginsburg, Souter and Breyer are usually consistent with their underlying Judicial philosophies as well. I can't comment on Roberts or Alito because I haven't seen enough of their decisions.

rickyp wrote:But in reality, the popular media doesn't get to this level. And always the popular presentation of the issues is, in order to be accessible, put into the standard right/left meme.

This is because the people talking about it and the people don’t think in judicial philosophies. They think in politics so everything gets put into the political left/right divide even if it isn’t true. They are trying to influence the public to support their side of the argument and it is easier to do that by demagoguing the Court then try to explain why a case was decided as it was.

rickyp wrote:Which becomes a self perpetuating problem as that meme is repeated in the selection process of justices and etc.

I disagree with this because most of the really contentious confirmation processes were based on a disagreement over the nominee’s known judicial philosophy. That’s why nominee’s like Meier and Kagan were such a big deal. Neither of them have a large body of writings in which to determine what their judicial philosophy would be.

rickyp wrote:But it also, by selling the process short, somewhat nullifies the impact of the SCOTUS rulings. They don't have the sense of finality if its felt that just appointing the right number of "your guys" can change the ruling....

While I disagree that it nullified the impact of the ruling, because it is the law and the lower courts are bound to it, the lacking of a sense of finality is an illusion. Most Judges are slaves to stare decsis. Believe me. The Rehnquist Court had 7 Justices appointed by Republican Presidents. If the Court was a politicized body, hated decisions like Wickard v. Filburn and Roe v. Wade would have been overturned a long time ago.

arch

While I disagree that it nullified the impact of the ruling, because it is the law and the lower courts are bound to it, the lacking of a sense of finality is an illusion

I get the idea that the legal community understands.... But not, I'm saying the general public...
Again, in the political world how many politicians use the phrase Repeal Rowe V Wade....? Didn't that ruling create satre decsis?
If the sense was that SCOTUS had settled this....why would this still be a rallying cry? (Hence the "somewhat nullified".)
I'll compare the public reaction after the Canadian Supreme Court ruled on gay marriage...Which was on the lines of:
Okay. Really? well, i guess thats that. . and it hasn't been an issue since...
Of course part of that is the nature of the populace, but the finality of the ruling - by a largely anonymous body - settled the matter.
Even a conservative majority government refused to consider the matter anymore....

rickyp wrote:If the sense was that SCOTUS had settled this....why would this still be a rallying cry? (Hence the "somewhat nullified".)
I'll compare the public reaction after the Canadian Supreme Court ruled on gay marriage...Which was on the lines of:
Okay. Really? well, i guess thats that. . and it hasn't been an issue since...
Of course part of that is the nature of the populace, but the finality of the ruling - by a largely anonymous body - settled the matter...

And the Canadian Supreme Court has never reversed a previous decision in it's 145 year history. I sincerely doubt that.

The difference would probably be rooted in the public acceptance of the issue at the time of the decision. Wasn't there a lot of public acceptance of gay marriage prior to the Canadian Court's decision? If it had been put to a national vote would it have passed?

For the U.S. there was a nascient movement to make abortion legal legislatively. It wasn't big in 1973 but it was growing. However, the majority still felt abortion was wrong. Therefore, there was a public perception of the Court jumping the gun. If the Court had waited a few years, it wouldn't have been questioned.

And yes Roe has stare decisis attached to it. The fact that there have been at least 3 serious challenges to it since 1973 and it has always been upheld pretty much shows the impact of stare decisis. Nut jobs can claim they are only one vote away from overturning but since Roe currently has something like a 60% approval, it will never be overturned. One of the recent Justices once made a pithy comment along those lines. I wish I could remember who it was and exactly what was said.

Besides, if the Court wasn't flexible and willing to sometime reverse itself, we would still have seperate but equal facilities, the individual states could pass laws favoring a specific religion and the Llberty of the individual right to contract would be the guiding principle of Commerce Law.

Here is Justice Ginsburg echoing my comments about Roe being too early.

By the by, I am pretty sure she was the one who made the pithy comment I am trying to recall. And I think it was during her confirmation hearings but, like I said, I can remember.

archduke

And the Canadian Supreme Court has never reversed a previous decision in it's 145 year history. I sincerely doubt that

Until 1949, the Privy Council was actually a court of last resort. I think the SC has actually reversed some decisions of the Privy Council made before 49....
Otherwise, I think they've not reveresed their own decisions . (But I ain't 100% sure.)
Has the US SCOTUS reversed itself when material evidence had not changed?

Archduke

And yes Roe has stare decisis attached to it. The fact that there have been at least 3 serious challenges to it since 1973 and it has always been upheld pretty much shows the impact of stare decisis. Nut jobs can claim they are only one vote away from overturning but since Roe currently has something like a 60% approval, it will never be overturned.

You call them Nut Jobs. I call them republican politicians. Tomato Tomatoh
Is the media and are those politicians doing society any favours when they so misrepresent the role of SCOTUS and the rule of law?
Isn't this simply poisoning the populace with disinformation? (The essence of my position. So I'd really appreciate your thoughts.)

I think so: And I think so even more since we've corresponded on this, thanks to your insights and more readng... Based on this:
Benjamin Cardozo in his treatise, The Nature of the Judicial Process stated:

It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights."5 Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.

If the idea that past SCOTUS decisions are mallable based on the content of the court is a fraud, then responsible politicians and the media need to deal with that fraud head on....
If everything, including justice, is perceived as political (And I claim it is perceived that way Archduke, not that it is at the highest level) then the institution is undermined.

The ages of current S.C. members makes for interesting speculation. One conservative, 2 liberals, and the moderate Kennedy are all in their 70's. Everyone else (3 conservatives and 2 liberals) is in their 50's and 60's and likely to stay for a while. So, the presidency (and to a lesser extent the Senate) over the next 8 years may have a big impact on the make up of the Supreme Court. Hypothetically, a two term conservative President may substantially tilt the balance of the court to the right. Alternatively if Obama and his successor are victorious, we may see a real leftward tilt. Although precedence is powerful, it is certainly not controlling.

Reason #46 to vote Conservative (not necessarily Republican, mind you...)

I have not been on the site in quite some time and haven’t joined in any of the discussion forums. But it seems to me that the David Strauss definition is nowhere near correct. If it were, there would either a) be no need for a Supreme Court or b) everything they did would be ‘activist’ (except to rubber stamp every law that Congress passed). I prefer the Blacks Law Dictionary definition better; "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions

It is probably impossible to eliminate all personal views from public policy but that should be the goal. The Founders understood that government would naturally (and unfavorably) grow and with that growth our liberties would be undermined. That is why they wanted a strong but very limited Federal government expressed in the enumerated powers doctrine.
The judiciary should not be making decisions based on anything other than what is in the Constitution. Amending the Constitution was never meant to be easy allowing the whims of the times to make changes whenever some new idea came along.

The entire concept of Judicial Review in Marbury v Madison is arguably a case of judicial activism (it is not in the Constitution). But whether or not it was is moot at this point.

But to the case in point, I don’t see anything in the Constitution or any subsequent Judicial decisions that can force an individual to buy something he doesn’t want or doesn’t feel he needs. In no way to be confused with things like auto insurance. Although there is some logic to the mandate. Emphasis on ‘some’. It seems logically and morally indefensible to allow individuals to smoke too much, drink too much, eat too much, etc. and not buy health insurance and then to have the government (which means other citizens) pay for their health care when they eventually need it. But it is unconstitutional.

To address the last comment, the Constitution was written very carefully and deliberately and, yes, clearly when it spelled out what the government was allowed to do. But government will always try to grow and we, the citizenry, by our complicity and complacency have allowed it. ("He's not a radical" I am sure is meant to be sarcastic. At least I hope so)