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[Please welcome Prof. Peter Edelman of the Georgetown Law Center for today's edition of our First Monday series, in conjunction with Alliance for Justice. As always, please stay on topic and be polite, and take any off-topic discussion to the prior thread. thanks! -- CHS]
This chat was billed by my friends at the Alliance for Justice as an analysis of Justice Scalia’s recent public commentary, along with some comments about the balance of the current Supreme Court. I’m more interested in the latter than I am in talking about Justice Scalia in particular, and I’m especially interested in a conversation about what we can do to avert further deterioration in the direction the Court is taking.
Justice Scalia is a brilliant, somewhat charming, self-styledly prickly, apparently nice-to-his-friends-and-family man. Some people find all of this interesting. It’s not. The main point about Justice Scalia is that he is an almost-down-the-line conservative verging-on-radical judge who is one vote away from being one among five of the most powerful people (as a bloc) in America.
He writes beautifully, tossing off sarcastic and acerbic bon mots that, rather ironically, tend to distract from his mission to rewrite large parts of the Constitution as its meaning has developed over the past 200-plus years. We need to keep our eyes on his mission.
Justice Scalia purports to be on an archeological expedition – perhaps more precisely, he purports to have concluded his dig and to have found out what the framers of the Constitution intended. His “discoveries” divide roughly into two parts – purported knowledge about the original intent behind the parts of the Constitution where there are words that cover such matters as speech and religion, and purported knowledge, again derived from original intent, about matters where the Court has found constitutional protection for rights that are not “enumerated,” as the jargon goes. As things have evolved, most of these so-called unenumerated rights have found a textual home in the word “liberty” in the Fifth and Fourteenth Amendments. Justice Scalia thinks almost all of that is hogwash.
Justice Scalia tells interviewers that because he’s really a sweetie-pie moderate he wouldn’t go back and overrule all of the erroneous decisions that dozens of his misguided forbears put into the United States Reports. Unlike his truly radical brother, Justice Clarence Thomas, he’s only after some of the really bad ones, like Roe v. Wade. And of course he’s not above inventing new rights when it suits him, as he did in Bush v. Gore.
One has to skirt over a lot of messy stuff to be such a stout-hearted originalist. Whose intent, for example? The writers? Do we know what they each had in mind? Justice Scalia has excoriated those who think they can find meaning in statutory words by divining the purposes of those who did the legislating. His view about the Constitution seems at odds with that. How about the voters in each state – the people whose votes ratified the Constitution? Does he know what they had in mind? Apparently, although it may differ from state to state, and is perhaps different from what was on the minds of the drafters.
And even at the time, there were people – Chief Justice John Marshall is the outstanding example – who said this was to be a document for the ages. Never forget that this is a Constitution we are expounding, we were enjoined.
Think about the words “equal protection.” Meant to cover women. Funny how we didn’t discover that was true until the 1960s. Well, he might reply, plain meaning. Okay. How about why “equal protection,” which was meant to protect African-Americans, turns out to ban legally mandated segregation of children in schools, when there was a widespread understanding at the time of the 14th Amendment’s ratification that school segregation was acceptable. What’s the original intent? Specific or general? You’d have to say it was general, in order to conclude that the Court could decide Brown as it did without amending the Constitution. Writing on a different aspect of the 14th Amendment, Justice Scalia has insisted that the level of protection accorded by the constitutional language must be at the “most specific level at which a relevant tradition . . . can be identified.”
Oh well, consistency is for little minds.
One could go on and on. Is Scalia an apostle of judicial restraint? One recalls his concurrence in Webster, an important pre-Casey abortion case, where – even though the case did not need to call Roe itself into question – he called for reaching out to overrule Roe, asking why the Court should “needlessly . . . prolong this Court’s self-awarded sovereignty” in the area of abortion.
So much for Justice Scalia, for the moment anyway.
The real question is the danger we are in as a nation. Whatever some people thought, it is now clear that Chief Justice Roberts and Justice Alito are on the same mission as Justices Scalia and Thomas: to rewrite the Constitution and take it back anywhere from 40 to 70 to 100 to 200-plus years, depending on the Justice and depending on the area of the law.
We are hanging by a thread. It has a name – Justice Kennedy. Justice Kennedy is what remains of the center on the Court. Even with Justice O’Connor there were many troubling 5-4 decisions, especially in the areas of federalism, criminal justice, and corporate power. Justice Kennedy votes with the more liberal members of the Court now and again, and has done so in a few extremely important cases. If Justice Scalia gets one more fully reliable ally, the course of American history will change.
Yet the American people seem unaware of – or not to care about – the danger. Of course – at least from a progressive point of view – the Supreme Court has never been a particularly salient issue, at least not since the 1930s. Conservatives seem more successful in making a politics out of what they call “activist” judges (never mind that it was a conservative Court that overturned a long list of federal statutes in the 1990s). Those who would uphold individual rights and liberties and curb untrammeled Presidential power are on the whole ineffective in stirring public concern.
My questions are why and does anyone have any idea of what to do about it? I’m happy to chat about Justice Scalia and the current Court during today’s session, but what I’m really interested in are your ideas about how to inject the looming dangers to our rights and liberties into the current electoral conversation.
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So, Peter!
I’m glad to be here and am looking forward to your comments and thoughts.
Welcome Professor Edelman! It is an honor to have you here at firedoglake.
Welcome, Peter — so great to have you hear to discuss this today. It seems like every election year — especially the presidential ones — progressives gear up for the election cycle without finding a way to effectively discuss the importance of the courts. And the importance of the impact of federal election results on the federal courts, in particular.
There are so many gut issues involved: labor and employment, equal protection, civil liberties, choice…many which hit home for a lot of people in their everyday lives. But we never seem to find a way to make that clear in a political sense. Looking forward to talking about this today.
Thanks so much.
This isn’t really a suggestion on how to make it more of an issue, but do you think part of the reason the courts aren’t an issue for progressives is because many still think the ideal of the Warren Court is still alive, so there is a complacency/sense that the courts aren’t in a lot of trouble? That the courts are still an institution that favor these sorts of values? If so, what kind of ruling would it take to really shatter that? It seems like the Roberts Court is making inroads, but will it come to something as drastic as directly overruling a landmark decision like Roe or Miranda? Which may not happen, since conservatives seem to have mastered the art of chipping away without directly overruling yet achieving the same effect…
Welcome and thanks; Would you list any justices of the SC for the last 100 or so years that has ever come out and made public position statements to affect elections, or the public discourse on “hot” topics. I do not recall this ever happening before, but alas, I am not that old a tree.
Professor Edelman – Thanks for being here today, I really enjoyed your article above!
Justice Scalia keeps telling people to get over Bush v. Gore. Besides the political results of the case, the problem troubling many of lawyers I know is the legal reasoning itself. Other than Bush v. Gore, has Justice Scalia ever held there was an equal protection clause violation in a voting rights case? More importantly, why should a person who believes in the rule of law not be troubled by an opinion in which the Court expressly states its opinion has no precedential value?
I watched a video of a debate — moderate by John Yoo, actually — at Boalt Hall, with Susan Estrich and William Kelley as two of the participants. They were discussing the election and its potential impact for the courts. And Susan Estrich said something that I think is so true in terms of what is needed in this particular time in our history: people with courage and integrity to be appointed to the federal bench. Clearly, though, that is going to have different meaning to different people, depending on political philosophy and their various leanings — as we’ve seen in some of the proposed nominees from the Bush Administration that were non-starters even with a number of the Republicans in Congress the past few years.
From my vantage point, integrity is really key — and a willingness to look at the law and the facts as they are in each, individual case, in a fair way. Something that, alas, appears to have gone out of favor in some judicial circles. Peter, you’ve been practicing for a while — what are the qualities you’d most like to see in the judges you are before?
I think that’s a part of it for a lot of folks who cannot believe that all of the things they think are carved in stone will ever just flow away. I know the Ledbetter case was a huge eye opener for some labor lawyers I know — who had been practicing under the prior precedent for years. That was a huge watershed reversal and they did not see it coming…even with the prior positions that both Alito and Roberts had taken on those types of cases when they were on the lower courts.
I think you’re right, based on the evidence we have, that a really terrible decision might get people’s attention. You may remember that the Webster decision on abortion (I mentioned Justice Scalia’s concurrence in that one) did have a strong effect on the public and played a significant role in the election of a large number of Democrats in the 1990 congressional elections. Of course that’s a pretty unsatisfactory way to get people’s attention. What I continue to hope is that people organizing at the grass-roots level during this electoral could talk about the importance of the Supreme Court in people’s everyday lives. We need a phrase with some instant appeal — the progressive counterpart of “activist” judges.
I was trying to think of that, too. I know that Justice Marshall — before he was a justice, though — had a series of interviews about civil rights law where he talked about the importance of elections on that area. But I cannot think of a sitting justice in my memory who has done so like that…
I don’t think Supreme Court Justices can or should get mixed up in the politics of this, other than by what they say in their opinions. I don’t know of any time historically when they did. Of course they often do say in their opinions that a particular decision is totally unjustified and will have a terrible effect — look at Justice Breyer’s terrific opinion in the Seattle and Louisville cases last year.
I think appointing such people is great, but I wonder, too, what it will take to get Democratic senators to go to the mat for such nominees. I know that Clinton considered nominating some wonderful people to the bench, but was told those nominations would be DOA by Republicans in the Senate. Until recently, though, it seems Bush nominated a lot of truly horrible jurists (William Pryor, Jay Bybee, the list goes on and on) that, if they didn’t exactly sail through confirmation, made it onto the bench. I think it all comes back to the original question–how to make this a priority for a constituency so it translates into a priority for those in office. Clinton could have nominated such individuals and fought for them the way the Bush administration did for their nominees, but it seems the political will just wasn’t there.
I much enjoyed your appearance at the JFK Library to mark the 40th annum
of the RFK campaign and thank you for those years of service. The way to
get the discussion topic into focus is unclear due to the untimely death
of the press, the burden having now fallen to the blogs to take up that
cause just as it has the war. I cannot imagine how the civil rights
movement of the 1960’s could have happened without the press of the era
having the ethics of public service driving the coverage. The blogs
can cover an issue and generate discussion that can encourage a broader
public discussion in some elements of the modern press, but television
seems a lost cause barring a revision of the FCC and conglomerate media.
I would like to see you discuss this with Bill Moyers sometime, you
could have a conversation along historical lines on this that could
help us all get started in the right direction.
“how to inject the looming dangers to our rights and liberties into the current electoral conversation.”
One major problem is the lack of a cogent, honest news media. One major asset is the internet.
And how realistic is it to consider impeachment of Supreme Court justices for lying during confirmation? I hear this consideration often.
If the court were to make a decision that went against the very fiber of the corporatist view of America the Media would be all over it, decrying its unfairness. Only then would court decisions reach into the living rooms of America. That, or perhaps getting Ken Burns to make a documentary on the Supreme Court. Otherwise I think legal decisions are out of the average (uninformed) voter’s consciousness.
My impression of this current Court is that of a few feudal lords.
They’ve exercised their “droit de seigneur” and now tell us to “get over it.”
Nope.
We need to spread the word that these guys think we’re peasants and they are rulers, and maybe people will see how unAmerican that is. Maybe people will wake up.
It seems to me from my memories of history classes, that if Scalia, Alito, and Thomas succeed in turning the Constitution on its ear and back in time, that they should be taking themselves off the bench.
I seem to have memories that African-Americans and Italian-Americans have not always been accorded full rights over the years.
After all, that goes to “original intent” right?
I won’t hold my breath.
Wecome Peter:
I appreciate the fact that you are not coming down from on-high to set us straight.
That said, I rather suspect that serious discussion of the Supreme Court, its main actors and the cosequences we all face regarding how certain of them apparently intend to ‘act’ will remain a rarified if not ‘elitist’ pursuit.
Usually, the American public seems to have little ‘interest’ in the actions of the court until after such ‘opinion’ is the law of the land.
And, even then, when the public ought to be paying strict attention, they do not.
If the court’s quite un-Constitutional (I my non-lawyerly opion)behavior in insinuating itself where it did not properly belong, in the 2000 election, has failed to get thge attention of the public (or the media), then there is, I fear, little that will resonate with them regarding that thin and stretching ‘thread’ you have so eloquently spun out before us.
Nonetheless, I would, most dearly, love to be proven wrong.
Discussions of this sort are most important then, because they are a beginning …
What are two or three recent cases that might resonate with low-information voters? Few people seem to understand that they are losing their rights as American citizens under the guise of the GWOT.
Bush v. Gore was of course a “one off” decision — nothing like it before and, the Court said, not to be a precedent in future cases. Not the first time the Court has said “for this day only” but far and away the most important instance. The equal protection clause has applicability with regard to voting — think of the reapportionment cases — but was never prviously applied in circumstances like Bush v. Gore. You’re certainly correct that Justice Scalia shows little regard for equal protection in other circumstances — think of Romer v. Evans, the case where the Court (Kennedy writing the opinion) held that a Colorado state constitutional amendment banning laws that would protect gay and lesbian people against discrimination was held unconstitutional under the US Constitution. Justice Scalia made fun of the majority opinion in his dissent.
Professor:
(sorry for the long post, but …)
Have you looked at this post over at Balkinization, re a statistical study by Posner and one other, on who’s conservative and how much? And, if so, your comments?
Balkin’s lede:
(My emphasis)
The paper itself is at this link (its about 70 pages of .pdf)
Professor Edelman - Thanks very much for your time today.
In regards to your challenge, it seems to me that the American people really have very little knowledge of the current composition of the SCOTUS. Maybe if more publicity were given on what the Court might look like over the next 4 to 8 years depending whether a D or a R was in the WH. Assess the number of members that would retire if a D was in office vs. the number that might pass or retire if a R was in office and what the corresponding Court would look like. TO me it looks like the best progressives can hope for is staying even; e.g., Stevens and Ginsburg replaced by a D.
But does this kind of viewpoint ultimately feed into the talking point that the Right has made so very successful–judges being activist, legislating from the bench, and making unilateral decisions is bad for the country and bad for Americans? Does it, in a way, lend fuel to their rhetorical fire? It’s just incredible the amount of control of the dialogue that they’ve managed to capture.
What do you think about expanding the Supreme Court to thirteen members under the next Democratic president, in order to reduce workload as was always bemoaned by Chief Justice Rehnquist, while simultaneously diluting the clout of the Ledbetter Five?
Thanks for joining us here today.
Welcome to the Lake, Peter.
There are a few here who have the mantra: SCOTUS, SCOTUS, SCOTUS.
We are a small but mighty few.
I think that every time I hear someone complain about gas prices, I will remind them of the various reasons why that is and sum it up with George W. Bush. And, then I’ll remind them that the Bush V. Gore you pointed out above is the reason that Bush can do what he’s doing.
The Supreme Court has always been a radically conservative institution dedicated to preserving the rights over the have nots. Pre-Civil War it was a main bastion for the defense of slavery and property holders against non-property holders. In the latter part of the nineteenth century, it fought minimum wage, child labor, and workers’ rights tooth and nail. In the early 20th century it continued to foster segregation and sought to torpedo as best it could FDR’s New Deal. The only progressive period in the Court’s long history took place in the few years of the Warren Court, but ever since it has sought to roll back any decision that affects individuals. The Roberts Court has gone out of its way to set itself up as an arbiter between the Congress and the Executive and between corporations where individual citizens are unwelcome and unwanted.
I have no idea why either Scalia or Roberts is qualified as “brilliant”. Yes, they can cite a lot of legal opinion but the actual arguments they use are not just shallow and sophistic but often just stupid. I also would not put any faith in Kennedy. His opinion in Gonzales v. Carhart on “partial birth abortion” slanted, polemic, and incredibly ignorant of the medicine.
I know a lot of people think we should hold SCOTUS in awe but I moved beyond that some time ago, shortly after I began reading some of their opinions. So much of what they do is really on par with the John Yoo memo just better sourced.
This SCOTUS stuff is really over my head, though I understand the general principle of how important it is.
I’ve had a Q about Roe V. Wade for years, and perhaps you could finally answer it for me. As I understand it, one argument (& in my opinion the most important one) favoring Rose V. Wade is the right to privacy. Further, as I understand it, conservatives argue that there is no right to privacy in the constitution. My Q is, if there is no right to privacy, what good are any of the other rights?
What about the 9th Amendment?
My greatest fear for this country is that we are slipping from a constitutional democratic republic into a dictatorship headed by a tyrant. Our congress has exhibited little strength (including of character) or desire to prevent this from happening. There are all kinds of signs, from torture memos to the corruption of the DOJ to the retroactive immunity demanded by the “president” to Yoo’s “unitary president” theory. I am wondering how SCOTUS would view some of these things. Specifically, retroactive immunity for the telecoms seems to be an offense against the clear language of the fourth amendment. Congress is not only giving away its own power, but they also seem to be determined to weaken the power of the SCOTUS too? How do you think we can stop this or do you think the SCOTUS can or will stop this erosion of the checks and balances built into the constitution? The question is how to restore the balance of power within our own government?
The Rights seems to have succeeded in making judges a stand-alone issue. They no longer have to discuss it in terms of gay rights or abortion rights, but can simply discuss “judges” as a central conservative theme.
Progressives on the other hand, seem to have a hard time making the connection between judicial appointments and the preservation of the many protections that the courts provide. Does addressing the issue of judges in terms of single issues (i.e. consumer protections, worker protections, minority and civil rights) dillute the overall message that the courts do actually affect all aspects of our lives?
Great mantra — I will adopt it as my own! But how on earth can we make more Americans realize the impact that SCOTUS has on THEIR lives?
Scalia might, or might not, be brillant but certainly lets his view of life rule the outcome of his decisions. That is not always justice.
Dang.
I guess it does, at that.
Yes, the Right’s media has certainly been effective.
Justice for all, not just for a few. Fairness. An open mind. Appropriate deference for the decisions of Congress and other public actors, accompanied by a healthy skepticism about decisions of other bodies that are directed at people who have historically been the objects of discrimination or concern issues reflecting unpopular points of view.
In regard of ‘original intent’:
I’d like those who keep pushing it to be asked, every time they bring it up, ‘Were you there?‘
Were they in Philadelphia in 1787, listening to the debates and watching the votes being taken? Because if they weren’t, they can’t possibly know for sure what was intended. (We only have a limited amount of firsthand information, some of it biased by any standard.)
It seems a recurring theme here (well, recurring in a couple of comments) is that the judges issue is too ivory tower. But then, you look at the crowds who show up at a Justice Sunday event, and well, I don’t think every person there has a law degree, to say the least. I think the RIght has managed to reduce the conversation to its basic elements, often at the expense of accuracy and fair representation. Peter, you teach intro con law classes, albeit to people who are there to study the law–what kind of issues resonate at the intro levels? And is there a way to pare down the issues to their essentials without wholly misrepresenting the truth? I think the RIght has been more willing to get down and dirty when it comes to this, and while I don’t want to stoop to those tactics, are we at a point of fighting fire with fire?
IMHO, if you look at Scalia’s jurisprudence, he almost always comes down in the mold of tiny islands of individual liberty (for ordinary people) surrounded by a sea of governmental power (for his Republican buddies). Thus, what tiny islets of privacy would remain, he would find susceptible to being overwhelmed by governmental interests. I guess a very good example of this would be the infra-red surveillance case from a couple years back, where the cops (without a warrant) were scanning houses with an infrared scanner to see who had grow lights and who didn’t. Scalia would hold it ok, given that there was an electronic signature outside the house, and therefore unprotected by the Fourth Amendment.
Frankly, professor, I can no longer see the point of the pussyfooting around being accurate, and likewise cannot see the point of not calling Scalia what he is - intellectually dishonest.
That sounds very good, but is not in any way reflective of Scalia, Thomas et al.
I also have a Posner Q that perhaps you might know the answer to. I used to admire him because he took economics into account (note my screen name), & thought clearly. I didn’t always agree with him, as he’s Chicago School, but usually learned something from him. However, since he wrote Catastrophe: Risk and Response, he seems to have gone around the bend. Is it possible he scared the living daylights out of himself so much in the process of “thinking thru” that book (a cost-benefit analysis, primarily), that his mind was transformed to mush?
Would it behoove us to show the GOOD the courts have done? Judges can, and do, act for the common good? Brown being the most accessible and famous example of this, I think. Or is that too long ago and now an assumed outcome, rather than the revolution that it was? And are we back to the debate that we face with national security issues that people tend to be more easily motivated by fear and outrage?
This is related to my main point. I think too many Democrats were afraid to stand up against bad appointments. Part of this is because they don’t feel there is popular support for courageous stands against bad nominees. It comes back to the challenge to develop grass-roots interest in the judicial nominations process. It’s nice to hope the people we elect will do the right thing if they were the people “we” chose to put in office. But we have to keep a fire lit under people’s backsides once they’re in office. The need for advocacy doesn’t stop the day after the election.
Your links to the fifth and fourteenth ammendments go to findlaw.com.
There is a John McCain ad disguised as a Governement Waste ad. (Stop Pork barrel Spending - there is a $3mil grizly bear study that must be stopped!)
These types of ads (red herring issues) resonate with low-information voters.
Do they think about how many billions are lining the pockets of the MIC in the GWOT?
Simple (often misleading statements) appeals to low info voters.
One fundamental question, Peter, regarding, ‘Justice for all, not just a few’…
How may this ever ‘work’ when one’s pocketbook determines. all too often, the quality of the ‘dream team’ one may obtain.
I know that legal professionals pooh-pooh this concern, generally, but have you any thoughts on this unimportant ‘reality’?
I think that’s part of the problem. Scalia, for one, does not see that it is the judges’s duty to do “good.” And feels that if the Constitution can be interpreted that in fact evil should be done or should be the end result, then so be it, it is his interpretation that should be law.
The Democrtats who are afraid to stand up against bad appointmnets only seem to listen to their other Senate buddies and not the folks telling them they are making bad choices.
Thanks. The press is certainly part of the problem, and the new electronic world is already making a difference (although not always in a good direction).
I don’t know if you’ve seen the clip from the show Boston Legal in which Alan Shore rails against the Supreme Court. Of course I know that is fantasy and would never happen in a million years, but what struck me about the scene was that without my really noticing, the Roberts court has already done many things. The clip is on You Tube and C&L also has it in one of their posts a few weeks ago. I’ve also seen it several other places. The scene was quite an eye-opener for me, and I would advise anyone who has an interest in what the current court is doing to go watch it. They really seem to have done their homework!
It’s just not simple, is it?
We have to fill the congress with smart, honest, loyal representatives so that we can get the more even-minded and even-hearted Judges onto the court.
It’s all connected.
Most people I know, like neighbors, etc., only know about traffic court or divorce court. Sorry to say it.
Impeachment strikes me as double-edged sword. The last person to talk with some degree of seriousness about impeaching a Supreme Court Justice was Gerald Ford, who as a member of Congress called for the impeachment of Justice William O. Douglas, the most liberal Justice of his time. And of course there were billboards all over the South after Brown v. Board of Education that said “Impeach Earl Warren.” So I wouldn’t suggest the threat or use of impeachment.
I know trying to mobilize the mainstream media is a challenge, but it is still where a lot of people get their news. Do you think trying to change the nature of the questions that are asked at presidential debates and the like might help? Right now, it seems when a question about judges is asked, it is almost always in the context of abortion. Would getting more people to submit general questions help? Monitoring the narrow focus and calling them out on it help move the issue into a broader conversation about other issues like worker rights start helping? The Right likes to talk about abortion because that sells a lot better in swing states than talking about denying workers fair pay, for example.
Bumper Sticker suggestion: Supreme Court Is Hiring: Only Fair And Balanced Need Apply. (maybe too long…)
It’s tough. As one of the other writers commented, if Bush v. Gore didn’t wake people up to the havoc the Supreme Court can cause, it’s hard to see what will. Overruling Roe v. Wade seems to be the one thing that would get people stirred up in large numbers.
And with impeachment off the table, the Supremes can act with perfect impunity. If Scalia thought impeachment were a real possibility, would he go duckhunting with Cheney before deciding a case in which Cheney was involved? Would he act like such a smart alec punk?
Thanks for the data. It says what we know, but the numbers have power.
Do you mean they could hire O’Reilly and his Fox buddies?
I think you’re right — obviously, 99.999% of what most federal judges do on a daily basis has nothing to do with abortion — but the next question is, how do we get the public interested in a judicial philosophy about the commerce clause? Do we need to have Boston Legal do an episode about it?!
Fair & Balanced, hmmm? That would include all Faux news talking heads. Suggest other vocabulary, since Faux has trashed that phrase.
Yes, he would. Impeachment hasn’t been off the table for him, and yet he has frequently gone hunting with and socializing with Cheney and others in the Bush Administration. And did so with others in other administrations as well. The duck hunting case got press solely because lawyers who were adverse to Cheney’s interest pushed the case by pushing recusal publicly…but this isn’t new behavior for him in the least.
The term fair and balanced is owned and misused by Faux News. The term attaches itself to reactive conservatives.
No, I’m looking for words that the low-information voters might pay attention to.
This might be helpful. Not a bullseye but more publicity — more columns, more TV specials, more blogs, etc. — that talk about what the Court could look like over the next 4 to 8 years can’t hurt.
Thank you Professor:
To me, the most stark (and scary) change in public opinion over the past ten years is the belief that rights do not matter unless they pertain to the speaker. Torture, incarceration, prejudice, etc. seem to be accepted because they don’t pertain to the “average American.”
Do you have an opinion as to what has led to this erosion? Do you see this reflected in court decisions or do you believe it is merely a political belief fueled by fear?
Could you fill in a little what moves have been made to impeach Scalia then?
I didn’t say that moves had been made, I said it hadn’t been off the table. There has been no official removal of it as an option, of which I am aware. You?
Eminent domain.
I think how to get people interested in the commerce clause is a great question for our law professor, or perhaps the best way to make such an issue accessible. Dawn Johnson once made a comment about “robbing Congress of its power to protect the American people,” though many people don’t trust Congress all that much, either. But is there simple language like that to convey the big ideas without getting into (for the average voter) scary-sounding legal terms and principles? I guess it comes back to “How do we reclaim the language of the debate?”
FDL is a wonderful place, but I’m trying to think outside of the box.
Part of understanding the enemy is to turn it around against them.
Have to take this on. “Activist” judges is in the eye of the beholder. The current majority has declared a big number of statutes unconstitutional, and it says, golly gee, we just had to do that because Congress was being activist. It’s not being activist to rule that the Constitution prevents the President from making laws without bothering to get Congress to pass a statute. That’s just reading the Constitution correctly. It’s not being activist to protect individual rights and liberties from legislative or executive curtailment. And so on.
It seems like a conflict of interest on so many levels. And how do we go about impeaching jurists that act outside the law like this? The personal and public support of torture is bad enough, but to tell people to “get over it” about his engineering the fraudulent installation of the bush is way beyond what was once “legal”
Okay.
You have land, freedom and rights. What will they take away from you next time?
FDR tried that (or a version of that) and was soundly rejected. Always have to think of what’s sauce for the goose is also sauce for the gander.
Leading to my favorite slogan that I ever made up: Larry Flynt is the man we hate to love. Meaning that in order to protect the “average” person’s rights, you must draw the line several standard deviations away from the center. Very few “average” people understand that concept. (Until they get cuaght up in a legal mess they never thought could happen to them.)
Let alone just flat out rude. But maybe that’s just me…
Nor any threat of it either so where is the deterrent effect? Scalia can act the way he does because there is no sanction that he faces for his doing so.
I’ll “get over” Bush v. Gore when Justice Scalia “gets over” Roe v. Wade.
But wasn’t FDR’s problem that he tried to do it through Executive Order/fiat. Since the Congress is authorized through the Constitution to set the Court’s size, couldn’t a strongly Democratic House and Senate change the composition legally?
And hoist Scalia on his own “original intent?”
Sort of OT, but your comment triggered a thought on Signing Statements by the Executive. Has SCOTUS ever ruled on this concept?
Lots of truth to that. Problem is, what institutions will protect us best? Best answer is a better politics (which takes work) that elects people who have progressive values (and results in better appointments to the Supreme Court). The Warren Court resulted from the shift in attitude with the Roosevelt Court, which was still operative with the optimism of post-World War II Americans and then pushed by the strength of the civil rights movement and other movements for change. If the politics aren’t better, then the President, the Congress, and the Supreme Court will all be more interested in protecting corporate interests, etc. One interesting point, though, is that over the past 60-plus years, more Justices have turned toward the liberal end after being appointed (or surprised the Presidents who appointed them) than the opposite. Thni Warren, Brennan, Blackmun, Souter, etc.
I know that Prof. Edelman has to go soon, but I find this conversation fascinating and would love for it to continue. In my view, it seems that we have a few questions, that, if we can find the right answers to them, would help move the issue with voters.
1. How do we make people understand the judiciary is about bread and butter issues that affect everyone?
2. What kind of simple, but honest, language can be developed that resonates? (A progressive answer to buzz words like “legislating from the bench” or what-have-you.)
3. How do we get the media to undertake a more holistic approach to the courts, and remove it from the context of just a few hot button issues?
In regard to: “Leading to my favorite slogan that I ever made up: Larry Flynt is the man we hate to love.’
But that’s the problem: as a card-carrying liberal you feel this way. The average person doesn’t agree with you: they think Larry Flynt shouldn’t just be immune from civil liability, he should be in jail. The right has done a masterful job of conveying the great civil rights decisions as ACLU-fueled excesses and this Court seems inclined to agree.
I think we’re on the downward side of the greased slope. If a local municipality were to criminalize pornography I have little belief this Court would overturn such a law. The old compromises — indefiniteness, freedom of speech, etc — would not stand up to Scalia and Company’s original intent argument.
I don’t think they have — which is one of the reasons that there are a whole host of questions on what force of law they may or may not have. But I don’t know of any pending challenge to them, either. Peter likely has a much better ahndle on this because some of the folks at Georgetown Law have done quite a bit of writing on that issue…
I can’t remember the name of the case but it was in the late 80’s when Thurgood Marshall said something like, “Power, not reason is the commodity of the Court’s decision today.” I think that sums up Scalia’s jurisprudence quite nicely. He will someday be compared with the Justices of Lochner.
Even though Thomas, Scalia, Roberts and Alito are a minority, they are among the top ten most radically conservative jurists since at least the 1930’s. As was Rehnquist, whom Roberts replaced, as is Kennedy. So even though he doesn’t always vote with the Roberts block, we have five extraordinarily conservative jurists on the Court now. Which puts us a worn thread away from a Court that would remake our laws into a whet dream of Cheneyian proportions, the consequences of which would be with us for generations.
I’d like to hear more about how to put that threat into practical terms the public, “the great and observant public”, can understand and use when casting their votes. Many thanks.
Even low info voters know they have been screwed. I think they know the genisis of it is in the SCOTUS appointment of Georgie.
Except that the “modern” atavistic GOP has done away with that restraint. It no longer operates using the self-restraint that comes out of “sauce for the goose” or “there but for the grace of God go I” considerations.
try:
Vote McCain, Lose All Rights
Good question — answers itself, I think. In one way or another, a significant aspect of the Constitution is to protect personal autonomy from intrusion by the public sphere. But, that said, what is the textual basis? Could be Ninth Amendment, but the Court has never used it. Could be privileges or immunities clause of the 14th, but the Court rendered that al