Posted on 06/28/2018 9:33:58 PM PDT by lowbuck
Years ago, when I was a young lawyer, I had an interesting conversation with a much older judge. He was a Democrat, an old-school liberal, and he said something revealing: “There’s the law, and then there’s what’s right. My job is to do what’s right.” Or, to put the philosophy in the words of one of my leftist law professors, “You determine the outcome first, then you do your reasoning.” Time after time, that’s exactly what Justice Anthony Kennedy appeared to do.
I can think of few better summaries of Kennedy’s jurisprudence — especially in the cases that fired his passion the most — than this infamous passage from Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As a statement of dorm-room philosophy, it’s mildly interesting. As the expression of a constitutional ideal, it’s wildly incoherent.
Looking at Trump’s list of 25 candidates (and reading the speculative “short lists”) to replace Kennedy, one thing seems certain: The moment the new nominee is confirmed, no matter who it is, the Supreme Court will grow appreciably more originalist. Look for fewer sweeping moral statements — like Kennedy’s declaration in Obergefell that “marriage responds to the universal fear that a lonely person might call out only to find no one there” — and more close textual and historical analyses of the Constitution.
No one should believe that any judge is entirely free of ideological bias, but there is a profound difference between judges who approach a legal conflict with the question, “What does the Constitution mean?” and those who instead ask, “What does justice demand?”
Any originalist would come to the court facing an immensely powerful administrative state and a social movement that increasingly places statutory or regulatory rights (like public-accommodation statutes or contraception mandates, to take two recent examples) in conflict with constitutional rights. Moreover, this same originalist will likely at some point have to face the immense confusion and uncertainty surrounding the scope of the Second Amendment. And he or she will have to decide claims asserted on the basis of judge-made civil liberties, most notably the right to abortion.
So, what can we reasonably expect?
First, when the sexual revolution collides with the First Amendment, expect to see the First Amendment win. That’s the way the conflict played out in NIFLA and Masterpiece Cakeshop, to take the two most prominent examples from the Court’s most recent term. A more solidly originalist court would likely have decided Masterpiece Cakeshop on broader free-expression grounds, would scoff at the very notion that the government could revoke religious institutions’ tax exemptions for upholding their own notions of sexual morality, and may well take a dim view of efforts to prohibit counselors or pastors from sharing such notions with gay or transgender clients.
Second, look for the court to offer greater clarity on the Second Amendment. Since Heller and McDonald, the Court has essentially gone quiet about gun rights. Left undecided are questions about the extent of the right to bear arms outside the home (implicating carry permits) and the nature and type of weapons precisely protected. If an originalist court follows the late Antonin Scalia’s reasoning that the Second Amendment attaches to weapons “in common use for lawful purposes,” then broad “assault weapons” bans will likely fail.
Third, you’d likely find interesting majorities protecting civil liberties from police abuse. There was a time when a “conservative” judge was essentially a judge who was traditionalist, statist, and institutionalist. Indeed, one of the quickest ways to determine the difference between a liberal and conservative jurist was to examine their record in criminal cases. The conservative judges sided with the state in close cases; the liberals sided with the defendant. With the increasing influence of originalism in conservative legal circles (and the increasing distrust of state power), the entire Bill of Rights has new life. (At the same time, judicial efforts to end the death penalty would likely prove fruitless. Who can credibly argue that abolishing capital punishment was part of the “original public meaning” of the Eighth Amendment?)
In short, an originalist court stands for a simple proposition: The Founders created an ingenious system of government. We should give it another try.
Fourth, prepare for a more color-blind court. State-sponsored affirmative action — especially in higher education — has hung on by its fingernails for more than a decade. It’s beyond difficult to make an originalist argument for policies that, to take a contemporary example, effectively cap the number of Asians in any given class. The case for affirmative action has rested for a long time on magnifying the state interest in creating “diverse” communities through policies that explicitly use race as a factor to punish or privilege specific demographics. These policies exist far more as a matter of social justice and academic theory than actual constitutional law. Soon enough, the nation may understand that “equal protection” means just what it says.
Fifth, expect greater skepticism toward the exercise of executive authority. In the absence of clear and express congressional delegations of power, there is growing originalist resistance to what’s called Chevron deference — the voluntary judicial practice of deferring to agencies’ interpretations of federal law so long as they are merely “reasonable.” The practical result of this doctrine has been an enormous expansion of administrative power and authority, permitting executive agencies to make the law as well as enforce it.
In fact, numerous executive agencies are now combining all three branches of government under one roof. They’re enforcing and interpreting the laws they make. This practice has had pernicious effects on our constitutional structure and has created an executive branch that would be unrecognizable to the Founders. Ending Chevron deference wouldn’t be a cure-all, but it would help restore constitutional governance, and it would start to reverse the incentives for congressional action. Do you want to see new law? Then let’s see more legislation and less regulation.
Sixth, American abortion law would likely change, though we don’t know how much. It’s possible that a solid originalist majority of five justices could reverse Roe. But even though Roe is repugnant to originalism (as is Casey, for that matter), the justices don’t issue policy statements; they decide cases, and they’ll likely review one or more challenges to various state restrictions on abortion soon enough. A more thoroughly originalist court is far more likely to uphold abortion restrictions and far less likely to adhere to Casey’s “undue burden” standard. But there’s nothing about originalism that mandates that they choose to overturn Roe in any given abortion case, and the simple fact of the matter is that each justice in a 5–4 split would be under immense pressure to preserve abortion as a constitutional right. Would they have the courage to do the right thing, even if that requires doing the right thing with a one-vote majority? Time will tell.
Finally, don’t expect an originalist court to overturn Obergefell. I say that not because Obergefell is a well-reasoned decision or because there’s anything originalist about it, but because there exists little appetite to mount a serious legal challenge Obergefell, because it’s difficult to foresee a cert-worthy case that would require the justices to consider the precedent, and because the primary legal controversies surrounding same-sex marriage often have little to do with the legitimacy of same-sex marriage itself. Conflicts between gay rights and religious liberty arose both before and after Obergefell, and their outcomes don’t tend to stand or fall on the basis of Kennedy’s most famous precedent.
There are those who will look at the list above with shock and horror. But I’m less sympathetic to the notion that the cause of building a just society somehow requires granting the state the power to dramatically limit free speech (or even compel speech, as California attempted to do to pro-life crisis-pregnancy centers in NIFLA), to create immense administrative superstructures subject to the barest legal oversight, and to make explicit, race-based decisions in dispensing jobs or college admissions. And justice actually requires that we reverse Roe and work mightily to end the senseless and unjustified slaughter of millions of the most innocent and vulnerable Americans.
In short, an originalist court stands for a simple proposition: The Founders created an ingenious system of government. We should give it another try.
I think this will make Chief Justice Roberts the swing vote. For example, no one ever understood his reasoning on Obama Care.
There have been a few here who also think that the Constitution has a "noble Cause" clause when it suits their sensibilities - the problem is that this type thought is exactly why we have drifted so far from being in line with the Constitution - there's about 360 million opinions about what is "right" for any situation......
Scalia wrote Raich, which legitimized all Federal power via the Commerce Clause.
The case was completely insane. With a little luck, a Constitutionalist, Originalist, Texualist, court will reverse Raich and start trimming away at the insane way the Commerce Clause has been used.
Raich held that people growing marijuana in their own home, for their own use, were subject to federal drug laws, because they would not be buying marijuana on the black market, thus affecting interstate commerce.
Explain what the federal government does not regulate, under that doctrine.
While I don’t doubt the Left will try and pull that, it’s a very different time, with new media available to us. I don’t think it will work well for them at all.
“Enjoy the read.”
Nope. French would rather Hillary be picking the next few Justices. He came right out and said so.
Screw him.
L
“Waiting to hear the excuses when Trump picks a girl or a RINO. He’s not gonna’ battle for the Constitution. He doesn’t care.”
Do you people ever get tired of the same recycled BS
Trump gonna do this! Trump gonna do that!
Day in and day out since frigging 2015!
The only thing we wait for are idiot posters that make these certain predictions to get proven wrong. At that point you all just stop posting for a few weeks until you think we don’t remember, or you sign up for a new account.
He already had one pick that you clowns though was some “liberal plant”, so I guess this is just you guys ramping up for the dog and pony show you are going to preform on FR.
“He may not have the guts to drop the hammer (on Roe)”
My preference is for the court to not even re-vist Roe until there are at least 6 justices ready to overturn it. My reasoning goes like this:
1) There are millions on our side who will ‘tune out’ regarding the Supreme Court once Roe is overturned. After all, they only ‘tuned in’ AFTER Roe was decided. We need their help WELL BEYOND Roe - cleaning up the courts is a much bigger victory for us than just Roe, and they will continue to help us, as long as Roe is undecided.
2) A stronger majority than 5-4 will make the ruling overturning Roe, stronger, and the decision will last longer, as it would take 2 or more seat flips to go back to Roe.
One might think that with all of your other problems you would refrain from insulting 1/2 of the population.
I agree. Roe v Wade was a bad decision, but that doesn’t mean overturning it would lead to abortion being legal. Some states would certainly allow it completely (CA and NY for example). Other states would outlaw it completely. Most states would find some middle ground (Such as abortion is legal for the first Trimester only). Eventually as a society we would coalesce around some some sort of national compromise. And, that compromise would shift right or left in lines with the societies norms of the day. In this way, abortion could be eliminated from society or completely erased but it would always be open for debate and thus adjustment. Yes...I said that. All laws are open to debate.....and abortion would be right in there with them.
In other words, abortion should be dealt with like any other controversial law or issue......by the will of the people who are alive at that moment in time..
For instance: There was a time when a “conservative” judge was essentially a judge who was traditionalist, statist, and institutionalist. Indeed, one of the quickest ways to determine the difference between a liberal and conservative jurist was to examine their record in criminal cases. The conservative judges sided with the state in close case
This is why the tarnish has worn off the "conservative" halo, and French is careful to distinguish between "conservatives" and "originalists."
Too often conservatives have been worshipers of state power, just like liberals, but they want that power used against a different set of people. It is why the power of the federal government has grown to it's Frankensteinian proportions - both sides wanted it. It was only the people who don't like it much.
Here is what I see going down, as outlined by Dan Bongino:
The Left is in a tight place.
Here is a problem for them: The election does not look like it will be a “Blue Wave”. It may not be a “Red Wave”, but it likely won’t be a “Blue Wave”.
So here is the thought process for the Left:
Their only chance is to take back the Senate. But that doesn’t look likely. They have (IIRC) at least six senators up for re-election in states that went for Donald Trump in 2016, so their states supported Donald Trump.
If there is vote for a new justice prior to the election and they vote down that selection in a state that went for Donald Trump, that may not go over well, and they could lose their seat due to the political fallout.
So, here is what Trump should do: Get two candidates on deck, one who is very conservative and reliable, and one who is over the top conservative, a “Leftist Nightmare of a Supreme Court Justice”.
Trump will put up the very conservative and reliable one for nomination prior to the 2018 election, with the very public knowledge (unsaid of course) that if that “reliable” candidate is rejected, after the election, the wildly radically conservative candidate will be nominated.
The Leftists then have a gamble to consider: Do they accept the less radical candidate and vote them in before the election, or do they wait until after the election, when some Leftist senators from states that Trump won may go down due to the backlash to the rejection, and now they don’t have a chance to pick off enough Republican Senators (such as Collins from Maine and Murkowski from Alaska, both of who are raging RINOs and can likely be counted on by the Left) to counter the Democrat Senators who lost.
So, either they accept a conservative nominee we like and can live with, or they gamble, hoping against hope to regain power in the election to thwart any nominee. If they lose, they will get a radical conservative nominee who will be shoved down their throats, and they are going to just have to take it with no recourse.
That is how I see it going down.
I expect less interference in our lives. Which is a good thing for the country.
16,000 proposals to change the Constitution:
33 approved by Congress to be voted on by the states.
27 approved.
Very difficult to do.
Now Wickard being overturned would be a legal earthquake, as most of the administrative state would disappear, since Congress' authority to pass laws governing so much of our economic activity would be gone.
The Left has the narrative and we know how dishonest they are. Diversity just divides us. And they know that. We should be celebrating our commonality. But that wouldn’t divide the country, so diversity is pushed by Big Media and Leftists (but I am being redundant).
The founders designed the court to act in an advisory role, not as the final arbiter of what is or is not constitutional. Congress needs to swat down the courts via impeachment and removal until these unelected black-robes understand their proper constitutional role.
We need an orginalist congress more than an orginalist court.
French is another NeverTrumper who just totally disgraced himself with a totally accurate piece of writing. After all, if his heroine, the Witch, had won, none of the wonderful things he lists in this great article would have even been conceivably possible.
His twin guiding forces is "what does the Constitution have to say about it" and "is this something we should even be meddling in."
He does not disregard what the courts have ruled before but he is willing to say that they got it wrong.
Agreed on both counts. I wish we could clone Thomas.
When the court gets more "conservative", there are going to be consequences, both good and bad. Had the "conservative" side won in the recent cellphone tracking case, the police state would have had a blanket ability to go back in time and monitor a given person's movements for months and months, without even bothing with a warrant.
Overall, I think having a more conservative court will be good for the republic, but there are dangers there as well.
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