tag:blogger.com,1999:blog-6329595.post116846248145043388..comments2024-03-29T10:48:59.954-05:00Comments on Althouse: The amazing mileage Jeffrey Rosen gets from an interview with John Roberts.Ann Althousehttp://www.blogger.com/profile/01630636239933008807noreply@blogger.comBlogger16125tag:blogger.com,1999:blog-6329595.post-1168854819536663632007-01-15T03:53:00.000-06:002007-01-15T03:53:00.000-06:00i gave Rosen the benefit of the doubt, and assumed...i gave Rosen the benefit of the doubt, and assumed that he wasn't a lawyer. but, alas, upon further inspection, facts reveal that he graduated from yale. how could someone from such a fine institution make such stupid comments? does he actually think justices should "trade" votes so as to bring more unanimity?<BR/><BR/>I have no explanation for Rosen's commentary except, perhaps, that Yale students are taught to think they are Justices themselves. Sad, really.andy grewalhttps://www.blogger.com/profile/17076826499302242090noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1168533822851024252007-01-11T10:43:00.000-06:002007-01-11T10:43:00.000-06:00An interesting article. But I think Rosen confused...An interesting article. But I think Rosen confused Ruth Bader Ginsberg and John Paul Stevens with Justices Scalia and Thomas.mtrobertsattorneyhttps://www.blogger.com/profile/09428761048285792427noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1168532309968568902007-01-11T10:18:00.000-06:002007-01-11T10:18:00.000-06:00I find it funny that these comments have already d...I find it funny that these comments have already devolved into accusing "liberal" judges and distinguishing "conservative" or "idealogues." <BR/><BR/>The article attacks idealogy w/o compromise. However, i have to admit, i find the entire premise laid by Roberts strange. <BR/><BR/>Does the nation really care if the SCOTUS rules in a more "united" fashion?<BR/><BR/>I suppose having a divided court can have a few negative effects.<BR/><BR/>1) It leads to more convoluted law, as lower courts tend to try to use dissents in a way to twist out of the original decision. <BR/><BR/>I think this reasoning is completely flawed. I think a majority opinion that has to deal with arguments by a persuasive dissent tend to be clearer and subsequently able to deal with alternative arguments. <BR/><BR/>Ironically, i think it is the "consensus" builders who have led to unclear precendents of late. Justice O'Connor's "swing" decisions tended to try so hard to find "common" ground that the decisions tended to become way too narrow and created confusion for lower courts when faced with similar, but not completely on point factual situations. <BR/><BR/>or<BR/><BR/>2) A divided court leads to a divided body politic. Namely, since SCOTUS opinions (especially ones with dissents) are often dialogues, it can lend strength or create divisivness among the public or politicians who read the opinions. Do 5-4 opinions make it easier for COngress to cry foul and fight over issues of judicial supremacy or constitutional questions? I doubt it. <BR/><BR/>Like it or not, constitutional and legal questions are difficult ones, and reasonable people will differ. I think any "divides" on the Court just shows that there are divides in how to rationally and reasonably approach these difficult questions. Essentially, i think SCOTUS mirrors the body politic, rather than shapes it. If there is only one aspect i agree with in respect to Justice Robert's desires, is that the Justices should be very careful in how they treat each other. I personally find it inappropriate when Judges start accusing each other and bickering over a legal opinion. (the 3rd circuit and some State Supreme Courts come to mind.) We don't need them to be pals for life, but keeping some of the vitriol out of the writing seems more useful than anything.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1168525866247170932007-01-11T08:31:00.000-06:002007-01-11T08:31:00.000-06:00Thomas on Kelo and Raich was just outstanding: cle...Thomas on Kelo and Raich was just outstanding: clear, concise, a knife to the gut.<BR/><BR/>I'll take that over go along to get along any day.<BR/><BR/>I like his - the law is the law approach. <BR/><BR/>Scalia is too prone to be one of those outcomes judges. Even though the right loves him because he delivers the outcomes they want.<BR/><BR/>History will show Thomas to be <B>THE</B> outstanding Judge of our time.M. Simonhttps://www.blogger.com/profile/09508934110558197375noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1168488705218239672007-01-10T22:11:00.000-06:002007-01-10T22:11:00.000-06:00it would be good to have a commitment on the part ...<I>it would be good to have a commitment on the part of the Court to acting as a Court, rather than being more concerned about the consistency and coherency of an individual judicial record</I><BR/><BR/>is it just me or is consistency and coherency exactly what we want from the law, and supreme court justices in particular? what a bunch of baloney.The Exaltedhttps://www.blogger.com/profile/18030346881185443267noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1168488348395263062007-01-10T22:05:00.000-06:002007-01-10T22:05:00.000-06:00However elaborate Rosen's efforts to disguise it, ...However elaborate Rosen's efforts to disguise it, his attack on the conservative justices is the same tiresome, intellectually lazy tripe you can get anywhere else elite media conventional wisdom is sold; the justices who decide cases according to coherent principles derived from constitutional text and history are arrogant, rigid narcissists, whereas those who just go along for the sake of piling up votes are wiser and more secure.<BR/><BR/>This isn't analysis, first of all, but instead a personal attack couched in the language of dime-store psychology. Obviously, a Justice who frequently publishes concurrences and dissents may simply be fulfilling his perceived constitutional duty to say what the law is--not just what the result in the case is but why. This isn't vanity. We ought to be glad the Justices care enough about the consequences of their decisions to explain how such decisions fit within some broader philosophical structure. This is useful to serious students of the Court--too bad Rosen finds it such a nuisance. <BR/><BR/>To the extent he makes an argument here worth taking seriously, it is that because justices wield raw judicial power and law professors merely work in the medium of ideas, the justices shouldn't bother so much with trying to get the ideas right, but should instead focus on how best to leverage their power. The problem is that their duty is not to maximize influence but faithfully to interpret the constitution. If we have to choose between fractured opinions or opinions that reflect political horse-trading rather than honest analysis, I'll take the former.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1168487849082478682007-01-10T21:57:00.000-06:002007-01-10T21:57:00.000-06:00Professor Althouse, My apologies about the double ...Professor Althouse, <BR/><BR/>My apologies about the double post. I hadn't realized the first posted.Bill Dalasiohttps://www.blogger.com/profile/08896667139601992373noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1168486581324103822007-01-10T21:36:00.000-06:002007-01-10T21:36:00.000-06:00Okay, I'm not a lawyer or a law professor, so mayb...Okay, I'm not a lawyer or a law professor, so maybe some of you can clue me in here. I don't necessarily see why I'd <B>want</B> a "collegial and pragmatic" justice. To a trusting layman like me, the Court and the Constitution are supposed to be the ultimate check on consensus and the political realm. The sort of person that Rosen (and implicitly Roberts) seem to be looking for stike me as willing to rule based on ensuring they continue to get invited to the right parties.Bill Dalasiohttps://www.blogger.com/profile/08896667139601992373noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1168486310757580622007-01-10T21:31:00.000-06:002007-01-10T21:31:00.000-06:00Okay, not being a lawyer or law professor, maybe y...Okay, not being a lawyer or law professor, maybe you guys can clue me in: why should I want a "collegial and pragmatic" justice. I mean, for us trusting laymen, the Constitution is supposed to be the ultimate check on things like consensus and politics. The kind of justices Rosen seems to want strike me as ruling to make sure they get invited to the right parties.Bill Dalasiohttps://www.blogger.com/profile/08896667139601992373noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1168477652400330532007-01-10T19:07:00.000-06:002007-01-10T19:07:00.000-06:00Surely it would be in the best interest of each si...<I>Surely it would be in the best interest of each side if it could win half the cases by a unanimous vote, rather than trying to win slightly more often by a 5–4 vote, since a unanimous victory would be harder, in the future, to overturn.</I><BR/><BR/>Uh huh. What does a unanimous vote become, "super-precedent"?dorkaforkhttps://www.blogger.com/profile/01565973823120655379noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1168476250261510742007-01-10T18:44:00.000-06:002007-01-10T18:44:00.000-06:00Not to mention his mixed metaphor of "loose cannon...Not to mention his mixed metaphor of "loose cannons shoot themselves in the foot."ASThttps://www.blogger.com/profile/14591247136037620408noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1168471994351612442007-01-10T17:33:00.000-06:002007-01-10T17:33:00.000-06:00The ideological purists are marginalized on the Co...<EM>The ideological purists are marginalized on the Court</EM>.<BR/><BR/>This is typical Rosen. In fact, the two justices whom Rosen despises have shown themselves to be a lot less ideologically driven than the rest of the liberal, "let's make it up as we go along and legislate from the bench" crew.<BR/><BR/>In fact, the ideology of which Rosen condemns these two is the simple ideology that the Constitution means what it says, and no more.<BR/><BR/>You want to talk about a crew willing to subvert the Constitution to their ideology, at all times, geez-ah-maneez, check out Ruth Bader, Souter and Breyer.<BR/><BR/>Rosen. Folks like him. You just can't make this stuff up. Do these Living Constitutionalists even have a clue as to how illogical their arguments are?paul a'bargehttps://www.blogger.com/profile/08854004347728185047noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1168470352419815502007-01-10T17:05:00.000-06:002007-01-10T17:05:00.000-06:00The Supreme Court is a lot like a law school... a ...The Supreme Court is a lot like a law school... a series of strong personalities, and one guy in the middle (the Dean) who has to not only keep the strong personalities (both the nice ones and the flaming assholes) together, but also has broader responsibilities to the insitution itself.<BR/><BR/>P.S. And yes, I work at a law school. Veeeery far down the totem pole, though.Thiefhttps://www.blogger.com/profile/15723817023545274070noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1168468816348715732007-01-10T16:40:00.000-06:002007-01-10T16:40:00.000-06:00"And those with the common touch win broader suppo..."And those with the common touch win broader support than those who live entirely in abstractions."<BR/><BR/>Rosen's piece was odd in that, for all the talk of common ground, pragmatism and the rest of those bromides, there wasn't much in the way of practicality to it. Putting aside the generalities, he never suggests how any sharply divided Court (be it the SCOTUS or any other court of last resort) is supposed to coalesce around a common opinion deciding the substantive issuse in the key, politically charged cases -- e.g., abortion, gay marriage, campaign finance, etc., where the members of the Court are in fundamental disagreement. These are institutions that value and supposedly follow their own precedent. Thus today's case, no matter how narrowly decided, impacts on tomorrow's. To say that the Court is divided into liberal and conservative wings is to say that the justices look at constitutional questions in fundamentally different ways, and bring to the decision making process fundamentally different constitutional values. <BR/><BR/>In that context, the root problem is not the flamboyant personalities of some of the justices, or a too exquisite concern with one's personal reputation. Instead, it's the fact that the members of the Court disagree on first principles, and thus naturally disagree about results.<BR/><BR/>Compromise and collegiality are, of course, fine as far as they go and at some level are essential in any institution where decision making is by majority vote among a small life-tenured group. Overbearing arrogance or condescension to one's peers are obnoxious in any context, and if that was CJ Stone's approach, it's no wonder that he was a failure. But the opposite doesn't get you to consensus where the individual judges disagree on first principles.<BR/><BR/>In the end, how does Rosen imagine that the sentiments (after all, that's what they are) about collegiality and pragmatism are supposed to translate into action? In practice, I think it comes down to one of two models. Either it expresses itself as a sophisticated form of backscratching -- you vote with me on this case, and I'll vote with you on that one -- where everyone is too polite, too righteous ever to say anything like that directly. Alternatively, it becomes a situation where the divisions on the Court are resolved by one of the two ideological wings becoming dominant, perhaps because the proponents of that wing's position on the Court have the more forceful personalities or greater political skills.<BR/><BR/>NO dobut, some aspects of both of those models inevitably come into play in the Court's decision making all the time. But to elevate that reality into an overarching virtue is to get lost in the same airy clouds of abstaction that Rosen was, at least in form, criticizing.Richard Dolanhttps://www.blogger.com/profile/12735773524374061429noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1168466683806095682007-01-10T16:04:00.000-06:002007-01-10T16:04:00.000-06:00So...short and pithy?;)So...short and pithy?<BR/><BR/>;)Roberthttps://www.blogger.com/profile/07160061641869302097noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1168465897076586902007-01-10T15:51:00.000-06:002007-01-10T15:51:00.000-06:00I love to read Scalia's belittling of the liberals...I love to read Scalia's belittling of the liberals on the Court. I'm just happy they now consist of concurrence with the majority rather than in dissent.Fritzhttps://www.blogger.com/profile/09551356233624437730noreply@blogger.com