Monday, August 22, 2005
Volume XXX, No. 1
Roswell, New Mexico
Readership this date: 18,037
In this issue...
Current Makeup of the Court
As we approach the senate hearings on the John Roberts nomination set to begin September 6, it seems as good a time as any to assess the court, reflect on what we have and speculate on what may come to pass.
The US Supreme Court can currently be divided into five groups of one or two justices each.
Here are the groups:
CALD (Constitution as a Living Document)
CALD consists of two members, John Paul Stevens appointed by President Ford in 1975, and David Souter, appointed by President George H. W. Bush in 1990.
These justices see the Constitution as a fairly important guide to jurisprudence in America, however, it is as if there are several blank pages at the end. On those blank pages they write extra provisions to update the document, amend it in certain places, and generally make it "live" so that it can be appropriate to the times. In their view the Constitution, at 218 years of age, is often hopelessly out of date.
CAID (Constitution as an Illusory Document)
The CAID duo, Justices Ruth Bader Ginzburg and Stephen Breyer, both appointed by President Clinton in the early 90s, see the Constitution much as some of the more esoteric philosophers view life itself: as illusory. In contrast to the CALD justices, Breyer and Ginzburg's Constitution does not just have blank pages at the end, rather the entire document is blank. Onto the blank pages of the Constitution are poured all the graspings and clutchings of their own self-actualization, their own erratic and scattered dissipations of energy, as they search, sift and struggle for the "politics of meaning" and try to squeeze out their most hard-wrung expressions of wisdom. They write them into opinions and hope a majority of five will vote it into law. They often do.
METM (More Enlightened than Madison)
Justices Sandra Day O'Connor and Anthony Kennedy, appointed by President Reagan, acknowledge the Constitution as an important document. But, they view the Founders as having gotten much of it wrong. They see their duties in large part as having to correct some of the errors Madison and others made. O'Connor's experience as a state senator in the Arizona legislature made a lasting impression on her and has in turn influenced Kennedy as together they have come to see themselves as the ultimate legislators on a court readily given to legislating. Their practice at tweaking the Constitution's errors and re-writing some of it led inevitably to tweaking remedies just so, so that a majority opinion could be forged. Of course many, if not most of their famous 5-4 opinions cannot be followed and have been completely ignored by the Supreme Court itself. O'Connor and Kennedy are the father and mother of a new phenomenon in Supreme Court history: the stand-alone decision, logically inapplicable to any other cases. Legal dead letters.
CSTAT (Constitutionalist-Statist)
Chief Justice Rehnquist is alone in this category. He differs with six of his colleagues in that he believes the Constitution is more than a mere aggregation of suggestions. However, he has almost immovable faith in stare decisis, even bad precedent coming out of clearly wrongly decided cases. Additonally his threshold for compelling state interest is about the lowest on record.
CAOU(Constitution as Originally Understood)
Justices Thomas and Scalia are clearly the stars of the court, and in that order. Contrary to popular opinion, it is Thomas who is the most scholarly, most logical, most consistent exponent of Constitutional principle, not Scalia. Scalia is also brilliant, but is less consistent and -- oddly for someone so demanding of others -- makes exceptions for his own application of original understanding. Still, he is outstanding and, like Thomas, is a national treasure. They both resist the temptation to rule as super-legislators making new law, new provisions of the Constitution and shaping America in their own image. That is the phenomenon that Robert Bork called The Tempting of America. Their discipline in resisting such human-sought power is to be greatly admired and stands in sharp contrast to five members of the court who deserve the opprobrium of the American people. Too few Americans understand that the kind of temptations to which Stevens, Souter, Ginzburg, Breyer, O'Connor and Kennedy have given into is, in its elemental form, the same stuff of which tyrants and totalitarians are made.
President Bush's Legacy: Roberts and Beyond
With objections, critiques and praise flowing now almost equally from the Left and the Center-Right, the merit of the John Roberts' nomination is almost completely unknowable. While President Bush's bona fides seem incontrovertible and his administration is filled with capable people who know exactly what is at stake and who are eminently qualified to vet nominees, there is no way for anyone other than Roberts to actually know.
We have said for more than a month that we simply will not know --- that no one will really know --- until at least December, or possibly early next year, when cases begin to be decided and opinions handed down.
The questions raised by knowledgeable people, including especially insightful analysis by Ann Coulter, leaves everyone on edge. Alas, there is nothing we can do about it but wait and see what happens. If Ladbroke's were giving odds on what is known about the Roberts' nomination and how he will eventually turn out, they would look something like this:
8-1 Only Roberts himself knows. The Administration can guarantee nothing at all.
10-1 Roberts himself doesn't know. Much like other appointees, he will be transformed by the process of sitting as a justice. Could emerge as a Thomas, could emerge as a Souter.
15-1 The President thoroughly vetted Roberts face to face and through staff (but in code so as to maintain plausible deniability about "inappropriate" questions having been asked) and he will emerge as good as Thomas or Scalia.
15-1 The administration did the best it could, but can only guarantee that Richards will be no worse than Rehnquist.
20-1 The administration did the best it could, but can only guarantee that Roberts will be no worse than O'Connor.
200-1 Roberts is a total fraud who has fooled everyone. Will become a Breyer or Ginzburg.
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Newspaper Headlines Once Roberts is a Known Quantity
If Roberts joins Thomas and Scalia as intellectual leaders of the court and adds to the originalist group:
Bush Nominee Smashing Success: Legacy Secured
If Roberts joins Rehnquist as a CSTAT Twin:
Bush Administration Disappointed: "Could have been worse" Some Say
If Roberts is a clone of O'Connor and joins Kennedy in METM group:
Nomination Process a Catastrophic Failure
"But we are confident nation will endure" says Administration Spokesman
If Roberts ends up like any of the other four:
George W. Bush: A Name that will live in Infamy
Posted by Wayne at October 24, 2005 09:41 PM