Redstate

I just can't wait to see how the dimies will spin this impending loss. I guess this proves the addage that you must not stop at every barking dogs. But i am still hoping for a debate on the issues at the confirmation.

given this article, how Alito is a victory for you guys.  Taking the article on its face, it appears Roe will still be intact by at least a 6-3 margin (given the current unknown of C.J. Roberts).  Is there a memo that I didn't get as a liberal saying that he'd say one thing to Specter and another to James Dobson.  I seriously am trying to understand the devotion to conservatives who apparently have no real interest in overturning Roe v. Wade.  This entire article seems to justify Thomas Frank's thesis in What's the Matter with Kansas.  Any insight would be appreciated, particularly by you Leon.

MB, just for clarity, that thesis being ...?

I read the book, I just want to know what you consider to be the central conclusion. What is the matter with Kansas?

just my humble 2cents and my info is probably off target but here goes - Roe vs Wade drew the right to an abortion out of the right to privacy in Griswold.  Alito could vote to overturn roe and still believe that there is a right to privacy.  He could argue that the right to privacy does not go as far as the right to end the life of another, that the right to life of the baby trumps the right to privacy of the mother.  right to privacy = good.  right to privacy trumping right to life = bad.  birth control isn't abortion - birth control prevents the creation of a new life, which is perfectly fine.  abortion is not the same as birth control - it ends a life that has begun.

conservatism (its "leaders" anyway) use cultural issues as a Pied Piper to lead their voters to the ballot box and then abandon them shortly after pulling the lever

Specter said (though he did not quote Alito as saying directly, which could be some wink wink nonsense) that Alito was not a threat to Roe v. Wade.  So which is it?  He either will go after Roe v. Wade or he won't, and Specter thinks after meeting him that he won't.  Knowing what a pain in the (bleep) Specter is for your party, particularly on the abortion issue, what interest does he have in letting an anti-choice candidate slip through?  Unless of course, Alito is not anti-choice, and religious conservatives are once again left holding the bag?

I was wondering the same thing myself. Isn't this the reason why you guys on the right had such a huge problem with Miers? Because you couldn't be sure whether she would overturn Roe, based on speeches she gave 10-20 years ago?

If Specter is saying now that Alito is not a threat to overturn Roe at all, you would have to oppose the nomination, correct?

I agree with this logic.  I have always objected to the argument that Roe v. Wade should be overturned on the grounds that there is no constitutional right to privacy. The "right to be let alone" is a fundamental liberty right.  The problem with Roe v. Wade is that it is based on the view that the unborn fetus is "potential life" rather than actual life.  

There is no "Right to Privacy" mentioned in the constitution. Roberts and Alito both believe there is one. Even if they believe there is only a limited Right, they are not what I or many other conservatives consider a strict constitutionalist. Griswold was an atrocious ruling and cannot be defended.

I happen to be in the apparently small minority who think Roe was very poorly decided but don't give a hoot if it ever gets overturned.  If Alito is willing to shrink its scope and let states decide on the more extreme issues (like parental notification or partial birth) I'm happy.  What conservatives don't seem to realize is that Roe is completely inconsequential.  The Commerce Clause is where we should be fighting and Alito looks like our man.

There is a whole lot more to conservatism than Roe. Also he is definitely a friendly conservative vote on pretty much all other abortion related question short of overturning Roe. Alito is a reliable and strong conservatism. Definitely a home run for W.

I also have trouble reading the Ninth Amendment.  Whenever I get near it, my eyes just sort of glaze over.  Those Federalists who thought a Bill of Rights was foolish because people would claim that only the rights explicitly mentioned would be protected were clearly idiots.

that was full of mistakes :) Anyways, Alito is a great conservative.

holds close to the text of constitution and laws, how he votes will largely depend upon the specifics of the case, just like roberts will... which is really what many conservatives want - no more laws out of thin air from the bench...  

as far as specter goes, shrug... specter is probably reading what he wants to into what alito said, and probably extending what alito said about griswold to roe, when alito never really mentioned roe at all, he kept his remarks centered on griswold.

He either will go after Roe v. Wade or he won't

There's the single-issue focus coming up again.  Look, most people would read the Roe decision today, make a puzzled expression, and come to the conclusion that whatever they think of abortion personally, this was a pretty poorly decided case.

Having said that, most conservative judges (I'm guessing including Alito) aren't the media stereotype of horses restrained behind the gates, just waiting for their chance to run out there and overturn Roe.  It's all contextual, based on the particulars of the specific case that comes before the Supreme Court - as well as the current state of any relevant appellate law.

I think it's very possible that Alito could give Specter the (correct) impression that he isn't burning to go out and overturn Roe - but that some day soon a case might come before the Court where he would indeed be the fifth vote to do so.  The two statements aren't in conflict.

for various reasons, but the single biggest one that i saw in the blogs was that we felt she was getting in waaaay over her head.  Roe is a big issue, yes, don't ever doubt that, but perhaps even more important to the bloggers who made the biggest stink over Miers was her apparent lack of a judicial philosophy at all.  we were just told that she would rule correctly on certain issues, but given no info on how she would go about making that decision, what the logic process would be.  with alito we know how he thinks in regards to the law, and we agree with how he does it - no more legislating from the bench, as much as we might wish for it at times so that certain things could be done right here and now, we know that the legislature is the correct place for laws to be created, not the judiciary.

I am a little confused on the excitement in reference to Specter's quotes. I remember the anti-Miers crowd attacking Miers for making a comment to Specter that she respected the right to privacy. After being attacked she called Specter to inform him he took her comments out of context.

Now we have Alito being far more direct and telling Specter he does respect the right to privacy and considers it good law. Which is worse than saying it is settled law. Can any true conservative say they are comfortable with those comments.

Also Specter seemed to be very happy with the comments from Alito on gun control. It will interesting to see what the NRA has to say about the Alito nomination.

I just hope conservatives actually do their homework and make sure Alito is the same as advertised. Becuase if Miers had made these comments to Specter the whole blog/talk show network would be calling for Miers to withdraw, while they seem to give Alito a pass.      

they must close and lock on the 10th...

The problem with Miss Miers was that she lacked relevant experience and gave no indication of having a well-formed judicial philosophy.  President Bush sometimes puts too much weight on his personal feelings of comfort and affinity vs. objective evidence of qualification.  While I have no doubt that Miss Miers is an intelligent and delightful person with many fine accomplishments to her credit, she lacked the objective qualifications that are needed right now for a smooth confirmation process.

That is ostensibly the thesis. Unfortunately, the theme was slightly different. That being, republican voters are too short-sighted and uninformed to realize how many benefits from the government they could be receiving if they were electing democrats. Also, conservative voters are too backward to recognize that their values are stupid and hickish, and should listen to their cosmopolitan betters.

The book is filled with anecdotes, from which he draws conclusions and for which he assigns blame, but in nearly every case he fails to establish causality.

Anyway, that's all off-topic.

This thread doesn't support the theme of the book, since the voters have to be unaware of an impending bait and switch. Clearly it can't be a bait and switch if we are openly discussing this or that point of view prior to confirmation hearings. Also, he isn't being voted on directly by the "Kansans", if you see what I mean.

given the state of the school boards back in my home state, I'm quite happy that the U.S. Senate will be debating the Alito nomination rather than some of my neighbors

I am absolutely comfortable with Judge Alito's comment that Griswold is not only settled law, but is also good law.  I also applauded the comments Chief Justice Roberts made regarding the constitutional basis for the right to privacy during  his confirmation hearings.

What consenting adults do in private, either alone or with one another, is of no interest to the government provided that their actions do not results in significant material harm to themselves or to others.  I certainly hope that all who call themselves conservative agree to this principle, even though they may disagree about whether certain behaviors result in significant harm.

As I have noted in a comment above, the negative reaction to Miss Miers was based on concerns about whether she had a well-formed judicial philosophy rather than on her position on a single issue.

The attacks on Miers were based on two points:

1. The lack of qualifications, even though there is none.
   
   
2. Her speeches to a womens group in which she expressed views in support of "right to privacy" and "racial quotas".

Alito is already similar to Miers on the right to privacy. We will have to see where he stands on racial quotas.

We know "the right to privacy" is the code for Roe v Wade with Specter. Roe v Wade is bad law unless you feel different. What you mentioned is not the discussion we are talking about.

My concern is what did Alito say to Specter to make him so happy. Roberts never made similar comments to Specter. Specter had to use the hearings to address this issue and Roberts danced around the issue.  Alito seems to have gone much furhter in his discussions with Specter than Roberts did.

What is it? Why is it important? Please explain.

No kidding.  That's the best part of trying to talk about the Supreme Court: Republicans refuse to read the Ninth and Democrats refuse to read the Tenth.  I, on the other hand, like to think they were both included for exactly the same reason: to make the federal government sit down and shut up.

the Fourteenth seems to be a tough one too.  That whole business about "privileges and immunities" really makes everyone scratch their heads.  Except Republicans, who just ignore it.

This isn't the first time I've heard this from conservatives. What mistakes were made in the Roe decision?

From RGuru?

read here

is that the constitution gives Congress the power to regulate interstate commerce.  Since, at the very latest, the 1930's under FDR Congresses and pretty much both parties have generally construed interstate commerce to mean whatever they need it to mean in order to pass new federal legislation that intrudes on every moment of life.

The interesting thing about Alito - don't know if it will be important or if he will follow up with a broader interpretation - is that he ruled that the feds could not regulate the possession of machine guns.  No interstate commerce.  The "Gun Free School Zone" was a similar ruling but I don't think Alito participated in that one.

Bottom line, Congress uses the Commerce Clause to get around the 10th Amendment.

You asked:  "Now we have Alito being far more direct and telling Specter he does respect the right to privacy and considers it good law. Which is worse than saying it is settled law. Can any true conservative say they are comfortable with those comments."

I was responding directly to your question.  If Sernator Specter wants to regard "the right to privacy" as code for Roe v. Wade, there is nothing I can do about that.  What I recognize is that there are two issues that can be raised re Roe v. Wade.  The first is whether there is a constitutional right to privacy.  The second is whether the liberty interests of the mother should be balanced against the interest of the government in protecting "potential life" vs. the obligation of the government to protect unborn human life.

Some Republicans -- either because they wish to avoid the hard issue of protecting human life or because their agenda involves extending government control into the private sphere -- have tried to make nullification of privacy a conservative cause.  I believe that Chief Justice John Roberts  rejects this attempt to redefine conservativism.  What I am hearing about Judge Alito suggests that he rejects this as well.

And once again, I wil respond to your question as to whether a true conservative can be comfortable this with.  My answer is yes, absolutely.

the Justices cooked up stuff that isn't in the Constitution.  They used a greatly expanded reading of a precedent (Griswold) to invent "rights" that are not to be found in the document.

There are many other ways to approach the issue that don't require making up stuff.  Roe is "the" prime example of "legislating from the bench" for this reason.

Back in the 1870s, in The Slaughterhouse Case the Supreme Court basically said "there are no privileges and immunities of citizenship that a federal court can protect against state action except maybe for voting rights."

It is the Supreme Court that effectively eliminated the Privilege and Immunities Clause from the 14th.  Any law student who has taken basic Con Law knows that.

Besides, how many times have you heard Democrats talking about the Privileges and Immunities Clause lately?  They all talk about due process and the oxymoron that is substantive due process.

oops.  She does need some.  A basic understanding of ConLaw would be one.  A "judicial philosophy" would be another.  She demonstrated she had neither.  I'm not insisting that she have a "conservative" view of those things, just a view she could articulate.  Ginsberg did.  I don't agree with her, but I would probably have voted to confirm her.  As John McCain said last night, "Elections have consequences."

Her speeches were an issue only because they indicated she might believe in a greatly expanded interpretation of the Constitution that a "strict constructionist" would be comfortable with.

Alito, without regard to what he may have said to Specter about "privacy rights" has a huge history of crafting narrow opinions that deal with the issues at hand and the specifics of the law.  That's good enough for me.

If you believe this, you had better pay attention to what Chief Justice John Roberts said in his confirmation hearings, and you had better pay attention to what Judge Alito is saying now.  If Republicans fail to understand the judicial philosophy of the key players on the Supreme Court, they may end up adopting political strategies that work against a conservative court rather than with it.

there is more than one way to skin a cat.  Roe could be overturned based on the obligation of the government to protect life.  "Privacy" would not have to be addressed.

............is that it doesn't make conservatives comfortable.  We're all for the idea that the Bill of Rights was not the end all and be all of rights protected.  The problem is that all those Nonth Amendment "unenumerated rights" are just that - unenumerated.

Conservatives don't like the idea of unelected judges making decisions in place of elected representatives.  Who exactly gets to decide what unenumerated rights the Ninthe Amendment protects?  What kind of standards should we have for deciding whether a claimed "right" is in fact in the purview of the Ninth?  Unfortunately, all those decisions would need to be made by judges - which would basically mean a constitutional basis for judges to do whatever pleases them and act as superlegislature.  All they would need to do is cite the Ninth Amendment and fabricate a "right" any time they didn't like a law.

As for the Tenth, it is treated many times like an extraneous clause.  The problem is not that the 10th is ignored, it is that the limits placed on the federal government by the rest of the document are ignored.  For, by definition, anything that the Court says is within the power of Congress under an Article II clause is a power directly given to the federal government and therefore cannot be a power reserved to the states unde rthe 10th.  What needs to be done is to respect some form of limitation on the federal government's capacity to legislate on every topic.

nobody's going to find a justice I really like.  I'd like to see a court that decides the 10th Amendment means what it says and is willing to define "interstate commerce" as what it really is.  That would bring a huge number of precedents under attack and would be a start to restoring the balance of power.  I'm talking about the power resident in the people, not the Congress.  The correct form is People, Local Government, States, Fed.  The way it is now is 180 degrees out of phase.

Since I don't really know what RGuru is. Sorry bud, I am new.

It's all gamesmanship designed to give cover to moderate/liberal Republicans like Chaffee and Snowe so they can vote for Alito.  

Read it again carefully: "Alito's dissent in a 1991 abortion case, Planned Parenthood v. Casey, "does not signify disagreement with Roe v Wade" the 1972 ruling which legalized abortion nationwide. Specter said that nothing in what Alito had written in that case "suggests disagreement with the underlying decision in Roe v. Wade."

The dissent itself did not signify disagreement with Roe v. Wade - but the dissent didn't deal with the propriety of Roe v. Wade to begin with, only whether the spousal notification provision of the PA law was constitutional.  Therefore, it is technically true that nothing in the dissent suggested disagreement with Roe, but that doesn't mean Alito told Specter that he agreed with Roe's holding.  

"Alito also assured Specter that his view of legal precedent was that "the longer a decision was in effect and the more times it had been affirmed by different courts and different justices appointed by different presidents, it had extra precedential value.""

Again, this does not suggest that Alito supports Roe.  It could very well be that even if this is Alito's theory on precedent, he feels that Roe would still not be so settled that it could not be overturned.  

So conservatives, don't worry - this is all PR.  

if they see the federal government returning regulatory authority to the states as it existed prior to the 1930s. State insurance and banking commissions are hardly the most popular people in corporate boardrooms, nor is Elliot Spitzer.

Isn't the Fourth Amendment in some measure a "right to privacy" in that it prohibits the government from coming into your home and either arresting you or rifling through your possessions unless and until it has a darn good reason to do so?

The Fifth Amednment protects you from incriminating yourself.  That is "privacy" in some sense.

The First Amendment guarantees you freedom of conscience and free expression of your religious views.  That too is a "right to privacy."

This is all in Roe and is not "wrong" or "incorrect."  What was uncalled for in that case was taking the limited privacy protections that the Constitution

does

grant and somehow manufacturing from that the right of a person to terminate a pregnancy.

There are certain "privacy protections" but they do not seem to rise to the level of untramelled autonomy over personal conduct.

is within the commerce clause.  I would argue that banking and insurance fall into that category.  They are obviously "interstate".  Transportation would as well, I have no problem with feds building highways.  I do have a problem with them passing laws about the speed limits on those highways.

My bigger concern is the expansion of "federal crime".  Criminal law should be primarily the pervue of the states.

You don't talk causality.

The fact that state regulatory authorities have been emasculated makes them relatively pointless.  They can be nuisances, but my guess is that no corporate board has had a lot to fear from the State Insurance Commissioner.  Elliot Spitzer (and other AGs) are different stories.

Those state regulatory authorities also don't get much public attention.  Nobody cares what they are doing because everybody is paying attention to Washington and what the SEC, the Fed, and other federal regulators are doing about the issue.  So state authorities make nuisances of themselves to get attention and to remind the business world they are still around.

Now if certain regulatory authority was returned to the states by some tough federalism decisions from SCOTUS, wouldn't those previously ignored bodies once again merit attention?  Of course.  Media outlets and blogs would start calling attention to regulatory activities.  Watch groups would spring up to monitor their actions.  And when they made horrific decisions, people and businesses would be mobilized to address them.  That is what happens at the federal level - are we to believe that all those people that care about those issues would simply stop caring if the action was in Albany and Sacremento and Austin and Tallahassee rather than in Washington?

I think the Dems blew badly it on this one. Harry Reid got his wish with the Harriet Miers suggestion for a moderate woman who would "bring the country together." Bush took Reid's advice to avoid a bitter fight.

Then, when the nomination began showing signs of trouble, Reid and the Dems decided to stay quiet and let the "extreme right wing" bring their own President's pick down.

The problem is, it wasn't just conservatives who felt Miers was unqualified. Opinion polls show a majority of Americans were unimpressed, with Roberts garnering much, much better overall numbers.

Now, Reid & Co. are blaming the "extreme right" for railroading Miers and forcing Bush to tap Alito, a candidate "well out of the mainstream," and according to Schumer, had Rosa parks spinning in her grave.

The question is, if Reid thought Miers was the right person for the court to bring the country together, why did he leave Bush twisting in the wind. After all, Bush extended his hand to Reid, why then would Reid turn his back on the gesture of goodwill from the President? Why didn't the Dems fight for Miers, and fight for what they believe is best choice for the country? If nothing else, at least she wasn't "Scalito," or Owens or Brown!

Instead, they sat on their hands as Miers capsized. Now, they blame the right wing for steamrolling Bush, but did nothing to confront these "extreme right idealogues" when they had a chance.

Bush had no choice but to tell Reid and the Dems to go fly a kite after the Miers debacle. Senate Dems look like bigger wimps than ever; Alito is a solid pick and he will be confirmed. This will be a big victory for the conservative movement.

I know we've covered this ground already, but I think it bears repeating over and over again if necessary.

Some Republicans -- either because they wish to avoid the hard issue of protecting human life or because their agenda involves extending government control into the private sphere -- have tried to make nullification of privacy a conservative cause.

I can't speak for anyone else, nor would I try, but as I am fairly firm in my desire for a originalist/textualist/strict constructionist/pick your term judiciary, I will have to take issue with you here.  It's probably a minor point, but I believe that nullification of a constitutional right to privacy is fundamental to the principle of originalism (here used to stand in for whatever word picked above).

The misreading of the 9th Amendment is just that, a misreading; there is no right to privacy in the Constitution.  I don't believe that it is possible to argue that there is such a right on any sort of an intellectually honest (i.e., non-Living Constitution stuff) approach to the Constitution.  We might want such a right to exist; I know that I do.  But wanting something and finding that same thing in the Constitution are two different things -- and if originalism stands for anything at all, it stands for the proposition that wanting and finding are two different things.

Originalists of my ilk may in fact be perfectly willing to fight Roe on the grounds that a fetus is a human life; they may not want to extend control of the government.  But I believe that the legislature, including perhaps a Constitutional amendment, is the proper forum and venue to fight those fights.  So not only must Roe go, but Griswold as well.  If we want a constitutional right to privacy, we should write it into the Constitution.  Since Americans are pretty united on privacy rights (except perhaps the issue of abortion), I think it's safe to say that such an Amendment would pass fairly quickly.

To want the judiciary to uphold a nonexistent right of privacy, while taking a different tack in order to bring down the right to abortion, is precisely the kind of judicial activism that an originalist must oppose if the word is to mean anything at all.

-TS

I hope were not being lulled here into a false sense of security. Is the left really going to take this lying down?

I think that Alito's circuit opinions lead to the clear impression that he is for "getting it right."  He is interested in precedent and in prediatbility in the law.  Then again, so are Scalia and Thomas.  But like AS and CT, Alito is for, first and foremost, "getting it right" - seeing that the precedent and predictability are correct under the Constitution.

All those people that talk about Super-Precedent:  What do you think of Brown v. Board of Ed?  My guess is that most people applaud the decision.  I agree with those people (I do note that the use of dubious sociological data by the Court to justify the decision was poor form and unnecessary).  But what is forgotten is that Brown discarded what would qualify as a "superprecedent."  Plessy v. Ferguson was over 50 years old when Brown came down.  It had been affirmed before.  But it was more important to get things right than to just respect precedent for precedents sake.

There is nothing "liberal" about what Alito said.  Precedents of long standing do take on a certain weight.  That weight does not make them immovable.  It simply means that conservative judges like Alito, who take the idea of a narrow judicial function seriously, will be careful in discarding them.  

I think the comments actually support a sentiment that was expressed in relation to Roberts.  THey are cautious men, not prone to grandiose decisions.  What will wind up happening is that a series of abortion cases will rise to the High Court and in each Roberts and Alito will move towards narrowing Roe, at first simply restricting it (by allowing bans on partial birth, by allowing parental and spousal notification, by allowing more regulation of later term abortion).  All this will lead up to a point where Roe protects such a limited number of actions, that overruling it will not be drastic (if in a few years all that is left outside of state rergulation is say the first 10 weeks of pregnancy then it's noticeably less shocking to the system if that goes too - advocacy groups on both sides will already have significant presences in state capitals to lobby for or against all the other regulations that the Court will have allowed).

Alito and Roberts are very much of the "sure and steady wins the race" style.  But that doesn't mean they won't eventually cross the finish line.  Some might be discomforted that we won't have a 100-yard dash to the "goal" of overturning Roe but the goal is in site with Roberts and Alito.

The left will NOT take this lying down, of course. But what cards do they have left to play after sitting idly while Reid's pick was stoned to death?

1. Filibuster. But what leverage do they have? They had their chance to unite the country with Bush and Miers.
   
2. Bork. Can Alito be Bork'd? Perhaps. But conservatives are ready to fight hard this time. They showed up in 2000, 2002 and 2004, and in South Dakota in 2004 because this pick is so important to them. Alito I think will prove to be similar to Roberts and not shoot his mouth off like Bork tends to. It's a battle conservatives should be able to win this time.

At this moment, I'd handicap the chances for Alito's confirmation at 80%.

I don't think a filibuster can hold for long, and I'm convinced there are enough "constitutional option" votes from the Gang of 14 Republicans.

The Republican Senators still have the high-ground leftover from the Ginsburg confirmation.  While that means nothing to the grass roots fire-breating Deaniacs, that means something amongst the Senators.  Especially when the next nominee (should Alito not be confirmed) will be just as conservative.

about the fallacy that there are no privacy protections in the Constitution.

The question is, how far do they go?

To Griswold I would say that there is plenty of reason to maintain it.  The idea that marriage has been a legally favored and protected institution in our society since before the Constitution cannot be disputed.  I simply do not see how you can argue with the idea that there are certain decisions that married couples make concerning family life that are simply off-limits to the government.

We allow Amish parents to pull their children out of schools (in contravention of mandatory attendance laws) because they're culture dictates that course.  We allow parents to decide on the schooling of their children, even down to the idea of home schooling.  We allow families a great deal of protection in governing their affairs.  Why is it such a stretch to allow a married couple to decide whether it is the right time to have a child?

Griswold is honestly not the issue.  If you look at the decision it is fairly narrow.  In fact, it took a subsequent case to address the issue of whether unmarried individuals had the right to obtain and use contraceptives.  The problem is that Griswold has been taken to places that it was not intended to go and been used to justify a gross overreaching in the name of "protecting privacy."

The other thing that people forget is that every State has a bill of rights with protections for its citizens.  Many of those rights exceed the protections of the federal constitution.  On the issue of abortion (and in fact on most privacy issues) the question need not even be federal - it is not the federal government that is typically in the crosshairs.  It is almost always state regulations that are challenged.  Citizens may find that their state is much more willing to protect their privacy if only they'd bother to find out.

An example - much was made of the Lawrence decision on sodomy laws.  I don't want to discuss the merits of that now.  My point is - in New York, the Court of Appeals had decided that a sodomy law was unconstitutional under the State Constitution in 1980.  The State Constitution simply had a more extensive bill of rights than the federal Constitution.  Even if a federal "right to privacy" amendment was not forthcoming, I am sure that many states would craft provisions for their state constitutions such that there would be actually more protection than right now without the same controversies over federal case law.

whatever cases liberals really like and don't want to see overturned.  The previous poster is absolutely correct.  Cases like Dred Scott and Plessy were all certainly "superprecedents" under liberals' current formulation of that term when they were overturned.  Right is right and wrong is wrong - there is no reason why the American people should be compelled to live with poorly reasoned judicial power grabs masquerading as Supreme Court decisions just because liberals will throw hissy fits if those cases are overturned.  

As some of you are aware, over the weekend I hinted that Judge Alito might not be willing to overturn Roe V Wade. I also suggested that Alito is not an originalist in the mold of Scalia/Thomas. My statements seem to be confirmed by one of Alito's law clerks. Here is part of an article from scotusblog that should be a must read before jumping on the Alito bandwagon.

October 31, 2005

"One liberal's positive view of Alito"

Katherine (Kate) Pringle is a partner in a New York law firm.  She is also a progressive Democrat who was heavily involved in John Kerry's presidential campaign.  And after she graduated from law school in 1993, she spent a year working as a law clerk to Third Circuit Judge Samuel Alito, Jr.

In light of this morning's nomination of Alito to the Supreme Court, I called Pringle to get her take.  The short answer: she is very pleased with the nomination.  More below.

I asked Pringle to describe what kind of judge Alito is.  She said that Alito is "very thoughtful, very careful, very respectful of Supreme Court precedent.  He has a strong conservative intellectual approach to things, but he is respectful, honest, and straightforward."  She emphasized that Alito is very respectful of the litigants in the case before the court, and also of the opinions of his colleagues - he always looks for common ground and for opportunities to build consensus.  She added that he is "not out there to accomplish a specific agenda," and noted his respect for "the Supreme Court as an institution."  Incidentally, Alito's "respect for litigants" was echoed in this NPR story that interviewed Clark Lombardi, also a former Alito clerk (I do not know whether Lombardi self-identifies as a liberal or a conservative).  Lombardi emphasized that Alito was very aware of the "human side" of cases, and said that Alito never treated litigants as pawns in a grand ideological chess game.

I wondered what Pringle meant by a "strong conservative intellectual approach."  She elaborated: "he cares a lot about the words of the statute or constitutional provision or contract" involved in the case.  "He starts first and foremost with the words."  Pringle added that Alito is "not interested in being expansive with judicial opinions.  He decides the specific issue in front of him, and is not inclined to go beyond that."

The "deciding specific issues" approach to judicial decisionmaking has been associated with the Justice that Alito would replace, Sandra Day O'Connor.  O'Connor is known for writing very narrow opinions that resolve little more than the precise set of facts presented to the Court - and some have criticized her for that practice, preferring that Justices write expansive opinions laying down broad rules for future cases.  I asked Pringle whether she thought Alito was in "the O'Connor mold" in this respect.  She thought that he was.  She described Alito as "interested in focusing on the immediate case at hand.  He is not someone who is eager to reach out and grab broad principles and institute them separate and apart from the case."  I asked whether Alito might alter his case-by-case approach to judging on the Supreme Court.  Pringle didn't think he would.

If you've heard any news stories about Judge Alito, you've heard that his supposed "nickname" (it remains unclear by whom it was bestowed) is "Scalito," the idea being that he's a "little Scalia."  I asked Pringle if she thought this was fair to Alito.  "No," she said, "I never have."  Pringle noted that Scalia and Alito are of course both of Italian ancestry, are both Catholic, and are both conservative, but she thinks there are more important differences between them including temperament, personal style, and the desire (or lack thereof) to find consensus.  (See also this Time article on the "Scalito" comparison.  My own view, FWIW, is that this "Scalito" business is simply due to two conservative judges having Italian surnames that happen to sound similar.  It is therefore insulting and juvenile and should be dropped immediately - if two Jewish judges' names were subjected to similar wordplay, the "joke" would be widely condemned as anti-semitic.)

Moving into more dangerous territory, I asked Pringle whether she had any sense of how Alito would apply stare decisis (the doctrine counseling respect for precedent) on the Supreme Court.  Her view is that, because of Alito's tremendous respect for the Supreme Court as an institution, he is unlikely to overturn precedent lightly.  Rather, he will grapple with existing precedent, even when he might have decided the original case differently, and will give considerable importance to the opinions and approaches of the Justices that came before him.  She thought that overall Alito's approach would probably resemble that described by now-Chief Justice Roberts in Roberts' confirmation hearings.  As to specifics, Pringle was not willing to hazard a guess as to whether, given the chance, Alito would vote to overrule hot-button cases like Roe v. Wade and Lawrence v. Texas.

Pringle, as I noted earlier, is a liberal Democrat.  I wondered whether her ideological bent was an anomaly in Alito's chambers, or whether Alito routinely hired left-of-center law clerks.  She didn't know whether Alito intentionally hires law clerks with diverse viewpoints, but she did know that she was not alone - a good number of Alito's past law clerks are far more liberal than he is.  She also emphasized that Alito was always asking his clerks for their viewpoints, and that he enjoyed the debate when different opinions emerged on particular cases (this, too, was echoed in the NPR interview with ex-clerk Lombardi).

Pringle's bottom line is a pragmatic one.  Of course, Alito would not have been on John Kerry's or any other Democrat's short list for the Supreme Court.  But, as we all know, John Kerry didn't win in 2004, nor did the Democrats capture a majority in the Senate.  Given that reality, Pringle said, "I'd rather have someone who has real intellectual ability, who has experience, who has a history of making these kinds of difficult decisions, and who has demonstrated respect for the Court as an institution, than a stealth candidate."  And given the other candidates on the "conservative short list," Pringle is optimistic about Alito.  She says that he will treat every case fairly, and that "we'll be proud to have him on the Court."

I assume you mean to reference this:

Isn't the Fourth Amendment in some measure a "right to privacy" in that it prohibits the government from coming into your home and either arresting you or rifling through your possessions unless and until it has a darn good reason to do so?

The Fifth Amednment protects you from incriminating yourself.  That is "privacy" in some sense.

The First Amendment guarantees you freedom of conscience and free expression of your religious views.  That too is a "right to privacy."

My contention is that this reading, while reasonable and certainly not without merit, is ultimately a modern misreading of the "right to privacy".  Ultimately, this leads to the emanations of penumbras of the Constitution that we originalists/textualists resent so much.

As I have written on RS before (and I can't track 'em down right now, being at work), the entire concept of "right to privacy" dates from the 19th century.  As the Founders and their citizen peers understood the meaning of the First, Fourth, and Fifth Amendments, I think it is a real stretch to think they meant our modern concept of "privacy".  Given that at the time of writing the Constitution, all manner of government activities we would have termed invasion of privacy were taking place without anyone raising an eyebrow, it really is difficult to believe that the Founders would have intended to write in a broad right to privacy using code words and implications in the First, Fourth, and Fifth.  Could they have been such hypocrites that they were writing into the Constitution a right to privacy, while acting entirely contrary to what that might mean (for example, by criminalizing adultery)?  I find it hard to believe.

Besides, if they really did mean such a concept of privacy, why not write it in?  I recognize that the argument from the counterfactual isn't the strongest available, but in this case, I think it fits.  The reason is that I think the Founders were truly revolutionary in their political vision, for their time.  Setting forth a right against self-incrimination, for example, at a time when torturing a suspect to confess was routine is indeed revolutionary.  In fact, I believe the Fifth pushed the boundaries of what would have been considered as a "natural right" by 18th century peoples.  To then posit that by providing for a right against self-incrimination, the Founders actually intended to provide a generalized right to privacy, a concept that itself did not exist for another hundred years, is to make a fundamental mistake in interpretation: imposing our modern values on the language of an 18th century document.

To make clear, as to Griswold, I don't argue that there are certain decisions of married people that are off-limits to the government. Of course there are; and of course the government should not intrude. What I do argue is that the Constitution says so.  As dearly as I would wish that it does, fact is that it does not.

The true test of originalism is when one deeply desires to find a right, but cannot and must surrender to the truth.  Privacy is perhaps that touchstone for most originalists -- we really, really want a right to privacy.  But we are forced by the truth that such a right does not exist.

So Griswold is in fact the issue, because it created this 'right of privacy' out of the desire to have one.  Subsequent application to Roe and other cases is, according to the logic of stare decisis, inevitable.  That doesn't mean that Griswold is bad law, oddly enough, or bad policy; it simply means that Griswold is judicial activism, period, and one that is emblematic of the problem when a democracy surrenders policymaking to the judges.

And just to reiterate, the point of my reply to goldwater was that in some cases, the opposition to Griswold has nothing to do with willingness or unwillingness to defeat Roe on "human life" grounds, or with some wish to extend the power of government.  In some cases, the reason for opposition is a painful concession to the truth: there is no right to privacy in the U.S. Constitution.

-TS

The owning human beings as property and the protection of such by the government was one of the things going on at the time the Constitution was written.  Since that time, the Constitution has been amended 17 times, the last such time being in 1992.  During the 19th and the 20th centuries, there were some pretty significant amendments.  You should check out what happened in 1868, for example.  The Constitution includes all 27 amendments and originalism dictates that it be interpreted to include those amendments based on what they meant at the time they were written rather than on what the government was doing in 1789.

Good post.  That post would make a good diary entry, even.

 Many conservatives may agree with the sentiments you expressed. ALL conservatives should agree that the proper venue for such questions should be the legislature, and not the judiciary.

Surrounds himself with liberal law clerks, asks their opinions about cases, and then still issues conservative rulings.  Sounds like someone unlikely to "grow" in office.

that the Court gutted the privileges and immunities clause.  Which may be why we have this substantive due process business to begin with.  I'm not sure about that, though, in that I think substantive due process may have a much more distinguished pedigree than we like to think about.  Not to mention that substantive due process may be the only way to make a dissent in Kelo make any sense at all.

If not the courts deciding what rights are protected by the Ninth, then who?  Clearly Congress can't be responsible for that, since rights are guarantees against action by Congress.  That leaves us with the courts or the executive, and clearly the executive isn't a great way to get rights either.  Which is why I think a reading of the Ninth Amendment as providing a pretty broad liberty right is the only way to make sense of it.

there's certainly more than just those protections.  There's no enumerated right to own an umbrella, wear a hat, or drink coffee - but we all take those as rights.  There is some level of personal conduct that is off limits for the state.  The problem with Roe is precisely that at some point (maybe conception, although that's not my position) it's not a privacy issue any more.

Any constitutional amendment about a right to privacy would have to take a position on abortion.  If the amendment included a right to abortion, conservatives would bring it down.  If the amendment either specifically excluded abortion or made no mention of it, liberals would bring it down.  No way could we get an amendment like that passed.

In a constitutional republic the liberties granted by the constitution can only be altered by changing the constitution according to the rules of that constitution.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Fourteenth Amendment; United States Constitution]

When this amendment was written, was liberty understood as "the right to be let alone?"  Does such liberty include the right of married couples to obtain and use contraceptives?  Chief Justice John Roberts evidently believes it does.  Judge Alito evidently believes that it is "good law" to interpret the constitution as defining and protecting liberty in this way.

In our constitutional republic, it is the proper function of the judiciary to hear and decide upon claims that the privileges or immunities of citizens have been abridged; that persons have geen deprived of life, liberty, or property, without due process of law; or that persons have been denied the equal protection of law.

The French revolution provided a vivid demonstration of how unchecked power can corrupt, even when that power is in the hands of a democratically elected legislature.  This is why they created a framework designed not just to distribute power, but also to limit power.  The "right to privacy" has nothing to do with the distribution of power between federal and state government.  It has everything to do with limiting the power of government to regulate the private activities of citizens.

the regulations wouldn't have to be necessarily "bad" or onerous. The problem for business would be trying to comply with 51 different sets of regulations.

Look at auto insurance, largely state regulated. Is this really the best approach?

The economic forces of globalization might also need to be considered here. Does relying on state and local regulation make us more or less competitive globally? WTO tends to push in the other direction.

Finally, I think you overestimate the ability of various watchdog agencies to monitor state and local government. Look at the Kelo ruling for instance--it's flawed, in my opinion, because it leaves it to state and local authorities to define "public purpose." In reality, state and local authorities have not been terribly accountable in their use of eminent domain authority.

The liberal law clerks could be a problem.    

What bugged me in the speeches were the quotes that you couldn't blame the courts for being activists because the legislatures were not dealing with certain issues that she believed needed attention.

She said that if the legislatures wouldn't deal with the hard stuff, the courts had to step in.

I couldn't disagree more.  If the legislature doesn't suit "We the People", we vote them out.  The courts are not and should not be in the position of fixing perceived failures of the legislative bodies.

And slavery might be a good issue to point out here.

We apparently believed at least in the 1860's that we needed to write an Amendment to the Constitution in order to effect a policy we really, really wanted: namely, ending slavery.  We did not then ask the Supreme Court to simply find that slavery is odious to the Constitution.  We did it the hard way, the right way, by going to the legislature(s).

Same goes for Women's Suffrage.

We should interpret those amendments according to the meaning that those terms would have had at the time they were written/passed.  The 19th Amendment says: "The right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."  A reading of the 19th Amendment as being about whether the voter in question is or is not a virgin is a total misreading, even if our linguistic usage were to change to a point where "sex" only meant "sexual intercourse".  That amendment must be read according to the meaning of its terms at the time of passage, in 1920, when "sex" meant "gender".  Any other reading would be, I think, a misreading.

Keep in mind that originalists have no objection whatsoever to changing the constitution by amendment.  We have objections to changing it by judicial fiat.

-TS

I find it difficult to believe that in a post-Griswold era, liberals would rather have NO constitutional right to privacy than to have all the rights to privacy, except for abortion.

I would think most people would choose to fight the abortion battle elsewhere, and settle for an amendment dealing with core privacy concerns.

-TS

I agree that there is much more at stake than Roe, and that perhaps Roe gets too much attention (but then again, as perhaps the worst symptom of a bad disease, maybe it doesn't).  And while Roe should be overturned for the simple reason that it is an awful decision, and an outrageous usurpation of power by the judiciary, if Alito (and Roberts) were to stop short of overturning Roe, but would allow the post-first trimester restrictions Roe was supposed to allow, and would be good on other issues, which is to say he wouldn't set similarly bad precdent on other matters, then all in all I'd still consider him to be a good pick.

But how likely is this?  Roberts is thought to be of this same mold by many, but is there much to base that hope on?  Just take O'Connor and Kennedy; they have not restrained their bad decisions solely to upholding Roe, but have also sided with the Left and issued activist rulings on other issues, sometimes together, while other times its just one of them.  Whether its capital punishment, the homosexual agenda, racial preferences, or private property, these two have been decisive in the triumph of a whole host of bad decisions.

It seems the only reliable votes for good jurisprudence have been from the three who stood ready to overturn Roe -- Rehnquist, Scalia, and Thomas.

I haven't read it, but I have heard the author on various shows talking about it.  From those talks, I'd say the general message is that cultural conservatives let meaningless 'values' concerns lead them to vote against their economic interests, and that if they are willing to unconditionally surrender on all matters in the Culture War and vote Democratic, then they'll be rewarded with a lot of govt services.

As Scalia has said, you don't need the Constitution to 'evolve' (i.e. be read to benefit the Left in the Culture War) to grant new rights, all you need is to win in the proper democratic channels within the republic.  The people can vote in a right to abortion.  They can vote for recognition of gay marriage.  They can vote to abolish capital punishment.  And if they do, then the federal govt should not be able to come in and strike down that newly recognized right.  

The problem for the Left is that most people in most states would have a very different idea of what type of unenumerated rights exist, and of what 'liberty' entails, than the Left has.  

that liberals already have the right to privacy from Griswold et al, and it currently includes abortion.  If we pass an amendment to end debate, then the liberals will effectively be conceding that there isn't a right to privacy in the current Constitution, which makes it even more important to them that they protect abortion.  Without the amendment, everything is pretty safe.  With an amendment that doesn't mention abortion, there's a much better chance that a court will overturn Roe.  By accepting an amendment they're admitting defeat.  That's only possible if they get to keep abortion.

Do you mean when the Supreme Court reverses Griswold?  If that doesn't happen, you gonna whine about being "Soutered"?

I'll say it again.  Failure to understand the judicial philosophy of key players may lead to political strategies that work against rather than with a conservative court.  

So what conclusion does your version of originalism lead you to with respect to Dred Scott?  Given the Constitution as it existed at the time, do you believe Dred Scott was properly decided?

Because they relied on the extra-constitutional idea of "substantive" due process.

The Founders weren't omnipotent gods. They made mistakes. And the fact that they did their best to ignore slavery when they wrote the Constitution left a deep, dark hole in the fabric of the nation, which it took the Civil War to fill and heal.

Hence also the 13th Amendment: slavery could have been ended by any legitimate action of the Supreme Court.

Since the Constitution did not define slaves as citizens it would have been "legislating from the bench" had Dred Scott been resolved in the direction we ould have wished by a determination that slaves were citizens.

I note that some of the originalists here recoil from the gruesome fact. But if anyone is going embrace originalism as a philsopphy they should be willing to admit that an honest originalism requires the Court to embrace the flaws in the Constitution and to affirm injustice and even folly, the remedy of which is to be found not in the juustices taking liberty with the law, but with the legislators amending the law (or perhaps the Constitution itself if need be.)

But you elide over the creation of substantive due process, which is the undergirding of the ruling, and it extraconstitutional on its face.

is meaningless?

How about this then: There is no explicit right to property mentioned as such in the Constitution either. Does that mean that property rights are not to be respected by the government?

No, the 9th Amendment means something, specifically that one cannot make the argument "There is no right to X because it isn't mentioned as such in the Bill of Rights." That is in fact the originalist argument here since the founders were pretty clear and consistent in their philosophy of rights.

Meanwhile back to abortion: getting rid of Roe vs Wade does not require getting rid of Griswold. In fact that would be vastly more difficult and would face an enormous public backlash even from conservative constituencies. Overturning Roe vs Wade requires only that we recognize some minimal claim to personhood on the part of the fetus. That is much easier a case to make, and much less controversial.

Why assault Mt Everest when San Juan Hill is the easier route to victory?

but the fundamental question in Dred Scott was whether Scott had any standing to bring the case at all. Does anything in the Constitution suggest that slaves had such standing? Certainly the full weight of precedent at the time would suggest not.

It's the threshold question; and on the rest, you're right.

with Aleks and Thomas' discussion above.  Given the constitution as it existed at the time, Dred Scott -- a horrible law, and a horrible policy -- was correctly decided.

-TS

And yes, I do mean when the SCOTUS reverses Griswold, if that were ever to happen.  As long as Griswold is on the books as binding law, why bother with any sort of constitutional amendment or law or anything else?  The debate is over and frozen and done with -- the Kings of the High Court have ruled, and we peasants must obey.

Look, I'm pretty sanguine about the chances of true judicial originalism happening in these United States.  I don't see why that means we should simply give in, give up, and turn our attention towards getting 'our kind of activists' on the Courts.  There's no real joy in replacing one set of Kings with another set, at least not for me.

There's no failure to understand the judicial philosophy here; merely a failure to accept it (maybe) as carved in stone and immutable.

-TS

The thing that bothers me most about the way conservatives talk about the Supreme Court.  When they say, "I've read the Constitution and there's no right to privacy," I just cringe.  The Ninth Amendment exists specifically to head off anyone saying anything so patently ridiculous.

to watch conservatives pick and choose where they're going to reject substantive due process.  They're all dissenters on Kelo, but ignore the fact that the only way not to reach the majority's decision in Kelo is substantive due process.

is a rule of construction, not a source of rights.  This has been fairly well settled among legal scholars for quite some time, although recent moves have, certainly, argued that the Ninth should be.  A cursory start can be had here:

It is clear from its text and from Madison's statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.

Now, my personal take on all this is to be faithful to the text as it meant at time of writing.  Property, by the way, is specifically mentioned in the Constitution, in the Fifth Amendment's Takings clause.  It is also mentioned in the Third Amendment ("any house, without the consent of the Owner"), and arguably (stretching here) in the Second Amendment as well.  But if you want to argue that the government can't prohibit picnics because the right to picnic is among the 'unenumerated rights' of the Ninth, well, I would start the inquiry with whether the Founders at the time of writing would have reasonably considered picnicking to be a fundamental human right.

The Ninth Amendment is merely a rule of construction; it isn't meaningless, but it isn't this unending fountain of rights either.

So my argument (and I won't say this is the originalist argument) is that the right to privacy does not exist because it is nowhere mentioned in the Constitution and the whole concept of a privacy right would have been entirely foreign to the Framers and their society at large at the time they wrote the document.

Overturning Roe v. Wade on the basis of recognizing personhood on the part of a fetus might seem easier to you.  However, that strikes me as judicial activism of the worst sort.  How nine lawyers can be said to be possessed of the knowledge and expertise and philosophical understanding to know precisely when a bundle of cells becomes "human" is completely beyond me.  That sort of policy decision is, in my opinion, the province of the legislature(s) where debate, scientific testimony, consideration of public morals, economics, whatever-else, can take place.  This is why Originalists are willing to assault Mt. Everest with social conservatives; because it's the right thing to do.  If you want to take San Juan Hill instead, you'll be doing it with the opposition of those of us who believe judges are not meant to rule, but to interpret; and you'll be giving up the high ground of actually being right about the role of the judiciary in our democracy.

-TS

Re: Now, my personal take on all this is to be faithful to the text as it meant at time of writing.

None of the words in the 9th Amendment have changed their meanings since the late 18th century, nor has English synatx or grammar changed in any way that would render the words as a whole different from what they meant in 1791. Your stipulation above is a red herring.

Re:  How nine lawyers can be said to be possessed of the knowledge and expertise and philosophical understanding to know precisely when a bundle of cells becomes "human" is completely beyond me.

Presumably this is a matter of simple fact and as such it ought be beyond the purview of any agent of the govrenment, just as no legislator or judge could change "2+2=4" or alter the velocity of light. It is not activism to recognize matters of simple factual reality. We trust judges to know what "arms" are when reviewing cases under the 2nd Amendment and to know what "the press" is under the 1st Amendment. I don't see why it's any more of a stretch to trust them to know what a human being is. Indeed, the idae that governments have the power to define huamn beings out of their humanity strikes me as a very pernicious legal theory, and I would be surpised to find anyone with pro-Life beliefs arguing otherwise.

Re; This is why Originalists are willing to assault Mt. Everest with social conservatives; because it's the right thing to do.

It's also going to fail disastrously, leaving the abortion license in place and possibly exiling the GOP to the outer darkness politically. We can make a convincing case that fetuses are deserving of the same basic human rights as the rest of us. You will be laughed to scorn (and should be denied the use of the term "conservative") if you start insisting the people have no rights that limit the power of the government to meddle in their personal lives.

While I agree wholeheartedly with your first sentence, and for that matter, most of your post, I question your conflation of two concepts: liberty and privacy.

I know that for you and for many others the two are same legal concepts.  I beg to differ, even while I agree that from a POLICY standpoint, liberty without privacy may not be liberty at all.  You can have a good deal of privacy without being free; and you can be free without having all privacy rights.  Inmates may have privacy rights; and ostensibly free citizens (e.g., sex offenders) may have none.  The two are separate and separable.

Suffice to say that I would like my privacy rights guaranteed, not by ungrounded and unjustified acts of the judiciary, but by the legislature.  Where the judiciary needs to act is to protect the Constitution from unlawful infringement and/or abridgement by the legislature and the executive; it is most definitely NOT to extend the Constitution by fiat.

-TS

Re: None of the words in the 9th Amendment have changed their meanings since the late 18th century

I daresay that the meaning of the word "right" as in "unenumerated rights" has changed quite significantly since the 18th century.

Re: It is not activism to recognize matters of simple factual reality.

It is indeed judicial activism to recognize matters of disputed factual reality, without subjecting the decision to open debate and democratic revision that a legislative process does.  If we as a society want to define human life as beginning at conception, we have the power to do so by debating it; bringing in the best evidence from various fields of science, philosophy, religion, ethics, whatever; arguing with each other; and ultimately convincing the majority of people to vote our way.  That is a far cry from having five out of nine lawyers decide for us.

I suppose if we as a society get to a point where no dispute exists as to the facts -- as we might in the case of what constitutes 'arms' for a Second Amendment case -- we might be willing to leave that up to judges.  We're not there now.

Re: We can make a convincing case that fetuses are deserving of the same basic human rights as the rest of us. You will be laughed to scorn (and should be denied the use of the term "conservative") if you start insisting the people have no rights that limit the power of the government to meddle in their personal lives.

You can make that case, yes, but in the legislative arena where it belongs.  To do it through the courts is no different than what the liberals have done for the last fifty years.  And if anyone should be denied use of the term "conservative", I would think it is he who suggests doing as the liberals do with our courts.  But if "conservative" does one day come to mean "unprincipled trampling on democracy to achieve a policy goal" why, I suppose I'll have to let go of that label.

-TS

To watch stupid people engage in the logical fallacy that because many members of Group A do something, all members of Group A do that.

And look! An example!

The way not to reach the majority's opinion is to avoid substantive due process and incorporation all at once. Ta da.

Try coming back when you understand elementary Constitutional law.

what you're talking about.  Without substantive due process or incorporation it is downright impossible for the Supreme Court to stop the states from doing just about anything.  Pray tell how you'd stop New London from seizing whatever it damn well pleases without reference to either (or both) of those.

Without substantive due process or incorporation it is downright impossible for the Supreme Court to stop the states from doing just about anything.

Not really true -- the Thirteenth, Fourteenth, Fifteenth, Nineteenth, and Twenty-Fourth Amendments, are not mere gloss.

And at any rate, we were talking about the result of Kelo. Because of incorporation and "substantive" due process, now, a bad decision is binding on all the States.

Pray tell how you'd stop New London from seizing whatever it damn well pleases without reference to either (or both) of those.

Well, admittedly, I'm a really outside the box thinker, but, assuming I cared, which I ordinarily wouldn't, because I don't live in New London and have absolutely no desire to live there (but thanks to incorporation, their pathetic government just made my life more difficult!) I'd (1) petition for redress of my grievance at the municipal level, (2) protest, (3) petition for redress at the state level, or (4) sue them in State Court.

Kinda cutting-edge, I know, but running to Big Daddy Supreme seems kinda inappropos. And, apparently, has unintended consequences! Who woulda figured?