A Stealth O'Connor or Souter After All?
emaltz at camden.rutgers.edu
Fri Aug 5 07:17:47 PDT 2005
First, let me say that I agree with much of what Marty. Given that
constitutional jurisprudence for the next several years is likely to focus
on the question of can we convince Justice Kennedy, I think that (based on
the little that I know) Roberts is temperamentally better suited than
either Scalia or Thomas to the task. However, I would also invite all of
you to follow the link and make your own judgment about Stone's pompous,
offensive Op-ed. Among the statements made by Stone are
1. A person is out of the "constitutional mainstream" if he believes that
Roe should be overruled.
I am something of an agnostic on the question of abortion as a
matter of public policy. However, like many of the people on this
list, I believe that, as constitutional law, it is an
abomination. (Although, personally overruling the case would do more harm
than good at this point).
2. Originalism is also out of the mainstream. It is a "vacuous ideology,"
a "disingenuous approach to constitutional interpretation."
Compared to what? Oh, yeah--an approach that fulfills "[the
Constitution's] promise of fairness, equality, liberty and individual
dignity." Or in other words, the social program of the "moderate" wing of
the Democratic party. I guess that's in the lost Article VIII.
Let me be clear--I do not believe that anyone on the Court is a
consistent originalist. But that doesnt't condem originalism as a methodology.
I could go on and on--but I won't. Stone is, of course, entitled
to his opinion about the right way to interpret the Constitution. What is
objectionable is setting himself up as the high priest of theoretical
orthodoxy, and then sniffing at those who disagree with him as "outside the
At 08:54 AM 8/5/2005 -0400, Marty Lederman wrote:
>Has anyone so much as suggested that Roberts would be anything like
>Scalia? >From all the evidence I've seen, I'd say he is instead very much
>a modern-day version of Rehnquist (circa 1972), albeit without WHR's
>dubious background on racial issues, and with even more acute smarts and
>more impressive writing skills. (Hard to imagine WHR writing Notes such
>as those Roberts published in the HLR -- or briefs of the quality of
>Roberts's.) And yes, I can imagine Rehnquist, while at OLC, having
>assisted the SG in preparation for a case in which WHR did not agree with
>the Government's position -- or of doing the same in a law firm, had that
>been the route he chose. As I suggest below, the fact that Rehnquist and
>Roberts are very comfortable playing within the establishment SCOTUS rules
>of engagement -- rather than throwing brickbats from the outside -- is
>what makes them much more effective than Scalia and Thomas.
>If Roberts is much more akin to WHR than to Scalia or Thomas -- and I
>think that he is -- what follows from that? Well, I think Geoffrey Stone
>got it just about right in an Op-Ed last week
>in which he predicted that Roberts would likely vote to do most of the
>following: to eviscerate Roe vs. Wade; reject the rights of homosexuals;
>narrow the scope of affirmative action; expand the role of religion in
>public life; and endorse the so-called "new federalism." "But if he
>does," Stone assures us, "it will be in an open-minded, rigorous,
>intellectually honest manner, rather than as an ideologue whose
>constitutional principles derive more from fiction and faith than from
>Stone writes this as if it were a good thing, a reason to prefer Roberts
>to a Scalia/Thomas absolutist such as (presumably) Luttig, Jones or
>Brown. Indeed, he concludes that if Roberts "is, in fact, the person I
>have described, . . . he should be warmly embraced as the best the nation
>could expect from this administration--a brilliant, decent individual with
>superb legal skills and without a rigid ideological agenda. Unless and
>until we learn otherwise, organizations like MoveOn.org and the Alliance
>for Justice should stay their hand and accept the 'win' that is John Roberts."
>I have great admiration for many of Roberts's skills and personal
>attributes -- it's hard to imagine a better Supreme Court briefwriter and
>advocate, and from what I've seen, Stone is correct that Roberts is "a
>brilliant, decent individual with superb legal skills and without a rigid
>ideological agenda." But "warm embrace" for his nomination? I'm not sure
>why I should feel especially mollified by the fact that when Roberts
>rewrites the constitutional map as thoroughly as Stone predicts he may,
>he'll do so "in an open-minded, rigorous, intellectually honest
>manner." Because he is not a doctrinal absolutist, because he plays the
>game so well within the system, because he is so tactical and shrewd, and
>"rigorous," because he's so personable and well-liked and admired by his
>colleagues, and because he's not a flamethrower, Rehnquist has been far
>more effective at destroying many pillars of the Warren Court edifice than
>Scalia and Thomas could ever be. (And it didn't start when he became
>Chief -- recall that he was quite effective very early in his career, not
>merely in the famous "lone dissents" that paved the way for the Federalism
>"revolution," etc., but in the way he quickly transformed doctrines of,
>e.g., state action, justiciability, abstention, standing, remedial powers,
>implied causes of action, Executive power, statutory construction, habeas,
>For these same reasons, from the standpoint of the Bush Administration,
>Roberts is not only a perfect nominee, he's the optimal Justice of the
>Supreme Court. For those of us with a very different constitutional
>vision . . . I'm not sure we wouldn't be better off with "an ideologue
>whose constitutional principles derive more from fiction and
>faith." (Five such Justices, on the other hand, would be another matter
>entirely . . . but we're not yet at that point.)
>----- Original Message -----
>From: <<mailto:dpinello at jjay.cuny.edu>dpinello at jjay.cuny.edu>
>To: "ConLaw Prof"
><<mailto:conlawprof at lists.ucla.edu>conlawprof at lists.ucla.edu>
>Sent: Friday, August 05, 2005 7:47 AM
>Subject: A Stealth O'Connor or Souter After All?
> > The recent revelation that John Roberts served as a pro bono oral-
> > argument coach for Jean Dubofsky, the lead attorney for the prevailing
> > side in Romer v. Evans, should put James Dobson & Friends in a panic.
> > At minimum, this means that Roberts isn't a homophobe and has an open
> > mind on gay rights issues. Can anyone imagine Antonin Scalia doing
> > something comparable? I surely can't.
> > Dan Pinello
> > _______________________________________________
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