A Stealth O'Connor or Souter After All?

Trevor Morrison trevor-morrison at postoffice.law.cornell.edu
Fri Aug 5 08:49:29 PDT 2005


I agree with Marty.  Mostly I was meaning to concede that some in the 
first Bush administration were likely hoping Souter would be more 
conservative than he has turned out to be (hence the "especially if . 
. ." part of my last post).  But I agree that the admiration Souter 
expressed for Harlan during his confirmation hearings is consistent 
with his Harlanesque work on the Court since then.  And that 
consistency just further goes to show how ridiculous it is to suggest 
that Souter has "drift[ed] left because [he is] weak and crave[s] 
acceptance by the liberal establishment of the Beltway."

At 11:40 AM 8/5/2005, marty.lederman at comcast.net wrote:
>I don't know much about Warren Rudman's jurisprudence ;-) -- but I 
>think Souter was very transparent at his confirmation hearings: He 
>made no bones about his profound respect for, and his intent to 
>emulate, (the Second) Justice Harlan -- and I think that in most 
>respects, that's exactly what he's done (particularly w/r/t privacy 
>and substantive due process (see esp. Glucksburg/Vacco)).  In 1969, 
>Justice Souter would have been (as Justice Harlan was) on the right 
>wing of the Court.
>
>
> > Except on  the issue of federal power, has Souter really moved?  My
> > impression is that he was a Warren Rudman-type Republican to start with.
> >
> > At 11:13 AM 8/5/2005 -0400, you wrote:
> > >I've heard before this notion that "Republican Justices who come to the
> > >bench from the provinces (NH, AZ, even CA) drift left because they are
> > >weak and crave acceptance by the liberal establishment of the
> > >Beltway."  Without engaging the AZ (O'Connor) or CA (Kennedy) examples,
> > >the NH one (Souter) is truly preposterous.  We can all agree, I assume,
> > >that Justice Souter has moved somewhat towards the middle-left during his
> > >time on the Court, especially if compared to the place on the political
> > >spectrum that some in the first Bush administration may have assumed he
> > >was going to occupy.  But the idea that he has done this to ingratiate
> > >himself with the "liberal establishment of the Beltway" is
> > >ridiculous.  Ask any Souter clerk (or anyone else who knows him, for that
> > >matter), and the picture you get is of an intensely private man who
> > >prefers the solitude of his books to the social circles of DC's supposed
> > >"liberal establishment."
> > >
> > >At 10:42 AM 8/5/2005, Rick Duncan wrote:
> > >>That was another part of Stone's incredible arrogance--the reason the
> > >>Kennedys of the world drift left is that left is the true north of the
> > >>compass of truth, and when new Justices come to the Court their moral
> > >>vision improves. Others think that Republican Justices who come to the
> > >>bench from the provinces (NH, AZ, even CA) drift left because they are
> > >>weak and crave acceptance by the liberal establishment of the 
> Beltway. My
> > >>friend and sometimes colleague David Wagner blogged briefly about this
> > >>over at Ninomania recently and concluded:
> > >>
> > >>"His {Robert's] philosophical credentials my at first glance seem less
> > >>than Justice Kennedy's (Kennedy used to represent the 
> California Catholic
> > >>bishops on life issues back in Sacramento, didn't he?), but otoh Roberts
> > >>has one thing that has been proved necessary for reliability on the
> > >>Supreme Court: Washington experience. Not to put too fine a point on it,
> > >>if they were gonna get him, they'da got him."
> > >>
> > >>Roberts may well have helped a colleague out of professional courtesy in
> > >>Romer, but like Scalia he is a "fool for Christ" and is married to a
> > >>"fool for Christ." I think he will vote like Scalia, but reason 
> with more
> > >>light and less heat. In other words, he will be a Scalia with one
> > >>important difference-- he will influence weaker minds (like Kennedy)
> > >>rather than frighten them to seek cover in the opposing camp. A Scalia
> > >>with multiple votes, perhaps?
> > >>
> > >>Rick Duncan
> > >>
> > >>
> > >>Lupu <iclupu at law.gwu.edu> wrote:
> > >>Marty omitted Geoff Stone's most intriguing prediction -- that
> > >>Roberts, like O'Connor, Kennedy, Souter, and several others, would
> > >>likely "drift left" over his time on the Supreme Court, as he is
> > >>exposed to the variety of injustices that government may inflict on
> > >>individuals (and, I might add, to the pull of precedents that he would
> > >>have rejected as an original matter but now feels compelled to
> > >>follow -- compare Scalia on "incorporation" of Bill of Rights
> > >>provisions). An "ideologue" like Scalia or Thomas may be unmoved
> > >>by experience, but Stone suggests that Roberts will indeed be
> > >>affected by it. Isn't that a sensible basis to prefer Roberts over an
> > >>"ideologue"? Or is it more likely that Roberts will develop in the way
> > >>that Rehnquist did -- pragmatic and flexible up to a point, but with a
> > >>hard and unyielding core of conservative commitments?
> > >>Chip Lupu
> > >>P.S. I know that this sort of prediction game is fun, but it's quite
> > >>extraordinarily foolish, isn't it? I would venture that many of us
> > >>writing these posts don't know what we ourselves would do if
> > >>suddenly faced with the responsibility of deciding hard (and, at this
> > >>moment, unforeseeeable) cases.
> > >>
> > >>On 5 Aug 2005 at 8:54, 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 ofdoing 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
> > >> > thanScalia 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
> > >> > 
> (<http://www.chicagotribune.com/news/opinion/chi-0507270014jul27,1,1899>http://www.chicagotribune.com/news/opinion/chi-0507270014jul27,1,1899
><http://www.chicagotribune.com/news/opinion/chi-0507270014jul27,1,1899>>  
> >> > 219.story?coll=chi- news-hed), 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; andendorse
> > 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 legal reason."
> > >> >
> > >> > 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 thatif 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
> > >> > asStone 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, andbecause
> > >> > he's not a flamethrower, Rehnquist has been far mo! re effective
> > >> > atdestroying many pillars of the Warren Court edifice than Scalia and
> > >> > Thomas could ever be. (And it didn't start when he became Chief --
> > >> > recallthat 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, etc.)
> > >> >
> > >> > 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."(Fiv! e such Justices, on the otherhand,
> > >> > would be another matter entirely . . . but we're not yet at that
> > >> > point.)
> > >> >
> > >> > ----- Original Message ----- From:
> > >> > To: "ConLaw Prof"
> > >> > 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
> > >> > > _______________________________________________
> > >> > > To post, send message to Conlawprof at lists.ucla.edu
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> > >> >
> > >>
> > >>
> > >>Ira C. ("Chip") Lupu
> > >>F. Elwood & Eleanor Davis Professor of Law
> > >>The George Washington University Law School
> > >>2000 H St., NW
> > >>Washington D.C 20052
> > >>(202) 994-7053
> > >>ICLUPU at main.nlc.gwu.edu
> > >>ICLUPU at law.gwu.edu
> > >>
> > >>_______________________________________________
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> > >>
> > >>
> > >>
> > >>Rick Duncan
> > >>Welpton Professor of Law
> > >>University of Nebraska College of Law
> > >>Lincoln, NE 68583-0902
> > >>
> > >>"When the Round Table is broken every man must follow either Galahad or
> > >>Mordred: middle things are gone." C.S.Lewis, Grand Miracle
> > >>
> > >>"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or
> > >>numbered." --The Prisoner
> > >>
> > >>__________________________________________________
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