A Stealth O'Connor or Souter After All?

[RJLipkin at aol.com]

In a message dated 8/5/2005 8:55:37 AM Eastern Standard Time,  
marty.lederman at comcast.net writes:

it will be in an open-minded, rigorous, intellectually honest  manner


My problem with this  remark, especially as someone who writes and teaches 
constitutional  jurisprudence, is that, frankly, I don't know what it means in 
the  context of judicial decision-making.  Before condolences for the death of  
my already impoverished intellect begin arriving, let me focus my  problem.  
Suppose a majority of the Court rejects affirmative action,  abortion, you 
name it, and both Justices Roberts and Scalia sign on to the  majority 
opinion--that is, neither writes an opinion--how would Justice Roberts'  process of 
deciding his vote differ from Justice Scalia's?  If this  hypothetical is 
unfair--and I do not think it is--suppose both write opinions.  Is it likely that we 
will be able to point to various phrases, sentences, lines  of argument that we 
have any hope at all of arriving at a consensus over when  each Justice is or 
is not "open-minded" or "rigorous" or "intellectually  honest?  And if so, is 
there are identifiable and articulatable method that  this consensus embraces 
which expresses how it arrives at its conclusions?   If there is, please send 
it to me immediately so that I can understand Professor  Stone and others who 
engage in the above and similar discourse.
 
        Don't get me wrong! I  understand the words "open-minded, "rigorous," 
and "intellectually honest;"  indeed, I even use this terms and hope they 
sometimes apply to me.  But I'd  be at a loss to describe my method for using 
them, one that I think with only  minor modification would be accepted by most 
constitutional players.
 
Bobby
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20050805/044cb409/attachment.html