A Stealth O'Connor or Souter After All?
RJLipkin at aol.com
RJLipkin at aol.com
Fri Aug 5 10:17:16 PDT 2005
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
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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