From the list custodian RE: A Stealth O'Connor or Souter After All?

Sat Aug 6 14:05:58 PDT 2005

Like our list custodian, I do not wish to see a partisan slugfest on the list.  However, I would like to see additional commentary on the general issue of drift.  In particular, I wonder if we are all talking about the same kind of drift.  There seems to be at least two kinds of drifts.     

Assume that at Time 1, Justice 1 says a constitutional provision may mean A or B or C and therefore any statute consistent with any of the three meanings is constitutional.  At Time 2, Justice 1 says that he was wrong about interpretation C and therefore only statutes consistent with meanings A or B are constitutional.  Justice 1 indicates that his change in heart is based on his rethinking of the constitutional provision based on his lurking on the Conlawprof list.  This drift is issue-based, but may be taken to be ideology-based depending on whether interpretation C is championed by liberals or by conservatives. 

The other drift relates to changes in ways of thinking about the Constitution and ways of deciding cases under the Constitution.  Assume that Justice 1's change of heart noted in the previous paragraph was based on a change in the documents he views as relevant to constitutional interpretation.  At time 1, the justice focused on the text of the constitutional provision and any other relevant text in the Articles and Amendments to the Constitution.  At time 2, the justice consulted the text of the Articles and Amendments of the Constitution as well as the Declaration of Independence and the Preamble of the Constitution. This drift is methodology-based, but may still be treated as ideology-based depending on whether interpretation C is championed by liberals or by conservatives.    

I think these drifts may not really be drifts in the perjorative sense.  But more importantly, I think they can be easily (and improperly) conflated.    

-Hank 

Henry Chambers
University of Richmond   

	-----Original Message----- 
	From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene 
	Sent: Sat 8/6/2005 12:13 PM 
	To: conlawprof at lists.ucla.edu 
	Cc: 
	Subject: From the list custodian RE: A Stealth O'Connor or Souter After All?

	        Folks:  This thread is in danger of turning into a partisan
	slugfest.  It hasn't yet, but I have a nose for these things.  Let's try
	to avoid the generalities to which we can all make the rebuttals in our
	sleep, and stick with concrete points and detailed arguments that are
	actually capable of persuading or enlightening people.

	        The list custodian

	> -----Original Message-----
	> From: conlawprof-bounces at lists.ucla.edu
	> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scott Gerber
	> Sent: Saturday, August 06, 2005 8:26 AM
	> To: Paul Finkelman
	> Cc: Greg Magarian; conlawprof at lists.ucla.edu
	> Subject: Re: A Stealth O'Connor or Souter After All?
	>
	>
	> I'm entering this discussion late, but I object to Paul Finkelman's
	> apparent contention that arguments advanced by the Right are not
	> "enlightened" and that only those on the Left are.  The
	> Constitution is
	> more complicated than that.
	>
	> Scott Gerber
	> Law College
	> Ohio Northern University
	>
	>
	> Paul Finkelman wrote:
	>
	>
	> >Perhaps conservatives move to the left on the Supreme Court because
	> they
	> >high level of intellectual discourse by sharp attorneys makes them
	> think
	> >outside the narrow box that they have previously been in; and thus,
	> they
	> >get a broader view of the world (a less conservative view)
	> and realize
	> >the assumptions they brought to the court about such things
	> as denying
	> >rights to gay people, women, and blacks, are just plain wrong.
	> Obviously
	> >not all convervatives become so enlightened through argument and
	> >thinking, but some do.
	> >
	> >Paul Finkelman
	> >
	> >>
	> >>     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 Sacram! ento, 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 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 wou! ld 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
	> >>
	> >>     > 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 constitutio! nal 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 Scal! ia doing something comparable? I
	> surely can't.
	> >>
	> >>     > >
	> >>
	> >>     > > Dan Pinello
	> >>
	> >>     > > _______________________________________________
	> >>
	> >>     > > To post, send message to Conlawprof at lists.ucla.edu
	> >>
	> >>     > > To subscribe, unsubscribe, change options, or get
	> password,
	> >> see
	> >>
	> >>     > > http://lists.ucla.edu/cgi-
	> >>
	> >>     > bin/mailman/listinfo/conlawprof
	> >>
	> >>     > >
	> >>
	> >>     > > Please note that messages sent to this large list cannot be
	> >>     viewed
	> >>
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	> >>
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	> >>     can
	> >>
	> >>     > read the Web archives; and list members can (rightly or
	> >> wrongly)
	> >>
	> >>     > forward the messages to others. >
	> >>
	> >>     >
	> >>
	> >>
	> >>
	> >>
	> >>     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
	> >>
	> >>
	> >>
	> >>     _______________________________________________
	> >>
	> >>     To post, send message to Conlawprof at lists.ucla.edu
	> >>
	> >>     To subscribe, unsubscribe, change options, or get password, see
	> >>     http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
	> >>
	> >>
	> >>     Please note that messages sent to this large list
	> cannot be viewed
	> >>     as private. Anyone can subscribe to the list and read messages
	> >>     that are
	> >>     posted; people can read the Web archives; and list members can
	> >>     (rightly
	> >>     or wrongly) forward the messages to others.
	> >>
	> >>
	> >>
	> >>     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
	> >>
	> >>     __________________________________________________
	> >>     Do You Yahoo!?
	> >>     Tired of spam? Yahoo! Mail has the best spam protection around
	> >>     http://mail.yahoo.com
	> >>     _______________________________________________
	> >>     To post, send message to Conlawprof at lists.ucla.edu
	> >>     To subscribe, unsubscribe, change options, or get password, see
	> >>     http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
	> >>
	> >>     Please note that messages sent to this large list cannot be
	> >> viewed
	> as
	> >>     private. Anyone can subscribe to the list and read
	> messages that
	> are
	> >>     posted; people can read the Web archives; and list members can
	> >>     (rightly
	> >>     or wrongly) forward the messages to others.
	> >>
	> >>     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
	> >>
	> >>     ---------------------------------
	> >>     Start your day with Yahoo! - make it your home page
	> >>
	> >>
	> >>
	> >> 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
	> >>
	> >>
	> --------------------------------------------------------------
	> ----------
	> >> Start your day with Yahoo! - make it your home page
	> >> <http://us.rd.yahoo.com/evt=34442/*http://www.yahoo.com/r/hs>
	> >>
	> >>------------------------------------------------------------
	> ----------
	> >>--
	> >>
	> >>_______________________________________________
	> >>To post, send message to Conlawprof at lists.ucla.edu
	> >>To subscribe, unsubscribe, change options, or get password, see
	> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
	> >>
	> >>Please note that messages sent to this large list cannot be
	> viewed as
	> private.  Anyone can subscribe to the list and read messages that are
	> posted; people can read the Web archives; and list members
	> can (rightly
	> or wrongly) forward the messages to others.
	> >>
	> >
	> >
	> >--
	> >Paul Finkelman
	> >Chapman Distinguished Professor of Law
	> >University of Tulsa College of Law
	> >3120 East 4th Place
	> >Tulsa, OK  74105
	> >
	> >918-631-3706 (voice)        
	> >918-631-2194 (fax)
	> >
	> >Paul-Finkelman at utulsa.edu
	> >
	> >
	> >
	>
	>
	> --------------------------------------------------------------
	> ----------
	>
	>
	> _______________________________________________
	> >To post, send message to Conlawprof at lists.ucla.edu
	> >To subscribe, unsubscribe, change options, or get password, see
	> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
	> >
	> >Please note that messages sent to this large list cannot be viewed as
	> private.  Anyone can subscribe to the list and read messages that are
	> posted; people can read the Web archives; and list members
	> can (rightly
	> or wrongly) forward the messages to others.
	>
	> --------------------------------------
	>
	> Scott Gerber
	> Law College
	> Ohio Northern University
	> Ada, OH 45810
	> 419-772-2219
	> http://www.law.onu.edu/faculty/gerber/
	> _______________________________________________
	> To post, send message to Conlawprof at lists.ucla.edu
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	>
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	>
	_______________________________________________
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