The Democratic Party's Court

[earl maltz]

I understand the coherent (but completely ahistorical) thoery of the one 
person, one vote cases.  But what coherent theory underlay the Warren 
Court's criminal proceudure decisions?

At 01:37 PM 6/20/2006 -0400, Mark Graber wrote:
>Let me push this in a way that I suspect will generate some dispute.
>Increasingly, within political science and law (see Balkin and Levinson)
>in particular, there is a sense that successful partisan coalitions are
>entitled to pack the courts with people who support their constitutional
>vision, that what courts are likely to be doing during periods of normal
>politics are working out constitutional disputes between members of the
>dominant coalition, not protecting minorities from the majority
>coalition.  See, for example, Mark Tushnet's book on the Rehnquist
>Court.  Still, one might argue that while courts may legitimately pursue
>the constitutional vision(s) of the dominant national coalition, one
>might insist that they pursue that agenda as a court, and not the way an
>elected official may broker deals between different constituency.  So
>consider the following claim.  The Warren Court advanced an agenda of
>the liberal wings of the Democratic and (for a while) Republican party,
>but as numerous academics, most John Hart Ely, have demonstrated, did so
>consistently with a broader constitutional vision.  The vision was, of
>course, contestable, but at least was as internal coherent as any
>constitutional vision is.  There are a great many internally coherent
>conservative visions at present, witness Randy Barnett or John Noonan,
>but Scalia and Thomas (now joined by Alito and Roberts) do not seem to
>be motivated by any of these visions, that is to say there seems to be
>no good explanation as to when they are statist and when they are
>libertarian other than these decisions fit with the set of compromises
>that make up the contemporary conservative Republican movement.  At
>least that is the argument.  So the question is, can someone describe
>the governing principles of the Thomas/Scalia range (other than find the
>most conservative historian possible).
>
>Mark A. Graber
>
> >>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 06/20/06 1:16 PM >>>
>         I take Mark's point about "the liberal wing" as a friendly
>amendment.  People should definitely call the current court "the
>Republican Party's Court," if they are also willing to call the Warren
>Court "the liberal wing of the Democratic Party's Court."
>
>         Eugene
>
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