originalism and moral skepticism

[Sean Wilson]

Actually, that appears to assume that each uses the same internal process for declaring something unconstitutional (favorite policy and so forth). This is a problematic assumption. The reason for the difference might not be that Scalia and Thomas find more laws being litigated that they do not like (although this could be a factor). The reason may be that Scalia and Thomas operate from a decision constituence that is more formalistic than Breyer. They operate from the premise that the constitution is such and such and when statutes void this definition the duty of the judge is to protect the former. The key elements of this psychology are (1) the constitution has an a priori form of meaning, X; (2) the duty of the judge is to protect X from being violated. Breyer does not operate from this constituence. He is a pragmatist. He therefore is more deferential to large policy programs and a utility assessment before he votes to intervene in the policy game. Look at his votes on
 (and participation with) the sentencing guidelines. His constituence might be: (1) the constitution is a function of policy utility, U; and (2) it is the duty of the judge to provide maintenance to U as best as the institutional setting reasonably allows.
   
  The use of a different calculus may have at least as much to do with the decision than whether they like or dislike the policy choice. (Of course, I understand that the one also affects the selection of the other, but we have to be careful with the assumption that justices vote directly upon policy rather than through a cognitive process pre-selected before the policy dispute arose).
   
  Regards.  

Mark Graber <MGRABER at gvpt.umd.edu> wrote:
   Thus, Justice
Scalia and Thomas at present may tend to declare more federal laws
unconstitutional than Justice Breyer because, for reasons of
constitutional politics, more policies that Scalia and Thomas think
unconstitutional are likely to be on the books and be litigated than
policies Breyer thinks unconstitution. 

Dr. Sean Wilson, Esq. 
Penn State University
  Website: http://ludwig.squarespace.com/home/
  SSRN papers: http://ssrn.com/author=596860
Conference papers: http://ludwig.squarespace.com/research-agenda/
  Curriculum Vitae: http://ludwig.squarespace.com/storage/wilsonvita%5B.pdf
   

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