originalism and moral skepticism

Tue Sep 5 13:04:23 PDT 2006

Someone (I cannot remember who) once told me that Justice Kennedy 
had voted to strike down, on constitutional grounds, more legislative 
acts (federal and state combined) than any other Justice in the history  
of the Supreme Court.  Can Professor Ringhand or anyone else verify 
that claim?

On 4 Sep 2006 at 7:17, Ringhand, Lori wrote:

> I have done the counting. In the period between 1994 and 2004 when the
> same nine justice served together, Justice Breyer voted to strike done
> federal statutes in 15 cases. This was the fewest of all of the
> justices sitting during this time. Justice Scalia did so in 31 cases,
> and Justice Thomas in 34 cases (the most). In the same time period,
> Justice Breyer voted to strike down state statutes in 44 cases (the
> third highest after Stevens and Souter). Scalia did so in 31 cases and
> Thomas did so in 30 cases. Rehnquist voted to invalidated the fewest
> state laws, with only 24 such votes.
> 
> When you combine the justices' votes to strike down state and federal
> laws, Breyer is second from last on the list: he cast only 59 total
> invalidation votes. Justice Kennedy cast the most (69) and Justice
> Rehnquist cast the fewest (49). Justices Scalia and Thomas come in in
> the middle (62 and 64, respectively). 
> 
> Information about the rest of the justices' votes, and additional
> information about the issue areas in which these votes were cast and
> the ideological direction they took, can be found in my paper,
> "Judicial Activism: An Empirical Examination of the Rehnquist Natural
> Court" (forthcoming in Constitutional Commentary). The paper is at
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=912509.
> 
> Lori Ringhand
> Associate Professor of Law
> University of Kentucky College of Law
> Lexington, KY 40502
> lring2 at uky.edu
> 
> SSRN: http://ssrn.com/author=332414 <http://ssrn.com/author=332414> 
> Home Page: http://www.uky.edu/Law/faculty/ringhand.html
> 
> 
> ________________________________
> 
> From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford Levinson
> Sent: Sun 9/3/2006 10:35 PM To: Earl Maltz; forwarding for fcross;
> lsolum at law.uiuc.edu; MARK STEIN Cc: mortimer.sellers at gmail.com;
> conlawprof at lists.ucla.edu Subject: RE: originalism and moral
> skepticism
> 
> 
> 
> Does anyone have any doubt (though I haven't done the counting) that
> Breyer is less likely than Scalia, Thomas, and Kennedy to strike down
> the actions of Congress?  Just think of the "new federalism" decisions
> for starters.  Re state governments, Breyer might indeed win:  one
> thinks immediately of the religion decisions, where Breyer is more
> likely to strike down state voucher plans and other forms of aid to
> religious schools.
> 
> sandy
> 
> 
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz
> Sent: Sunday, September 03, 2006 9:28 PM To: forwarding for fcross;
> lsolum at law.uiuc.edu; MARK STEIN Cc: mortimer.sellers at gmail.com;
> conlawprof at lists.ucla.edu Subject: Re: originalism and moral
> skepticism
> 
> Breyer?  Restrained?  Is there data which demonstrates that Breyer is
> less likely than Scalia, Thomas and Kennedy to vote to strike down the
> actions of Congress or the state governments.
> 
> At 10:30 AM 9/3/2006 -0500, Frank Cross wrote:
> >>  It seems quite obvious the original meaning originalism is
> >> restrained as compared to some constitutional theories, e.g. as
> >> compared to Dworkin's theory or to strong constitutional
> instrumentalism.
> >
> >I'm immediately skeptical when a sentence is begun with "it seems
> >quite
> 
> >obvious."  It is not so to me.  I think the issue requires a little
> >closer scrutiny, and I've seen little suggesting that supports the
> claim.
> >It may be true, but I am struck that Breyer may be the best example
> >of instrumentalism and he also may be the most restrained of the
> >justices.
> >
> >
> >>
> >>On 8/24/06, MARK STEIN
> >><<mailto:markstein at prodigy.net>markstein at prodigy.net> wrote:
> >>The "Mark" to whom Tim replies is Mark Graber, but let me just
> >>repeat the old point that originalism is not restraint.  It is one
> >>thing to decide moral questions through democratic processes, and
> >>quite another
> 
> >>to impose the moral views of the Founders-- views that on many
> >>issues are almost universally rejected today.
> >>
> >>Mark
> >>
> >>Mortimer Sellers <<mailto:msellers at ubalt.edu>msellers at ubalt.edu>
> wrote:
> >>I would like to come out as one of those people (dismissed by Mark
> >>as "mistaken"), who believes that judges and citizens should
> >>generally defer to the liberal protections and democratic processes
> >>embedded in the U.S. Constitution. This gets to the heart of
> >>constitutionalism. I think that it is decent
> 
> >>humility, not moral skepticism, which should encourage us to respect
> >>well-designed constitutional procedures of democratic
> >>decision-making. On particular moral questions, I may think that I
> >>know the answer, but
> 
> >>be mistaken. This does mean that there is no right answer, but that
> >>I should recognize the possibility of my own error and sometimes
> >>defer to good procedures, even when I have not been completely
> >>convinced of the result that they yield. Tim Sellers
> >>
> >>
> >>--
> >>Lawrence Solum
> >>John E. Cribbet Professor of Law
> >>University of Illinois College of Law
> >>504 East Pennsylvania Avenue
> >>Champaign, IL  61820-6909
> >>217.244.3960
> >><mailto:lsolum at gmail.com>lsolum at gmail.com
> >>http://lsolum.typepad.com/legaltheory/ (blog)
> >><http://home.law.uiuc.edu/~lsolum/>http://home.law.uiuc.edu/~lsolum/
> >>(homepage at the University of Illinois)
> >>
> >>_______________________________________________
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> >**********************************************************
> >
> >Frank Cross
> >McCombs School of Business
> >The University of Texas at Austin
> >1 University Station B6000
> >Austin, TX 78712-1178
> >_______________________________________________
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> >or
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F. Elwood & Eleanor Davis Professor of Law 
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