Justice Stevens will not be easily replaced

[Nelson Lund]

Is this the work of someone "acting like a real judge"?

    Liberty protects the person from unwarranted government intrusions
    into a dwelling or other private places. In our tradition the State
    is not omnipresent in the home. And there are other spheres of our
    lives and existence, outside the home, where the State should not be
    a dominant presence. Freedom extends beyond spatial bounds. Liberty
    presumes an autonomy of self that includes freedom of thought,
    belief, expression, and certain intimate conduct. The instant case
    involves liberty of the person both in its spatial and in its more
    transcendent dimensions.


Nelson Lund
George Mason

Raymond Kessler wrote:
> I'm glad to see there are still some idealists out there to counter us
> cynics.  IMHO too many people idolize and fawn over the Justices (or their
> favorite Justice) and refuse to see that the Justices "have no clothes."
> Realpolitik characterizes most of the Court's work.  The only Justice who
> seems to actually care about acting like a real judge is Kennedy. 
>
> Ray Kessler
> Prof. of  Criminal Justice
> Sul Ross State Univ.
>
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Miller, Darrell
> (mille2di)
> Sent: Wednesday, April 21, 2010 12:23 PM
> To: 'Volokh, Eugene'; 'conlawprof at lists.ucla.edu'
> Subject: RE: Justice Stevens will not be easily replaced
>
> I agree with Professor Volokh on this issue as well.  
>
> I think a more fruitful discussion would be on the question of when does the
> nominee think the judicial branches should invalidate laws that derive from
> the political process.  This has the potential to cut through some stale
> rhetoric.   Some things that are popularly enacted aggravate either the left
> or the right (i.e. abortion restrictions, gun restrictions, state DOMAs,
> "death with dignity" laws, etc.).  Is the nominee as likely to uphold (or
> strike down) abortion restrictions as gun restrictions?  Are federal efforts
> to limit the use of medical marihuana just as intolerable (or defensible) as
> federal efforts to mandate health insurance?  
>
>
>
>
>      
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Wednesday, April 21, 2010 12:56 PM
> To: 'conlawprof at lists.ucla.edu'
> Subject: RE: Justice Stevens will not be easily replaced
>
> 	I don't see how much terms such as "knee-jerk" and "ideologue"
> really add much to the analysis here.  Justice Stevens did end up being a
> pretty reliable liberal vote, but I'm sure it was because that's where his
> legal thinking took him, not because his "knee jerk[ed]."  He's a very smart
> and thoughtful man, much as I've disagreed with him on many things.
>
> 	Likewise, I'm pretty sure that "ideologue posing as a judge" isn't
> really much of a substantive argument in this context.  All Justices rely in
> very large measure on standard judicial tools, such as careful attention to
> precedent, close reading of the text, and the like; so did Justice Stevens.
> All Justices also rely in considerable measure on their "ideology," which is
> to say their views on hotly contested questions (usually, though not always,
> constitutional questions) on which precedent, text, original meaning, and
> the various other standard judicial tools have not provided sufficiently
> definitive answers.  Justice Stevens did this; Justice Scalia does this;
> every Justice has done this; so will the Justice that President Obama
> appoints.
>
> 	It's certainly interesting to discuss how a potential nominee -- or
> even a generic Obama nominee's -- appointment might affect constitutional
> law, and how Justice Stevens' tenure on the Court has affected
> constitutional law.  But it seems to me that this requires some more careful
> and detailed analysis, rather than sloganeering.
>
> 	Eugene
>
>   
>> -----Original Message-----
>> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
>> bounces at lists.ucla.edu] ...
>> Sent: Wednesday, April 21, 2010 9:39 AM
>> To: ...
>> Subject: RE: Justice Stevens will not be easily replaced
>>
>> Judicial maverick?  Perhaps in his early years, but towards the end he
>> became largely a knee-jerk liberal (not as bad as the rest).  It's the
>> knee-jerkers on both sides of the political dimension who have made
>>     
> Anthony
>   
>> Kennedy one of the most powerful men in the country.  Don't kid yourself,
>> Obama is looking for an ideologue posing as a judge.
>>     
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