Inquiries on recent Supreme Court decision

[Sean Wilson]

... a couple of trys.

1 (your 2). Perhaps the label "activist" is only used in two conditions: (a) when it fires up your voting base; (b) when the right created is sufficiently controversial. Because Democratic voters don't get fired up over the concept of judicial activism -- it can't be a devil in their Court-rhetoric -- the charge doesn't have any real benefits. All they get from it is "debating points." Sort of like saying, "seeeee." Plus, I bet a good bit of the country is not opposed to the decision. Be interesting to see some data on that as time goes by. The real question seems to be this: in the future, will Republicans be less able to accuse "liberal decisions" as being activist? It seems to me the indictment may become more of a puppet (which we all know it always was). 

2.(your 4). The Stevens accusation is predicated solely upon a stereotype. In fact, some researchers who gather data on the idea themselves impose a mathematicized version of the same kind of stereotype. So the real question is not what the numbers say, it is what, in language, we are trying to say when this word dribbles from our lips. I don't know how far one could ever get descriptively with words "liberal" and "conservative." It seems to me if we are talking beliefs, only rich biography or really good context could provide a fix on one person's beliefs relative to another. 

3. (Fresh point). As I read the news coverage on the case, I am simply stunned at what American culture is like right now. The stories all talk about the conservatives on one side and liberals on the other, as if this picture is the only way to make sense of things. I was imagining what Britain would be like if it had invented American constitutionalism and had faced this exact circumstance. It seems to me the big headline in the case should have been the position on the doctrine. Imagine the flood of stories saying: "Privileges and Immunities Clause stays the same -- no change in how fundamental liberty is rationalized."  I could imagine in my head Brits sitting in pubs talking about whether the change in how to rationalize liberty was good or bad. But this, of course, requires a certain kind of intellectual culture. It requires good schools. It requires a love, I think, of philosophy. 

But it is so strange that the American media -- and American culture -- digest the Court through the vehicle of ideological concepts while generally knowing NOTHING about doctrinal issues. And the whole thing made me think of something that we desperately need in America: we need an NPR sort of thing for a newspaper. Imagine one government-funded newspaper competing with all the other news sources, like NPR does radio. The key would be that the government-funded newspaper would have very highly educated, highly paid people to cover news. Imagine the headline in such a newspaper: Rights-Rationalization Stays Same; Gun-bans may go too far. How interesting it would be for people to actually care what the Court says about where rights are said to come from -- and to engage them in the premises of those offerings.     

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860
Discussion Group: http://seanwilson.org/wittgenstein.discussion.html 




----- Original Message ----
From: Robert Bradley <rbradley at ILSTU.EDU>
To: LAWCOURT-L at TULANE.EDU
Sent: Tue, June 29, 2010 12:46:24 PM
Subject: Inquiries on recent Supreme Court decision

Just wondering if I could get some feedback on some questions that I have on the recent McDonald ruling.

First, instead of criticizing Justice Thurgood Marshall, why aren't Senate Repubicans on the Judiciary Committee praising him for his zealous advocacy of the position that the 14th Amendment fundamentally altered the nature of the Constitution and imposed additional, significant hurdles on the power of the States to infringe on the rights and liberties of individuals. That position could be reasonably argued provided a foundation for Justice Alito's opinion in the McDonald case.

Second, why aren't Senate Democrats on the Judiciary Committee citing the McDonald case as an example of conservative activism. Justice Alito did use the 14th Amendment to incorporate the 2nd Amendment so that states could no longer unreasonably regulate a now federal substantive right to bear arms.

Third, how can Justice Scalia continue to argue the consistency of his persepctive on how to interpret the Constitution when he signs on to Justice Alito's majority opinion in the McDonald case?

Finally, what is the quantitative and/or qualitative evidence to support the claim consistently made in the media since the announcement of his retirement that Justice Stevens is the leader of the liberal bloc on the Supreme Court?

Bob

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