Obama Wants Living Constitution Theory For SCOTUS Nominee
With the announced retirement of Supreme Court Justice David Souter President Obama wasted no time in addressing the issue of what he’s looking for to fill this vacancy. In so many words he clearly stated his desire for an activist judge with an eye towards reengineering America [emphasis and comments mine].
“It is also about how our laws affect the daily realities of people’s lives [meaning he wants a Justice who holds fast to the Living Constitution Theory,ie, an activist judge finding invisible law where none existed], whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.”
The following excerpt clearly reveals President Obama’s contempt for legislative history in effect eliminating a potential nominee that adheres to the theory of original intent.
“I will seek someone who understands that justice is not about some abstract legal theory or footnote in a casebook.”
One thing is for sure, it will be an extremist liberal and pro-abortion nominee.
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Obama’s nominee is unlikely to be an originalist, and they will certainly uphold Roe. This does not mean, however, that Obama has contempt for legislative history or the judicial record. For starters, it’s justices like Scalia who dislike legislative history (because it’s easy to find support for almost any position in the congressional record). As to the judicial record, upholding Roe at this point is respecting the principal of stare decisis. Originalists care about the original understanding of the Constitution, and less about legislative history and the judicial record.
John,
I’ll take your word on it since you’ll be barristering soon enough!
John,
I forgot to mention that they do use legislative history, but not in all cases.
Just to be clear, ‘legislative history’ is a tool of statutory interpretation which involves looking at the Congressional record and statements from bill sponsors, etc. Scalia, as a ‘textualist’, thinks only the text of the statute should matter. Obama’s nominee is more likely to favor ‘legislative history’ than a Scalia-type nominee.
‘Original intent’ or originalism has to do with Constitutional interpretation; and the theory of the living constitution (which, imo, all justices adhere to in practice to one degree or another) is another theory of Constitutional interpretation.
Stare decisis-”To stand by that which is decided”-when we feel like it.
Stare Decisis tends to be invoked by judges who like a prior decision and ignored by judges who believe the prior decision was a piece of judicial idiocy. Of course when a court is dealing with constitutional issues stare decisis plays less of a role because the constitution, and the correct interpretation of it, is more important than prior decisions of any court. As Roe amply demonstrates however, too often the tool of Constitutional interpretation used by the Supreme Court and many other courts might rightly be called “making it up as they go along”.
The doctrine of stare decisis is of limited value in constitutional matters, since erroneous court decisions cannot be rectified by subsequent legislation. While this judicial doctrine has value, the weight it merits should be inversely proportional to the degree of wrongness and degree of importance of the prior decision to which it would be applied. From the standpoint of actual legal reasoning all that Roe has in its favor is stare decisis, given that its rationale is ridiculously deficient, and that is not much. But for the reasons Don suggests, that will be enough for any Obama appointee who favors abortion rights on policy grounds. He will find the scoundrel’s refuge in stare decisis for sure.
As Donald and Mike describe, stare decisis tends to be arbitrarily invoked and ignored depending on the judge and the issue. The post originally read ‘Obama’s contempt for legislative history and the judicial record‘. In response, I was pointing out that Obama’s nominees would be unlikely to show contempt for the judicial record (i.e. stare decisis) with regard to Roe, rather than expressing a more general opinion about the importance of stare decisis.
I had never been to this blog until now. Why does this blog look so shamelessly like Vox Nova? Couldn’t you guys find another theme? Come on…
Katerina,
You guys have a beautiful set up and have the best theme. We couldn’t’ find another one that was better. You guys chose the best template out there!
Imitation is a form of flattery you know!
Cannot fault anyone for having good taste.
Yeah, the reference to “legislative history” doesn’t make sense here. “Legislative history” is a term referring to how Congress enacted a statute — committee reports, House reports, and the like. It’s not a term that refers to the Constitution. And moreover, Scalia (who is at least a “fainthearted originalist,” as he describes himself) is a huge opponent of looking to legislative history . . . his opinion is that Congress enacted whatever is actually in the law, and that it’s dangerous for judges to go beyond the law to look at what some Senate committee might have said that’s different.
Obama’s judges will be interested in stare decisis ONLY until they run into a case … such as what happened in Lawrence v. Texas … in which they suddenly decide to overturn precedent.
This Weekly Standard piece from a while back explains the left’s new-found affinity for stare decisis:
THE HEARINGS on John Roberts’s and Sam Alito’s nominations to the Supreme Court featured a Latin phrase most people hear only in connection with Supreme Court confirmations: stare decisis. Stare decisis is the legal doctrine holding that in general, an issue once decided should stay decided, and not be revisited.
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Nowadays, it is liberals, not conservatives, who talk about stare decisis in committee hearings, generally in the context of abortion. Oddly, though, it’s also liberals who want nominees to agree that the Constitution is a “living document.”
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How is it that liberals have become, simultaneously, the champions of both fidelity to precedent and an ever-changing Constitution?
Part of the answer, of course, is that the left’s commitment to stare decisis is selective. Many of the Supreme Court’s iconic liberal decisions overruled prior case law. Brown v. Board of Education (1954), overturned Plessy v. Ferguson (1896); Gideon v. Wainwright (1963), which established the constitutional right to a free public defender in felony cases, overruled Betts v. Brady (1942); Mapp v. Ohio (1961), which applied the exclusionary rule to state court prosecutions, overruled Wolf v. Colorado (1949); and so on. Nor need we reach far back into history for such instances. Just two years ago, in Lawrence v. Texas (2003), the Court found a constitutional right to perform acts of homosexual sodomy, thereby overturning Bowers v. Hardwick, which itself was no historical relic, having been decided in 1986. Yet none of the liberals who now wax eloquent about stare decisis criticized Lawrence’s violation of that principle.
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When liberals talk about a “living Constitution,” what they really mean is a leftward-marching Constitution. Liberals – especially those of an age to be senators – have spent most of their lives secure in the conviction that history was moving their way. History meant progress, and progress meant progressive politics. In judicial terms, that implied a one-way ratchet: “conservative” precedents can and should be overturned, while decisions that embody liberal principles are sacrosanct. To liberals, that probably seemed more like inevitability than inconsistency.
Why does this blog look so shamelessly like Vox Nova? Couldn’t you guys find another theme? Come on…
We had the ‘Kubrick’ theme for the first five months, but Kubrick doesn’t have the sidebar on individual posts. This made navigation less convenient and, as it turns out, meant the sitemeter was only catching about 40% of the visits. This format was the easiest to transition to from Kubrick. Plus, as Tito said, it looks good and there’s nothing wrong with flattery through imitation from time to time.