Supreme Court Justices and Religion

Wednesday, June 10, AD 2009

To ask some questions is to answer them, and via Commonweal, I see that UCLA history professor emeritus Joyce Appleby has penned a lovely exercise in anti-Catholicism entitled, Should Catholic Justices Recuse Selves On Certain Cases?. Here is an excerpt:

But because of the Catholic Church’s active opposition to abortion, same-sex marriage and capital punishment, it raises serious questions about the freedom of Catholic justices to judge these issues. Perhaps the time has come to ask them to recuse themselves when cases come before their court on which their church has taken positions binding on its communicants…

…Recusal sounds like a radical measure, but we require judges to withdraw from deliberations whenever a personal interest is involved. Surely ingrained convictions exert more power on judgment than mere financial gain. Many will counter that views on abortion, same-sex marriage, and the death penalty are profound moral commitments, not political opinions. Yet who will argue that religious beliefs and the authority of the Catholic Church will have no bearing on the justices when presented with cases touching these powerful concerns?

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46 Responses to Supreme Court Justices and Religion

  • Well, didn’t Scalia say the Catholic judges who are against the death penalty should recluse themselves? hmmm….

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  • Well, John Henry, as you rightly point out, there is a worldview of all the judges.

    What I find interesting is “justice” is not justice in the natural law sense. That is, having American positive laws in conformity with the natural and eternal laws. Alexander Hamilton put it this way: “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself; and can never be erased or obscured by mortal power.”

    However, the American sense of “justice” is to uphold the letter of the Constitution and legal precedence. This can pose quite a dilemma. If I’m a Catholic sitting on the U.S. Supreme Court, hypothetically dealing with a case prior to the 1860s regarding slavery, I would be obliged to rule to uphold what is, in fact, not just at all. My very obligation — according to “originalism, as I understand it — would be to to rule in such a way that contradicts the very title of “Justice.”

    Yet, it seems, to lax strict guidelines and open the door to some sort of “judicial autonomy” easily leads to what we call legislating from the bench.

    I’m not sure what the solution should be. Constitutional law is a matter where I’m simply agnostic and hesitant about most positions. To be sure, I do think the comments by Scalia and Thomas–no matter political orientation, or their purposes–are downright scandalous. The my “faith has nothing to do with my rulings” statements though situationally different than legislators reaffirms the separation of faith and life, religion and politics — all of which, I don’t support.

  • “He said they should resign.”

    He’s right. Just according to Catholic teaching. Shouldn’t be automatically discarded by a Catholic judge.

  • Eric

    I think as to Pre- Civil War Judges that were anto Slavery they would be hard pressed to ban slavery since theire power and authority came from an agreement among the States that involved the Slavery issue. It was part of the pact as it were.

    THere has been some talk in recent threads about Scalia and Thomas statements and if they are scandaleous. I really don’t think they are. However I wish they would have fleshed out what they mean more.

    I suggest this article that also has a helpful comment by Rick Garnett as to being what a Catholic Judge is

    http://www.firstthings.com/on_the_square_entry.php?year=2007&month=10&title_link=antonin-scalia-not-a-catholic-

    That article also shows that Scalia had other thoughts that rarely get mentioned as to that statement

    “If he were not a textualist and an originalist, if he thought he ought to rely on substantive moral notions not found in the text, then, Scalia said, his Catholic faith would make a large difference in how he judges cases. Similarly, if he had to judge common-law cases¯cases that do not involve texts enacted by a legislature but only judge-made law, cases of the kind that sometimes come before state courts but rarely come before federal courts¯things would likewise be different. In making common-law decisions, a judge has to make normative judgments about which laws are best, and so the judge’s values are properly in play. So, too, in the voting booth. Indeed, when the question switches from which laws we actually have to which laws we ought to have, then a person properly relies on moral values, whether they be Catholic or anything else.”

    I think this is very correct and there is nothing really un Catholic about that.

    I suppose my question is why are Judges (Catholic or otherwise) criticized for not thinking they have a grant of authority to do X

    FOr instance if we take that standard then why do we not criticize a Pro-Life President for not sending out his Federal Marshals and closing down all the abortion Clinics by Fiat. The reason we don’t is because we know that would be a UnConst power grab. Society can not function in such an environment.

  • One other thought on Sclaia Statements as to State execution. THe media generally does a bad job of covering religious issues. The only thing they do worse is covering Supreme COurt matters and the people on the Court

    From a person that was there:
    I would note one (perhaps self-evident) thing in clarification of the Scalia
    argument as it has been described in this thread: Scalia’s view that a
    Supreme Court Justice should resign if he or she believes the death penalty
    is immoral is dependent on the further assumption, manifest in his speech,
    that a Justice does not (or ought not) bring personal or contemporary moral
    judgment to bear in deciding death cases or in establishing death-penalty
    doctrine: “[T]he Constitution that I interpret and apply is not living, but
    dead; or as I prefer to call it, enduring.” “Bear in mind that I don’t make
    up new constitutional rules.”

    Further from Rick Garnett that was also there

    As I heard him, Justice Scalia was careful to establish, as a premise to his
    “have to resign” conclusion, that his position as a Justice involves him to
    a sufficient degree in the application of the death penalty to make him
    complicit in the wrong done. That is, I don’t think he was suggesting that
    his disagreement, standing alone, required him to resign, but rather, that
    (a) he has a moral obligation not to “cooperate” with evil (assuming that
    the application of the death penalty is, in fact, illicit); and (b)
    participating in death cases constitutes “cooperation” with evil. For my own
    part, it is not clear that a Supreme Court Justice who, say, fails to vote
    to deny a stay of execution, or fails to vote in support of a habeas
    petition brought by a capital defendant is, in fact, “cooperating” with the
    (assumed) evil of the death penalty.

  • What is bizarre about this is its literal unconstitutionality. Article VI, Section 3:

    The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

    So under the guise of separation of church and state, something never mentioned in the constitution ironically, we are forced to ignore the actual words of the constitution.

  • For those interested I find the transcript of Scalia’s remarks so you see them in the full context

    http://pewforum.org/deathpenalty/resources/transcript3.php

  • jh,

    That was precisely my point. I was arguing that, to begin with, we aren’t even starting with a natural law conception of Justice. It is fundamentally a social contract theory, which itself is the arbiter of what is right and wrong in a legal sense. In other words, I think the lack of natural law orientation profoundly obscures what is true justice and the essence of law.

    My other concern is being complicit. Regardless of judicial philosophy, I would not rule to uphold slavery as the law of the land because it isn’t true justice. I simply cannot imagine allowing such an evil to perpetuate because of such commitment to a particular judicial philosophy, especially, if hypothetically, it was a 4-4 and I was the “swing vote.” I would not vote to uphold it when I know, apart what may be philosophically ideal, when I knew that I could stop an evil immediately. In other words, I find it problematic that our judicial system is more concerned about the letter of the constitution and legal precedence than actual justice.

    I understand why we currently operate like this. There are alternate approaches that I wouldn’t say any better, e.g. the approach that got us Roe v. Wade.

    Even still, I am not satisfied or convinced by Scalias’ argument. I think so far, at least, it may be the do-the-least-harm approach and our best weapon against getting results like Roe, or even worse, Casey with its infamous “liberty clause.”

    If Catholics are right about law, about the nature of law, then the American emphasis on upholding whatever is the positive law on the books as long as its conformity with the framework of the Constitution is problematic, in my view, that is building a system on a false premise of law and justice.

    Thus, I think we should develop a different judicial philosophy. I wish I knew what it was. But with the status quo, I can’t say I am satisfied.

  • “I find it problematic that our judicial system is more concerned about the letter of the constitution and legal precedence than actual justice.”

    Perhaps, I should say more committed to…or more interested in, at the expense of natural law thinking.

    I don’t think Catholics should throw natural law under the bus for positive law. The West profoundly misunderstands law and I wish we currently were operating through some different, more acceptable (in my view) judicial apparatus but we aren’t…

    I suppose the problem is finding a way that one does not get into the “living Constitution theory,” as it is currently promulgated.

  • In other words, I find it problematic that our judicial system is more concerned about the letter of the constitution and legal precedence than actual justice.

    I understand why we currently operate like this. There are alternate approaches that I wouldn’t say any better, e.g. the approach that got us Roe v. Wade.

    I hate to say it, but your approach largely is the approach used in Roe v. Wade, only from a different perspective. The judges in that case thought abortion was a manifest right, the Constitution be damned, and so essentially made a decision based on their conception of what was wrong or right. Your approach is similar, only you’re arguing that slavery is morally wrong. That’s all well and good, but it doesn’t get us very far if 5 Justices happen to disagree with you. So either we follow the written text of the Constitution or we follow the dictates of our conscience (hopefully the two are not in contradiction). 99% of the time the latter approach is the right one, but not when adjudicating in a Court of Law.

  • Eric

    As to Slavery the natural law sometimes must make an accomdation with a evil to help mitigate that evil. It should be noted that as a part fo this aggreement the International Slave Trade as to the USA was abolished. Again back then the theory was to strangle it out and even SOutherners thought it would die out of existance. The problem was people went back on the deal when they wanted it expanded.

    So I think Catholic Justices had no moral problem on the whole. Also lets be real here. Can you imagine if say in 1850 the Supreme COurt would have declared Slavery illegal. Well they would have just been ignored and thus set a dangerpus precedent

    I have no objection to a natural law jurisprudence. But again what is that? I can recall when Justice Kennedy came and taught my Const Law class. He asked a questions about rights and the rights listed in the Bill of Rights

    He said why don’t we have a

    Right to a Job
    A right to Health Care
    etc etc etc

    In fact this is where exactly many people that advocate a Natural Law Jurisprudence from the more Catholic left want to go. That is look at that rights that in the SOcial Compendium and have judges declare it.

    Kennedy pointed out the obvious. If these were “rights” on par with lets say the Freedom of Assembly there would be chaos.The Chaos he was talking about dealt with how in the world would Judges be able to deal with it and frame that right. You would in effect have a mini legislature in the Judicial branch and I suppose Law Clerks with no expertise in all these issues involved in all this.

    From a personal veiwpoint looking at How Federal Judges have run the East Baton Rouge Parish School system for 25 years while it was under the desegration decree I find trheir management skills quite lacking

    I can’t imagine what they would do to the Health system as Federal Judges come in and manage them in order that a “right to Health Care” could be had

  • Paul,

    Well, perhaps I’m liberal after all. Though, in some respect, I am not “reading” stuff in the Constitution that clearly isn’t there and pretending that the text of the Constitution is in alignment with my position.

    I’ll put it this way. In terms of maintaining social order and political stability, the “originalist” position is best, in that, it does the least amount of harm. In the end, I still think it’s flawed and there has to be some ways to address its flaws.

  • Eric

    I would also say as to Natural Law thinking that this could occur in the legislative branch. I am also still open to it in the Judicial branch.

    You might really enjoy this one hour podcast that Arkes had at the Making Men Moral COnference as he explains his attempts to get his Friend Scalia and others to recognize they can use the Natural Law.

    Scroll down to “Closing Luncheon with remarks by Hadly Arkes”

    http://www.uu.edu/events/makingmenmoral/schedule.cfm

    That speech as well as a few others really address what you are talking about especially Arkes

  • “As to Slavery the natural law sometimes must make an accomdation with a evil to help mitigate that evil.”

    The principle of the Double Effect only works if the evil you are tolerating is not objectively evil in and of itself. The argument is basically proportionalist aka. utilitarian aka. consequentialist.

    “So I think Catholic Justices had no moral problem on the whole. Also lets be real here. Can you imagine if say in 1850 the Supreme Court would have declared Slavery illegal. Well they would have just been ignored and thus set a dangerpus precedent”

    That’s consequentialist reasoning. It is like the sin of omission, or not doing what is right because of the consequences that it would render. I’m afraid to say it strikes me like saying that overturning Roe v. Wade would cause a political backlash and cultural division even worse than it is now, thus, one should act to bring change slowly. It is the argument of the “white moderates” who wished to (allegedly) integrate blacks into society over time, as the culture slowly changed.

    The argument is basically pragmatist and only further convinces me that the machinery of our government places Catholics, particularly in this regard, in a dangerous place. You either cooperate with the machine and lose your ethics, or you “legislate from the bench” and cause tyranny.

    And again, I don’t think anyone has seen a natural law jurisprudence laid out because it’s in its early stages. However, I think the debate should be had.

  • Eric

    I don’t think the situation that lets say anti Slavery Catholic Judges found themselves in was at all consequentalist. Again part of the deal was in order for this nation to be formed some of the evils of Slavery would have to be minimized. Therefore the natural law made a accomdation with a evil to minimize it. What made the whole deal go off the rails was the South basically demanding a Right to Nationwide Slave code which was demanded by the SOuthern Democrats at their Dem Convention in Charleston.

    Lets use another example. That is the sex business. The Church has recognized that such things as Prostitution and brothals are evil and bad. Yet the Church has reconzied that such things as regulation of it to mimizew it evils (like red light districts) and such is ok in many regards.

    One can make a arguement as to abortion that a process of chipping away at it slowly and strangling it to death (like Slavery) is the way to go. If there is a all or nothing approach there would never be proress on the issue.

    Also in the end the Court again has no power to tax and really no way to enforce it orders. It must rely on its good name. At times they cash it in. Look at Brown vs the Bopard of Education. But if the COurt was issuing Society changing ruling like Brown every year then I predict they would be ignored. That is for instance the Executive Branch would disover Lincoln’s musings that he had a right to interpret the Const kust like the Court.

    This is one reason wehy for the most part the Court is slow in making dramtic changes

  • “Therefore the natural law made a accomdation with a evil to minimize it.”

    I understand that people made compromises that seemed unavoidable, e.g. compromises like we make on abortion to get as much restriction as possible. However, the natural law does not accommodate evil–it is the moral law of God and the standard of perfect justice. So, the language you’re using is problematic in terms of moral theology, hence I keep arguing against it.

    “Yet the Church has reconzied that such things as regulation of it to mimizew it evils (like red light districts) and such is ok in many regards.”

    Well, I think the Church would say restrict it as much as possible with the intention of ultimately obliterating. I’m not sure the Church would deem such immoral activity confined to a place as “ok in many regards.” As far as I know, there is no constitutional right to prostitution.

    “One can make a arguement as to abortion that a process of chipping away at it slowly and strangling it to death (like Slavery) is the way to go. If there is a all or nothing approach there would never be proress on the issue.”

    In regard to abortion, there is this interesting phenomenon. People who are conservative tend to oppose radical changes while liberals want changes to bring about immediate justice. You get a conservative Catholic and they’ll tell you let’s outlaw abortion. You get a more liberal Catholic, they’ll say we should do it gradually and get a greater social consensus. On the issue of abortion, the two sides flip — for the most part.

    I think the reason we’re not pulling an all or nothing on abortion, as was the case with slavery, is because the machinery of government has us in a tight spot. My only problem with the “slow” process is that meanwhile a great injustice casually continues and with abortion, it’s going at a rate of 4,000 a day and I’m not sure if we have the luxury of time insofar as we aren’t acting so imprudently as to compromise the cause and a swift as possible triumph.

    And Brown vs. Board of Education is a prime example. I think the problem here is I’m emphasizing achieving true justice because doing the good is a moral obligation that should not be considered solely based on the consequences, as that would be a departure from natural law moral ethics; whereas, you are emphasizing the need for stability and keeping social order lest the Court lose its authority and the actual good be lost to the jaws of defeat due to a swift backlash due to a wreckless dash for a short victory.

    My problem is, seeing my strident commitment to keeping natural moral ethics, is that, if in such a system, there is great tension for a Catholic sense of morality, I feel inclined to try to develop a judicial philosophy where Catholic ethics don’t conflict so readily with the process. That’s pretty much my whole deal with your approach. It might be the best we’ve got right now, but I can’t settle with it.

    I must depart for now. Thanks for the discussion…

  • Ms. Appleby is effectively arguing for the recusal of any save the most carefully-vetted agnostics from service as a judge.

    By what feat of special pleading would an Episcopalian not also be forced to recuse him/herself on the same issues? Actually, it goes further than that–any issue of “commitment” would force recusal. Consider the case of a vegan judge in a case involving Eckrich, for example.

  • It is curious that the matter of the Catholicism of Roger Taney was not raised. But Taney is an excellent example of accepting the law as it stands.
    He despised slavery [“those vermin who trade in human flesh”]. But he also recognized that it was lawful under the Constitution.
    Slavery is the great example that Chesterton uses tp point out that democracy is not perfect.

  • No, by the time of the Dred Scott decision Taney was an ardent defender of slavery. His views on “the peculiar institution” had done a 180 from his younger days. His opinion for the court held that slaves, or their descendants, whether or not they were slaves, could never be citizens of the United States, and that Congress did not have the power to ban slavery in the territories. Neither proposition was supported by the text of the Constitution, and are a precursor to the type of jurisprudence that produced Roe.

  • Scalia on Taney: “There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon to be played out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

  • Gabriel,
    You are wrong. Dred Scott was wrongly decided for a host of legal reasons, regardless of one’s position on slavery. Basically Taney’s reasoning was a foretaste of substantive due process, which is what eventually led the way to the loose reasoning seen in Roe. Seriously, if you are a constitutional scholar (I taught it at a law school for almost 10 years), I encourage you to carefully read Scott. It is appallingly poorly reasoned. There are cases where judges properly follow the law to make decisions that are either objectively distasteful or distasteful to them. Dred Scott is not an example of this, however.

  • Donald,
    I failed to see your earlier posts. Once again, we are in complete agreement.

  • As usual Mike! Scott is a prime example of the deadly impact a rogue Supreme Court can have on this nation. Taney and his cohorts reignited the slavery issue, convinced many moderate Northerners of a “slave power conspiracy” to spread slavery throughout the nation, strengthened Southern reluctance for any compromise as to slavery in the territories and vastly increased the likelihood that the debate over the question of slavery would eventually end in blood. When the Supreme Court steps in and attempts to act as a super legislature it always stirs up a hornet’s nest.

  • Exactly, Don. As much as I believe that our unborn should be legally protected, I similarly think it would be wrong for the Supreme Court to overturn state laws that permit abortion under some type of contrived right to to life enshrined in some penumbra. The lawmaking power rests with the people acting through their legislators; they cannot avoid this responisiblity by pretending that judges are empowered to do whatever they think is right and best. A judge’s authority is limited; Dred Scott and Roe are both testaments to what happens when he exceeds his authority just because he can.

  • About 2 years ago, I did a post about Taney, which also drew a Taney defender (who was clearly arguing from a misperception, which he later acknowledged) in the combox discussion that followed:

    http://proecclesia.blogspot.com/2007/08/roger-taney-may-get-boot-civil-rights.html

    Catholics need to stop feeling like they have to defend Taney and his egregious, unjustifiable, and activist opinion in Dred Scott.

  • jh Says Wednesday, June 10, 2009 A.D. at 11:37 am
    “I think as to Pre- Civil War Judges that were anto Slavery they would be hard pressed to ban slavery since theire power and authority came from an agreement among the States that involved the Slavery issue. It was part of the pact as it were”.

    Which was Taney’s point. The way to settle the issue of slavery was to change the Constitution. This was done by the 13th Amendment. Thei demonstarted the truth of Taney’s argument.

  • Eric Brown Says Wednesday, June 10, 2009 A.D. at 11:57 am
    “My other concern is being complicit. Regardless of judicial philosophy, I would not rule to uphold slavery as the law of the land because it isn’t true justice”.

    There in lies the nub. Whether slavery is true justice or not, it was the law of the land, of the U.S.

    There is, it seems to me, an idea that the U.S. is a perfect land. It is not. It was not from its beginning. As Jefferson wrote “I tremble for my country when I remember that God is just”.

    Let us forget for the moment the issue of slavery. What about the ongoing treatment of the Indians in our country? the broken promises? the violated treaties?

  • Donald R. McClarey Says Wednesday, June 10, 2009 A.D. at 5:06 pm
    “No, by the time of the Dred Scott decision Taney was an ardent defender of slavery. His views on “the peculiar institution” had done a 180 from his younger days”.

    References?

  • Donald R. McClarey Says Wednesday, June 10, 2009 A.D. at 5:12 pm
    “Scalia on Taney: “There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon to be played out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

    Interesting aesthetic but irrelevant [i.e., not to the point] comments by Justice Scalia. I’d suggest that Taney’s unhappiness was caused by his realization that neither side would cede; that the Constitution was a compact with the Devil.

  • Mike Petrik Says Thursday, June 11, 2009 A.D. at 6:48 am
    “Gabriel,
    “You are wrong. Dred Scott was wrongly decided for a host of legal reasons, regardless of one’s position on slavery”.

    Is this an example of the third manner of presenting an argument – bang on the desk?

    Much of the decision’s argument arises from the nature of legal property. Blacks were property, chattel, cattle, if you prefer, that could freely be moved from one state to another. The Dred Scott decision was the bearer of the bad news. Our polity is not the Heavenly City.

  • Donald R. McClarey Says Thursday, June 11, 2009 A.D. at 7:08 am

    “Taney and his cohorts reignited the slavery issue”.

    Not true. The issue of the Civil War was the Union. Could a state secede?

    [I like “cohorts”. Is this akin to fellow conspirators?].

  • Jay Anderson Says Thursday, June 11, 2009 A.D. at 10:48 am
    “About 2 years ago, I did a post about Taney, which also drew a Taney defender (who was clearly arguing from a misperception, which he later acknowledged) in the combox discussion that followed:
    http://proecclesia.blogspot.com/2007/08/roger-taney-may-get-boot-civil-rights.html
    Catholics need to stop feeling like they have to defend Taney and his egregious, unjustifiable, and activist opinion in Dred Scott”.

    I do not have a belief that I must defend Roger Taney [although his attitude and actions in defense of blacks are certainly admirable, as was his refusal to abandon habeas corpus and to knuckle under to Father Abraham, the sole decider of the War].

    I do not defend the decision. I merely examine it; and find that it admirably displays the law of the land at the time. He did not find unmentioned side laws and umbras in the Constitution, as did the justices in Roe v. Wade; and the overreaching justices in Brown v. Board, kin to the overreaching justices in Plessy.

  • On the other matter of whether Catholics should recuse themselves on matters on which the Church has spoken, would this apply to matters of charitable giving, to education, to the whole host of activities in which the Church is active?

    On this principle, should men recuse themselves when an issue of women’s rights is raised? Should blacks and whites [“Caucasians”] recuse themselves in civil rights matters?

    Only in the academy could such non-sense be spoken.

  • Okay, Gabriel. Defend these 2 propositions relying solely on the text of the Constitution:

    (1) That black Americans (regardless of whether they were slaves or not) could not be citizens of the United States, and
    (2) That Congress had no power to regulate “property” in the federal territories.

  • Jay Anderson Says Thursday, June 11, 2009 A.D. at 5:57 pm
    “Okay, Gabriel. Defend these 2 propositions relying solely on the text of the Constitution:
    (1) That black Americans (regardless of whether they were slaves or not) could not be citizens of the United States, and
    (2) That Congress had no power to regulate “property” in the federal territories”.

    This is not a class room. There is a tendency among some posters to believe it is.

    Citizenship depended on the state.

    “Property” is an issue with several hundred years of dispute behind it.

    A further note: Taney in the later Booth case vigorously denied that states had the right to ignore federal laws. Curiously, the Booth case was an abolitionist arguing for secession.

  • This is not a class room. There is a tendency among some posters to believe it is.

    Gabriel:

    You have attempted on several threads on this blog over the past few months to defend Taney’s decision in Dred Scott. If you do not have the sufficient understanding of the issues surrounding the case and are thus unable or unwilling to defend Taney in a meaningful manner, then it would be best for you to bow out of the discussion.

  • Sorry, the above comment was a bit uncharitable. What I am trying to get at, Gabriel, is that we’re having a discussion (partly) about constitutional law and the manner in which Supreme Court Justices ought to approach cases. The very nature of our conversation is therefore, in a sense, “academic.”

    The questions that Jay asked are central to an understanding of the Dred Scot decision, so you can’t just shrug them off if you are going to defend the opinion that Taney wrote and to which his associates signed onto.

  • paul zummo Says Friday, June 12, 2009 A.D. at 2:42 pm
    “This is not a class room. There is a tendency among some posters to believe it is.
    Gabriel:
    You have attempted on several threads on this blog over the past few months to defend Taney’s decision in Dred Scott. If you do not have the sufficient understanding of the issues surrounding the case and are thus unable or unwilling to defend Taney in a meaningful manner, then it would be best for you to bow out of the discussion”.

    Does that mean leave the room or go stand in the corner?

  • paul zummo Says Friday, June 12, 2009 A.D. at 2:52 pm
    “Sorry, the above comment was a bit uncharitable.

    It was not uncharitable. It was dense.

    “What I am trying to get at, Gabriel, is that we’re having a discussion (partly) about constitutional law and the manner in which Supreme Court Justices ought to approach cases. The very nature of our conversation is therefore, in a sense, “academic.”

    Academic, indeed. That was my point.

    “The questions that Jay asked are central to an understanding of the Dred Scot decision, so you can’t just shrug them off if you are going to defend the opinion that Taney wrote and to which his associates signed onto”.

    You have too many “to’s” there. [Sorry, couldn’t resist].

    I have had many discussions over the years with lawyers [Eliot Richardson, for example] and professors [Bernard Schwartz, for example].

    The basic issue is not slavery; it is property. It is a good question whether Taney despised slavers or abolitionists more. I think the latter. He was a strong federal union man. Having been law clerk to the Maryland representative at the Constitutional Congress, he know how difficult it had been to form “the more perfect union”. And how easy it might be to dissolve that union.

    But … that union was not perfect. It was not, and is not, the City of God on earth. It had and has many blemishes. It took a century before the rough equality of blacks was enforced by law. Cf. Douglas Blackamon’s Slavery by Another Name: The Re-Enslavement of Black People in America from the Civil War to World War II.

    [A propos, the opinions he cited about blacks were shared by Father Abraham].

    [Another a propos: slavery is not an absolute evil, like abortion].

  • I have had many discussions over the years with lawyers [Eliot Richardson, for example] and professors [Bernard Schwartz, for example].

    Oooookay, and this is relevant how?

    As for the rest of your comment – you’re still not even addressing the issue. Supreme Court decisions aren’t matters of feelings, but rather matters of concrete law. You still have offered no concise defense of the decision, which indicates you obviously don’t even remotely understand the case.

  • Apparently if you want to be on the U.S. Supreme Court it certainly helps to be Roman Catholic (six with the new appointment) followed by some distance by the Jews, and lastly the lone protestant. http://www.adherents.com/adh_sc.html This hardly mirrors the religion membership of the population of the country, but who cares? The Supreme Court is never called upon to resolve the law and religious issues like under the first amendment or equal protection clauses. LOL Does the judicial appearance of fairness even matter in the face of political gains? LOL.
    Should the media discuss this on the Sunday talk shows? LOL

    Learning to Count Is Not a Sign of Bigotry.

    Should this be raised at this time?

    The First cannon of judicial ethics says:

    A JUDGE SHALL UPHOLD THE INDEPENDENCE AND INTEGRITY OF THE JUDICIARY, SHALL PERFORM THE DUTIES OF THE OFFICE IMPARTIALLY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE’S ACTIVITIES .
    RULE 1.01: PROMOTING CONFIDENCE IN THE JUDICIARY
    A judge shall act at all times in a manner that promotes public confidence in the independence,* integrity,* and impartiality* of the judiciary.

    I do not find any fault in the current nominee to the United States Supreme Court for being a woman, a Latino, for having made remarks on her qualifications as superior to the qualifications of any Caucasian. But I do find fault with her appointment violating the spirit of the first cannon of Judicial Ethics, that a judge should appear impartial. Litigants will be hesitant to turn to courts where the Justices appear stacked against them and this undermines the rule of law. Judge Sonia Sotomayor would become the sixth Roman Catholic justice on the Supreme Court. There are only nine of them, so that would mean that two thirds of the Justices, 66+%, would be Roman Catholic in a country where less that 25% of the population practices that religion. That religion predisposes its members, by life long training, faith, and in some cases, rule, to take certain positions that are likely to come up for hearing before the court. Any Appointee will not commit before they go onto the bench what position they may take in a case, but the appearance is there, however they may deny this will influence their rulings. The very appearance of six Roman Catholic Justices on the court gives the appearance to all litigants that if they appear on one side of those issues, be if choice, school prayer, school vouchers or other issues, they will not get a fair hearing. Of course, with the church’s and Popes stand on capital punishment, some might be inclined to support such a person in hopes of abolishing the death penalty. Only one Roman Catholic Justice on some of these issues has taken a position not supported by the church. I believe this is a far more important consideration than any other and should bar Judge Sotomayor from being confirmed by the Senate, no matter how good of a Judge she has been and how worthy of the position she may otherwise be. In fact, I believe it should have prompted her to decline the nomination at this time and should prompt her to withdraw. It is just not the appropriate time to appoint one more Roman Catholic to the court and preserve the diversity of the court in representing the religious views of this country. It appears to threaten the first amendment’s freedom of religion that is so much a bedrock of our society. I know these remarks are politically incorrect but feel they must be made. If you share these sentiments, please pass them on as I believe the general medial is wired not to touch this with a ten foot poll until finally forced to do so by the people.

    I made the following observations at the time of the appointment of Justice Alito in 2005 that I think are even more appropriate here.

    The following statistics are taken from Wikipedia, the free web encyclopedia. http://en.wikipedia.org/wiki/Demographics_of_the_United_States

    Take a look at the following statistics on the religious demographics of the population of the United States compared to its representation on the supreme court with the addition of Judge Alito. There is no correlation. Given that, together with the fact that at least 50% of the population is feminine and an Alito court will only provide for one female member, or just over 11% of the total court population, and it is clear that the current [Bush] administration has no intention of appointing someone to the court who may be called representative of most of the country or as moving the court to a greater parity of court membership with the population of the entire nation.

    U.S. as a Whole U.S. Supreme Court + Alito

    No Religion 15% 0%

    Christian 79.8% 78%

    Roman Catholic 25.9% 56%

    Other Christian
    54.0% 22%

    Jewish
    1.4% 22%

    Non-denominational
    1.3% 0%

    Muslim
    0.6% 0%

    Hindu
    0.5% 0%

    Buddhist
    0.4% 0%

    Unitarian 0.3% 0%

    Others
    0.7% 0%

    Percentages of Religions and no religions with no representation on the United States Supreme Court 18.8%. Percentages of population represented by Christians other than Roman Catholics that are under represented on the United States Supreme Court is 54% of the population but only about half of its members are proportionately represented. It is clear that the membership of the United States Supreme Court, if each justice should represent approximately 11% of the population, is disproportionately allocated, with the Roman Catholics exceeding their fair representation by three justices with the appointment of Judge Alito. Even if the Jews were to be said to represent all those with no religion and all other religions (something that the Muslims and Atheists might well find objectionable) they only would be entitled to two members by carving into the non Roman Catholic proportions of the Christian religions, that would appear to be entitled to almost 5 members of the court by religious demographics. Now is this fair?? Is it fair to object to the appointment of a new justice because he or she further distorts the Supreme Court’s demographic representations of the beliefs of the population of the United States. Who is the bigot??? Is the Bigot the person who supports this further distortion of the United Stats population religious demographics, or the person who says, let us look to a fair representation of the beliefs of this nation as we can given the number of members we have on the court. It is very fair and unbigoted to object to the confirmation of Justice Alito because of his religion because his appointment does not fairly represent the people of the United States, no matter what his race or political affiliation is

    This is the current religious line up of members of the Supreme Court if the appointment of Justice Alito is confirmed.

    John Roberts (Chief Justice): Catholic
    Stephen G. Breyer: Jewish
    Ruth Bader Ginsburg: Jewish
    Anthony M. Kennedy: Catholic
    Antonin Scalia: Catholic
    David H. Souter: Episcopalian
    John Paul Stevens: Protestant
    Clarence Thomas: Catholic
    Samuel Alito: Catholic

    Supreme Court of the United States, highest court in the United States and the chief authority in the judicial branch, one of three branches of the United States federal government. The Supreme Court hears appeals from decisions of lower federal courts and state supreme courts, and it resolves issues of constitutional and federal law. It stands as the ultimate authority in constitutional interpretation, and its decisions can be changed only by a constitutional amendment.

    Nine judges sit on the Court; the chief justice of the United States and eight associate justices. The president of the United States appoints them to the Court for life terms, but the U.S. Senate must approve each appointment with a majority vote.

    The Supreme Court’s most important responsibility is to decide cases that raise questions of constitutional interpretation. The Court decides if a law or government action violates the Constitution. This power, known as judicial review, enables the Court to invalidate both federal and state laws when they conflict with its interpretation of the Constitution. Judicial review thus puts the Supreme Court in a pivotal role in the American political system, making it the referee in disputes among various branches of government, and as the ultimate authority for many of the most important issues in the country. In 1954, for example, the Court banned racial segregation in public schools in Brown v. Board of Education. The ruling started a long process of desegregating schools and many other aspects of American society. In the 1973 case of Roe v. Wade, the Court overturned state prohibitions on abortion—concluding that the Constitution guarantees every woman a right to choose an abortion, at least during early stages of a pregnancy. The Court’s constitutional decisions have affected virtually every area of American life, from the basic ways in which business and the economy are regulated to freedom of speech and religion.

    The Supreme Court is the final arbiter of all the rules and decisions of the lower Federal courts, the United States District Courts and the Courts of Appeal. All judges look up to these judges. They are the featured speakers in the lucky law schools around the country who can persuade them to visit. The Court, outside of governmental clemency hearings and pardons, is just about the last arbiter on all death penalty cases in the Unite States. The judges are assisted by law clerks, a job that lasts about a year and a position once held, leads to the most prestigious choice of jobs in private practice and government after the clerk finishes his or her clerkship. A long term Justice may appoint 30 to 50 law clerks over the period they are on the bench, thirty to fifty or perhaps even more of the future leaders of the bar, the attorneys, in the United States. These are the people who handle the most influential governmental and private legal matters, may influence the various judicial appointments, making up many of the future judges (The most recent appointment as Chief Justice, John Roberts, besides formerly being a Judge on the Court of Appeals and high civil servant in the Executive branch of the government, was the law clerk of the former Chief Justice). These people set the tone of administration of justice in the United States not only in Constitutional Law, but in all federal law, which includes being the final arbiters in many, perhaps most disputes between citizens of different states and citizens and foreigners, matters concerning foreign and interstate commerce, trademarks, patents, copyrights, Federal taxes customs and duties, Indian (Native American) affairs, laws covering most securities and national banking, and many taxation matters and disputes between the states, such as boundary and water rights, just to name a few example. These are the people who apply or do not apply the law that may or may not be favorable depending on which side may win or loose in the courts. Their decisions dictate how future contracts will be drawn, how businesses will operate to comply with laws, and have an impact on the operation of every other governmental body in the United States. They are the interpreters of these laws as well as occasionally passing on constitutional questions. So you see, the power of the members of this court, while circumscribed as are supposedly the powers of all elected and appointed governmental officials in the United States, is enormous. They can only be removed by impeachment (like an indictment) by the House of Representatives followed by a trial and conviction by the Senate, a very seldom ever used procedure.

    Why doesn’t the media honestly report this very reasonable and certainly not bigoted objection to Judge Alito? We do not ask any one to abandon his or her conscience when accepting an appointment to the Supreme Court, and we should suspect any appointee who infers or promises to set his or her conscience aside when acting as a judge on this body. There are nine justices so we can be assured of a diversity of opinion while each exercises his or her conscience in interpreting, understanding and applying the law to individual cases before the court. We should work to preserve that diversity, fair parity and honesty in representation in that branch of the United States Government. The constitution is capable of many interpretations, as any honest student of history who has read the notes of the Federal Convention, the Federalist papers and the various Anti-federalist papers well knows. We may often not really fathom the original intent of the law as much of the Constitution was a compromise. The words strict construction is a coded political cry that has little to do with reality. what may be a strict construction in the eyes of one will be the most ghastly ;legislation form the bench in the eyes of others. We must go back to the very moral fiber as well as intellectual acumen of the nominees who are to sit on the bench, and their affiliations, including their religious affiliations, as they help us to achieve some parity on the court, are fair considerations for all of us and absolutely necessary consideration for each and every senator who must vote on the nominees and then go back to their constituents and tell them why they voted to confirm lopsided courts by race, gender, ethnicity or religion. No Senator can pass this test and vote to confirm Judge Alito.

    Ed Campbell.

    You may freely share this opinion. Afterthought:

    One would have expected a sensitive Judge would have anticipated this reasonable objection to more roman Catholics on the U.S. Supreme Court at this time and would had declined the appointment for the good of the nation.

  • You may freely share this opinion.

    Only if one wants to seem vaguely unhinged.

    Have you been keeping this standard text going for three Supreme Court nominations, now?

  • Ed’s comment reads like comment spam, and I assume it has been posted at quite a few venues. By the way Ed, in regard to the phrase “First Cannon of Judicial Ethics” in your comment, I assume the word should be “Canon” and not “Cannon” unless there are judicial ethics rules that apply to the use of artillery pieces.

    Are you the same Ed Campbell out in Seattle who is an attorney and does palm reading?

    http://www.edcampbell.com/

    That is a unique combination to be sure! Perhaps some of the Catholic justices on the court are palm readers too? Would that cast a different light on the situation?

    Catholics come in all different shapes, sizes and ideologies as you would quickly find out by reading this blog and then reading the blog Vox Nova. So relax. We Catholics on or off the Court pose no threat to you, unless we are albino assassins, in which case all bets are off.

Sotomayor, No Content Of Character Here

Thursday, June 4, AD 2009

Sotomayor Racism

Imagine a white male conservative making the same comments that Judge Sonia Sotomayor made:

A wise White man with his experiences would more often than not reach a better conclusion than a Latina female,”

The mainstream media (old media) would have a field day recounting how racist Republicans are.  It would be nonstop media coverage not seen since Trent Lott’s infamous statements.

Now here are Judge Sonia Sotomayor’s comments.  Keep in mind that when she said these comments that she was dead serious:

A wise Latina woman with her experiences would more often than not reach a better conclusion than a white male,”

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15 Responses to Sotomayor, No Content Of Character Here

  • A wise woman will more often than not reach a better conclusion than most males.

  • Gabriel,

    A wise woman will more often than not reach a better conclusion than most males.

    and conversly a wise man will more often than not reach a better conclusion than most females.

    Now, to be clear, we’re talking about the proper understanding of “wise”. Here’s another thoughts:

    An “educated” man or woman will more often than not reach a worse conclusion than most anybody.

  • Gabriel,
    Indeed, but a “learned” person has a better chance of becoming a “wise” person than most.

  • Mike Petrik,

    Indeed, but a “learned” person has a better chance of becoming a “wise” person than most.

    not typically in this day and age, maybe before the “enlightenment”.

    am obliged to confess I should sooner live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University.
    — William F. Buckley

  • Matt,
    I intended my post as a response to yours, and without getting into the relevance of the so-called enlightenment, my point was to distinguish the “learned” from the “educated.” I suspect you would agree with that point, properly understood.

  • Sorry Mike, I though you were equating learned with education. So if you agree that the 2000 professors of Harvard are neither wise, nor learned no matter how educated they are, then we’re on the same page.

  • At the risk of being accused of making sweeping generalizations, I agree completely — at least in principle.

  • Imagine a white conservative saying: “A wise Italian woman with her experiences would more often than not reach a better conclusion than a white male.”

    I doubt there would’ve been much protest.

    I’m not very familiar with La Raza. How many whites have they lynched?

  • –Imagine a white conservative saying: “A wise Italian woman with her experiences would more often than not reach a better conclusion than a white male.”

    May I then in the same spirit nominate my wise grandmother for the USSC. She’s an Indian fisherwoman but (per Asimov) as indeed all grandmothers, is in fact Jewish.

  • RR,

    If you ever read anything from La Raza you would be appalled at the literature out there.

    As far as I can recollect, I haven’t read any Italian-American literature calling for the annexation of the eastern United States to Italy and calling themselves the Master Race.

  • I have no love in my Hispanic heart for La Raza, MEChA, et al. I also am not naive about the meaning of identity politics, in particular Affirmative Action (see my recent post at Vox-Nova: http://vox-nova.com/2009/06/02/experiencing-affirmative-action/).

    Add to that, I do not know Sotomayor or what she meant by this statement. Having said that, none of us “know” her intentions or the meaning of her language here.

    The point where I dispute this post (and others like it) is that there is only one meaning to her statement. There is a connotation of racism, to be had, for sure.

    However, I think that there is also another meaning that is hardly controversial, albeit politically incorrect. Namely, that the our life experiences shape our ability to interpret the world, in this case, the law.

    This is why a Catholic perspective, to me, is a richer view to look at thing with when compared to narrower views–for this very reason I supported the nominations of Alito and Roberts, and was deeply criticized for it.

    So, while lumping in the implication that she is racist may still be a possible way to interpret what she said and her affiliations with the organization that smack of supremacy (although for complex, yet still misguided in my mind, reasons) are troubling, there is no reason to think that this interpretation has some kind of monopoly over the possible meaning of her words.

    Perhaps I am wrong, but the content and tone of this post suggests that this is the “real,” “only” way to see her comments. And that clearly seems to be untrue.

  • Sam,

    The context of the post is very limited, for that matter all posts are, since it can be difficult to understand the context of where the person is coming from as well as the words themselves.

    With that said, a lot of people in La Raza and MEChA as well, can be discerned as well meaning. Just as those that may have joined the Nazi party in the Weimer Republic of the 1930s.

    I.E., not all people are bad by association.

    With that said, considering the educational and intellectual background of Miss Sonia Sotomayor, it can be construed as a very poor judgement on her part for being affiliated with such organizations. As well as her work in college for calling for Puerto Rican independence.

    For all we know, she may well be a very patriotic American and is embarressed by her poor choice of words. Unfortunately she does not have the character to admit the errors of her way since she is determined to be a Supreme Court Justice.

    If she were to recant and be apologetic, I would certainly be one of the very first to accept it and maybe even accept her as a Supreme Court Justice, but her admitting her mistakes is not part of her character. Sadly. She is of this world and not Christs.

    I am beyond “ethnic” politics, at least I think so. If the nominee were of “Latino” ethnicity but of a practicing Catholic, I would be celebrating the fact that she is Catholic. Not that she is “Latino”.

    I have no doubt that she will be confirmed, regardless of her less than stellar career as a district judge, since it seems to guilty white liberals that ethnicity and empathy trump experience and character.

    My posting was basically for historical posterity. So when people look back and see the baffling and poor writing of Miss Sonia Sotomayor, they will see why she was placed on the bench.

    Simply because of the color of her skin and her gender. Not because she was qualified.

  • Tito, thanks for acknowledging the limits here. But even given the limitations you mention, I don’t understand the meaning of many of the words you are using (e.g. liberal, the problem with PR independence, belonging to the world vs. Christ) and the concepts that follow.

    The biggest problem, however, is that you seem to have missed a major consequence of my comment. Namely, that your interpretation of Sotomayor here, posted for posterity, could in fact be completely wrong. Which would mean she would have no reason to apologize int eh first place. Instead, she would only have to say what she meant in a way that a bit more clear.

    So, the needed apology would only be if you are right here, but—and this was my point—you may be quite wrong and neither one of us can possibly know that for sure. But, while you say you have serious limits, being wrong isn’t really one of them here.

    No, my point is not saying that guilt by association is true (of course it isn’t), it is saying that, given what she said, there are other possible interpretation that should keep our decisions on the matter (i.e. what she said) open ended for now.

    There is a decidedly partisan tone to your argument, as I read it, that seems to prevent you from granting that limitation. Without doing so, I fear you are simply asserting something as plausible for your cause as the other are plausible for the other side of the aisle. My point is this: both sides are bankrupt, we do much better thinking free from them, and, if we do, then, we cannot say the things you are saying here or the other side is saying there—you are both wrong, for now.

  • Forgive the grammar and misspellings, I think the basic ideas are still intelligible, though.

  • Sam,

    I respectfully disagree with your sentiments.

    I am not a registered Republican and have rightfully castigated people such as Rudy Guiliani and Sean Hannity for being less than truthful in their faith.

    I am a history buff and always take care with what I write knowing that history will prove me right in the end (at least I think so). In addition, you pointing out the fact that this is an opinion is like accusing the President of being partisan. Of course it is my opinion, that is why I wrote this piece.

    I do presume, based on the mountain of information that I have, especially since I feel that I am a patriotic American and disavow all calls for the dissolution of union when it comes to Puerto Rico. If Miss Sotomayor would apologize for her un-American statements in supporting anarchy and her racist remarks, then I would be supportive.

    But considering her lack of faith and her lack of character, I highly doubt this will occur. Though I would be happy to be corrected here.

    Grammar and misspellings are easily forgiven. Please forgive me as well for the same.

    For posterity’s sake, I opine that history will judge Miss Sotomayor harshly. May she return to her faith and find solace in the Lord with His mercy so she can deal with the shame and rightful scorn that will be placed upon her during her time (assuming she gets confirmed) as a Supreme Court Justice.

This Is Not One To Fight

Wednesday, May 27, AD 2009

The protests around Obama’s honorary degree from Notre Dame University had many of the more politically progressive Catholic voices complaining that pro-life advocates had moved into a practice of loudly protesting absolutely everything that seemed vaguely positive for Obama without regard for whether it was an important issue.  As someone who cares about the integrity of Catholic education, I think they were wrong in regards to Notre Dame’s decision to give Obama an honorary law degree — it was a big deal and it was appropriate to decry the choice.

However, I think that Jay Anderson and Feddie are right in making the case that the nomination of Sonia Sotomayor to the Supreme Court is not something that pro-life groups should be knocking themselves out to contest.

Given how early it is in his presidency and how high his political approval ratings are, Obama could have decided to spend political capital and put a top notch, liberal intellectual ideologue on the court who could work to shift the balance strongly to the left. Instead, he made the fairly bland, identify politics “first” pick which had been conventional wisdom in Democratic circles for some time, despite the doubts of those who wanted to see a more intellectual and ideological pick. As pro-lifers, we certainly don’t need to praise this pick. She is doubtless pro-choice and will work to support Roe and other Culture of Death decisions. But we also don’t need to pick this to raise a stink over. She will be confirmed regardless, given the composition of the senate, and if we can both conserve our political energy and provide Obama with some positive reinforcement that sticking to bland conventional wisdom candidates will be rewarded with a lack of partisan rancor, so much the better.

Again, I’m not saying that pro-lifers need to praise or support Sotomayor, but Obama could have stuck it to us a lot worse — and since kicking a fuss will achieve nothing other than encouraging the administration to play only to their base next time with a strictly ideological pick (and win the pro-life movement more of a reputation for constant shrillness) this would be a good time for us to hold our fire and concentrate on other things, like the next crop of pro-life candidates.

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12 Responses to This Is Not One To Fight

  • Agreed. There doesn’t seem to be much point to fighting this one… and besides, he will likely have 1-2 more opportunities to change the court. Maybe even 3 if Obama wins a second term.

    On the other hand, Sotomayor is just one more list in a long line if judges, both conservative and liberal that typically rule in favor of the state, but that is a larger philosophical debate that has long been forgotten.

  • She needs to be fully vetted. I oppose any attempt to rush this through. From a conservative viewpoint we need to use this as an opportunity for Public Education

    Plus there are large areas where she has been silent on. Such as National Secuirity concerns etc

    Also this points out the talking point that Demcorats and Republicans are all the same is sort of silly.

    Election has hve consuqunces

    However I agree there is not need to go out on this. Especially since we need to be looking to the future and preserving or forming a new bipartisan gang of 14 if the Republicans get back the WHite House in 2012

  • “… encourage the administration to play only to their base … with a strictly ideological prick …”

    Never was a typo filled with so much truth.

    😉

  • You have pointed out one of my primary concerns when you discuss the shrillness of pro-life groups on this pick.

    There is a real risk of “Boy Who Cried Wolf” Syndrome. If pro-lifers cry “WOLF!” over this fairly conventional (albeit liberal) pick, despite the fact that there is nothing in her record to paint her as some sort of radical ideologue on abortion, then no one will take us seriously when a REAL radical ideologue with the intellectual heft to shape the Court – say, Diane Wood – comes along as Obama’s next pick.

  • “Also this points out the talking point that Demcorats and Republicans are all the same is sort of silly.

    Election has hve consuqunces”

    They do have consequences… except that the consequences are all too often exactly the same with both political wings.

  • ANthony

    As to the Court I am not sure how the Consequences are the same

    There is world of difference between lets say an Alito and the current nominee. Heck while many people pile on Kennedy he is no Ginsburg

  • She needs to be fully vetted. I oppose any attempt to rush this through. From a conservative viewpoint we need to use this as an opportunity for Public Education

    I agree 100%, the efforts should be focused demonstrating on the error of the liberal approach to jurisprudence which is very unpopular (activism), and the inherent racism of the liberal worldview.

    They should question her in ways to bring out all of the beliefs about the Constitution that separate liberals from mainstream Americans including the right to abortion, but avoid any sort of reaction, and especially avoid anything resembling a personal attack.

    I don’t think that the Republicans should support her nomination at all though, they should vote against her but no extraordinary or obstructive measures. As you said, focus on a teachable moment.

  • I suspect politicians make bad teachers, especially in public disputes. Their reported comments will be reduced to soundbites not of their choosing. And how much can you teach in a soundbite?

    Movement pro-lifers often wait for political or cultural events to do their thing.

    I don’t think political events teach well. Some Colorado pro-lifers thought a Personhood Amendment would be a great way to educate about the embryo. But politics’ adversarial nature makes lots of people wary and unreceptive.

    Roe can’t be overturned without major public figures prepping the country for a post-Roe world. But are politicians those public figures?

  • Unfortunately I think Kevin’s right. Add to that the fact that the media will distort whatever pro-life message is being taught. All at the same time presenting Sotomayor as a persecuted woman with a “compelling story.” No way to win. But that’s the way it generally is.

  • The one big problem with Sotomayor is that she may not be competent to be on the court:

    http://www.americanthinker.com/blog/2009/05/sotomayor_overturned_60_of_the.html

  • Phillip,

    I think if the confirmation questions are carefully written without any negativity, just asking her to explain her beliefs and judicial philosophy it should not backfire.

    As to her “competence” clearly all of the liberal sitting justices lack any proper understanding of the separation of powers, so whatever her shortcomings she is in good company.

  • I don’t know. The well written questions won’t be reported by the media or distorted. But perhaps with blogs they can be reported.

    How about we bet a beer on it?

What's Empathy Got To Do With It?

Friday, May 8, AD 2009

Doug Kmiec has a rather bizarre article up at America entitled The Case For Empathy: Why a Much-Maligned Value Is a Crucial Qualification for the Supreme Court. If the article is any indication, I suppose we should be thankful Obama didn’t make any off-hand remarks suggesting ‘creativity’ or ‘imagination’ were traits he would look for in a potential Supreme Court justice, if only because it might have lead to more essays like this one. After some preliminary gushing about, you guessed it, empathy, Kmiec explains what an empathetic justice would accomplish:

To do this, it is possible that [Obama] will mine for legal talent in unusual places, but it is more likely he will attempt to find a nominee with appellate court experience whose skill set also shows the capability of challenging methods of interpretation that otherwise wouldn’t give empathy the time of day. If Obama succeeds even with this more limited challenge,he will have exploded the notion  that swapping out a Souter for a new, most likely younger and intellectually energetic, justice is without effect.

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11 Responses to What's Empathy Got To Do With It?

  • Nice job dismantling what is just a mess of a column. Kmiec manages to somehow sink further and further. It’s truly remarkable.

  • I assume that Kmiec believes all of this intellectual prostitution he is currently engaging in, repudiating wholesale intellectual positions he held throughout his adult life, will ultimately gain him a federal judgeship or some other plumb from the current administration. Trading self-respect for advancement is always a poor, not to say pathetic, bargain.

  • I think it’s time we simply stop paying attention to Mr. Kmiec. To call him a hack would be generous. Far too many words have been wasted on him already.

  • Don,

    I am not sure what Kmiec’s purpose is, and I would like to think he is not just angling for a spot on the federal bench. People do change their minds, and sometimes those changes are dramatic.

    That said, based on my (admittedly limited) observations of legal academia, Kmiec’s arguments are an embarrassment to the profession. I can’t imagine any of the professors I’ve had over the past three years writing this type of nonsense, regardless of their political persuasion. Kmiec should be extended some sympathy given that he is writing for a non-specialist audience, but even that is no excuse for the type of misstatements and shoddy argumentation on display here, particularly since these views are diametrically opposed to views he held less than two years ago.

  • Until he starts making the barest acknowledgment that he’s done a 180 on principles and views held until the Adventus Obamus, he’s not entitled to the benefit of any doubts.

    And I agree, John: this essay is absolute pablum. The principle of “empathy” is entirely situational and subjective. Take Heller: “Well, you know, Doug, I empathize with people who don’t have efficient police protection and private security forces guarding their gated suburban communities. Whose empathy is entitled to more weight in the law?”

    Oh, and I love how he refers to Obama’s record as a law professor without giving any examples to bolster his point. This essay is embarrassingly empty propaganda for Obama. Which is probably why America was so eager to publish it.

  • Where is all his talk of Natural Law!!! DO people recall in many of his Catholic Online articles and other places Kmiec would always put in several paragraphs that he believs the law should the Natural Law as seein the Declaration of Independence and esp Right to Life as being inaleiable

    Where is that here? Now it was nonsense to think that Obam would give us a Natural law judge in the first place and Kmiec never explined how it would happen

    But looking through this entire article where is the natural law theme.

    In fact as to SOuter , who was a huge postivist and did his thesis on Justice Holmes) there is no mention of that.

  • In reading through comments on another blog, I learned that Prof. Kmiec has Parkinson’s disease. Here is a link and some excerpts to an article he recently wrote about Parkinson’s and embryonic stem cell research:

    http://www.catholic.org/politics/story.php?id=32655

    Over time, however, all Parkinson’s patients know that after a short span the medication fails and we also know what that means. We have uncomfortably witnessed our future in the lives of longer suffering brothers and sisters…So you would think that when President Obama, for whom it was my privilege to campaign, gives permission for embryonic stem cell research that some say holds a Parkinson’s cure that I would be grateful and encouraged. Yet, I am not. While I believe the President’s desire to separate science and politics is well considered, there can be no separation from ethics,

    To avoid cooperating with an intrinsic evil, this trembling hand is not to take hold of any medicine or participate in any medical treatment advanced by research involving the destruction of a human embryo. Easier said than done – or by me, even written down. But then, in this Easter time we are reminded that we belong to a Church where the very son of God allowed himself to be put to death so that others might live.

    The article contains, naturally, some defenses of the Obama administration, but I think perhaps I will make a conscious effort to display more sympathy for Prof. Kmiec (if not for some of his arguments) in the future. Anyone with such a difficult and debilitating illness is in need of prayers for their physical, psychological, and spiritual well-being. Our Lady of Sorrows, ora pro nobis.

  • “Empathy” [Einfuehlung] is one of those German make- believe emotions; an attempt to displace the more obvious and traditional word “sympathy”.

    It’s a faker’s word. As in Mr. Clinton’s “I feel your pain”.

  • This analysis makes vastly more sense than Kmiec’s article, and you didn’t even get to the part where he explained how lacking in “meaning or lasting effect”–not to mention empathy–is “coerced morality” of the sort some villainous people propose as a solution to the problem of abortion in America. It’s too bad your analysis can’t also be printed in America, but it seems they only accept submissions from prominent pro-life Catholics like Douglas Kmiec.

  • Isn’t justice supposed to be blind anyway???

  • Pingback: How Long in the Wilderness? « The American Catholic

Obama Wants Living Constitution Theory For SCOTUS Nominee

Saturday, May 2, AD 2009

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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13 Responses to Obama Wants Living Constitution Theory For SCOTUS Nominee

  • 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.

    ***
    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.”

    ***
    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.

    ***
    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.

25 Responses to The Ten Worst Supreme Court Decisions of All Time

  • Thanks, Donald. And if we had to do a top 100, I doubt we’d run out of room.

  • I sent a note to the website pointing out that the Dred Scott was correct. Disgusting, but correct.

    The Constitution does permit slavery [which Taney despised]. Slavery became illegal with the passage of the 13th Amendment.

  • I sent a note to the website pointing out that the Dred Scott was correct. Disgusting, but correct.

    And I replied noting that you were wrong, dead wrong. The Dred Scott case wasn’t about whether slavery was constitutional. It wasn’t even supposed to be about Congress’ ability to outlaw slavery in the territories until Taney transformed the case. So your observation about the 13th Amendment, like Taney’s decision, is kind of a non sequiter.

  • Mr. Zummo:

    Would you refer to chapter and verse in your comments on Justice Taney? Or try to develope an argument?

    You might read Walker Lewis’ complete account of the case in his biography of Taney: WITHOUT FEAR OR FAVOR.

    I am puzzled by your remark about the 13th Amendment. If slavery was not illegal in the U.S., why was the amendment necessary?

  • I am puzzled by your remark about the 13th Amendment. If slavery was not illegal in the U.S., why was the amendment necessary?

    Umm, because slavery was not prohibited.

  • “Not prohibited” seems to mean “permitted”. But I am not a lawyer, nor a graduate of a school in the Jesuit tradition.

    The Jesuits had no problem with slavery. [Taney despised it and the slavers: “those vermin who trade in human flesh”]. Their Georgetown province had slaves until 1828, when Rome insisted that they give up the practice. They did so by selling the slaves into the deep South and using the money to finance Georgetown and Fordham colleges. [T.J. Murphy. JESUIT SLAVEHOLDING…].

  • “Not prohibited” seems to mean “permitted”.

    Yes, exactly. Slavery was permitted. Thus the need for a 13th Amendment. I’m still at a complete lose as to where the confusion is coming.

    But I am not a lawyer, nor a graduate of a school in the Jesuit tradition.

    And neither am I, though I did attend a Jesuit high school.

  • “complete lose” should read “complete loss” above.

  • I sent a note to the website pointing out that the Dred Scott was correct. Disgusting, but correct.

    beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.

    Neither the declaration nor the constitution included this, but that it was believed by Taney that the framers believed this (reasonably). I don’t see how such a ruling could square with a strict constructionist principle of jurisprudence. Do we have to hold that everything the framers believed however proven by science and reason to be false should be upheld as constitutional even though they did not write it in the constitution? Look at the abortion situation, I really don’t know the framers understanding of embryology, but what if they believed that human beings just spontaneously formed in the woman’s womb moments before delivery (not unreasonable in the late 18th century)… would that then restrict the courts from protecting unborn children as “persons” given modern day understanding that the human embryo is fully human from the earliest stages? That the framers were ignorant of the inherent equality of Africans does not mean that this ABSOLUTE fact must not be acknowledged for all eternity without a constitutional amendment?

    No, strict constructionism must acknowledge without amendment any changes in the understanding of the natural order unless they are EXPLICITLY spelled out in the constitution.

    There should have been no need for a 13th amendment nor no need for the Human Life amendment. These laws were necessary because of horrendously bad judgments. Consider how much more powerful the SCOTUS has become since these terrible errors.

  • “Neither the declaration nor the constitution included this, but that it was believed by Taney that the framers believed this (reasonably).”

    Actually that was more a reflection of what Taney and most white Southerners had come to believe by the 1850’s. In his younger days Taney reflected the consensus of the Founding Fathers: slavery was an evil that would eventually die out. By the 1850s the South felt under siege, the slave economy of the South was booming, “scientific” racism was in vogue, and the idea that slavery was a positive good was argued by many Southerners. This was a radical change from the beliefts of such Southern Founding Fathers as Washington, Jefferson, Patrick Henry, etc., who regarded slavery as an evil that would eventually pass away in the relatively near future. That several states at this time period allowed free slaves to vote, including North Carolina, is an indication that no absolute bar to citizenship was held at the time of the Revolution on the basis of race. The evolution of thinking on slavery from 1776-1861 in America is a fascinating subject. The tragedy is that it tended to develop in opposite ways in the North and the South.

  • I believe we are getting away from the decision into ad hominem arguments. Taney was always admired for the precision of his arguments and his knowledge of the legal precedents, He had been a law clerk for one of the Maryland delegates to the Constitutional Convention so had good knowledge of what the delegates believed when they agreed to the Constitution.
    In this respect, the Founding Fathers were not nice people. They were slavers {“Vermin who traded in human flesh”] and no amount of whitewash will cover that. As Samuel Johnson snorted about the DECLARATION: “Virginia slavers preaching the equality of man”. Although there were fine examples of Southern slave owners [Taney among them] who emancipated “their” slaves, none of our slaver founders did so. They could not afford it, they said.

  • Gabriel, Dr, Johnson, brilliant writer though he was, was also a paid shill of King George III, receiving a pension of 300 pounds a year from 1762, a small fortune in those days. Of course he supported King George and villified his adversaries, both in England and in America!

    George Washington freed several of his slaves during his life and freed all of his slaves at his death and left bequests for the education of the younger slaves in trades.

    Founding Father Robert Carter III of Virginia freed hundreds of his slaves during his life and made arrangements to free all of them after his death.

    Most of the Founding Fathers of course had no slaves and were opposed to slavery.

  • Taney was always admired for the precision of his arguments and his knowledge of the legal precedents, He had been a law clerk for one of the Maryland delegates to the Constitutional Convention so had good knowledge of what the delegates believed when they agreed to the Constitution.

    Which is all well and good, but that still doesn’t mean that his decision was based even remotely upon sound legal reasoning.

    Again – the Dred Scott base was simply about whether or not a slave residing in free territory could be declared free. It had nothing to do about the ultimate justice of slavery in the US. NOTHING. Taney’s decision could have been justified had he and his cohorts simply declared that Dred Scott could not be freed, He stepped over the line when he declared Congress’ ability to prohibit slavery in the territories unconstitutional.

  • Donald R. McClarey Says:
    Sunday, April 19, 2009 A.D. at 2:58 pm

    “Gabriel, Dr, Johnson, brilliant writer though he was, was also a paid shill of King George III”

    This is what I mean about the constant use of ad hominem arguments on this site [and others]. Dr. Johnson was an unapologetic Tory. He was granted the pension for his literary work. The last thing he could be called is a “paid shill”.

    “George Washington freed several of his slaves during his life and freed all of his slaves at his death and left bequests for the education of the younger slaves in trades”.

    Why not all of the “men created equal”?

    I repeat my admiration for Roger Taney who regarded slavers “as vermin who trade in human flesh”.

  • paul zummo Says:
    Sunday, April 19, 2009 A.D. at 4:37 pm

    “Which is all well and good, but that still doesn’t mean that his decision was based even remotely upon sound legal reasoning”.

    I repeat, perhaps hopelessly, that it was not Taney’s decision. It was a decision of 8 of the 9 justices. At the time it was accepted quite calmly – indicating probably a majority agreement in the country. Including Mr. Lincoln.

    I repeat my chief point: for nearly a century, slavery was accepted in the United States. One may praise democracy as perhaps the least evil of governments, while remembering that the American democracy accepted the Jim Crow laws until the 1960s.

  • Johnson was a Tory Austin and he was also a paid shill. As long as a Whig ministry was in the good graces of the King he defended the Whig ministry. He was paid his pension because he would enter the lists on behalf of George III, as he did in the 1770’s in four pamphlets. Johnson was touchy about this, and well he should have been. He was no more an independent agent than a soldier in the British Army who took the King’s shilling. If he had spoken out against a policy favored by the King that pension would have grown wings and flown away, as happened routinely to people who fell out of favor with George III.

    Your comment that the Dred Scott decision was accepted calmly by the country is completely mistaken. The decision caused an uproar throughout the North. Here is Lincoln’s speech on the decision: http://www.freemaninstitute.com/lincoln.htm

  • In regard to Dred Scott, the vote on the decision was 7-2.

  • I repeat, perhaps hopelessly, that it was not Taney’s decision. It was a decision of 8 of the 9 justices.

    Seven of nine – one of the concurring Justices disagreed with Taney’s reasoning. And since Taney wrote the decision, it makes it his opinion. But that’s just a technical matter that really has little to do with the merits of the case.

    At the time it was accepted quite calmly – indicating probably a majority agreement in the country. Including Mr. Lincoln.

    Donald beat me to the punch on this. I simply have no clue how you can make that claim.

    I repeat my chief point: for nearly a century, slavery was accepted in the United States.

    Which, AGAIN, says nothing about the correctness of the decision. I don’t know why you have this mental block that prevents you from understanding that the case wasn’t about the moral rightness or wrongness of slavery. Your insistence upon this point is a complete non sequiter.

  • To try to make Samuel Johnson the “shill” of a political party gives but a shallow idea of his great thinking ability. He also had a way with words, teste the precision of his snort about “Virginia slavers preaching the equality of man”.

    As to the facts about the events after the decision, I can but again refer to Walker Lewis’ biography of Taney WITHOUT FEAR OR FAVOR.

  • Paul Zummo writes:
    “Which, AGAIN, says nothing about the correctness of the decision. I don’t know why you have this mental block that prevents you from understanding that the case wasn’t about the moral rightness or wrongness of slavery. Your insistence upon this point is a complete non sequitur”.

    I wrote nothing about the morality of slavery. My point is the legality of slavery. The Dred Scott decision is based upon the concept that for the Constitution slaves were property – chattel. And that they were held to be inferior to others.

    This is the chief thrust of the decision.

    Lincoln also thought that blacks were inferior. Taney did not, being a good Catholic. He inherited three or four slaves. He immediately freed with a bourse those who could take care of themselves, and took into his household those who were too aged to take care of themselves. As a young lawyer he defended several blacks against criminal charges and was always generous to black associations.

  • Actually Gabriel by the 1850’s Taney was an ardent defender of slavery as noted here:

    http://books.google.com/books?id=E0HS12DV98UC&pg=PA156&lpg=PA156&dq=taney+blacks+inferior&source=bl&ots=X5iwS0tA0U&sig=FMD7525JnV8XnOSlG46cmOmoeuI&hl=en&ei=qAnuSei8GozyMqSn2fEP&sa=X&oi=book_result&ct=result&resnum=1#PPA126,M1

    Taney in writing the decision of the Court was acting as a partisan of the slaveholding south. He thought he was resolving the question of slavery in this country, which just goes to demonstrate that Supreme Court justices can be just as susceptible to self-deception as most people.

  • The Dred Scott decision is based upon the concept that for the Constitution slaves were property – chattel. And that they were held to be inferior to others.

    This is the chief thrust of the decision.

    No. It. Isn’t.

    Seriously, read a constitutional law textbook. Or perhaps simply a history book. Your understanding of this case is mind-numbingly insufficient for you to be carrying on this conversation.

  • As to the facts about the events after the decision, I can but again refer to Walker Lewis’ biography of Taney WITHOUT FEAR OR FAVOR.

    And no doubt Donald and I can refer to about 20 other books that would refute the idea that the decision went over well with a majority the population. It helps to have read more than one or two books on an issue if you’re trying to educate yourself on a given topic.

  • “I sent a note to the website pointing out that the Dred Scott was correct. Disgusting, but correct.

    “The Constitution does permit slavery [which Taney despised].”

    The only way for Dred Scott to have been “correct” is for the Declaration of Independence of the United States of America to have been incorrect. If ALL men are Created Equal, and Endowed by their Creator with the Unalienable Rights of Life, Liberty, and the Pursuit of Happiness, and ALL governments must be instituted to “secure these rights,” then on what basis can the government of the United States permit the taking away of the rights of Life, Liberty, and the Pursuit of Happiness?

    BTW, if Chief Justice Taney was such as a foe of slavery, why on Earth did he try to insure the victory of the Southern Slave States in the Civil War by issuing the his famous Ex Parte Merryman decision attempting to release the rebellious Maryland Militia Officer Lt. Merryman?

  • Neal Lang Says:
    Sunday, May 10, 2009 A.D. at 1:26 am
    G.A.: “I sent a note to the website pointing out that the Dred Scott was correct. Disgusting, but correct.
    The Constitution does permit slavery [which Taney despised].”

    “The only way for Dred Scott to have been “correct” is for the Declaration of Independence of the United States of America to have been incorrect. If ALL men are Created Equal, and Endowed by their Creator with the Unalienable Rights of Life, Liberty, and the Pursuit of Happiness, and ALL governments must be instituted to “secure these rights,” then on what basis can the government of the United States permit the taking away of the rights of Life, Liberty, and the Pursuit of Happiness?”

    It is one of the difficulties in discussions about the Constitution is that it often confused with the Declaration. Like it or not, the Constitution is the basis of our laws. And it did permit the trade in slaves by “those vermin who trade in human flesh” [Taney] to continue for 20 years; and it did permit slavery.

    Taney is reviled for being the messenger who brought the bad news – that the U.S. was the country of freedom for white men and a few blacks [Indians not included]. Even Father Abraham believed that Negroes were inferior to whites and looked to shipping Negroes to Africa as a solution. Taney defended Negroes in court cases.

    Taney was not a partisan of the South. The decision in ex parte Merriman to suspend habeas corpus was upheld by several other courts, the argument being that only Congress had the power to suspend ex habeas.

    “Lincoln subsequently expanded the zone within which the writ was suspended. After reconvening on July 4th Congress rejected a bill favored by Lincoln to sanction his suspensions. Between 1861 and 1863 several additional federal district and circuit court rulings affirmed Taney’s opinion. Lincoln nevertheless continued making unauthorized suspensions for another two years until the Habeas Corpus Act of March 3, 1863 formally suspended the writ for him.
    “The Merryman decision is still among the best known Civil War-era court cases and also one of Taney’s most famous opinions. Its legal argument holding that Congress alone may suspend the writ is noted for reiterating the opinion of John Marshall and the court in Ex Parte Bollman (1807) and was recently restated by the Supreme Court in Hamdi v. Rumsfeld (2004)”.

    The adulation of Lincoln goes too far. It also raises the question of whether Lincoln assumed to himself sole power to declare war – a power which seems to be assumed by presidents since Truman.

Scalia on Stare Decisis and Roe

Sunday, March 22, AD 2009

Hattip to the ever eagle eyed Jay Anderson at Pro Ecclesia.   Justice Antonin Scalia on stare decisis and Roe.  By the way, Scalia’s low estimate of Roe as a legal opinion is pretty nearly universal in the legal world.  Liberal attorneys and judges, even though they support abortion on demand, will frequently agree in private, and sometimes in public, that Roe was a shoddy piece of legal work, and that Harry Blackmun, the author of Roe, was a poor excuse for a jurist.  This of course does not prevent them from supporting Roe since they approve of the result, but it does mean that all of the many cases following Roe are based on an intellectually, and of course constitutionally, rotten foundation.  We can see this in the opinions that strain to make sense of Roe, which, as Judge Bork famously noted, is completely devoid of legal argument.

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2 Responses to Scalia on Stare Decisis and Roe

  • Roe can be defended solely on an outcome-based (if you are pro-choice) criteria. It is an abomination from a constitutional perspective. What’s worse is that I think Casey is an even greater atrocity, and I’ve always loved Scalia’s dissent. It sums up what’s wrong with it so perfectly.

  • I’m not going to sit in judgment of the soul of anyone. Lord knows, I’ll have enough of my own failures to answer for on the Day of Judgment.

    But let’s just say I’m glad that a last-minute switch in the Casey decision to preserve the abomination of Roe v. Wade for at least another generation won’t be one of the things that I’ll have on my conscience when I answer to the Lord for my treatment of the least of these.