[EL] Nex scotus

Thu Oct 1 08:43:29 PDT 2015

Of course the Reagan Administration considered and nominated libertarians
for judgeships.  But did they nominate anyone who was publicly on record --
or who would have expressed the view at a hearing -- that *Lochner *was
correctly decided?  Of course not.  And a Republican President probably
wouldn't do so even today (sorry, David Bernstein).

On Thu, Oct 1, 2015 at 11:35 AM, Smith, Brad <BSmith at law.capital.edu> wrote:

> I know this isn’t the point of Rick’s link, but it always interests me
> that Linda Greenhouse’s job entailed reporting on the Supreme Court for the
> nation’s “paper of record,” and she did it for years, yet she never seemed
> to understand or even be aware of strands and trends in
> conservative/libertarian legal thought.* “Not very long ago, a potential
> nominee who was prepared to answer “yes” to those questions wouldn’t have
> made it past the security checkpoint of a Republican White House…. in the
> modern era’s ur-Republican White House, Ronald Reagan’s, … such an answer
> would have been apostasy.” *  Is Greenhouse unaware of such high-profile
> Reagan nominees to the bench as Bernard Siegan (did she completely miss the
> biggest Court of Appeals confirmation fight of the Reagan era?), Alex
> Kozinski, Alice Batchelder, Douglas Ginsburg, or, to give one more example,
> Anthony Kennedy himself-- let alone conservative/libertarian legal
> scholarship? There are these incredible, long-running debates in
> right-leaning jurisprudence that perpetually catch Greenhouse completely
> unawares and leave her absolutely baffled about what seem to her great
> contradictions or inexplicable phenomena.
>
>
>
> *Bradley A. Smith*
>
> *Josiah H. Blackmore II/Shirley M. Nault *
>
> *  Professor of Law*
>
> *Capital University Law School*
>
> *303 East Broad Street*
>
> *Columbus, OH 43215*
>
> *(614) 236-6317 <%28614%29%20236-6317>*
>
> *bsmith at law.capital.edu <bsmith at law.capital.edu>*
>
> *http://www.law.capital.edu/faculty/bios/bsmith.asp
> <http://www.law.capital.edu/faculty/bios/bsmith.asp>*
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Rick Hasen
> *Sent:* Thursday, October 01, 2015 10:53 AM
> *To:* law-election at uci.edu
> *Subject:* [EL] ELB News and Commentary 10/1/15
>
>
>
> And here’s Linda Greenhouse’s NYT column
> <http://mobile.nytimes.com/2015/10/01/opinion/a-chief-justice-without-a-friend.html?_r=1&referer=http://feedly.com/index.html>
>  today:
>
> *In a variation of that theme, the columnist George Will
> <http://topics.nytimes.com/top/reference/timestopics/people/w/george_f_will/index.html?inline=nyt-per>, in
> a piece
> <https://www.washingtonpost.com/opinions/110-years-and-still-going-strong/2015/07/10/f30bfe10-2662-11e5-aae2-6c4f59b050aa_story.html> that
> went viral in the conservative blogosphere during midsummer, castigated
> Chief Justice Roberts for, of all things, his dissenting opinion in
> the same-sex marriage
> <http://topics.nytimes.com/top/reference/timestopics/subjects/s/same_sex_marriage/index.html?inline=nyt-classifier> case.
> It was not that Mr. Will, often a reliable barometer of inside-the-Beltway
> conservative thought, had suddenly embraced marriage equality. Rather, he
> objected to what it was the chief justice was objecting to in Justice
> Kennedy’s majority opinion.*
>
> *In his dissenting opinion, Chief Justice Roberts accused the majority of
> reanimating the spirit of the long-discredited Lochner v. New York,
> <https://supreme.justia.com/cases/federal/us/198/45/case.html>a 1905
> decision in which a conservative Supreme Court
> <http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org> invoked
> a supposed “liberty of contract” to invalidate workplace regulations. It
> was a later conservative court that was still under Lochner’s sway when it
> struck down much New Deal legislation in the early 1930s.*
>
> *The case stands for “the unprincipled tradition of judicial policy
> making,” Chief Justice Roberts said in his dissent; only when a later court
> understood Lochner’s error did justices return to their properly restrained
> role. “The majority today neglects that restrained conception of the
> judicial role,” he wrote.*
>
> *In his column, Mr. Will said the chief justice’s account of Lochner
> contained “more animus than understanding.” Lochner should be celebrated,
> he wrote. The 1905 decision “was not ‘unprincipled’ unless the natural
> rights tradition (including the Declaration of Independence) and the Ninth
> Amendment (‘The enumeration in the Constitution, of certain rights, shall
> not be construed to deny or disparage others retained by the people’)
> involve no principles.”*
>
> *The Ninth Amendment? The amendment that constitutional progressives have
> viewed as the source of the “unenumerated rights” much disparaged by
> conservatives? The Ninth Amendment that Robert Bork likened to an ink blot
> on the Constitution? Indeed, Mr. Will wrote: “The next Republican president
> should ask this of potential court nominees: Do you agree that Lochner
> correctly reflected the U.S. natural rights tradition and the Ninth and
> 14th amendments’ affirmation of unenumerated rights?”*
>
> *Not very long ago, a potential nominee who was prepared to answer “yes”
> to those questions wouldn’t have made it past the security checkpoint of a
> Republican White House. The young John Roberts worked in the modern era’s
> ur-Republican White House, Ronald Reagan’s, when such an answer would have
> been apostasy. That was then.*
>
> *I’m writing about such obscure subjects as Lochner and unenumerated
> rights in full understanding that the new conservative memes may be just so
> much window dressing on a more fundamental, less elevated explanation for
> the conservative anger. I never thought I would be quoting Senator Ted Cruz
> <http://www.nytimes.com/interactive/2015/03/23/us/politics/ted-cruz-path-to-presidency.html?inline=nyt-per> with
> anything close to appreciation, but here goes. Heaven knows there wasn’t
> much honesty in the Republican debate, but the Texas senator said something
> during his rant about Chief Justice Roberts that might actually, even if
> inadvertently, have come close. “You know,” Senator Cruz said, “we’re
> frustrated as conservatives. We keep winning elections, and then we don’t
> get the outcome we want.”*
>
> [image: Share]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D76375&title=The%20Next%20%23SCOTUS%20Justice%20May%20Be%20Much%20Further%20to%20the%20Right&description=>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20151001/3aefbdea/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20151001/3aefbdea/attachment.png>