[EL] Nex scotus

Thu Oct 1 08:54:57 PDT 2015

Two weeks ago, the Federalist Society held a panel at the Bush 43 Library
on the Bush Judiciary at 10 years. FedSoc VP Leonard Leo
<http://joshblackman.com/blog/2015/09/28/president-bushs-judiciary-at-ten-years-and-looking-forward-to-2017/>
offered tips of how the next SCOTUS vacancy should be filed.

“Third, this is a change from previous administrations. I’m not sure the
> “legislating from the bench” approach will be as effective a framework as
> it was in 2000 and 2004. What I find in the conservative movement now,
> people think about not just having judges who don’t create things that
> aren’t there, but who enforce things that are there. We should be looking
> for judges who understand duty and obligation, and enforce the structural
> constitution. I think the rhetoric in future battles needs to change. It is
> not just about judicial restraint. It is about judges who play a role
> enforcing the notions of constitutional limited government.”

http://joshblackman.com/blog/2015/09/28/president-bushs-judiciary-at-ten-years-and-looking-forward-to-2017/

I think this capture how the movement has shifted along the lines that Randy
Barnett and I wrote about
<http://www.weeklystandard.com/articles/next-justices_1024728.html?nopager=1>
(and
Linda and Rick cited).

---------------------------------------------------------------------------
Josh Blackman
http://JoshBlackman.com
*Unprecedented: The Constitutional Challenge to Obamacare
<http://www.amazon.com/gp/product/1610393287/ref=as_li_tf_tl?ie=UTF8&camp=1789&creative=9325&creativeASIN=1610393287&linkCode=as2&tag=joshblaccom-20>*

On Thu, Oct 1, 2015 at 10:47 AM, Eric J Segall <esegall at gsu.edu> wrote:

> Marty, I think if Justice Willett gave a nuanced answer about Lochner and
> a tentative approval of a real RB test, he would be confirmed.
>
> Best,
>
> Eric
>
> Sent from my iPhone
>
> On Oct 1, 2015, at 11:45 AM, "Marty Lederman" <lederman.marty at gmail.com>
> wrote:
>
> 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.”*
>>
>> <image001.png>
>> <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=>
>>
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