[EL] Nex scotus

Thu Oct 1 09:11:58 PDT 2015

And hats off to David Bernstein for literally “rehabilitating Lochner” by name, even if the broader theory and approach had long been vibrant.

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
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
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 Josh Blackman
Sent: Thursday, October 01, 2015 11:55 AM
To: Eric J Segall; Marty Lederman; law-election at uci.edu
Cc: Randy Barnett
Subject: Re: [EL] Nex scotus

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).

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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<mailto: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<mailto: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<mailto: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<tel:%28614%29%20236-6317>
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
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> [mailto: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<mailto: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.”
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