He didn’t do it by engaging in a Lochner-type analysis. But he was the sole dissenter in Sveen v. Melin, 584 U.S. _____ (16-1432) (2018), and his dissent was based upon a very strict reading of the Contracts Clause. Now, this might not seem related (it just shows he’s a committed textualist), but IIRC, the Court pretty much turned away from strict application of that clause at the same time that Lochner came into question. So it is my belief that, underlying his textualism is a deep commitment to the concept of the right of contract between parties. When you keep in mind his dissent in Carpenter, which was based on his notion that property rights are the better vehicle for determining reasonableness of searches, it seems to me that he has a very old-school viewpoint that rights of men in their property and in their ability to contract regarding their property (and other things) are inviolate. It’s just a small skip, hop, and/or jump from there to Lochner, if I recall.
There have been two Supreme Court justices who never even went to law school. There have bee FORTY Supreme Court justices who never worked in litigation at all before joining the Supreme Court, including Chief Justice William Rehnquist who was an assistant attorney general before joining the court.
Actually, Roe v. Wade is in a danger zone. It’s now been on the books for almost 50 years. That’s about the middle of the limit of most precedent that society (via the Court) decides to jettison. For example, Plessy v Ferguson lasted on the books for 58 years; Lochner v. New York’s “substantive due process” was finally officially jettisoned 50 years later (though effectively the Court had given up on the freedom of contract a decade or so earlier). Roe is right in the sweet spot for finally being removed.
What usually is required for removal of a major precedent is a substantial change in the makeup of the Court. Upon the appointment of a new, relatively conservative justice, that could be said to apply to the Supreme Court vis à vis the Court of 1972. It has been quite a while since the Court had five firmly, unabashedly “conservative” voices. And while the Chief Justice can at times go off on his own tangent, his viewpoints on Constitutional rights of individuals are very, very much in line with those of the “conservative” wing of politics. With the presence of Justice Gorsuch (a quite clearly textualist interpreter) as a powerful voice, a decision like Roe is at great risk, since it was never supported in any great extent by anything that can actually be found in the Constitution itself.
I’m not saying he’s right about Roe v Wade, and in fact I was surprised that he made this prediction, but Toobin is indeed a respected analyst who should be taken seriously. And I don’t know why he would be blamed for the ACA prediction. His analysis was basically right. The common wisdom after the ruling was that Roberts was trying to preserve some semblance of integrity for the court by not blatantly overriding legislative intent on a landmark piece of legislation that, all Republican whining notwithstanding, was not a major constitutional issue.
Which is why I tried to draw a line between the “no trial experience,” business, which I agreed is not particularly probative, and “I don’t know what a motion in limine is.”
Sure, but the point he’s making is: judges who are self-described originalists/textualists/strict constructionists are at least somewhat more constrained in imposing their preferred results on cases.
Even if you believe that such self-described originalists are merely feigning their philosophy, the necessity of pretending at least obligates them to rein in the more expansive departures from text in a way that a self-described living constitutionalist would not be.
Doesn’t that deny the Republicans a confirmation vote? Presumably Lee can’t vote for himself if he’s the nominee. Then the Republicans drop down to a 49-49 tie in the Senate. McCain may be too bedridden to come vote and Flake, Collins, Murkowski and Corker may defect.
I don’t know how the details of that actually work out. I’m just guessing that he’d either be able to vote for his own confirmation, which, if approved would be immediately followed by his resignation from the Senate, or he’ll resign if picked and his replacement will be in place in time for the vote. Not certain though.
A strange thing is happening. When reporters approach Republican Senators to ask about their thoughts on confirming someone who will sink Roe, the poor dears are seized with an abrupt attack of total deafness, which miraculously cures itself once they get further away. Medical science is baffled.
Trump the politician, has already put pressure on Democratic Senators from red states. They are Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana and West Virginia’s Joe Manchin. The pressure Trump isusing is indicating to his base they might try to block his super court nomination.
He also hosted a bipartisanship dinner for the three.
I think at least one, possibly all three of these senators will lose their election in the 2018 midterms. It will be interesting to see who caves.
With zero margin for error, the Dem’s can not afford one vote in the other direction.
Best guess is Trump gets his supreme court justice confirmed. I also think he’ll retain control of the Senate until 2020, meaning he’s in position to get a lot of work done.
Interesting that Flake, Heitkamp, etc. really have no incentive to defect.
Flake voting against the Trump nominee isn’t likely to get him any Democratic votes in 2020, but will torpedo him among Republican voters should he run for prez; he’d get primaried.
Heitkamp voting for the Trump nominee isn’t going to win her many conservative votes in ND but voting against it would blow her up in ND anyway; she’s most likely going down in November no matter what.
