He doesn’t think it is “inviolate” just very important. I agree that the Constitution in its history and tradition allows people a certain autonomy to contract, to own property, and/or decide about whether or not to marry or have children.
However, where the Court has gone off the rails, both in Lochner and Roe, is that it failed to understand that these freedoms and liberties (indeed even a person’s life) can be taken away by due process of law. A part of this due process of law is the enactment of laws by the general police power of states to regulate the public safety, health, and morals.
The last part is left off. So the freedom of contract is important, but the state can have a countervailing interest and say "No contracts for more than sixty hours per week in a bakery. You can keep dogs as property, but not tigers. You can choose whether to procreate, but that choice stops at conception. You may marry, but you may not marry minors, people of the same sex, or not get married if you already have a spouse.
These are the choices made in every representative democracy.
What happened to William Pryor? He was in the top three last time and not in the top five this time? Maybe with the majority so thin he won’t tempt the gods with someone with such a hard record like Pryor. I like Hardiman last time and still do.
Yeah this is a good thing. Pryor was a fucking hard-right loon who made Scalia look halfway rational. I don’t know what led to Trump removing him from the shortlist (maybe his nose wasn’t brown enough, I dunno) but whatever it is, that is, relatively speaking, a good outcome.
There’s no need for an outrageous conservative like Pryor whose nomination would risk delaying the confirmation until after elections. Republicans want this over and done with, and really all they need is to choose another reliable conservative in the mold of Thomas or Alito.
I’ve seen a couple of thinkpieces opining that, to the extent that Trump’s nominee will presumably usher in 5-4 abortion rulings where every woman who’s currently on the Supreme Court will pen withering dissents that’d rail against an all-male majority, it may well be advisable to have a woman cast that tiebreaking vote — and, y’know, maybe even author that opinion — after maybe having it easier being questioned by female Senators in Let’s-Talk-About-A-Woman’s-Right-To-An-Abortion hearings.
As k9bfrienderalready noted, this is not credible. Self-described originalists like Scalia have been among the most extreme activists on the bench. When applying the Constitution to modern circumstances, there is just as much scope available to the self-proclaimed originalist to discern what was “really” meant in a way that is ideologically aligned as there is for the advocate of the more progressive approach that’s sometimes called “constitutional fidelity”. This is in fact what’s been happening. Contrary to what conservatives like to pretend, both schools of constitutionalism are nominally constrained, and yet both offer great interpretive scope for the creative ideologue.
Not that this should be considered authoritative, but just a personal observation: I’ve literally NEVER heard it referred to as “constitutional fidelity” prior to this post. I’m curious where you’ve read / heard the phrase used this way.
I don’t think that would matter. You think if Thomas wrote an opinion ending affirmative action, the left would say, “Ah, at least a black man wrote it”?
If a woman wrote an opinion overturning Roe, she would be vilified as worse than the men who joined it.
There is no control for hold any judge to this standard.
This is what makes it even more critical to identify judges who believe that this is the appropriate standard, the idea being that someone who disclaims the standard is certainly not likely to adopt it if confirmed, and someone who claims it may at least feel the pressure of self-consistency to maintain it.
Does anyone really think Roberts would vote to overturn Roe? IIRC, he did say in his confirmation hearing that he considers it “settled law”, if that means anything. But even if he, deep in his heart, would like to see it overturned, I don’t think he’d want to see the court under his leadership be responsible for the shit-storm that would ensue if Roe were overturned. He might agree to weaken it, but I just don’t see him being on the side of those who want a full repeal.
Quite right, far from being authoritative, your own experience is just unsurprising evidence that you probably don’t listen to NPR:
“Living constitutionalism” is just one of the many phrases fighting to be the progressive constitutional standard-bearer. Other contenders include “democratic constitutionalism,” “redemptive constitutionalism,” “constitutional fidelity” and “progressive originalism.”
As Liu points out, President Obama recently added another word to the mix.
“We have felled many trees coming up with a term,” says Liu, “and then President Obama mentions a single word — empathy — and the entire debate swirls around that word.”
In a news conference after Supreme Court Justice David Souter announced his retirement, Obama said, “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”
Obama has long advocated a view that the Constitution must be interpreted to reflect the changing norms and understandings of an evolving society. In his book The Audacity of Hope, he wrote, “Before the ink on the constitutional parchment was dry, arguments had erupted, not just about minor provisions, but about first principles. Not just between peripheral figures, but within the revolution’s very core.”
Regardless of how much the term may or may not be fashionable, especially in conservative circles where its positive connotation would be frowned upon, I like it because I think it accurately reflects the progressive approach of constitutional scholars like Obama, namely that the constitution should be interpreted in modern contexts with fidelity to its actual intent in the context of history rather than slavishisly parsing the particular words that were chosen, or even worse, degenerating into a micro-analysis of the punctuation, and second-guessing its intent blindly from that. Scalia was adept at spinning fantastical tales from that kind of analysis, infatuated as he was with linguistic jiggery-pokery, in order to reach the desired conclusions.
You misspelled “I disagree”. However, my observation can be restated in a less opinionated and more defensible fashion: Scalia has written opinions that have garnered very strong dissent both from other justices and from constitutional scholars, which does not support the idea of a highly constrained plain reading of the text as you suggest.
Any justice who actually kept to a highly constrained reading of the text would get all sorts of dissent from those folks. Imagine a justice sticking to a plain reading of the establishment clause. As long as Congress isn’t literally establishing a religion, everything is cool.
On the first part, Jeffrey Toobin certainly believes it.
On the second part, Roberts said a lot of things in his confirmation hearing that turned out to be a load of self-promoting bullshit. Like declaring his boundless dedication to judicial impartiality, and then deftly orchestrating Citizens United to transform the campaign finance landscape in the Republican image for at least many generations.
Read this and see if you still believe what you wrote. One quote from it:
When Roberts did make a singular decision, siding with four liberals to uphold Obamacare in 2012, conservatives on and off the bench were outraged.
But the chief justice might have been playing a long game, as much concerned about the institutional future of the court and his reputation than the fate of one law. Now, the 63-year-old Roberts is poised to be both figuratively and literally in charge.