# Originalist Justices: What the heck are they thinking? **URL:** \ **Category:** Great Debates\ **Created:** [September 14, 2005, 9:01pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664 "2005-09-14T21:01:24Z")\ **Posts on this page:** 20\ **Page:** 8
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 19, 2005, 3:02pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/141 "2005-09-19T15:02:10Z")
> [@E-Sabbath](#): > > I’d say a Monarchy would do it. The problem would be selecting and raising proper monarchs. We could follow the Swiss example: King Charles XIV was originally Jean Bernadotte, one of napoleon’s generals. But the Swiss, whose own King was childless and pretty shaky to boot, looked around and decided that Jean Bernadotte was a pretty sharp guy. So they simply decreed that he was heir to the the throne, and he became Charles XIV, by all accounts leading the country through a long, peaceful, and prosperous time. The only trouble is that the supply of Jean Bernadotte-like guys is strictly limited. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 19, 2005, 3:23pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/142 "2005-09-19T15:23:55Z")
> [@acsenray](#): > > I believe in a democracy in which certain personal decisions are not subject to majority rule. I fully agree. Some things are nobody else’s busines. I don’t think anyone would disagree with the general idea, but they fight like hell over the details. > [@acsenray](#): > > It’s one thing to say that people are free to choose how to govern themselves. It’s another thing when they decide to govern _themselves_ by telling me I can’t do something. When it comes to economic matters (employment, environment, consumer protection, etc.), I’m perfectly content with the idea that the law will help to society that benefits all. But when it comes to purely personal matters (sexuality, reproduction, etc.), I don’t believe democracy has any business butting its nose in. Again, I agree. There is a difference between limiting acitivities for public safety or general welfare, and banning them because “Joe Sixpack” or Reverend Brimstone just doesn’t like it. However, both sides may still try to impose their view. Someone has to win, the other has to lose. There probably have been cases or arguments that I as a non-lawyer would reject and throw out, but then that would be Steve the Autocrat - not law, and not democracy. I believe we DO have rights that are not listed or enumerated, as the 9th or 10th (?) Amendment says. But I also understand that some rights or privileges may be limited or curtailed for public safety and general good - I have a right to own a gun, but I don’t have a right to fire it in random directions on a city street - I have a right to free speech, but I don’t have a right to yell Fire for no reason in a crowded theater. I never subscribed to any philosophy that said we only have the rights that “they” give us.l “They” have the power to set limits on certain freedoms, they have to actively do something. There is no deffault of NOT having a right. The default is, you have it unless the city or state or federal gov’t sets a limit or bans it outright. I’m starting to think that with textualists, you get a decision based on what the law says, directly from the words. If the law sucks, it can always be rewritten or repealed. If you use a “broad penumbra and some-other-word”, then you really open the door for the ideologues and the people who have an agenda. Textualists seem to be self limiting. The penumbra guys set no limits, the only limit is how far they can stretch the verbage their way, or “read the minds” of old dead guys (Founders). If they are ignoring the words of the law (as I think someone int the thread said?)and setting their own morals/wishes in place, then they are grossly overstepping their bounds. Again, there is a place for both the narrow and broad interpretations. It depends on the case, the factors involved, and MOST OF ALL, the competence and honesty of the judges. If a judge rules counter to what he personally feels at the time of the ruling, because of what he understand the law to say, that tells me we have at least an honest man on the bench, even if I hate his decision. He told the truth, even if it isn’t what we want to hear. If the laws suck, if the gov’t is sticking its nose where it doesn’t belong (which is what I sometimes feel), then the blame lies with the writers of the law (Congress). They made the law, the law sucks, then the people in Congress suck. Elect someone else. Throw the rascals out. Clean house. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 19, 2005, 3:28pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/143 "2005-09-19T15:28:51Z")
> [@](#): > > The only trouble is that the supply of Jean Bernadotte-like guys is strictly limited. And mainly found in Sweden. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 19, 2005, 3:32pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/144 "2005-09-19T15:32:34Z")
> [@John Mace](#): > > And if I read Scalia’s writings on _stare decisis_ correctly, that’s his view as well. Right? Precisely. > [@Polycarp](#): > > I know we disagree, sometimes quite strongly, on issues of constitutional interpretation. In that spirit, I’d welcome your critique of the _methodology_ I discuss in post #127. > [@Polycarp](#): > > The literal language of the Constitution is a **guide** to what it creates: a stable government protecting and defending the rights of free men, women, and children to live in peace. To go beyond the literal language is not merely permissible but required in the doing of equal justice under law. To quote Chief Justice Marshall, “We must never forget that it is a Constitution we are expounding.” To do otherwise is to create an all-powerful state beyond **rjung** ’s direst warnings, or else to declare the Air Force unconstitutional. While that language certainly evokes strong agreement, it leaves unanswered what I feel are basic critiques: when you grant judges the power to go beyond the language to do “equal justice under law,” what is your basis for reining them in when your idea of “equal justice” no longer comports with theirs? You would agree with applying the Equal Protection clause favorably to same-sex marriage, because you believe that result is equal justice under law. But what about the next set of judges, who honestly and fervently believe abortion is a sin, a crime against life, and so they apply the Equal Protection to mean that all lives, born and unborn, are equally deserving of protection? They are acting precisely as you told them to act. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 19, 2005, 3:48pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/145 "2005-09-19T15:48:51Z")
> [@acsenray](#): > > I don’t have a problem with the democratic process. Just like those who pushed for the adoption of the Bill of Rights, I believe in a democracy in which certain personal decisions are not subject to majority rule. It’s one thing to say that people are free to choose how to govern themselves. It’s another thing when they decide to govern _themselves_ by telling me I can’t do something. When it comes to economic matters (employment, environment, consumer protection, etc.), I’m perfectly content with the idea that the law will help to society that benefits all. But when it comes to purely personal matters (sexuality, reproduction, etc.), I don’t believe democracy has any business butting its nose in. But the problem is, your belief that laws concerning economics help society is no better or worse than another person’s belief that laws concerning personal matters help society. For example, there is a principled argument for eliminating the minimum wage just as there is a principled argument for eliminating laws against abortion (and prostitution, too, btw). You don’t get to just say: well, my principled argument are right and yours aren’t. We resolve that in a constitutional democracy by saying: you can’t touch the stuff in the constitution, but otherwise it’s majority rule. And the constution is open to widely differing veiws of interprations (hence this type of debate). Additionally, there are many people who make a principled argument for federalism, and who would say: MW laws at the state level are fine, but not at the federal level. Or, abortion laws at the state level are fine, but not at the federal level. Federalism adds an entirely new dimension to this argument. I’m a strong federalist (as is Scalia), and I take a much narrower view of what is acceptable on the federal level, than I do on the state level. **Polycarp** : Yes, I have to admit I was surprised at how sloppy some of my earlier posts were in terms of painting with a broad brush. I’d be interested in hearing your comments about that last post I wrote in response to yours. Particularly re: narrow vs broad interpetations being the main issue, and how you would resolve that delima, if indeed you agree that it’s a dilema in the first place. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 19, 2005, 4:35pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/146 "2005-09-19T16:35:57Z")
> [@Bricker](#): > > I have said that the general approach I recommend is not reversing decades or centuries of case law and throwing our legal system into chaos. I do believe we should stop the madness - that is, recognize that other methodology is suspect and stop deciding cases based on anything other than the fair and reasonable meaning of the words of the law. We cannout continue to crawl our on the rotten limb. But having built a fairly complex treehouse on that limb, I recognize we cannot realistically tear it down. So all that bitching you’ve done about the few cases you’ve tried (and failed) to show have been the result of this bugbear of yours has been simple, impotent whining? You advocate NOT using this huge and growing mass of settled case law as the means to decide future cases, but instead would use some vaguely defined and unrealistic philosophy that can be fairly described as idiosyncratic. That would indeed be “judicial activism” in its most naked form. And that IS in the cause of reactionaryism. You DO want to move the clock back. You DO want to move the calendar back, even though you cloak that desire under a grudging acceptance that it can’t realistically be done. You’re no realist or even ethicist, you’re a reactionary who lacks the courage to act upon his convictions. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [September 19, 2005, 5:02pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/147 "2005-09-19T17:02:13Z")
> [@ElvisL1ves](#): > > And that IS in the cause of reactionaryism. You DO want to move the clock back. You DO want to move the calendar back, even though you cloak that desire under a grudging acceptance that it can’t realistically be done. You’re no realist or even ethicist, you’re a reactionary who lacks the courage to act upon his convictions. Which calender are you referring to? The one of adding rights with time, or the one of basing those rights on air instead of law? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 19, 2005, 5:13pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/148 "2005-09-19T17:13:35Z")
> [@ElvisL1ves](#): > > You advocate NOT using this huge and growing mass of settled case law as the means to decide future cases… No. He (and Scalia as well as others of that school) DO advocate using those settled cases as dictated by the concept of stare decisis, but NOT to create NEW precedents that will then have to treated the same way. No new _Roes_. > [@](#): > > but instead would use some vaguely defined and unrealistic philosophy that can be fairly described as idiosyncratic. That would indeed be “judicial activism” in its most naked form. Scalia’s philosophy is no more vague than any other philosophy, and a lot clearer than many. The fact that you don’t like it doesn’t make it “vague”. Your problem is political, not intellectual. Scalia is well regarded as a legal thinker by jurists across the political spectrum. Few crticize his intellect or crticize him for a lack of philosophical clarity-- they criticize him on political grounds, as you are doing. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 19, 2005, 5:46pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/149 "2005-09-19T17:46:24Z")
> [@John Mace](#): > > No. He (and Scalia as well as others of that school) DO advocate using those settled cases as dictated by the concept of stare decisis, but NOT to create NEW precedents that will then have to treated the same way. No new _Roes_. Not so sure about Scalia. > [@](#): > > I do not myself believe in rigid adherence to stare decisis in constitutional cases > **[FindLaw's United States Supreme Court case and opinions.](https://caselaw.findlaw.com/us-supreme-court/539/558.html)** > > FindLaw's searchable database of United States Supreme Court decisions since He joined this opinion: > [@](#): > > In our view, authentic principles of stare decisis do not require that any portion of the reasoning in Roe be kept intact. “Stare decisis is not . . . a universal, inexorable command,” especially in cases involving the interpretation of the Federal Constitution. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405 (1932) (Brandeis, J., dissenting). Erroneous decisions in such constitutional cases are uniquely durable, because correction through legislative action, save for constitutional amendment, is impossible. It is therefore our duty to reconsider constitutional interpretations that “depar[t] from a proper understanding” of the Constitution. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S., at 557 ; see United States v. Scott, 437 U.S. 82, 101 (1978) ("`\*n cases involving the Federal Constitution, . . . [t]he Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function’" (quoting Burnet v. Coronado Oil & Gas Co., supra, at 406-408 (Brandeis, J., dissenting))); Smith v. Allwright, 321 U.S. 649, 665 (1944). Our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation is unsound, we are obliged to reexamine the question. See, e.g., West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943); Erie R. Co. v. Tompkins, 304 U.S. 64, 74 -78 (1938). > **[FindLaw's United States Supreme Court case and opinions.](https://caselaw.findlaw.com/us-supreme-court/505/833.html)** > > FindLaw's searchable database of United States Supreme Court decisions since and wrote this in a separate concurrence: > [@](#): > > The authors of the joint opinion, of course, do not squarely contend that Roe v. Wade was a correct application of “reasoned judgment”; merely that it must be followed, because of stare decisis. Ante, at 853, 861, 871. \*\*But in their exhaustive discussion of all the factors that go into the determination of when stare decisis should be observed and when disregarded, they never mention “how wrong was the decision on its face?” Surely, if “[t]he Court’s power lies . . . in its legitimacy, a product of substance and perception,” ante, at 865, the “substance” part of the equation demands that plain error be acknowledged and eliminated. \*\*Roe was plainly wrong - even on the Court’s methodology of “reasoned judgment,” and even more so (of course) if the proper criteria of text and tradition are applied. (Emphasis added.) ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [September 19, 2005, 5:47pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/150 "2005-09-19T17:47:30Z")
> [@ElvisL1ves](#): > > You’re no realist or even ethicist, you’re a reactionary who lacks the courage to act upon his convictions. And you are in **Great Debates** where you are treading very close to personal insult. Tone it down and step away from assessing the personal character of your opponents. [/Moderator Mode] ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 19, 2005, 6:25pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/151 "2005-09-19T18:25:10Z")
My apologies for that transgression. I should have left at “ **Bricker** , you are in fact espousing a reactionary viewpoint despite your denials.” ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 19, 2005, 7:19pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/152 "2005-09-19T19:19:24Z")
> [@Gfactor](#): > > Not so sure about Scalia. > > [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-102](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-102) > > He joined this opinion: > > [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=833](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=833) > > and wrote this in a separate concurrence: > > (Emphasis added.) Yes, it is a lot more complex than “do you agree that \*Roe \*is settled law, and please answer simply yes or no”. Scalia does believe that one must look beyond the simple rightness or wrongness of a given decision before deciding whether or not it should be overturned. One must look at whether a ruling to overturn would do more harm than good. He views it as a pragmatic exception to his judicial philosophy-- that the law must not only be “right” but that it must not swing wildly from one to extreme to another. Perhaps he might conclude that overturing Roe would **not** , in fact, result in great social upheaval, and that overturning it is the proper course of action. And he might be right-- one likely scenario of a rash and (seemingly) arbitrary repeal of Roe would be that Democrats would sweep into power at all levels of government (state and federal) and that abortion rights would be added to the constution. At a minimum, they would be found to exist at the state level in most states. But I don’t think he would simply ignore the possibility of social upheaval altogether. Would it be possible for the SCOTUS (as the MA court did for SSM) to phase out a constitutional ban on state anti-abortion laws over time so as to give the legislatures (both state and federal) adequate time to adjust? If so, that also could be a way to minimize the impact. It sure would create an interesting \*\*political \*\*atmosphere if the country knew that \*Roe \*woudl expire in, say, 2 years. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 19, 2005, 7:44pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/153 "2005-09-19T19:44:30Z")
> [@John Mace](#): > > Perhaps he might conclude that overturing Roe would **not** , in fact, result in great social upheaval, and that overturning it is the proper course of action. And he might be right-- one likely scenario of a rash and (seemingly) arbitrary repeal of Roe would be that Democrats would sweep into power at all levels of government (state and federal) and that abortion rights would be added to the constution. At a minimum, they would be found to exist at the state level in most states. But I don’t think he would simply ignore the possibility of social upheaval altogether. Personal opinion, so take it as it is given (underlining mine). I highly doubt Scalia, or O’Connor, or any other honest judge would consider partisan politics as part of the decision process - social chaos maybe, party loyalty never. To do so would violate their charter, the purpose of having an independent Supreme Court, and would also violate their own personal philosophies or code of honor. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 19, 2005, 7:58pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/154 "2005-09-19T19:58:53Z")
> [@SteveG1](#): > > I highly doubt Scalia, or O’Connor, or any other honest judge would consider partisan politics as part of the decision process. You did read _Bush v. Gore_, didn’t you? > [@John Mace](#): > > Democrats would sweep into power at all levels of government (state and federal) and that abortion rights would be added to the constution. If portraying the repeal of Roe as a serious threat hasn’t had that effect in over 3 decades, would the fact of it really change the situation all that much? If anything, Roe’s existence has (along with playing up the threat of the Homosexual Agenda, something Scalia has commented upon in a legal opinion at that) helped draw RR supporters out of the woodwork to vote Republican, and has helped convert many others to the RR POV. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 19, 2005, 8:00pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/155 "2005-09-19T20:00:52Z")
> [@ElvisL1ves](#): > > You did read _Bush v. Gore_, didn’t you?. No, I missed it. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 19, 2005, 8:10pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/156 "2005-09-19T20:10:52Z")
> [@John Mace](#): > > Scalia does believe that one must look beyond the simple rightness or wrongness of a given decision before deciding whether or not it should be overturned. One must look at whether a ruling to overturn would do more harm than good. He views it as a pragmatic exception to his judicial philosophy-- that the law must not only be “right” but that it must not swing wildly from one to extreme to another. Is this in his book? (I admit to not reading it.) This is the closest I could find on the web: > [@](#): > > Justice Antonin Scalia argues forcefully in A Matter of Interpretation that America is a civil law not common law nation, and with that in mind, it should come as no surprise that originalists are generally unwilling to defer to precedent when precedent seems to come into conflict with the constitution. However, Originalism being a theory of interpretation rather than construction, there is still room within an originalist paradigm for stare decisis; whenever the plain meaning of the text is open to alternative constructions, past precedent is generally seen as a valid guide, with the qualifier being that it cannot trump what the text actually says. > **[Global Industry Market Sizing - NationMaster](https://www.nationmaster.com/)** > > Looking for country statistics? NationMaster gives access to market sizing and trends across 300 industry verticals and a global coverage. Which sounds plausible. Thomas is even less respectful of precedent: > **[FindLaw Legal Blogs - FindLaw](https://www.findlaw.com/legalblogs/)** > > Get the latest legal news and information, and learn more about laws that impact your everyday life by visiting FindLaw Legal Blogs. > **[Law.com](https://www.law.com/?id=1090180289132&slreturn=20210919190339)** [http://msnbc.msn.com/id/6695151/site/newsweek/](http://msnbc.msn.com/id/6695151/site/newsweek/) Note the Scalia quote: > [@](#): > > Thomas, Scalia commented, “doesn’t believe in stare decisis, period.” If Thomas thinks a decision is wrong, that’s the end of the analysis; it should be overturned. “ **I wouldn’t do that** ,” Scalia continued. (Emphasis added.) Does Scalia mean that he wouldn’t overrule a constitutional precedent only if there were textual support for the precedent, or does he mean that he agrees with the approach from which he dissented in both \*Casey \*and _Lawrence_? > [@](#): > > Would it be possible for the SCOTUS (as the MA court did for SSM) to phase out a constitutional ban on state anti-abortion laws over time so as to give the legislatures (both state and federal) adequate time to adjust? If so, that also could be a way to minimize the impact. It sure would create an interesting \*\*political \*\*atmosphere if the country knew that \*Roe \*woudl expire in, say, 2 years. The Court has a lot of discretion in its decisions regarding remedies. _See, e.g.,_[_Brown v. Board of Education_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=349&invol=294)(ordering desegration “with all deliberate speed”); _and see_, Supreme Court Rule [45](http://www.law.cornell.edu/rules/supct/45.html) (Court or a Justice may extend the time for issuance of mandate). Conceivably, the Court could stay its order for any length of time. But I doubt Scalia would agree to such a decision. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 19, 2005, 8:27pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/157 "2005-09-19T20:27:49Z")
> [@SteveG1](#): > > Personal opinion, so take it as it is given (underlining mine). I highly doubt Scalia, or O’Connor, or any other honest judge would consider partisan politics as part of the decision process - social chaos maybe, party loyalty never. To do so would violate their charter, the purpose of having an independent Supreme Court, and would also violate their own personal philosophies or code of honor. Sorry if there was confusion. I didn’t mean to imply that Scalia would (or should) consider whether his decision would cause a change in the poltiical power structure at any level. I only used that as an example to counter the commonly held belief among some that it’s too late to reverse \*Roe \*due to the instibility (social, not political) it would cause. It’s unclear to me that it would do so, especially if it were phased out over time. **Gfactor** : I’m going from memory after just having read his book a few weeks ago, but I’ll see if I can dig up some specific quotes later. My memory might be wrong. I don’t know about Thomas-- I haven’t read any of his writings. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 19, 2005, 8:32pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/158 "2005-09-19T20:32:25Z")
> [@Gfactor](#): > > Conceivably, the Court could stay its order for any length of time. But I doubt Scalia would agree to such a decision. This is the approach taken by the MA Supreme Court in the same-sex marriage case. > [@](#): > > Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion. [http://www.masslaw.com/signup/opinion.cfm?page=ma/opin/sup/1017603.htm](http://www.masslaw.com/signup/opinion.cfm?page=ma/opin/sup/1017603.htm) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 19, 2005, 8:37pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/159 "2005-09-19T20:37:59Z")
> [@Gfactor](#): > > This is the approach taken by the MA Supreme Court in the same-sex marriage case. I know. 🙂 > [@John Mace](#): > > Would it be possible for the SCOTUS (as the MA court did for SSM) to phase out a constitutional ban on state anti-abortion laws over time… ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [September 19, 2005, 8:48pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/160 "2005-09-19T20:48:59Z")
It’s all good, John. As for Bush vs Gore, I just read it so it’s fresh in my mind. It’s embarrassing, but I have no idea what the hell it says. I’m far from illiterate, but goddam it all looked like double-talk to me. Maybe a thread should be titled Justices: What the heck are they saying (slap self) [Previous page](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664.md?page=7) [Next page](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664.md?page=9)