@Poly - if Sotomayor was constrained by precedent, do you believe the 9th overstepped when it incorporated?
My take on it is as barnett stated and Richard Parker summarized. I think her reliance on outdated precedent was based on her own view of the second.
I mispoke when I said “instruction in Heller”. I meant the analysis in Heller. The 9th I believe correctly applied the heller analysis regarding fundamental right and part of the anglo-american …(I forget the exact prhasing as I’m on a mobile device) when they incorporated the 2nd ammendment.
Thanks CoolHandCox and Richard Parker. That clarifies things a lot. And Coburn is still harping on this—it’s just that now, I can actually understand it now.
We’re lucky there’s no tax on “troubling,” “concerning,” and “problematic.” The Republican party would be bankrupt.
I can’t say I remember enough ConLaw to follow this argument completely, but I don’t think the fudamental/incorporated distinction is as celar in the law as Bone supposes. It seems to me an open, if not unglosssed, question as to whether a right is considered fundamental and that leads to incorporation, or if incorporation is a less-rigorously defined beast. Bone and Volokh’s argument requires a systhesis of Court precedent over different eras, different personnel, different legal theories, and so forth which has led to something of a mishmash of understanding the exact contours of the 14th Amendment. I don’t believe such a synthesis is at all natural. Even if it can be bashed together with some definition, again, it seems to me that the disagreement is philosophical one, not one of right and wrong.
I believe Duncan v. Louisiana set out the test for incorporation through the due process clause. Though that case was regarding the sixth ammendment and the analysis has never been performed by the SCOUTS regarding the 2nd.
The analysis required would be whether a right is deeply rooted in the nation’s history and is necessary to the Anglo-American conception of ordered liberty. Footnote 23 in Heller mentions that after Cruikshank, this analysis was later required with respect to incorporation. Sotomayor in the Maloney opinion simply relies on Presser even though that was only regarding the P & I clause, not the due process clause.
This post on Volokhby Somin refering to writing by Lund talks in more detail about the deficiency in judgment by Sotomayor in the 2nd circuits ruling in Maloney. To summarize, from the link:
The idea that the appellate court was precluded from performing this analysis based on the due process clause is flat out wrong. She had basis to reject based on the P&I clause, however by ignoring the other aspect of incorporation, and getting wrong or mis-stating the principal of incorporation, leads me to believe she let her personal opinion influence her legal analysis.
The 9th circuit in its opinion in Nordyke however, did engage in this analysis. From that opinion:
The FN certainly casts doubt on Cruikshank. But it carefully points out that this was not at issue in Heller and no holding has overruled it. As I wrote early, it is fair to think that pre-Cruikshank cases have been implicitly overruled. But, the decision about when to decide not to be bound by a clear holding when mere dicta have cast doubt on previous decisions is never a matter of being “flat out wrong.”
That post wasn’t very clear. Let me give it another shot.
The holding of the Second Amendment incorporation cases is that the amendment is not incorporated. The reasoning in those cases has been rejected. But rejecting the reasoning isn’t the same as rejecting the holding. No case has held that the pre-Cruikshank cases’ holdings are no longer valid. Thus, a judge deciding whether to apply them must make the difficult decision as to whether the undermining of the reasoning is sufficient to destroy the explicit holdings. I don’t think that a judge is required to apply new reasoning to old holdings, though they sometimes choose to do so and that isn’t necessarily out of bounds.
OK, so there is this lgalistic jousting going on in the blogosphere and such, but the bottom line, is there any reasonable reason at all form these hearings why she should not be confirmed?
Richard Parker - The due process analysis is stated as being required by later cases. The footnote is not what creates the requirement of the analysis, it simply states as fact that later cases have so required the due process analysis.
The case that Sotomayor felt bound by was one that dealt with the P&I clause, something entirely different than the Due Process clause. To the extent that the 2nd circuit still felt bound by the P&I method of incorporation, this was irrelevant with respect to analysis required under the due process incorporation doctrine, as was performed by the 9th circuit in Nordyke.
Edit - I typed this before I saw your follow up. I generally agree, but I think her decision to not apply the due process analysis was wrong. I agree with the 9th in their decision to apply and then incorporate.
Ok, so the argument is that there are two means of incorporation. Just because one is foreclosed, that doesn’t mean the other is not? Is that the idea?
I think it is fair to believe that a judge in the Circuit Court of Appeals would be less likely to strike out for new ground in such a case when relying on the old law provides a result harmonious with one’s own personal viewpoint.
How this is in any way an indication of some lack on the part of the nominee here, I fail to understand. I’m sick and tired of both parties getting all upset that the nominees from presidents of the other party don’t espouse judicial philosophies consistent with the party not in control of the Presidency. Short of the nominee being a raving kook, or clearly unwilling to respect the general boundaries of the Supreme Court as developed over the years, I don’t see where there is a real point to all this folderol.
Justice Marshall/Brennan-in-Dissent was just as entitled to be on the Court as Justice Scalia/Thomas-in-Dissent is. And I say that despite the fact that neither of those two-headed monsters of statistical outlier espouse(d) a judicial philosophy, or political philosophy, concomitant with mine.
The Bill of Rights originally applied only to the federal government; state governments remained free to have established religions (many did), suppress free speech, take private property without compensation, etc., absent contrary provisions in their own state constitutions. The SCOTUS expressly ruled to that effect in Barron v. Baltimore, 1833.
Since the Fourteenth Amendment was ratified, the federal courts have (by gradual stages) ruled that some (not all) of the provisions of the BoR apply to the states as well, by way of the “due process” clause of the 14th Amendment. This is known as “incorporation” of the BoR. You can read more here.
Yes, that’s what I’m getting at. And that the second method was ignored.
I do believe she should be confirmed, and w/o a lot of hoopla. I disagree with some of her rulings clearly but she is certainly qualified. I wish the actual objections to her confirmation could be on substative grounds rather than some of the things that have been raised at the hearings.
I hadn’t thought of it that way. Sounds reasonable to me. I guess I’d need to do some more reading/thinking about incorporation to determine whether I agree. I’m trying to think of other areas in law in which the reasoning for a general holding has shifted from one clause to another. Or is this unique?
AWESOME. I don’t know who else was watching Sessions say “We’re going to do that crack cocaine thing you and I were talking about,” but it was fantastic.
So what (if anything) did he add to the proceedings? Other than the opportunity for the Republican senators to slobber all over him with adoring sympathetic outrage.
Honestly, nothing. There were some anti-confirmation panel members who raised interesting points (I’d argue far more interesting objections than what the Senators themselves managed to raise), but Ricci was not one of them. Basically, he said “Being a firefighter’s tough, we save lives, we should get hired based on skills and performance.” Which is a valid stance, certainly. I back it. But he didn’t speak to whether she was bound by law to make the ruling she actually contributed to, based on precedent, which, to me, is the key issue. The most substantive complaint he had was “We were bummed to have gotten a short and perfunctory opinion.” Senators who asked him questions basically just fawned over him.
