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Justice Sandra Day O’Connor is resigning. Obviously this matters. She has shaped the legacy of the Rehnquist Court just as much, and arguably more, than the Chief Justice has. Her swings have made Court policy.
Slate has recycled a list of possible replacements for Rehnquist that they first posted a week or so ago.
The list includes summaries of the “candidates” opinions and statements on various issues. As someone who has not been fond of Bush's conservatism, I did find it pleasing that each candidate, on at least one prominent issue, showed a measure of intelligence and flexibility that most Republicans do not show in their rhetoric. (And yes, Democrats aren't always flexible in their rhetoric either.)
That does not make me all that hopeful concerning the outcome and my personal hopes for the future of the republic. They are nearly all very conservative in ways that I find troubling. However, it is a reminder that America tends not to produce intellectuals—which justices have to be--whose ideology always trumps the facts at hand. And, all in all, that is a good thing.
Many other legal courses are, in some aspects, history courses. My mind immediately goes to Admiralty law which has as its fundamental legal sources the Code of Justinian and the Law of Rhodes. A week in and students are learning a bit of Roman mercantile practices. Two weeks in and they are considering the transportation difficulties of the Crusades.
It is of course a specialized and circumscribed form of history, and it does not cover many of the broad forces that are important to our past. But, I think a surprising amount is covered in one way or another.
Lawyers tend also to be antiquarians. My first job as law clerk was to memorize the court cry used to open court -- in the same wording that had been used since my U.S. District Court's origins as a colonial admiralty court.
There are also few fields where one can have a spirited and formal historical debate about whether or not God granted a right to engage in interstate commerce <grin>.
Oscar Chamberlain -
7/2/2005
John, of course you are correct. The clarity of meaning varies greatly from provision to provision.
I think part of the trouble with interpretation--on all sides--has to do with the nature of our legal training. In most circumstances in which lawyers consider interpretation--whether of a law of a constitutional provision--the lawyer's job is to search for the best precedent to win the case. A more holistic interpretation is, quite literally, worthless. That may sound simple to overcome, but I'm not sure it is unless the lawyer has had some historical training (or at least has a good "feel" for history).
John H. Lederer -
7/1/2005
"I went into this at length because, while I consider attempts to return to the original range of interpretations a valid approach to constitutional interpretation, too often the search for original intent, as Thomas and Scalia seem to do it, is the search for a single or dominant meaning, and I think that oftentimes finding such a “singularity” is more an aspect of juristic creation than its practitioners like to admit."
I think there is much truth to that.
In addition, on both the left and right, there is far too quick a resort to the individual judge's favored method of interpretation.
First one needs to read the plain words, albeit with a touch of history to understand the definitions of archaic terms. Only when the plain words are insufficient should one resort to interpretation.
That is not just an idle "which method of interpretation is better". It is fundamental to whether one has a society governed by law.
When as the Court has done in the last few years you have interpretations that come out the opposite of the plain meaning, then, as the young lady's t-shirt suggested "Something has gone seriously awry with this Court’s interpretation of the Constitution."
That doesn't mean that the Constitution is without great ambiguities -- the Fifth Amendment's takings clause is one that has no viable plain meaning in the context of governmental taking for a private purpose.
But others do have plain meaning and the Court is guilty on occasion of "construing" some with great effort to mean what the court thinks would be good rather than what they say. Often the result is seen as socially good by many, but it is not the rule of law, and history suggests that the benevolence of governments is not reliable.
Oscar Chamberlain -
7/1/2005
First a disclosure: I am far more expert an antebellum constitutional history--and in particular state constitutions in that period--that with late 20th early 21st century constitutional discourse.
I do disagree with Thomas most of the time, but his eloquence has grown.
Taking the Kelo dissent as an example, its strength is its clarity. Like his philosophy or dislike it, you know what Thomas is saying, and you have a strong sense both of Thomas’s legal argument and the philosophical and moral beliefs that lead him to it. However, I found the historical ground on which he based his narrow interpretation of "public use"--though interesting and enlightening--to be narrow. In this I suspect he lets his desire for a more limited government to effect his interpretation of state actions.
I'm most aware of this, not surprisingly, when he is considering early state interpretations of their constitutions’ takings clauses. He continually works to narrow what happens in that period when in fact, American 18th century constitutional ideas are banging headlong into 19th century economic revolution.
In the absence of a strong national government shaping economic development, the states experimented in encouraging investment and growth. Experiments in banking forms, public-private partnerships, the establishment of monopolies (usually transportation), and the breaking of said monopolies too were all a part of the environment.
Many of these experiments met bad ends as Americans did not understand well either the market capitalism they were creating or the business cycles that were a part of it. However, a strong tendency of states to conflate in a general way the public good and economic growth was established.
The people of the time responded to the excesses in this conflation, including some deeply unfair interpretations of eminent domain, by forging constitutional limitations. Usually they have juries decide compensation and, more indirectly, they limit the right of states to form public-private partnerships. But these actions were, generally, in the form of constitutional amendments. That, in a sense, endorses the idea that the original phrasing, the phrasing still in the federal Bill of Rights, allowed the states a pretty free hand in ascertaining the public good.
I went into this at length because, while I consider attempts to return to the original range of interpretations a valid approach to constitutional interpretation, too often the search for original intent, as Thomas and Scalia seem to do it, is the search for a single or dominant meaning, and I think that oftentimes finding such a “singularity” is more an aspect of juristic creation than its practitioners like to admit.
John H. Lederer -
7/1/2005
"By "intellectual" I think I meant a love of ideas and the importance of them, hopefully married to a wide range of interests or experiences (though I would accept a civil union). Without some love of ideas, a justice is not likely to have some "ground" from which to make a decision. In that case, he or she becomes nothing more than a weathercock in always variable winds."
==============
I think we concur.
One of the great trial judges was Walter E.Hoffman of the E.D. Virginia (he handled the Agnew case, and numerous school desgregation cases). He always maintained that the best preparation for being a trial judge was his background as a college football referee which he said taught him to "call them as well as you could and then stick to it".
During the peak of the desegregation cases he and his wife went to his country club to dine. When they entered the dining room every person in it got up and left, leaving them to dine alone. He maintained that was trivial compared to calling back a winning final minute touchdown in a college rivalry. He had to flee for his life, saved from a mob by a pair of state troopers in a squad car who, Hoffman maintained, " seemed a bit dubious about whether they were doing the right thing, having listened to the game on the radio.."
Of the present court my greatest admiration is for Thomas. You may disagree with him, but he has a consistent, coherent philosophy that he sticks to with rare exceptions. As time goes on, his dissents seem more and more compelling. It was rather startling to see a young lady (likely a student) in a sandwich shop here wearing a T-shirt quoting Thomas.
Oscar Chamberlain -
7/1/2005
It's ok, Ralph. I'll bite. In fact, I did actually hesitate a moment on that phrase.
By "intellectual" I think I meant a love of ideas and the importance of them, hopefully married to a wide range of interests or experiences (though I would accept a civil union). Without some love of ideas, a justice is not likely to have some "ground" from which to make a decision. In that case, he or she becomes nothing more than a weathercock in always variable winds.
However, such a ground can become an ideology. That can be dangerous unless the person has some willingness to question his or her own ideology or at least be careful in using it to understand and decide a given case.
Ralph E. Luker -
7/1/2005
Mr. Lederer, Why did you elipse Professor Chamberlain's sentence at that particular point? Was it only for the high purpose of quoting the snear of that great American intellectual and jurist, George Wallace? To what point?
John H. Lederer -
7/1/2005
"However, it is a reminder that America tends not to produce intellectuals—which justices have to be...."
What is an intellectual? Was Warren Burger an intellectual? Hugo Black? Lewis Powell (who had considerable trouble passing the bar exam).
Somehow I hear the dim voice of Gov. Wallace from above (or quite possibly below) intoning his definition: "pointy-head college professors who can't even park a bicycle straight."
Jonathan Dresner -
7/1/2005
O'Conner's resignation means that all our fears of a really hard replacement fight are going to come true. She's been a swing vote in too many cases, which means that her replacement will also be a swing vote, which means that the future of the court really is at stake.
