Right Wing Judicial Activism: Is The SCOTUS "A Contest Of Ideas?"

By Big Tent Democrat, Section Supreme Court
Posted on Wed Jul 01, 2009 at 09:27:12 AM EST
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Tom Goldstein writes one of the most revealing appraisals of the Supreme Court I think I have ever read:

I think that the most interesting Justices, by far, were Justices Scalia and Thomas. Both remain the most principled members of the Court. . . . Justice Thomas, in particular, remained willing to front new theories on critical questions . . . No other member of the Court is so independent in his thinking. . . . I disagree profoundly with Justice Thomas’s views on many questions, but if you believe that Supreme Court decisionmaking should be a contest of ideas rather than power, so that the measure of a Justice’s greatness is his contribution of new and thoughtful perspectives that enlarge the debate, then Justice Thomas is now our greatest Justice.

(Emphasis supplied.) The SCOTUS as a "contest of ideas?" I would have thought that the traditional view was that contest was supposed to play out in the "political arenas." Is Goldstein conceding (and would conservatives concede) that the "appellate courts engage in policymaking?"

So much for the "umpire calling balls and strikes" ay?

Speaking for me only

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Right Wing Judicial Activism: Is The SCOTUS "A Contest Of Ideas?" | 25 comments (25 topical)

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still trying to get past this (5.00 / 1) (#2)
by Capt Howdy on Wed Jul 01, 2009 at 09:43:10 AM EST

then Justice Thomas is now our greatest Justice.

yikes

: Heaven help us all if (5.00 / 1) (#3)
by MO Blue on Wed Jul 01, 2009 at 09:56:13 AM EST

Justice Thomas is now our greatest Justice.

: Yeah, I got stuck there, too. (none / 0) (#16)
by sj on Wed Jul 01, 2009 at 04:03:02 PM EST

I mean, I know what all those words mean but when you put them together it's really just some kind of word salad.

Yes (5.00 / 1) (#4)
by Maryb2004 on Wed Jul 01, 2009 at 10:21:14 AM EST

Justice Thomas needs more attention and his opinions need more analysis.

: Preemption (5.00 / 1) (#14)
by Big Tent Democrat on Wed Jul 01, 2009 at 02:59:44 PM EST

I know.

: Yes (none / 0) (#13)
by jbindc on Wed Jul 01, 2009 at 02:54:28 PM EST

I wonder how we could write a law review article titled "Thomas: How to say "Ditto, Scalia" and make it seem like an actual opinion"

Thomas our greatest justice? (5.00 / 1) (#7)
by BobTinKY on Wed Jul 01, 2009 at 11:28:56 AM EST

The man's opinion cited to the Declaration of Independence for supporting the reversal of affirmative action program. Apparently oblivious to the fact the words cited were drafted by a slave owner and provide no legal support for his proposition.

Ideas yes. Bad ones. He is one of our least gifted justices. That is as kind as I can put it.

Your excerpt was enough for me to avoid the article entirely.

Absolutely so much for that (none / 0) (#1)
by andgarden on Wed Jul 01, 2009 at 09:30:26 AM EST

And really, their claimed (though not real) method of adjudication isn't principled, it's cultish. Eyes need to be rolled at them just as they are at biblical literalists.

As I say in your last story, I think a much better case can be made for Justice Ginsburg being the most principled member.

C'mon! (none / 0) (#5)
by Susie from Philly on Wed Jul 01, 2009 at 10:29:27 AM EST

Haven't you ever heard of the floating strike zone?

: Heh (5.00 / 1) (#6)
by Big Tent Democrat on Wed Jul 01, 2009 at 10:37:13 AM EST

Actually I have. Maybe you do not remember my piece from 2005 at Daily Kos:

In his opening statement to the Senate Judiciary Committee, Bush nominee to replace the late Supreme Court Chief Justice William Rehnquist, John Roberts, drew an analogy between the Supreme Court and umpires in baseball:

Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire. . . . And I will remember that it's my job to call balls and strikes, and not to pitch or bat.

It is an interesting analogy Judge Roberts draws. And it seems to me to be an excellent argument for why Judge Roberts must answer the questions put to him by the Senate. As any baseball fan knows, umpires are not uniform in the delineation of the strike zone. Some are "hitters" umpires. Some are "pitchers" umpires. Some call the high strike. Some call the outside pitch.

And when it comes to the Supreme Court of the United States, it is important that we know what Judge Roberts' "strike zone" is. His record, the part that was not concealed by the Bush Administration, gives many of us pause regarding Judge Roberts' "strike zone." His stated antipathy for the right to privacy, for voting rights measures, for discrimination remedies, etc., demands followup. What does your "rulebook" say about these things Judge Roberts?

These so called Conservatives, they are not. (none / 0) (#8)
by joze46 on Wed Jul 01, 2009 at 11:38:37 AM EST

Might as well give you my nickel tour of justice idealism for better government.

Perhaps, rambling a bit because being a rookie at this legal ease stuff might very well have an advantage or seem like rubbish. But hay you ask of an opinion. I hope you can follow what my point is, what is clear to me after reading right off the top in the voting rights act is abused:

http://en.wikipedia.org/wiki/Voting_Rights_Act

Section 5 - Preclearance
Section 5 of the Act requires that the United States Department of Justice, through an administrative procedure, or a three-judge panel of the United States District Court for the District of Columbia, through a declaratory judgment action "preclear" any attempt to change "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting..." in any "covered jurisdiction."

Then again in another link that Chief Justice John Roberts and some of his conservative activist colleagues would like to do away with it.
Yikes.

It looks as though the right to vote has to be "detailed" for our black robed judicable minded thinkers to make a ruling other wise if these details are not built in as ACTS OF CONGRESS or WE the people detail this stuff in writing, these so called Conservative picked arm chair Justices' rampantly dash away civil rights. Or pick and choose which way the harmonic balance flows.

With that said one can perceive rapidly expanding bank accounts hanging on the brink right now which the public can see with daily news terror of failures and cover ups galore.

For me the anger is still worse than any nuclear explosion with the Supreme Court decision about the 2000 presidential vote in Florida. Here this Voting Rights act to me is totally abused. Perhaps I am wrong but I don't think so. Jeb with the help of the well connected used and abused the legal system to gain control of the presidency for his brother.

Jeb Bush and his father George Hebert Walker Bush did with deliberate intent arbitrage political power, money, through well connected friends all violated the very law Herbert Walker Bush, Georges father signed into law. A total crime that said without any inclusion of war crimes yet, the Bush family is the premier family of political fraud, banking, and corporate corruption when compared to Abramoff or Madoff are pail in comparison.

That is said because of the sameness with the
NORTHWEST AUSTIN MUNICIPAL UTILITY a Texas entity which after inspection is a place that, in a money way, transforms to public bond financing. Whats really funny is a possibility a three judge panel from a District of Columbia has the capability to place Judgement on a District that does elect people for the water, sewer, electric, garbage, police , fire, and likely park services.

Where the money is and bonds are, the is, is there. I say that with a chuckle because it took a while for me to read between the lines from Bill Clinton. Cash flow, buckaroos, moola, and of course good old corruption Texas style.
To kick in another ideal that is such a black hole dilation so wide a super duper nova of the distant kind can fly right though with out notice.

These conservative's parading around claiming big government is not good. Now please be aware that we the people license business to operate in good faith, our government which includes agencies like the IRS, FCC, FDA, The Commerce Commission, oh there must be literally hundreds of them and with the Quasi government entities like the Federal Reserve, the World bank, International Monetary fund, Fannie Mae, Sally Mae, Freddy Mac. For the benefit of every one. Are not very well run.

Not really, Then we have politicals turn around one hundred and eighty degrees and claim those business entities are to big to fail. But Big government is bad yet keeps sending out the slack rope life line of free money that keeps these departments totally connected to political families flowing and growing with our tax money. One wonders why America does not have more dissidents, however encouraging to see the lopsided flow towards Democrats is interesting.

As Obama said the sneaky little secret is that it is all legal. Here Obama is being so honest that most cable journalist and program managers avoiding that debate for sure.

It not honest at all...

Goldstein is right (none / 0) (#9)
by Categorically Imperative on Wed Jul 01, 2009 at 01:06:17 PM EST

And the contest at stake in SCOTUS is not really about policymaking, though it has a profound effect on what policies may be enacted. The point about Thomas illustrates this - his new ideas really aren't about particular policy areas, but are a hyperliteralist form of original expected application/original meaning interpretation which goes well beyond any other Justice's originalist method of constitutional interpretation. Thomas' approach is not unique to him as a matter of legal theory, but is unique on the Court.

I wouldn't say Thomas is our greatest justice, because to me the ideas must not only be novel, but also useful methods of judicial analysis to qualify as 'great.' I will say that Thomas is unfairly considered a lightweight by far too many on the left.

lightweight? (5.00 / 1) (#12)
by Capt Howdy on Wed Jul 01, 2009 at 02:37:02 PM EST

no. his position alone gives him plenty of weight.
bumbling misogynistic neanderthal, yes.


Trust me (none / 0) (#17)
by Categorically Imperative on Wed Jul 01, 2009 at 04:03:11 PM EST

Thomas is readily dismissed by many, many people on the left as simply being stupid. This attitude is in evidence any time he writes an opinion on a hot-button topic (as in the school search case).


Meh (none / 0) (#18)
by Big Tent Democrat on Wed Jul 01, 2009 at 04:06:32 PM EST

I think he is not very serious at all. His thinking on the constitution is downright simple.

IMO not a serious thinker at all. It's all mindless platitudes passing for legal thought.


: Well (none / 0) (#25)
by Categorically Imperative on Wed Jul 01, 2009 at 05:41:46 PM EST

With Souter gone, the only other justices left who have any kind of nuance in their thinking are Stevens, Ginsburg, and (on some issues like habeas and the 4th amendment) Scalia. Thomas' views are straightforward and simple in a certain way, but they are not unsophisticated. Proper application of his judicial philosophy requires fairly deep historical knowledge of the development of the law at various points in time.
You will say he has no interest in properly applying anything and uses his interpretive philosophy as window dressing for him to vote his reactionary policy preferences. I disagree.

school search case (none / 0) (#20)
by Capt Howdy on Wed Jul 01, 2009 at 04:23:17 PM EST

great example. what would you call him there? the lone voice or reason?


: The Greatest Justice of All Time (none / 0) (#21)
by Big Tent Democrat on Wed Jul 01, 2009 at 04:25:08 PM EST

is the phrase you were looking for.

: I would say (none / 0) (#23)
by Categorically Imperative on Wed Jul 01, 2009 at 05:32:53 PM EST

The school search case is an example of why Thomas' philosophy inappropriately narrows key provisions of the Bill of Rights.
I would also say that, given his views on the rights of kids in school (i.e. that they have almost none, save for essentially intentional constitutional torts), coupled with his view of the seriousness of the problem of drugs in schools, his opinion was perfectly consistent within his expressed viewpoint and well-reasoned within that framework.
Point is, his opinion in that case is not so ludicrous that it should be dismissed out of hand. The bounds of authority of school administrators and their entitlement to enact searching measures to combat student drug use are reasonable issues to debate. I disagree with Thomas, but his point is not absurd.

Um so Goldstein is wrong (none / 0) (#10)
by Big Tent Democrat on Wed Jul 01, 2009 at 01:15:57 PM EST

according to your last sentence.


Don't see the conflict (none / 0) (#15)
by Categorically Imperative on Wed Jul 01, 2009 at 04:01:20 PM EST

"Greatest justice" is a bridge too far, but Goldstein is right about the role Thomas plays on the Court and I think he is underestimated at our peril.


Well (none / 0) (#19)
by Big Tent Democrat on Wed Jul 01, 2009 at 04:07:41 PM EST

I really disagree with you on this one.

Thomas' impact on the court is in the ability to get to 5 and that's all. There is nothing he has written that will have lasting effect on our jurisprudence.

Only his votes.


: I disagree (none / 0) (#24)
by Categorically Imperative on Wed Jul 01, 2009 at 05:37:41 PM EST

I think up till now his jurisprudential impact has been limited because he is philosophically the most strict constructionist, right wing justice. He also has zero respect for stare decisis. Up till now, he really did not have a shot of having his views adopted by a majority, so he was left to sign on to watered-down Kennedy or O'Connor opinions and write a concurrence stating, for example, that 'commerce' excludes agriculture and manufacturing and that the court's New-Deal era commerce clause jurisprudence is 100% crap.
Now, however, he has 3 reliable votes who are more than willing to take the hardline view. I think there is a distinct possibility that Thomas' jurisprudence gains more currency on the Roberts Court.

Umpires do ONLY call balls and strikes. (none / 0) (#11)
by steviez314 on Wed Jul 01, 2009 at 02:32:20 PM EST

What Roberts forgot to mention is that every umpire sees the strike zone a little differently.

Same old hypocrisy (none / 0) (#22)
by pluege on Wed Jul 01, 2009 at 05:02:15 PM EST

Tom Goldstein writes one of the most revealing appraisals of the Supreme Court

this is not a revelation on SCOTUS, its a window into the psychotic perversion of the conservative mind: all egocentrcism and hypocrisy. In another situation, in particular a SCOTUS decision supporting a liberal position, he will give exactly the counter argument to his own momentary position.