A SCOTUS Fight Decoder Ring

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A number of our recent guests have argued that, following the Miers nomination, they were itching for a fight. Now, they say, we’ll have our bench-filling brawl. But what will the fight actually be about? What does judicial activism mean? What does a strict constructionist look — or write — like? What about an originalist? Can the left and right agree on a definition for “legislating from the bench?” We keep hearing these phrases, and it’s hard to tell which you’d hear in a Con law class and which were dreamed up by political operatives. Can we decode the words of this battle?

Cass Sunstein

Karl N. Llewellyn Dist. Service Prof. of Jurisprudence, The University of Chicago Law School

Ann Althouse

Blogger, Althouse

Robert W. & Irma M. Arthur-Bascom Professor of Law, The University of Wisconsin Law School

Eric Muller

Blogger, Is That Legal?

George R. Ward Professor of Law , UNC

Charles Fried

Beneficial Professor of Law, Harvard University Law School

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  • bloggeddown

    It takes chutzpa to use a plastic Santa Claus as the raison d’etre to deem a creche scene as ‘non-denominational’ and therefore permissable as a non-religious public holiday display.

    Sounds like a nice guy, with extremist views and ideals.

  • bloggeddown

    Hate to use yet another phrsase, but ‘judicial restraint’ does not seem to be a leading character trait of Mr Alito.

  • bloggeddown

    A surprisingly unbalanced show, with really poor comments.

    Shocked at the bias expressed by supposed ‘judicial experts’.

    Really pathethic statements from Cass Sunstein. Wow – if that is what Uchi has for profs that’s one place I won’t be sending my kid.

    Where is the discussion for the respect for legislation?

    Where is the discussion of separation of powers?

  • Brendan

    I’m confused. Unbalanced how? What’s the bias you hear?

  • bloggeddown

    Cass Sunstein, stop letting your personal feelings interefere with your professional outlook .. {OK, starting to redeem yourself now, at the end of show}. Yes, the records have to examined – and reviewed as a Supreme Court appointment, not a prosecutor’s slot, not a hack job.

    Thank you, for finally waking up. Better late than never, I guess.

    Ann Althouse doesn’t spin? Sure ..

    She’s just full of herself. With what, I will leave to others to describe.

    {What purpose does having blogger shills on the show do, anyway? Certainly does not legitimize any legal arguments; there was no content added to the hour by Ann.}

    Sorry to say, this show did not make it. One of the few – have to give it a big thumbs down. The guests were running away with the concept of trumpeting their own narrow visions.

    I was hoping for a discussion of things that mattered.

    The secret to the ‘decoder ring’ is figuring out how those would interpret our Constitution {Alito} will interface with the Executive and Legislative branches – I heard a big “ZERO” on this subject for the hour.

    Better luck next time.

  • Potter

    Base, Schmase. So it’s not about US ALL it’s about HIM (and THEM).

    Ailito may be “wonderfully competant” and a nice guy and all that but it’s the bent of his mind that we are talking about. Bush does not have the mandate to change the balance of the court to the right for the foreseeable future. Certainly ‘the base” has a right to be represented on the court. They are. We have Scalia and Thomas and Roberts. This is more than their percentage of the country from what I understand. But what this minority wants, no demands, is to change this country so that the law reflects their views as if they had an overwhelming majority.

    Yes let’s examine the record. What this first reaction show did for me was wipe away all this spin language about “original intent” , “judicial acitivism”, “legislating from the bench” “strict constructionism”. That was quite enough. All that jargon means nothing because each side is using the same words to mean something different. So this decision is or should be about who this particular person is and how he reads the Constitution in the light of how he views the world.

  • Wish I had heard the show. I just posted an interview with an ex-Alito clerk called “One liberal’s positive view of Alito.” Here’s the link.

  • Josh

    Sunstein is one of the leading professors of law in the country. Generally he is known for two main contributions: a moderately left [or sociological] critique of the more conservative Law and Economics arguments (esp in light of administrative law), and a view of “constitutional minimalism,” which he outlined in the show. I prefer his law and economics work, personally, but it is not that sexy, esp given the current news cycle.

    Generally, Sunstein is considered solidly left, but moderately so (which fits in nicely with his views on minimalism). He is routinely criticized by the NRO crowd (and very unfairly criticized, at that).

    Cass wrote an article recently describing Alito’s tendency to side with institutions. I tend to agree. From that, I think we glean that Alito may side more often with the government in 4th amendment cases and executive power cases, though it is not obviously true. So, the Hamden case that is stuck in the cert. pool in the Supreme Court (the case in which Roberts was on the panel prior to his confirmation) would be the test, and I tend to think (though there is little reason to think it) that Alito would side with the executive. Alito does not seem to have much of the libertarian streak that, say, O’Connor or Kennedy have. It would have been nice to have that as part of the conversation fwiw. Otherwise, I liked the interview. (If you want a conservative opponent, you’ll have to have one of the conspirators from Eugene Volokh’s website, though by shear intellectual power they don’t match Cass [no offense].)

    David: nice interviw; thanks. The [url=http://www.law.com/jsp/article.jsp?id=1130765714259]Legal Times[/url] has a story with a few comments from another law clerk. That clerk puts emphasis on the Iranian asylum case that has been making the rounds, recently.

  • Raymond

    Brendan, I loved your question … so I listened to the show, just to listen for bias. Frankly, I find that I do not have to listen very hard before I am smacked in the face with bias. But not this show. Terrific. Perhaps there is hope yet.

  • elevine

    I have trouble understanding why Alito’s “consistency” and “predictability” are charactereized as negative qualities. I think that they are highly desirable in a judge. Of course, I’d be happier if I agreed with the judge’s opinions more often than not, but I don’t see how having an unpredictable or inconsistenmt person on the bench benefits antbody.