Tuesday, March 8, 2016

Eric Segall on the Benefits of an Extended Surpeme Court Vacancy

Eric Segall on the Benefits of an Extended Surpeme Court VacancyMichael Ramsey - The Originalism Blog: "Nonetheless, Professor Segall's categorical assessment seems misplaced.  In many decisions Scalia's outcome did not align with his likely political preference, and can be readily explained only by his commitments to textualism and originalism.  For two examples, consider his support for criminal defendants and unattractive First Amendment plaintiffs.  As to the former, he repeatedly favored criminal defendants in (for example) confrontation clause cases -- aligning with the liberal Justices over the votes of conservatives.  Why? Surely not because he had sympathy for criminal defendants (see multiple other decisions, where he showed them none).  Or think of it another way: suppose the confrontation clause had a (textual) reasonableness exception, or that the confrontation clause did not exist at all and the confrontation right had been invented by the Warren Court as an ahistorical attribute of due process.  Would Scalia nonetheless have been an absolutist defender of the confrontation right?  I think not."

'via Blog this'

This is a great point, and one that I would like to see liberal justices answer. Scalia can point to several decisions where his philosophy compelled a result that was contrary to his policy preferences. That's not to say Scalia always overcame his biases when applying the constitution, but only to say that his philosophy did compel him to decide cases in a way that were contrary to his policy preferences.

My challenge to liberals: are there supreme court cases where the liberal justices have felt compelled by the constitution to reach a result that was contrary to their policy preferences? What are those cases?

Sunday, March 6, 2016


The three intellectuals who have most influenced my thinking about public policy are William F. Buckley Jr., Milton Friedman and Antonin Scalia. All three are now dead.

Scalia was widely regarded as an intellectual giant, which might lead a person to think that his major contribution to the law was esoteric. But the message he spent most of his time promoting was really pretty simple. We live in a democracy, where the people are the highest political authority. Judges should follow laws that are democratically enacted by the representatives of the people, whether they like the law or not.

That does not mean that judges have no role in reviewing democratically enacted laws for constitutionality. When the constitution conflicts with statutory law, the constitution controls. But the constitution controls, not because judges say so, but because the people said so when they enacted the constitution by super-majority.That result is counter-majoritarian, but not anti-democratic because the constitution itself is democratically enacted.

The alternative is a government where the will of the people is neglected and thwarted.  But those who ignore the will of the people don't explain where their government derives its authority. I would like them to explain it, because I don't think they can. In fact, I don't think they understand how much their theory of a living constitution erodes the bedrock principle of any democracy: that government power is derived from the people.

Justice Scalia powerfully taught that the people were the highest authority of our government; I wish more people had learned the lesson.