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?

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