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I'm always very suspicious of consensus-driven decisions, and especially those where the background and dissent remains secret. It always favours the majority rule, and as LD states, makes the decision stronger. The supreme court, being the last bastion in support of the now frail US democracy is probably the last place I would like to see this type of dichotomous policymaking. Forcing those in disagreement to use unofficial or even covert channels to present their counterarguments also serves to strengthen the position of the majority as well as give them the opportunity to suppress dissent even further. From what little I have read of Roberts, this sounds like the opportunistic route, if anything.

Okay, here I go. I'll take a swing at your response, LD. I do want to say one thing though- I'm being decidedly optomistic about Roberts. I think he is a conservative and that he has worked for the party I don't like (read: Republican) for his entire career. With that said, my hope is that he will be jurist rather than a partisan.

[QUOTE=Lady Dragonfly][
Thank you for the clarification. Anyway, what does the "strong opinion" (or lack thereof) really mean? [/quote]
The idea of consensus has to be taken in the recent Supreme Court (SC) context, especially post-Bush v. Gore.

All the justices have their own policy streaks- Scalia is a tremendous federalist and rhetorician, Thomas is conservative to the point of (imho) idiocy, Ginsberg repeatedly strives for an individual approach, O'Connor was practical and headstrong, and Kennedy likes being the swing vote because it gives him the opportunity to write broad, overreaching opinions. Now, saying that the SC justices have policy ideas and conviction about the law isn't amazing; we assume that they will be informed and have opinions, right? I mean, if a justice on the SC doesn't have an opinion about the law, what does that say about his/her knowledge of it?

But I digress. My point is that these opinions, especially during the latter part of the Rehnquist court, became more pronounced. Traditionally on the court there have been concurrances (opinions issued supporting the court's holding) and dissents (opinions issued criticising the court's holding), but these other have opinions proliferated in the past 10 years. Take, for example, a 2002 case, Republican Party of Minnessota v. White. It was about free speech. In it there are no fewer than 5 opinions issued: the court holding (by Scalia), two concurrences (O'Connor and Kennedy) and two dissents (Ginsberg and Stevens).

This proliferation of opinions says to me, a law student and aspiring lawyer, that the court doesn't know how it feels about the issue in this case. How am I supposed to know which opinion is the binding one? It isn't always the court's opinion that is binding- the seminal example of this is Jackson's concurrence in Youngstown Steel. I'm babbling again- let me get back on track: this issuing of multiple opinions has happened a lot recently. As I mentioned above, the worst example is Bush v. Gore, a horrible, fractured opinion that the SC is still trying to recover from.

[QUOTE=Lady Dragonfly]Basically, Roberts calls for the appearance of a "consensus", not for the actual consensus. Without officially issued "separate opinions" of the justices the dissent would remain in the background, allegedly strengthening the ruling. At least that is my understanding of his "consensus". Critics argue that dissenting opinions made public is a good thing leading to discussions and eventually to a better understanding of the issue by the public. Let us be realistic: the Chief Justice cannot just whip other justices back into line for the sake of "consensus". He wants to hide the dissent behind the closed doors and behind a "unified ruling".[/quote]
Not exactly. I think that rather than hiding behind consensus, Roberts is trying to build legitimacy, especially some that was lost post B v. G.

For the sake of argument, let's both start from the same place: we have to agree that consensus matters. If an opinion is issued with no dissent, as a unanimous opinion, it sends a message that the ruling is strong and near impossible to overturn. The classic example is Brown v. Board of Education (the ruling that made illegal racial segregation in the US). Scholars and historians recognize that Brown was effective because it was unanimous- the court was saying, in very certain terms, that segregation was over.

So, take the rationale and apply it to today. The court has recently been underfire and is becoming much more political. Many justices *cough*Scalia*cough* are criticized because they seem to care more about being consistent than just. Issues, like Speech, Presidential Powers, Abortion, and others are suddenly in doubt. It's not good for the nation when the law is in doubt. Hence, Roberts wants to stop the bickering and get the justices on the same page as much as possible.

[QUOTE=Lady Dragonfly]Another argument of his is the Supreme Court should make decisions “on narrow grounds”, meaning just to pass judgment, akin to the lower court process.[/quote]
I don't know what you mean by narrow='just to pass judgment'. Isn't a court (any court) always passing judgment?

Re: Narrow

Narrow isn't so bad when you examine it along with consensus. The Chief Justice (Roberts) gets to assign who writes the opinion when he's in the majority. He has said that he will use this power to forward consensus, because he will assign the opinion to a justice that will generate the most votes in favor. Usually, this will mean a narrower holding because the members of the court disagree so much.

For example, if an issue is decided and one opinion will get 5 votes and a second opinion will get 7, Roberts has said he would assign the opinion to the person who will get the 7 votes. Usually this will result in a narrower holding, meaning a holding that is tailored more closely to the facts and has less potential to effect other rulings.

[QUOTE=Lady Dragonfly]Besides, Roberts thinks the Supreme Court should stay narrowly "focused", so the justices could take more cases. My question is why the workload is shrinking? Is it because of the protracted "unfocused" debates the Supreme Court handles only about 80-100 cases yearly? I think not. And Roberts himself has given several good reasons for a low workload, including the absence of cases merited Supreme Court hearing.[/quote]
That I can't help you with- it is a mystery that Roberts inhereted from his mentor, CJ Rehnquist. The caseload has shrunk over the past few decades and nobody who isn't on the court knows why. As you mentioned, Roberts has said that there are fewer cases that have SC merit, but other than that I can't help. You might be able to say that it was Rehnquist's response to the Warren court's penchant for very liberal actions.

This is getting long- I'll continue in a second post.

Part two! Hopefully I'm not burying everyone under SC history and legal jargon.

Lady Dragonfly]Difficult to argue: all politics are made by playing with words. Worth mentioning though wrote: No, I don't. However, I don't think he's the problem. Roberts, while not identical, is very very similar to Rehnquist. He clerked for Rehnquist, had similar opinions, seems to espouse that similar, sneaky-conservatism that Rehnquist (limited rulings, state's rights, etc). This matters because Rehnquist, like Roberts, didn't like Roe. He dissented in that case, as well as in Planned Parenthood v. Casey (the case that is the updated version of Roe). Everyone thought that he was just waiting to undue [iRoe because an enumerated right to abortion was not a reasonable interpretation of the constitution. However, something strange happened at the end of his career: he had the chance to potentially undue Roe and chose not to! I can't remember the case (it might have been Casey or maybe another case- I've search for 15 mins and can't find it) but Rehnquist said, effectively, that even though Roe was, he thought, bad law when it was enacted, the country had come to rely on it. While he didn't agree with it, he wasn't in favor of overturning it either.

Why does this relate to Roberts? Well, I think he would defer to the same logic- in law there is a term called stare decesis, which basically means that courts should not overturn laws that people have been relying on because of the effects of the reliance. I think that Roberts is more likely to defer to stare decesis and Rehnquist's logic.

Alito is who I would be worried about- he, Scalia, and Thomas have all said publicy that they don't have any problem going against stare decesis to overturn a bad law.

Lady Dragonfly wrote:Can you please comment on the other statements made by Mr. Kennedy?

Yes, but only briefly :

-We talked about abortion, so I'm skipping that one.
-I mentioned privacy before- should I write more? I've already written a novella, so I'm going to think that less is more right now.
-As for coal companies and miranda rights, I don't know anything about his positions. It doesn't surprise me that he wants to limit them- he's a conservative and a very smart one. He might think that the rights of individuals have gone too far, and that there should be a balancing test weighing the responsibilities of the state against the rights of a citizen.

Also, there's an important distinction to make here about that Kennedy quote- lawyers are paid to argue and persuade, to prove why their side is correct under the law. Don't confuse his cases as an advocate with his cases as a judge. Our system is combative- one side argues against the other, and the judge/jury hashes it out. Coal companies aren't inherently bad no matter how much Ted Kennedy would like you to believe it. They pollute and they have exploited a region in the past, but they are also responsible for employing tremendous volumes of otherwise unskilled laborers and providing the majority of power we use every day. So, beyond the facts of the case, I don't think that simply working for a coal company will make you a bad person.

(fyi- I go to a law school that is the top environmental law school in the US, so don't think I'm generally anti-environmentalist)

Lady Dragonfly wrote:True, but I am not so forgiving: Roberts participated in the Florida recount legal battle helping Bush to hijack the presidency. No wonder Bush is grateful and I am not.

As you can tell, I hate that ruling. Have you ever read it? It is infuriating just to read. In fact, I'm getting mad just typing about it. As I keep saying, it cost the court a lot of legitimacy and trust. It is just awful, because of both the legal reasoning and the resulting effects. I hate that case.

Silur, post: 928140" wrote:I'm always very suspicious of consensus-driven decisions, and especially those where the background and dissent remains secret. It always favours the majority rule, and as LD states, makes the decision stronger. The supreme court, being the last bastion in support of the now frail US democracy is probably the last place I would like to see this type of dichotomous policymaking. Forcing those in disagreement to use unofficial or even covert channels to present their counterarguments also serves to strengthen the position of the majority as well as give them the opportunity to suppress dissent even further. From what little I have read of Roberts, this sounds like the opportunistic route, if anything.

I disagree entirely. I don't think US democracy is marginalized or weak, I think it is polarized. I also think money in politics is crippling the system. However, I think the instituitions are still strong. A great example of this is, I hate to say it, Bush v. Gore, because after the ruling everyone deferred to the court. There were no riots, Al Gore didn't call for a coup, there were no calls for a constitutional convention; people just went on with their lives. Even when people thought the ruling was awful, they defered to the authority of the instituion- that is a strong national system.

Also, don't consider the SC to be the "last bastion" of law in the US. As was mentioned before, they only hear 80 cases or so a year. Those cases are important, don't get me wrong, but 80 cases is nothing. I would estimate that the vast majority of law in this country (like... 90%+) is made by circuit courts of appeals and state supreme courts. Those courts take big-deal cases every day and they are the courts that have to repeatedly interpret and apply what the SC holds. Pay attention to those nominees, and if you're in a state that elects judges, do your homework before voting.

Finally, no matter how hard he tries, Roberts will never be able to corral all the justices and keep them from dissenting or concurring. Stevens, Kennedy, Ginsberg, and Scalia are so ridiculously opinionated and vocal that there's no chance they'll be shut up completely. Making them agree a little more often is reasonable imho.

And, I'm spent.

Cuchulain82 wrote: I disagree entirely. I don't think US democracy is marginalized or weak, I think it is polarized. I also think money in politics is crippling the system. However, I think the instituitions are still strong. A great example of this is, I hate to say it, Bush v. Gore, because after the ruling everyone deferred to the court. There were no riots, Al Gore didn't call for a coup, there were no calls for a constitutional convention; people just went on with their lives. Even when people thought the ruling was awful, they defered to the authority of the instituion- that is a strong national system.

I agree that it is polarized, but that's not on the same scale as whether it is weak or not. Considering how few people actually vote and that the electoral system consistently biases the outcome, the US definition of democracy is looking rather depressing. Now, combining that with the polarization that necessarily follows from the system, it's bordering on pathetic. I'm not even going to go into the voting machine troubles, or the blocking of some groups from placing their ballots...

The reason no one was particularily interested in rioting at the time is more likely explained by apathy than belief in the system. For Al Gore, the situation was a no win, since any other action than to step down would have him appear as a sore loser or lawriding bureaucrat in the media, both of which would have made his life in US politics severely difficult. Fairness has never been a really big thing in the US mindset - winning at any cost is still winning.

Cuchulain82 wrote: Also, don't consider the SC to be the "last bastion" of law in the US. As was mentioned before, they only hear 80 cases or so a year. Those cases are important, don't get me wrong, but 80 cases is nothing. I would estimate that the vast majority of law in this country (like... 90%+) is made by circuit courts of appeals and state supreme courts. Those courts take big-deal cases every day and they are the courts that have to repeatedly interpret and apply what the SC holds. Pay attention to those nominees, and if you're in a state that elects judges, do your homework before voting.

I never said it was the last bastion of law, I said it was the last bastion in protection of the frail US democracy. Regardless of political color, it has generally tried to protect the US constitution from being abused or violated. This is probably due to its members being lawyers first and politicians second. In the case of Roberts, I have doubts about that being the case. His track record does leave something to be desired, and from the short searches I have made I am inclined to see him more as a politician than judge. Promoting consensus and a unified front tends to confirm this.

Cuchulain82 wrote: Finally, no matter how hard he tries, Roberts will never be able to corral all the justices and keep them from dissenting or concurring. Stevens, Kennedy, Ginsberg, and Scalia are so ridiculously opinionated and vocal that there's no chance they'll be shut up completely. Making them agree a little more often is reasonable imho.

That is, unless they also decide to play the political bargaining game behind closed doors, trading one decision for another, in which case all three branches of government are politicised and polarised. I'm not saying this hasn't already happened, but stifling the judges desires to publicise their views in favour of consensus would definitely motivate bargaining instead. I prefer trusting their inflated egos...

I am impressed... I hope you are not entirely spent because I am going to trespass on your patience a bit more.

This proliferation of opinions says to me, a law student and aspiring lawyer, that the court doesn't know how it feels about the issue in this case. How am I supposed to know which opinion is the binding one? It isn't always the court's opinion that is binding...

Is not the majority opinion supposed to be "the binding one"?
I was under impression that the justices cast their votes.
Strictly speaking, consensus means abandoning personal principles for the sake of the "team play" and pragmatic "strong opinions" which would be hard to overrule. Sounds good, up to the point you start considering the possibility that the ruling might be erroneous. The 5:4 decision can make it possible to look back and correct the mistake. 9:0? Hardly. In Roberts' opinion, 5:4 makes the public disrespect the SC. I have a hard time understanding how hiding the dissent and showing public a false facade of "unity" can actually earn this respect.
Is it possible at all to hide the dissent while discussing painful, controversial issues?
I am sure you have read the article (rather flattering) written by Jeffrey Rosen who interviewed Roberts. I cannot help quoting this passage:

"When I met with Roberts, the question of judicial temperament was much on his mind, since he had made it a priority of his first term to promote unanimity and collegiality on the Court. He was surprisingly successful in this goal: under his leadership, the Court issued more consecutive unanimous opinions than at any other time in recent history. But the term ended in what Justice John Paul Stevens called a “cacophony” of discordant voices. Opposing justices addressed each other in unusually personal terms and generated a flurry of stories in the media about the divisions on the Court, especially in cases involving terrorism, the death penalty, and gerrymandering. Roberts seemed frustrated by the degree to which the media focused on the handful of divisive cases rather than on the greater number of unanimous ones, and also by the degree to which some of his colleagues were acting more like law professors than members of a collegial Court. As a result, Roberts looked to the example of his greatest predecessor—Marshall, who served as chief justice from 1801 to 1835—for a model of how to rein in a group of unruly prima donnas."

Finally, no matter how hard he tries, Roberts will never be able to corral all the justices and keep them from dissenting or concurring. Stevens, Kennedy, Ginsberg, and Scalia are so ridiculously opinionated and vocal that there's no chance they'll be shut up completely. Making them agree a little more often is reasonable imho.

I mostly agree; I am just curious what means Roberts is planning to employ to stamp out the dissent. Charisma?
Worth watching. Really.

[QUOTE=Lady Dragonfly] I am impressed... I hope you are not entirely spent because I am going to trespass on your patience a bit more.[/quote]
Thanks for the compliment, but just about any 1L law student should be able to say what I've been saying. As for my patience, well, I should be writing a paper, and this is much more fun!

[QUOTE=Lady Dragonfly]Is not the majority opinion supposed to be "the binding one"?[/quote]
Well, yes and no. You see, the majority opinion (or, when there is no majority, the plurality opinion) is the one the pertains to the case at hand. So, that's where the court says, "we hold for X party", or "We overturn the finding of the appellate court an remand for further instructions," etc.

However, all the issued opinions are fair game, so when similar issues or cases arise in the future, lawyers comb the issued opinions looking for something that will give their argument some precedent, either "binding" or simply "persuasive." The best example of this is the case I mentioned before, [url="http://en.wikipedia.org/wiki/Youngstown_Sheet_&_Tube_Co._v._Sawyer"]Youngstown Sheet & Tube Co. v. Sawyer[/url]. It was a case about presidential power, and the majority opinion (by Justice Black) laid down the law for that case. However, the concurrence by Jackson is cited repeatedly today because it explicitly creates a framework through which analysis of presidential power should proceed (a three-tiered system).

[QUOTE=Lady Dragonfly]I was under impression that the justices cast their votes.[/quote]
Well, they do. I don't know the techinical aspects of when/how voting happens, but I do know that there is considerable time for persuasion and conversation amongst the justices. I also believe that a justice can switch their vote if they choose (I imagine there's a time limit or something, but I don't know for sure).

[QUOTE=Lady Dragonfly]Strictly speaking, consensus means abandoning personal principles for the sake of the "team play" and pragmatic "strong opinions" which would be hard to overrule. Sounds good, up to the point you start considering the possibility that the ruling might be erroneous. The 5:4 decision can make it possible to look back and correct the mistake. 9:0? Hardly. In Roberts' opinion, 5:4 makes the public disrespect the SC. I have a hard time understanding how hiding the dissent and showing public a false facade of "unity" can actually earn this respect.[/quote]
Here's the rub- I don't think that any unity will be a false facade. The justices on the SC are, imho, the most brilliant jurists in the US. Maybe other people are as smart, but they are really the best of the best. With that said, I can't believe they will compromise at the expense of what they think it right or lawful.

So, aiming for consensus isn't strongarming justices into line and stifiling all dissent. I think it will be something like one judge saying "I believe the opinion should say X, Y, and Z. Furthermore, we should overrule H." And another justice saying, "I agree about X and Z, but not Y, and there is no way we're going near H." And that continuing on until there is a ruling that most of the justices can agree with about a set of issues. That set will probably be narrower than any one justice would like, but if more of the most brilliant minds can agree, the better, right?

[QUOTE=Lady Dragonfly]Is it possible at all to hide the dissent while discussing painful, controversial issues?[/quote]
I don't think dissent can or should be hidden. And I don't think it will. I don't think consensus is about a political agenda, at least not in this case. I think it is about agreement and clarity.

[QUOTE=Lady Dragonfly]I am sure you have read the article (rather flattering) written by Jeffrey Rosen who interviewed Roberts. I cannot help quoting this passage:

"When I met with Roberts, the question of judicial temperament was much on his mind, since he had made it a priority of his first term to promote unanimity and collegiality on the Court. He was surprisingly successful in this goal: under his leadership, the Court issued more consecutive unanimous opinions than at any other time in recent history. But the term ended in what Justice John Paul Stevens called a “cacophony” of discordant voices. Opposing justices addressed each other in unusually personal terms and generated a flurry of stories in the media about the divisions on the Court, especially in cases involving terrorism, the death penalty, and gerrymandering. Roberts seemed frustrated by the degree to which the media focused on the handful of divisive cases rather than on the greater number of unanimous ones, and also by the degree to which some of his colleagues were acting more like law professors than members of a collegial Court. As a result, Roberts looked to the example of his greatest predecessor—Marshall, who served as chief justice from 1801 to 1835—for a model of how to rein in a group of unruly prima donnas."


I mostly agree; I am just curious what means Roberts is planning to employ to stamp out the dissent. Charisma?
Worth watching. Really.[/QUOTE]
I did read the article, and I think Jeffrey Rosen did a good job for the most part. I agree it's worth watching (I'm turning into a SC junkie, can ya tell ).

I don't think that dissent will be 'stamped out' though. It's not like he's some fascist overlord pushing liberal dissidents into hiding- he's a judge! His concern is that the court act like a court, and that the law be consistent no matter who is wearing the robe. The whole idea of justice is that it is, well, just- that no matter who is judging or being judged, the law will be employed as justly as possible, with a neutral point of view. It isn't good for the justice system to have judges who are bigger than the law, or who use the plights of citizen as their own soap box. Furthermore, it is really bad when justices get nasty with each other.

This is a time when power- specifically presidential/executive power- is the big constitutional issue. The members of the current court span such a expanse of legal points of view on this issue (Scalia and Thomas being right of Hitler, Stevens a little left of Lenin) that it is really important that no matter how the court rules, the rulings are (1) just and (2) percieved as such by the nation. Difference in philosophy, judicial approach, and ego need to take a back seat.


Too long again- I'll answer silur next.

silur]I agree that it is polarized wrote: See, I don't think the polarization results necessarily from the system. I think the nation is really polarized, and that the system is being pushed beyond what it is capable of handling. I don't know anything about voter fraud, marginalization of voters, or any of the other hot voter issues of the day. I imagine that these issues are new versions of an old crime- trying to fix an election. Are they reprehensible? Absolutely. Are they potentially a part of any elector system? I believe so. Does that mean that I'm ready to do away with the current electoral system? Absolutely not.

Look at the national election in 2004- Bush won the popular vote, and the nation was split almost down the middle. No matter who won that election, Bush or Kerry, there was going to be half the country that was mad at the president before he was even sworn in. I think that the system is buckling because the nation is very divided.

silur]The reason no one was particularily interested in rioting at the time is more likely explained by apathy than belief in the system.[/quote] Again wrote:I never said it was the last bastion of law, I said it was the last bastion in protection of the frail US democracy. Regardless of political color, it has generally tried to protect the US constitution from being abused or violated. This is probably due to its members being lawyers first and politicians second. In the case of Roberts, I have doubts about that being the case. His track record does leave something to be desired, and from the short searches I have made I am inclined to see him more as a politician than judge. Promoting consensus and a unified front tends to confirm this.

I guess we'll just have to agree to see the facts differently. I don't know why you're worried about politicians- some of the greatest Justices ever (Earl Warren first among them) were former politicians. Generally, in fact, politicians make better justices because, unlike academics, they are not married to one philosophy or school of thought.

On the other hand, I don't know why you think Roberts is a politician. He's never held elected office in his life, at least not as his primary job. Maybe he's a dog catcher or an alderman somewhere, but he's never been a governor or a senator or anything. He's undoubtedly a republican, and if that's what you don't like, well... I guess you don't like him. His track record says he's a conservative thinker who has gobs of experience and has clerked for two of the greatest legal minds (Rehnquist and Friendly) in US history. (Seriously, everyone knows Rehnquist and he's brilliant, but Friendly is a titan as well- a true heavyweight in the history of american jurisprudence. He, Learned Hand, and Benjamin Cardozo were shockingly smart judges when they were on their respective courts of appeals.)

So, I disagree with Roberts alot, but I trust his leadership on the court. Earl Warren, Thurgood Marshall, and Harry Blackmun are dead and gone. Roberts is what I've got, and it's a heck of a lot better than Thomas, Scalia, or Alito as chief justice.

silur]That is wrote: I think that I've already address this. I don't think Roberts is a gestapo enforcer. I think he's just going to try to reign in some of the justices, much like (John) Marshall.

I think dissenting opinions are very important. I refer you to U.S. Steel Workers of America v. Weber (1979), for example. It was about affirmative action in hiring practice, which still remains a controversial issue. As a SC junkie , you know it was Rehnquist who issued a biting dissent, although the "politically correct" ruling (5:2) was still adopted by the majority. His dissent was joined by Chief Justice Warren Burger, no less.

Rehnquist wrote: "There is perhaps no device more destructive to the notion of equality than the numerus clausus -- the quota. Whether described as 'benign discrimination' or 'affirmative action,' the racial quota is nonetheless a creator of castes, a two-edged sword that must demean one in order to prefer another. In passing Title VII, Congress outlawed all racial discrimination, recognizing that no discrimination based on race is benign, that no action disadvantaging a person because of his color is affirmative."

Don't you think that the majority in that case acted as mere politicians, taking social conditions and a current political situation under consideration?
IMHO Renquist dissent was an impartial Constitutional interpretation and provided basis for a potential future reversal.

Sorry about the delay- sometimes law school takes priority over GB, although I may wish it were otherwise

Lady Dragonfly wrote:I think dissenting opinions are very important.

You are correct, I agree that they are important, and it is important that we get that out in the open. Dissenting opinions have tremendous importance. An example that is often cited is the dissent by Justice Harlan from the infamous [url="http://en.wikipedia.org/wiki/Plessy_v._Ferguson"]Plessy v. Ferguson[/url]

Lady Dragonfly wrote:I refer you to U.S. Steel Workers of America v. Weber (1979), for example.

Just out of curiosity, why that case? I'd not read it until you pointed it out to me, and it isn't one of the better known cases about affirmative action. Some of the dissents in later cases are much flashier and fun to read. One of my favorites is Thomas' wonderful dissent in [url="http://en.wikipedia.org/wiki/Grutter_v._Bollinger"]Grutter v. Bollinger[/url], a recent case about affirmative action in higher education.

Lady Dragonfly wrote:It was about affirmative action in hiring practice, which still remains a controversial issue. As a SC junkie , you know it was Rehnquist who issued a biting dissent, although the "politically correct" ruling (5:2) was still adopted by the majority. His dissent was joined by Chief Justice Warren Burger, no less.

Rehnquist wrote: "There is perhaps no device more destructive to the notion of equality than the numerus clausus -- the quota. Whether described as 'benign discrimination' or 'affirmative action,' the racial quota is nonetheless a creator of castes, a two-edged sword that must demean one in order to prefer another. In passing Title VII, Congress outlawed all racial discrimination, recognizing that no discrimination based on race is benign, that no action disadvantaging a person because of his color is affirmative."

Don't you think that the majority in that case acted as mere politicians, taking social conditions and a current political situation under consideration?
IMHO Renquist dissent was an impartial Constitutional interpretation and provided basis for a potential future reversal.

Well, to answer your questions, I do not think that the majority acted as "mere" politicians, and I do think that the dissent provides an alternative view of the law.

I agree with Rhenquist in that quotas are bad. That is one thrust of his dissent. But, as much as he may not like the way that the company instituted the reforms, the simple fact is that affirmative action cases are remedial in nature. Today it seems like the court was upholding unfair racial preferencing. But the case begins in 1974 in Louisiana. As a result of civil rights legislation during that era, much of the south had been forced to put quota and other integration systems into effect to remedy decades of institutionalized discrimination. I don't think that the justices then were being politically correct- I think they were trying to give substance to the civil rights legislation of 1964, and interpret it as it was intended.

Your point, however, is valid, because today Rhenquist's dissent might be very useful for a person challenging an affirmative action system. Circumstances have changed, and the logic that allowed the court to uphold the quota in this case may not be applicable in the future. (Justice O'Connor all but said this in [url="http://en.wikipedia.org/wiki/Grutter_v._Bollinger"]Grutter[/url].)

Sorry about the delay- sometimes law school takes priority over GB

As it should.

Just out of curiosity, why that case? I'd not read it until you pointed it out to me, and it isn't one of the better known cases about affirmative action. Some of the dissents in later cases are much flashier and fun to read.

One reason is because I think it demostrates that the position of the majority was clearly politically motivated: they tried to give "substance to the civil rights legislation of 1964", as you said, by reverse discrimination. And Rhenquist's dissent outlined the difference very well.

Another reason is Rhenquist himself. Roberts said that one thing that made Rhenquist successful as Chief Justice was that "he knew who he was and had no inclination to change his views simply to court popularity."

Interesting, because Rhenquist wrote in 1952 (I am quoting from Wiki article “Plessy v. Ferguson"):"I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think Plessy v. Ferguson was right and should be reaffirmed." He continued, "To the argument... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are."

Talking about controversial rulings: is the problem of “just versus politically correct" or "just versus not entirely just but the circumstances required..." political? How much pragmatism is too much?

Is Roberts going to rise above political games? He says yes, but is it possible?

Lady Dragonfly wrote:One reason is because I think it demostrates that the position of the majority was clearly politically motivated: they tried to give "substance to the civil rights legislation of 1964", as you said, by reverse discrimination. And Rhenquist's dissent outlined the difference very well.

Wait a minute- I said that what the court did may look like reverse discrimination, but that wasn't accurate because of our modern perspective. Did you read the case? The company attempted to employ black workers for skilled positions before enacting the quota system, but there were literally none available! The black population was so marginalized at that point that unless something drastic was done (ie: quotas, bussing, integration, etc.) they would continue to be actual second class citizens.

Also, the court giving legislation substance isn't uncommon or a bad thing; basically, that is the court's whole job. Clear-cut violations of law don't get to the Supreme Court. Only difficult, nuanced cases get there, and we expect the Court to interpret legislation and to do so, where necessary, based on legislative intent. The intent of Civil Rights legislation was to fix decades of systematic discrimination, and the court did the right thing by giving it some teeth.

Lady Dragonfly wrote:Another reason is Rhenquist himself. Roberts said that one thing that made Rhenquist successful as Chief Justice was that "he knew who he was and had no inclination to change his views simply to court popularity."

I think that's very accurate. I also think Rhenquist made his share of mistakes, and that even he changed positions over time. Abortion is a prime example: by the end of his tenure he wasn't necessarily in favor of overturning Roe because women had depended on it for so long.

Lady Dragonfly wrote:Interesting, because Rhenquist wrote in 1952 (I am quoting from Wiki article “Plessy v. Ferguson"):"I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think Plessy v. Ferguson was right and should be reaffirmed." He continued, "To the argument... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are."

Talking about controversial rulings: is the problem of “just versus politically correct" or "just versus not entirely just but the circumstances required..." political? How much pragmatism is too much?

This isn't a question with an absolute answer, because you're talking about one of the inherent conflicts in constitutional law- the tension between individual rights vs. the rights of the majority. Under our feredal system, states, at least theoretically, have the power to do almost whatever they want. But the federal government often steps in and ties to protect the individual from "the tyranny of the majority." This is problematic, because both sides have a constitutional claim.

Rhenquist was generally in favor of states rights. He thought that local governments had the right to make decisions as a population, and if they wanted to do something (like not allow XXX movie theaters in the middle of town; City of Renton v. Playtime Theaters Inc.) they should be allowed to, even if it infringed on a civil right (in that case, free speech). For him is was about finding a balance.

This is in contrast to other justices. Scalia goes way beyond Rhenquist, whereas William O'Douglass went so far to protect individual rights that he sometimes didn't even find them in the Constitution- he just announced them.

I guess this is my way of saying that the quote is interesting, but it sounds like Rhenquist saying what he finds to be true. While he's a worth listening to, I'm not ready to say that just vs. popular is the esssential way to view the court.

Lady Dragonfly wrote:Is Roberts going to rise above political games? He says yes, but is it possible?

I think this is the wrong question. We have to start from the understanding that it will never be possible to eliminate politics from the Supreme Court. With that said, I think the question should be "Will Roberts minimize the influence of politics as much as possible, in a deliberate and pracgmatic way?" I think the answer to that question is yes, especially as he gains more experience.

Just when I thought that I was out they pull me back in...

Heeeeyyyyyy Lady Dragonfly...

I found two articles you might like. They're a little old, but pay attention to the second one especially.

[url="http://www.law.com/jsp/article.jsp?id=1172138582391&pos=ataglance"]Why Are Justices Popping Up All Over The Tube?[/url]

[url="http://www.law.com/jsp/article.jsp?id=1165917921878"]Scalia, Breyer Debate Unanimity on the High Court[/url]

THANKS!!! I really liked both of the articles. Firstly, because they echo my own opinion and secondly, because they are written (especially the first one) in the style I favor...

There's some momentum finally towards a national move for impeaching Cheney. If you're a US citizen, consider signing a petition here, to get more House members on the side of this.

@fable: thanks for the link. I had already sent a letter to the representatives from my state, so I gladly pitched in with that.

However, rest assured that if even they sign on to the resolution, I am certainly not voting for them when the time comes. The fact that they have done nothing for so long incriminates them in my estimation. An even louder message should be sent to our Congress, L.L.C. as a whole: pack your bags, and go join the executive team of one of your corporate sponsors...*if* they'll take you.

I completely agree. I also signed the petition, and I'm closely watching the votes of representatives and senators in Ohio. The state's been shaken up quite a bit by having a Democratic legislature (as well as Democratic governor and pair of federal senators--the first time since the 19th century), and while I don't trust the Democrats anymore than the Republicans to reasonably administer policies without thinking first of big money private interest groups, the simple fact of starting afresh means throwing out some old dry rot. Several highly placed Republican officials tied to vote-rigging scandals have resigned rather than face prosecution in the last year. There's a slim chance of actually building grassroots populist organizations that won't be coopted by the parties.

I came upon a clip on the Web. It's taken from Bill Moyers' show on public television in the US. Moyers, for those that don't know of him, was the White House chaplain during the Johnson administration. He subsequently went secular, and has become one of the most serious and thoughtful critics of contemporary politics and media.

Can't link directly to the bit in question, but currently it's on the first page of this site, under the suitable title of "Bill Moyers’ Roundtable On Impeachment Of Bush & Cheney." It is a calm and intelligent discussion with The Nation's John Nichols and constiutional attorney Bruce Fein of the American Freedom Agenda: one very liberal and one very conservative, both in agreement that now is the time to impeach Bush and Cheney. No shooting, no displays of bravado, just some good discussion of why it should be, and what impeachment is intended to do.