WestonDon wrote:This will probably get me flamed in some circles but here goes.
As it should be. In fact, I don't agree with the terms conservative and liberal to define judges. these are terms used to describe our two major political parties. Modern SCOTUS justices tend to be either original constructionists or "living document" adherents when interpreting the constitution. The living document crowd tends to try to contort the original meaning of the constitution to fit whatever agenda they happen to support while the original constructionists tend to apply the constitution as is to the facts of the case regardless of what agenda may be advanced or impeded. I can understand how a justice using original construction criteria may reach a Conclusion I do not like.
I'm with you WD.
The term "liberal" (now a "classical liberal")
used to mean one who defends Liberty, someone we would agree with. Of course, these terms have changed meaning over the years, describing the division over the meaning of the Constitution and the role of law in society (shield--Negative Rights vs weapon--Positive Rights)
It's a matter of good faith. Are people attempting to change America and what it means, or are people trying to find legal ways to justify their perverse concept of what America should be in modernity? Everyone wants "justice", but how do we define that, what standard to we uphold as just? What standard do we put our faith in as the standard of justice? This is where secular faiths and religious faiths collide, making them relevant to RKBA...but I digress...
Some offer precedent and "settled law"
as a standard to uphold. You can be sure it will be a hot topic in the confirmation process. Korematsu was recently overturned, and everyone agrees to that standard of justice being upheld. No riots in the streets, long overdue, etc...
So a moral plea
for the government not to treat Korematsu as law is not enough. Fortunately, there is also a legal argument for why Korematsu should not be treated as such.
The most straightforward way to reject Korematsu is to understand it not as the definitive word on the true meaning of the Constitution, but simply as a moment in historical time in which particular justices applied the law to specific facts. According to this view, a decision can be wrong at the very moment it was decided — and therefore should not be followed subsequently.
Justice Anthony M. Kennedy adopted a version of this theory of precedent in his opinion in the landmark 2003 gay rights case, Lawrence v. Texas. Overturning Bowers v. Hardwick, which had held that a state could criminalize homosexual sex, Justice Kennedy wrote that “Bowers was not correct when it was decided, and it is not correct today.” This formulation suggests that it would have been constitutionally wrong in the deepest sense to rely on the Bowers decision even before the court realized its error and reversed.
It is hard to think of an opinion not yet overturned that has a greater claim to having been wrong when decided than Korematsu.
To be clear, Kennedy argued that precedent is not an appropriate standard to uphold when precedent does not uphold justice. How straightforward is that? These opinions are not set in stone, and even in the absence of new science/tech/understanding, there can be a wholesale rejection of precedent. In fact Lawrence was applauded in its day by those now fearful of a new justice.
Perhaps most infamous of the wretched SCOTUS opinions is Dred Scott. Some argue that the 14th Amendment overturned Dred.
There is no such thing as "settled law". As Reagan said, "Freedom is never more than one generation away from being destroyed..."
In short, there are going to be fireworks because the standard can be changed by the opinions of the un-elected, because much of the legal system relies on these decisions. The operative question is "By What Standard?"
Clearly our political discourse and leaders have divided the populace in numerous ways, so much so that basic civility is now threatened. Are we a nation of laws, or of men? Are we capable of scrubbing out corruption, or do we subsidize it? Assimilation has been denounced as unjustly racist, destroying commonly held values, principles and standards, making SCOTUS a primary battlefield.
“A free people claim their rights, as derived from the laws of nature, and not as the gift of their chief magistrate.”
-Thomas Jefferson, 1774
Tweed Ring: "...we should have all done more to elected Republicans..." Agreed