Tuesday, January 17, 2006
John Roberts, conservative Justice
4 Comments:
By 
Cassandra, at
Tue Jan 17, 08:29:00 PM:
I'm looking forward to reading the opinions. Thanks for pointing to this.
By Cassandra, at
Tue Jan 17, 08:39:00 PM:
OK, I'm going to take you on now.
re: Some of my critics argued that John Roberts was not even a "conservative judge," which struck me as strained.
If this is referring to me (and as far as I can tell I'm the only one who made this sort of comment) that's not an accurate representation of what I said.
What I *said* was that conservatives didn't get "a properly reich-wing conservative judge" -- IOW, a far-righty. I think that's fair looking at his prior rulings, which were all very narrowly tailored and betrayed no real philosophical leanings that I could see.
Later I said I also wasn't sure they got a justice in the mold of Scalia and Thomas. I still think that's a fair reading unless Roberts lied his butt off in the hearings, and I was paying very close attention.
Thomas talked about ideas in the hearings. Roberts rejected originalism and textualism firmly (and much more firmly than Alito did) - in fact he rejected ANY kind of judicial philosophy.
And just voting with Scalia and Thomas is no real indicator. So did O'Connor - 80% of the time. I'll have to read what he joined in before commenting further (i.e., why he joined).
By TigerHawk, at
Tue Jan 17, 10:40:00 PM:
Actually, it wasn't referring to you, Cass. I was referring to the torrent of commenters over at Right Wing News, actually.
If I wanted to knock heads with you, I'd call you out and do it straight up! :)
I certainly agree that Roberts was more sphinx-like in his answers than any of the Justices confirmed before the thing got really politicized. I also agree that one case proves very little over the long haul. I just thought it was interesting that the day after I got hammered by the Right Wing News gang Roberts comes down with Scalia and Thomas in a 6-3 decision on a case of totemic significance to the religious conservatives.
If I can work up the energy, I may read the opinions, too. FWIW, I am a much hotter on the topic of physician-assisted suicide than most of the other bioethics questions that get people so worked up. I am a big supporter of it.
By Cassandra, at
Wed Jan 18, 06:23:00 AM:
Whew! That really confused me.
FWIW, I don't see this case as even being *about* physician-assisted suicide, per se. That issue has already been adjudicated.
This was really more of a turf battle about Federalism... sort of a ripple effect of Raich. I thought Thomas' dissent was priceless.
I imagine few people will see the humor in it, but he certainly got in his eyepokes:
While the scope of the CSA and the Attorney General's power thereunder are sweeping, and perhaps troubling, such expansive federal legislation and broad grants of authority to administrative agencies are merely the inevitable and inexorable consequence of this Court's Commerce Clause and separation-of-powers jurisprudence.
I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure. Raich, supra, at ___ (Thomas, J., dissenting); cf. Whitman, supra, at 486-487 (Thomas, J., concurring) (noting constitutional concerns with broad delegations of authority to administrative agencies). But that is now water over the dam. [Ed. note: heh....] The relevance of such considerations was at its zenith in Raich, when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power. This is particularly true where, as here, we are interpreting broad, straightforward language within a statutory framework that a majority of this Court has concluded is so comprehensive that it necessarily nullifies the States' " 'traditional ... powers ... to protect the health, safety, and welfare of their citizens.' The Court's reliance upon the constitutional principles that it rejected in Raich--albeit under the guise of statutory interpretation--is perplexing to say the least.
Good on him.
