Alan Gura on Guntalk Podcast Discussing Scalia

I appreciate you sharing that link. I enjoyed listening.

I liked what he said, but I only partially agree on one issue he brought up, stare decisis. He seemed to paint it as a minority that wouldn't respect "settled law" or consider the Constitution a living document. Maybe it is simply my personal awareness or my jaded perspective, but it seems more and more to me that the vast majority of Americans consider both of these ideas to be absolutely absurd. The idea that we should actually amend the constitution if it isn't agreeable instead of just ignoring it is probably supported by less than ISIS.

A good example being that this president does not have the right to appoint a justice with almost a year left in his term. If it was after the election and the Republicans had won that MIGHT be a dependable position. Conservatives across the board are content to ignore the constitution when it does not favor their position or is inconvenient.
 
Last edited:
For the record, the Democrats said Bush was out of line when he nominated a justice 18 MONTHS before his term of office ended. Some of those excoriating the GOP today were in fact doing exactly the same thing back then, including Shumer, and even then-Senator Obama.

So let's not try and take any moral high ground here, this is politics, pure and simple, and both sides are equally guilty of playing the game.
 
If it was after the election and the Republicans had won that MIGHT be a dependable position. Conservatives across the board are content to ignore the constitution when it does not favor their position or is inconvenient.
Click to expand...

The President has a right to nominate a Justice with the advice and consent of the Senate. The Senate has a right to conduct hearings into the nominee and reject the nominee outright if they are dissatisfied. Neither of those actions ignore the Constitution and both are part of the system of checks and balances.

There is certainly no shortage of hypocrisy on the subject of whether otherwise qualified jurists should be rejected such solely on the basis of ideology; but at the same time, the Second Amendment is a fundamental human right expressly recognized in the Bill of Rights. I'd be very concerned about an otherwise qualified jurist who felt that it was OK to regulate offensive speech or quarter troops in people's homes.

During Sotomayor's confirmation hearings she said she understood the individual right described in Heller, then in McDonald, she joins the dissent arguing Heller should be overruled - that you have no individual right to own even a .22LR revolver for self-defense even after going through D.C.'s especially onerous licensing and registration requirements. Regardless of how competent she might be as a jurist, this shows a Justice who understands what the law is and feels it is OK for her to change an express right in the Bill of Rights from the bench. She should not have been confirmed and another error along those lines will end the Second Amendment.

So I certainly hope the Senate shows more care in these hearings than they did in hers.
 
Gura's observation about Scalia having changed the way we approach constitutional issues has been widely observed; it is undeniable.

Scalia brought the argument into his decisions, possibly foregoing majority support for a softer position. However, that clarity permitted him to speak past the court and parties to reach a generation of people dissatisfied with the "pure applesauce" of jurisprudence that ignores the text at issue in a case.

Thomas may be a better Sup Ct justice, but Scalia is a better teacher.
 
If it was after the election and the Republicans had won that MIGHT be a dependable position. Conservatives across the board are content to ignore the constitution when it does not favor their position or is inconvenient.
Click to expand...

As do liberals, so let's not go there.

One can only hope that the Senate can delay any nomination until after the election, and that we get another Constitutionalist who will make decisions based on said document, and not on some vendetta type personal agenda.
 
I read a legal scholarly book on the court's decision processes. The best predictor was pre-existing political beliefs. Precedents are then searched to support the political position.

The exception is the member who regards self as king maker and goes back and forth for personal power and influence over others.

That's how you get the 5/4 decisions many times.

Let's focus on the RKBA components and not stray much into general politics or this will get shut down also.
 
Glenn E Meyer said:
I read a legal scholarly book on the court's decision processes. The best predictor was pre-existing political beliefs. Precedents are then searched to support the political position.

The exception is the member who regards self as king maker and goes back and forth for personal power and influence over others.

That's how you get the 5/4 decisions many times.

Let's focus on the RKBA components and not stray much into general politics or this will get shut down also.
Click to expand...

Glenn, you've floated this idea that court decisions are sub-rational before. It is literally anti-intellectual[EDIT - that isn't offered rhetorically or as a euphemism for something else, but to suggest that it devalues the currency of ideas]. Simply correlating prior positions with decisions doesn't support a conclusion that a decision is made, then

Precedents are then searched to support the political position.
Click to expand...

Scalia's decision in the flag burning case wasn't a result of his affection for flag burning, but a coherent first amendment analysis. He wasn't a criminal, but upheld the rights of criminal defendants if that was where the analysis led. Thomas wasn't a MJ enthusiast, but would have prohibited federal prosecution of a fellow for growing his own MJ that wasn't destined for interstate commerce.

Where a person's conclusion is based upon a stated analysis, it is fair to give the analysis scrutiny. To first disregard the role of an analysis as mere apology for a subrational urge to reach a particular decision would be an error.

The more reasonable explanation of the correlation of prior positions and a decision is that both were taken on the basis of a coherent view; they may correlate because they have a common basis.

I do suspect that O'Connor's incessant shifting had a cynically political element (political in the context of her power on the court, not in a general way), but that shouldn't suggest that the other eight were less sincere or conscious in their analyses.

The power of Scalia to change our view of constitutional jurisprudence didn't rest in changing the results people preferred, but the rigor and fidelity to text expected of a constitutional decision.

To paraphrase Ron Burgundy, "It's kind of a big deal".


I know we have different professionally based views on this, but I am often surprised by how often people under oath will tell me what they really think, even when disclosing the truth isn't in their interest.
 
Last edited:
I disagree somewhat Glenn. I have come to the conclusion that Justice Kennedy leans toward basing his decisions on international law. When the Constitution and international law agree he seems like he's supporting the Constitution, hence the 5-4 decisions in our favor. He seems to be the wild card, in my opinion. Your thoughts?
 
GEM said:
I read a legal scholarly book on the court's decision processes. The best predictor was pre-existing political beliefs. Precedents are then searched to support the political position.
Click to expand...

On the one hand, I can see where that might be a valid analysis. On the other, I don't think it is fair to either the left or right wings of the Supreme Court.

First, you have to understand that the Supreme Court only receives particularly difficult cases where even qualified federal judges have disagreed as to the application of the law - and while I have no doubt judges are political, as a general rule, I'd rather face the most biased federal judge than a typical state judge. That's not a slam on state judges who face a different situation in many ways; but I think the federal system often yields better results.

The decisions they look at have been disputed by some of the best legal minds the country has to offer and there is still no clear answer looking at the plain written language of the law. It doesn't shock me that in such a situation preestablished political preferences might govern enough decisions to make that the most reliable factor in guessing an outcome. What surprises me is how often Justices on either side of that do follow the written law to an uncomfortable conclusion. Ruth Bader Ginsburg, despite her willingness to throw an express right enumerated in the Bill of Rights under the bus, stands out in that regard on the other side. On the pro-2A side, Thomas is an amazingly consistent jurist who is willing to follow his philosophy into places even Scalia would not go.

Kennedy, while interpreted by some as a "power-swing" vote can also be seen as a more or less consistent non-left, non-right, libertarian viewpoint.
 
"Conservatives across the board are content to ignore the constitution when it does not favor their position or is inconvenient."
Both do it, and the system expects, no, relies on them doing it from both sides. The framers knew what they were doing in appointing possibly the most politically-variable element --the president-- as the person responsible for the picks, and then requiring the most politically conflicted body --the Senate, as the House tends to be more ideologically unified at any point, especially when the Senators were appointed as intended-- to confirm the choice. You are guaranteed a politically-motivated pick, along political issues amenable to the majority.

It's intentional; it makes it really hard for a lame-duck president or divided Senate to shout 'king me' when a justice kicks, and transform their voter-directed weak political hand into a game changer, instantly. In fact, it specifically serves to bolster the positions of groups that can hold these offices most consistently (i.e. the status quo) since a large part of Common Law principles are the notion that 'duration/repetition makes right' in legal matters. That is why I think the Senate is fully within its rights to use its delegated powers to stop the president from using his to thwart the public's will (circa 2014). Checks & balances.

Frankly, the only reason the declaration is as firm & heavy-handed as it is, is due to a similar take-no-prisoners mentality meted out by the President in pushing through purely political acquaintances like Kagan over legitimate opposition (see also the Harriet Miers rejection under Bush). He has been clear that he favors activist liberal justices who will move on his pet issues for SCOTUS appointments, ergo the Republicans say "no" as a general rule now that they control the process. Had he been willing, at any point until now, to take moderate stances in these or other matters and actually negotiate rather than using workarounds, the Senate majority leaders might have been more willing to pick up the phone. Consequences, and check & balances. We'll have to see how the next guy chooses, is the result.

TCB
 
In re: Zukiphile post #8 --

Not going to quote the entire post, but this is a response to most of it. Justice Scalia has been quoted as saying that a good judge follows the law, and is often personally unhappy with where that takes him. That is the correct attitude for a Supreme Court justice.

Contrast that against Justice Sotomayor and her "wise Latina" quote, which IMHO is a blatant statement that she's not interested in following the law as much as she's interested in twisting the law to say what she thinks it ought to say. I think both of the other two female justices operate on the same philosophy, and I think Chief Justice Roberts has shown that he does, as well.

I don't have a good read on Kennedy. Thomas and Alito strike me as being fairly close to the "follow the law wherever it takes you" mold, but those two aren't enough.
 
AB, I agree that not everyone's process is of equal quality or equally principled, but even people who draw on resources I would consider to be extra-constitutional can engage in a deliberation that is rational.

My objection is to the notion that reason can be dismissed as an excuse created after we irrationally arrive at a decision.

Even in result oriented jurisprudence, a process in which a winner is picked and a rationale is constructed to support the outcome, the court likely did have a rational process by which it chose the winner, but thought the real reason was so indecent that it offers a false reason. I think courts do that sometimes where their reasoning is contrary to the principles they've established previously.

I do not assume even before reading an opinion that it is a false excuse. I may reach that conclusion after reading an opinion.
 
Last edited:
I cannot vouch for the correctness of the book's analysis. I would have to look up my academic library checkouts from a couple of years ago to get the title.

I'll see if I can find it when I get the chance. However, I shared it as a reasonable hypothesis.

For example, there are liberal legal scholars who hate guns (Tribe and Dershowitz) and the 2nd Amend. IIRC. However, they state that it gives the individual the right to ... It would seem they approach it intellectually and honestly.

Then we get Kagan and Sotomayor who are dead set against that interpretation. They are seemingly intelligent so I must conclude they either cold bloodily go for their political views or are influence in how they interpret on a deeper psychological principle of bias leading to selective information processing in analyzing the law and Constitution.
 
Glenn, I think we all display selectivity in the way we process information; it's a sort of discrimination we need in order to pay attention to the important and not be absorbed by the less important. An example might be the way automobile drivers can so focus on trucks and other cars that they become blind to motorcyclists or pedestrians.

Then we get Kagan and Sotomayor who are dead set against that interpretation. They are seemingly intelligent so I must conclude they either cold bloodily go for their political views or are influence in how they interpret on a deeper psychological principle of bias leading to selective information processing in analyzing the law and Constitution.
Click to expand...

I would suggest another possibility: Kagan, Sotomayor and Breyer genuinely hold some bad ideas about constitutional interpretation and the role of the court. As anyone who has spent time in college knows, being smart, even very smart, doesn't innoculate a person from holding dubious beliefs. Some will contend that the silliest ideas can only be entertained after graduate school has beaten enough common sense out of a person.

I cannot rule out some unconscious psychological motives for some people even on intellectually complex matters. I am not 20 any longer. Why won't I grow up and buy a sedan? I would just suggest that it isn't a good default position in matters like constitutional law.
 
Last edited:
Just to be clear, Elena Kagan has not authored any opinions dealing with the Second Amendment. While I would assume she is likely to vote with Sotomayor on that issue, she has yet to weigh in on the subject as she joined the Court after McDonald.

I notice you didn't include Breyer in the "seemingly intelligent" category? ;)
 
Bartholomew Roberts said:
Just to be clear, Elena Kagan has not authored any opinions dealing with the Second Amendment. While I would assume she is likely to vote with Sotomayor on that issue, she has yet to weigh in on the subject as she joined the Court after McDonald.
Click to expand...
Has she signed onto any decisions or dissents that give us clues as to how hew mind works? Has she written any dissents?

It doesn't necessarily have to be 2A-related. The fundamental question is, does she faithfully follow the Constitution wherever it leads, or does she twist it and turn it and parse the language until she gets to a result she can be happy with?
 
I guess I fail the seemingly intelligent test as I was thinking of Breyer and then wandered to her.

Must be subconscious. I did read once that she and Scalia went shooting together. Was that true?
 
She says it's true. The story is that prior to her confirmation, she promised some senators that though she hadn't ever shot before she would promise to go hunting in the future. She approached Scalia to take her hunting and when he stopped laughing at why she wanted to go told he he would be happy to. She indicates that she has shot deer/elk out west and some sort of bird hunting.

Breyer is quite smart and has a gentle and affable demeanor. I also think a lot of what he produces is, in Scalia's term, "pure applesauce".
 
Last edited:
I notice you didn't include Breyer in the "seemingly intelligent" category?
Click to expand...
He tries. I remember him dissembling in the McDonald orals that if we had to acknowledge that pesky right to keep and bear arms, it should be subject to a weird sliding scale of priorities. It was truly surreal.

The problem as I see it is not so much Heller being overturned. Doing that so soon after the initial decision would really cast doubt on the credibility of the stare decisis doctrine. What I see instead is a series of cases in which they either hold the line (Heller only guarantees the right to keep a single, registered, low-capacity handgun in the home) or they slowly whittle away at it.
 
You must log in or register to reply here.
Back
Top