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Old 05-30-2008, 12:05 PM   #109 (permalink)
loquitur
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Will, I wasn't denying the overall patterns. They are there. What I was saying was that you can't predict the outcome of a particular case based on political views, which is why I picked those two subject matter areas as examples.

Political views and judicial philosophy are two different things. Judges will usually apply the latter even if the result will conflict with the former - the idea being that judges are not in the business of making policy, they're in the business of deciding cases according to the law. That is why I used the eminent domain, medical marijuana and punitive damages cases as examples - in each of those, the supposedly left-wing justices reached the right-wing result while the right-wing justices went the other way. That's because they aren't looking at the result of the case, they're looking at the rule of the case. That is as true of Stephen Breyer (who, by the way, is a great judge) as it is of Nino Scalia (also a giant). They are not politicians.

And if you look at the cases the Sup Ct decides, you'll see most of them are not hot-button constitutional issues. The main work of the Sup Ct is resolution of circuit splits on issues of federal law. (Supreme Court opinions are here: http://www.supremecourtus.gov/opinions/opinions.html)

If you want a good left-wing law professors' blog, look at Balkinization. For libertarian law professors, go to Volokh. For conservative, look at Professor Bainbridge.

As far as your chart is concerned, you really need to define what is a liberal result and which is a conservative result. Take the medical marijuana case: which one is the conservative result - that Congress can criminalize raising pot in your own home for your own use? Or that Congress lacks power to do that? In that case, the so-called liberals upheld federal power and the so-called conservatives voted no (though Scalia was in the majority on that one, which surprised me). How about the eminent domain case - which is the liberal position, that it's ok to take someone's home away and give it to Pfizer or not? The "liberals" said it's ok, the "conservatives" said it isn't. Again, it was an issue of the extent of governmental power.

Most of the non-bill-of-rights constitutional issues are questions of "who gets to decide" and NOT "what is the right answer." The NY Times characterizes these consistently on the result of the single case, which is stupidity writ large. In the who gets to decide category, there are disputes of Pres v Congress, Congress v States, agencies v courts, etc etc etc. The issue in those cases is not what the policy is, but who has the power to make the policy in a govt system of separated powers. The results won't be characterized easily as liberal or conservative, but you'll be able to read the cases and see what principles the various justices apply.

That's why the use of political labels as applied to judges is pretty problematic.

Last edited by loquitur; 05-30-2008 at 12:29 PM..
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