It Takes an Establishment - (President Bush shrewdly beginning to shape SCOTUS for decades!)

WEEKLY STANDARD.COM ^ | AUGUST 1, 2005 | BILL KRISTOL

[Huck]

'technicalities of form to dictate consequences of substance.'

Ouch! Just when I was about to have a sip of kool aid, too.

[XJarhead]

I'd say the difference is also one of tone. Rehnquist's opinions rarely are colorful, and he doesn't go out of his way to blast a bad argument if he thinks his argument is correct.

Scalia in particular has a more confrontational writing style. He'll not only tell you why he's right, but why you're stupid. He sometimes even goes out of his way to make those kinds of points, even when they're not central to his opinion. I love the guy on the bench, but his opinions aren't always the most...judicious.

Thomas isn't as acerbic, but he also sometimes picks fights in his dissents that he doesn't really need to pick.

Roberts may share the same general judicial philosophy as Scalia and Thomas, but I think the manner in which he expresses it will be a bit more restrained. Same results, different language.

[Torie]

Good post. Any acerbic message in anything Roberts writes, will be very veiled. He will probably enjoy constructing the veil. I would be more like Scalia and less like Roberts in that respect. Roberts is a nice guy, and frankly I am not, when it comes down to brass tacks, and it really matters.

[TAdams8591]

"A court with a majority made up of some Scalia-Thomas types and some Rehnquist-Harlan types is possible. Indeed, with his choice of John Roberts, President Bush has begun to create such a court, one heading towards a constitutionalist majority."

I most assuredly hope so. Good article by Kristol who always has something intelligent to say.

[jwalsh07]

"The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "Commerce ... among the several States." U.S. Const. art.",

You really think Scalia could have stuck the knife in and twisted it any more elegantly than this?

[Torie]

Roberts is elegant, Scalia is eloquently acerbic. I would hope that on SCOTUS I could combine the best of both.

I have at once elected self as president and put myself on SCOTUS. Walter Mitty is my hero. :)

[jwalsh07]

BTW, I disagree. Roberts is a very smart man. He will undoubtedly take a low profile for a bit and then will begin to intellectually muscle his judicial philosophy onto the court.

When he does, you can remember that it was your blue collar pal who told you so. And when he does it the philosophy will tend a bit toward philosopher King. JMHO.

[jwalsh07]

I have at once elected self as president and put myself on SCOTUS. Walter Mitty is my hero. :)

I assume in my spare time from SecDef, I'll be clerking for you once I graduate from law school in the Bahamas?

[Torie]

Of course he will exercise his intellectual muscle. So would I, so does Scalia. Perhaps you would revise and extend your remarks to me, to elucidate where you think I have missed the mark about Roberts, so that the friendly albeit speculative debate can be productively joined.

[jwalsh07]

No Kool Aid for you Huck. Skepticism is healthy no matter what anybody tells you.

[Torie]

I am an snob about law schools. It really is a good sorting tool, frankly. I will be Prez and on SCOTUS at the same time. You will be in my executive branch.

[jwalsh07]

When I say he will exercise, I mean vigorously, outside the confines of the constituion as in public can eqaul private if the philosopher King says so.

The danger with a guy like Roberts is his intellectual capacity which far out paces O'Connor and Kennedy combined, given 20 or 30 years, can influence the court in a direction I don't want it to go.

It's happened before and the results have been crap.

[jwalsh07]

Screw you Walter. Damn WASNAS.

[Torie]

It will be interesting. But I think Roberts has more self restrait and intellectual discipline than you do. He is inherently a modest man, more so than I. I think he will tend to defer in general to the legislative branch, and to a Federalist perspective (although he seems a bit less of a militant on the commerce clause than I am), ceteris paribus, ala Rehnquist, and just like I would do, except in cases where it involves process issues.

[jwalsh07]

Roberts has said Roe is "settled law". We both agree that Roe has posioned the public discourse, and yes you were the first I saw here making that argument. While I am as right as you can get on the life issue, you are somewhere in the middle.

What should we glean from Roberts statement when Roe has been roundly criticized from all sides of the spectrum as dumdum law?

[jwalsh07]

Gotta run, wife arriving at the airport in a couple of hours from Grandkid camping trip, God love her. :-}

It will be an interesting October session. By December we won't need to speculate as much, the cases on the docket will give us a real good look at Justice Roberts' judicial philosophy.

Stay smart, stay cool. Adios.

[Torie]

He was just saying that he was not a nutter, and respected the fact that a lower court should respect binding superior court precedent, and on abortion doing so, would not shock his conscience. It would not do so for me as well. I respect the system. He was trying to get confirmed, and the Dems were not smart enough to get him to elaborate. There is no there, there. You lobbed me a hanging curve ball on that one, John. :)

[jwalsh07]

Hey, its your league, I don't expect to shoot 72 every day. LOL

[Carry_Okie]

From what you've posted here, the yin is apparently that Roberts understands the historic need for government to address management of intangible risks and negative externalities of production, while the yang is that he also understands the adverse nature of the means sees the "need" for their exercise as a necessary evil. He has probably not considered similar unpaid balances of positive intangibles.

From that, what he apparently doesn't understand is that technology now affords us the opportunity to obviate that regulatory need. The judiciary may well need to acknowledge the constitutional mandate to recognize alternatives to regulatory takings when they appear else the regulatory monopoly will continue to erode the nations base in private property. IMNSHO, that's a matter of education.

[Texas Federalist]

I'm not sure it's fair to critique his legal thinking at the time.

I agree, but it is something that should be brought up during confirmation. On the other hand, it does worry me a bit because not many people change their core beliefs after law school.