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SCOTUS: Which judges are the right judges?

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TheEgoist

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I've had a debate with a friend recently, which pertains to this election. One of my major reasons for not voting in a Republican for president is that I don't think the Supreme Court can bear another "conservative" judge. I've held the position that anymore of these picks could result in, at the least, an overturning of Roe V Wade and would return abortion to the states. 16 states are projected to automatically re-instate abortion laws at the overturning. And a true doomsday thought is that they will totally undermine the 14th amendment and return a lot more to state level decisions.

He argues that while that isn't something to not be concerned about, that more liberal judges would continue to erode property rights in America.

Is there an answer to this question? Surely the MOST preferable judge would be one with a much better judicial philosophy than is currently present in the SCOTUS, but is there a valid preference between the "strict constructionist" conservatives and "loose constructionist" Liberals?

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The problems with a constructionist in the mold of Scalia goes beyond Roe v. Wade and religion. As bad as those reversals may turn out, such judges will lay down a broader precedent. A court of modern-day "Federalists" would turn toward states-rights, and this would be to the prejudice of individual rights. While they might do so only to open chinks in Roe v. Wade, they will be laying dangerous ground for the future. A future Democratic judge could then let a state do something else, using the useful ground-work laid down by the GOP guys.

Secondly, one has to look at the specific composition of the current SCOTUS, and ask which judges ware likely first to drop. Right now, there's somewhat of a 5-4 GOP leaning court. Since the most likely retirees are among the 4 (not the 5), Democrat judges will keep the status quo while GOP judges will move the status quo. So, having liberals come in, via Obama, would not move property-rights further than they are. In fact, one could argue (somewhat weakly) that the 5 GOP majority would be one constraint, restricting what Democrats in the executive and legislature may do.

As for the answer re: what type of legal philosophy ought we to look for? The best judge (among the realistic possibilities) would be one who sees individual rights as being the frame within which the constitution must be interpreted. Most likely, he will be a judge who sees the Declaration of Independence as painting such a frame, laying down individual rights as primary when the Constitution is silent.

If you haven't read Tara Smith's article on originalism, check it out.

On the SCOTUS and states-rights, try searching for posts by "Qwertz"; I think he posted on that topic.

Edited by softwareNerd
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  • 5 months later...

Timothy Sandefur gives a talk on originalism. Interesting stuff.

When a word like "liberty" occurs in the constitution, we should not ask whether or not particular people thought that it would include, say, the right to use drugs or the right to have sex with someone of the same sex. The inquiry ought tp be framed on what the word "liberty" actually means.
Edited by softwareNerd
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  • 2 weeks later...

Professor Randy Barnett would be a good SCOTUS justice. He properly views the Ninth Amendment as a Lockean guarantee of negative rights, and the Privileges or Immunities Clause of the Fourteenth Amendment as applying the full panoply of rights against the states, as well. He also believes that in any constitutional challenge, the burden should be on the government to prove it has the proper authority under the constitution to do what it has done, and not that the individual should have to prove the government overstepped its bounds. He calls it a "presumption of liberty." The lawyers who won the Second Amendment case, D.C. v. Heller, agree with this point of view, and if they get their current case, McDonald v. City of Chicago, to SCOTUS, the Supreme Court will have a historic opportunity to adopt the theory (or something similar) for the first time in well over a century.

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