Our Man from Opus Dei on the Kavanaugh nomination: not celebration but guarded optimism. Political Observer comments

Mr. Douthat expresses caution in regards to the Kavanaugh nomination, as the starting point of the overturning of Roe and Casey. In sum, Kavanaugh allied with Roberts will be cautious in its rulings. The Citizens United decision is exemplary of the Roberts as stealth destroyer of stare decisis .

From Douthat’s  point of view this is just the beginning of a protracted fight for the lives of the ‘unborn’. Amy Coney Barrett merits two mentions in his polemic, as she is  Ultramontane just as is Mr. Douthat.  He goes on at length, rhetorical economy is not one of his practices. What stands out in the remainder of his essay is his comments on Conservative Legal Movement: it ‘originalism’ and ‘textualism’ are key components of this movement. The Anti-abortion coterie is the indispensable actor, in his melodramatic  potted history.

Without that promise the current Republican coalition would not exist; without it the Federalist Society and all its intellectually impressive work wouldn’t have millions of voters in its corner. And at the heart of the promise is a pledge that what happened in Casey, when three Republican-appointed jurists limited Roe’s ambit but basically upheld its vision, will never happen again — so long as pro-lifers trust the process, trust originalist and textualist theory, trust the hyper-qualified candidates the conservative legal movement puts forward.

The exercise of  legal history would demand, of an honest writer, that the Conservative Legal Movement began with its opposition to Brown v. Board I and II. The Federalist Society was founded on the propaganda that these decisions were not based in Law but in Sociology and expressed Judicial Activism. And the interpretation of the Constitution by way of ‘originalism’ and ‘textualism’ serves as two of Douthat’s articles of the faith.

On the founding of the Federalist Society:

The society began at Yale Law School, Harvard Law School, and the University of Chicago Law School in 1982 as a student organization that challenged what its founding members perceived as the orthodox American liberal ideology found in most law schools. The society was started by a group of some of the most prominent conservatives in the country, including Attorney General Edwin Meese, Solicitor General and Reagan Supreme Court nominee Robert Bork, Indiana congressman David M. McIntosh, Lee Liberman Otis, Energy Secretary and Michigan senator Spencer Abraham, and Steven Calabresi. Its membership has since included Supreme Court justices Antonin Scalia, John G. Roberts, Clarence Thomas, Samuel Alito and Neil Gorsuch.[10] The society asserts that it “is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”[1]

https://en.wikipedia.org/wiki/Federalist_Society

On the question of ‘textualism’ here are some quotes from Robert Post’s essay titled ‘Justice for Scalia’ published in the June 11, 1998 issue of The New York Review of Books:

A Matter of Interpretation: Federal Courts and the Law

by Antonin Scalia, edited by Amy Gutmann, with commentary by Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon and Ronald Dworkin
Princeton University Press, 159 pp., $19.95

Textualism is a theory of the way judges ought to interpret legal documents, like statutes and the Constitution. Scalia uses the theory to support a number of highly consequential and controversial propositions. He believes that judges who interpret statutes should avoid all reference to legislative history. And he also believes that judges should interpret the Constitution strictly according to the original meaning of its language.

Scalia’s relentless campaign against the use of legislative history, and his refusal to join opinions interpreting statutes by referring to that history, have been astonishingly effective. One recent study estimates that the proportion of Supreme Court opinions in cases involving statutory construction that refer to legislative history has dropped from 100 percent in the 1981 term to 18 percent in the 1992 term.2 Scalia may justly claim a large share of the responsibility for this transformation.

Purporting to save Scalia from the inconsistency of allowing “intention to trump literal text,” he reconstructs Scalia’s position as resting on the distinction between what Congress “intended to say in enacting the language [it] used,” which Dworkin calls “semantic intention,” and what Congress hoped to achieve by using that language. Dworkin notes that “any reader of anything must attend to semantic intention, because the same sounds or even words can be used with the intention of saying different things.”

But Dworkin’s distinction is a poisoned gift. Having accepted it, Scalia can no longer maintain any principled objection to the general use of legislative history. Such history may always reveal something about “the occasion for” the enactment of a statute and hence illuminate the search for semantic intention.

http://www.nybooks.com/articles/1998/06/11/justice-for-scalia/

What I have quoted, is just a sample of Mr. Post’s revelatory essay/review of Scalia’s book,  and  Dworkin’s  devastating evisceration of Scalia’s ‘textualism‘. This essay/review must be read in full, such is its value. The reader confronts the fact that in the Conservative Legal view  ‘originalism’ is historical, and that ‘textualism’ is a-historical : a glaring contradiction that escapes the notice of the Originalists/Textualists.

The fact that the state legislatures of the states where Segregation was institutionalized, would never have ended Segregation . The NAACP and Thurgood Marshall took their grievance to Federal Court, and won two unanimous decisions in both Brown I and II. The redress of grievances being one of the cornerstones of this republic.  Roe wasn’t decided until 1973, so in terms of the Conservative Legal Movement, it  is a late, but welcome cudgel to attack the Warren Court. And the short but influential tenure of Arthur Goldberg, and the six Republican appointees to the Supreme Court who voted for Roe.  Elided from Mr. Douthat’s essay is Brown decision as that cornerstone of the Conservative Legal Movement. Douthat provides a self-serving ‘history made to measure’:

There will be time to discuss the first potential watershed, the possible post-Roe-Casey political landscape, in the months to come. But the second one is worth discussing briefly now, because the Kavanaugh appointment brings us to a testing moment for the conservative legal movement’s political promise, delivered to social conservatives for years and decades now, that judges formed by its philosophy and principles would necessarily vote to overturn the post-1973 abortion regime and return the abortion debate to the democratic process.

Without that promise the current Republican coalition would not exist; without it the Federalist Society and all its intellectually impressive work wouldn’t have millions of voters in its corner. And at the heart of the promise is a pledge that what happened in Casey, when three Republican-appointed jurists limited Roe’s ambit but basically upheld its vision, will never happen again — so long as pro-lifers trust the process, trust originalist and textualist theory, trust the hyper-qualified candidates the conservative legal movement puts forward.

On Roe, 6 out of the 7 votes that legalized abortion were Republican appointees:

The Court issued its decision on January 22, 1973, with a 7-to-2 majority vote in favor of Roe. Justices Burger, Douglas, and Stewart filed concurring opinions, and Justice White filed a dissenting opinion in which Justice Rehnquist joined. Burger’s, Douglas’s, and White’s opinions were issued along with the Court’s opinion in Doe v. Bolton (announced on the same day as Roe v. Wade). The Court deemed abortion a fundamental right under the United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny.[37]

https://en.wikipedia.org/wiki/Roe_v._Wade#Supreme_Court_decision

The reader can only ponder the schism of political present, with what a Republican Party, of more that a generation ago found of political/ethical value!

Political Observer

 

 

About stephenkmacksd

Rootless cosmopolitan,down at heels intellectual;would be writer.
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