Unused and Probably Unusable

Whose preferences shall be enshrined in the law?

Assuming that a branding case came up to the Supreme Court, should they

1. Hold hearings-
2. Sponsor a study-
3. Put the issue to a referendum-
4. Consult the law of other countries-

Or

5. Consult their own consciences and considered reaction-(rest of comment hidden behind the jump)

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to determine that branding, which was formerly considered a useful punitive tool, is no longer consistent with the minimum level of official regard for human dignity?

Or, ought they decide they are not capable of making that decision since 1-3 are not within their power, number 4 is extra-constitutional, and number 5 is a naked exercise of power?

If we-the-people have become enlightened, our legislature or our juries must declare it--not the judiciary.

But let Scalia say it, from his dissent in PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY, 505 U.S. 833 (1992)

But whether it would "subvert the Court's legitimacy" or not, the notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening. It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the Constitution [505 U.S. 833, 999] has an evolving meaning, see ante, at 848; that the Ninth Amendment's reference to "othe[r]" rights is not a disclaimer, but a charter for action, ibid.; and that the function of this Court is to "speak before all others for [the people's] constitutional ideals" unrestrained by meaningful text or tradition - then the notion that the Court must adhere to a decision for as long as the decision faces "great opposition" and the Court is "under fire" acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be "tested by following" must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change - to show how little they intimidate us.

Of course, as THE CHIEF JUSTICE points out, we have been subjected to what the Court calls "`political pressure'" by both sides of this issue. Ante, at 963. Maybe today's decision not to overrule Roe will be seen as buckling to pressure from that direction. Instead of engaging in the hopeless task of predicting public perception - a job not for lawyers but for political campaign managers - the Justices should do what is legally right by asking two questions: (1) Was Roe correctly decided? (2) Has Roe succeeded in producing a settled body of law? If the answer to both questions is no, Roe should undoubtedly be overruled.

In truth, I am as distressed as the Court is - and expressed my distress several years ago, see Webster, 492 U.S., at 535 - about the "political pressure" directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account [505 U.S. 833, 1000] their views, as though we were engaged not in ascertaining an objective law, but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today's opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls "reasoned judgment," ante, at 849, which turns out to be nothing but philosophical predilection and moral intuition. All manner of "liberties," the Court tells us, inhere in the Constitution, and are enforceable by this Court - not just those mentioned in the text or established in the traditions of our society. Ante, at 847-849. Why even the Ninth Amendment - which says only that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" - is, despite our contrary understanding for almost 200 years, a literally boundless source of additional, unnamed, unhinted-at "rights," definable and enforceable by us, through "reasoned judgment." Ante, at 848-849.

What makes all this relevant to the bothersome application of "political pressure" against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here - reading text and discerning our society's traditional understanding of that text - the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality, our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U.S. 577 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value [505 U.S. 833, 1001] judgments, then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school - maybe better. If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but the confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. JUSTICE BLACKMUN not only regards this prospect with equanimity, he solicits it. Ante, at 943.

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Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

1. The Amendment has no meaning and no significance; if someone else wants it, we can stick it in and it won't tie our hands



2. The Amendment has no meaning, and is important only because it reflects the protections that the Constitution provides in any case - the only danger being that some foolish future generation might not think it obvious that the Constitution itself protects these things, and that therefore "what is not included, was to be excluded." The government being one of limited powers, granted "by the people," it naturally cannot expand its own power. [too bad that one didn't catch on]



3. The Amendment is crucially important, because those silly Federalists (meaning Federalists, not meaning Anti-Federalists such as some members of FedSoc) want to strip away our rights to have armed militias, to avoid an oppressive establishment Church, to keep soldiers out of our homes, to protect our historical rights to a jury of our peers.

1. There is no such post as "Acting Chief Justice." The senior Associate Justice will lead the Court.



2. Scalia and Thomas will not be nominated, now or in the future, to be Chief Justice



3. Edith Jones is just as unlikely to be nominated to the Chief Justice slot as she was to be nominated to O'Connor's slot. That is, highly, highly unlikely



4. O'Connor's point about her nominated successor not being a woman (yes, obvious) and how that meant she thought Bush had not made the perfect choice is now particularly apt. Bush will likely nominate a man, quite possibly a white man, to be Chief Justice



5. My prediction would be that the second nominee will not be made public until the current process is complete