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June 28, 2007


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» The Window Dressing of "Minimalists Versus Visionaries" from Radio Left
Balkinization Cass Sunstein has offered an erudite analysis of the division between the two wings of the Supreme Court’s hard core conservative bloc.
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Do you have any idea how preposterous this entire analysis sounds after the rulings that have come down this week? Roberts and Alito are content to let precedents stand? Are you mad? This term has been a killing field for precedent.

Burke and Oakeshott? Give over, already.



As Justice Scalia was quite correct to observe in Hein: "honoring stare decisis requires more than beating Flast to a pulp." The Court overruled Flast in every sense of the word "overrule" except to actually write the words "Flast is overruled." While the debate was heated, the substantive difference between Scalia and Roberts in Hein was virtually non-existent. Is the difference between minimalism and activism just a matter of semantics?

I do agree with you that in some cases there is a measurable difference between the aggressiveness of Scalia and Thomas on one hand and Roberts and Alito on the other. Carhart would be one example, where Scalia and Thomas would overrule Roe completely whereas Roberts and Alito have yet to show their hand. But I have serious doubts that Hein, which you cite as the case-in-point, is a good example of this difference.

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