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February 02, 2007


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There is one aspect of dissenting opinions that has always bothered me. On the one hand, the temptation is to conclude that the arguments forwarded in dissenting opinions provide additional insight into the Court's thinking. However, there remains the undeniable truth that a dissenting opinion is one that was considered and rejected by a majority of justices. Therefore, should we not conclude that the arguments offered in dissent should be considered as having been denied by the SCOTUS? Should not such arguments henceforth be put on a blacklist of established false arguments regarding American law? But then, how do we know which of the arguments in a dissent were rejected and which were accepted, but not deemed compelling?

It seems to me that dissenting opinions only add to the confusion.


One of the lessons of first year Elements was that courts decide things narrowly no matter what they write in their opinions. We never fully know what a case stands for until we are able to compare and contrast it with following rulings, and everything beyond the narrow holding is always dicta.

I remember Kurland teaching us that the problem with the Warren Court was not in its holdings but in its lack of judicial craftmanship. He felt that the Court's inability to state their results as nothing new had lead to a loss of public confidence.

Were I on the Court, I doubt that I'd be voting with Roberts all that often. Accordingly, I think I'd be happy to see him use a little craftsmanship.


So, which of John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer are "very conservative"?

Joan A. Conway

I find that the majority opinions often are the most pragmatic and that the dissenting opinions shed light on the limitations of the majority opinions.

If the justices' opinions are to be considered a work-in-progress, then the finished goods concept is never reached and justice is denied.

Political umpire

I agree with half of the original post. Certainly, the highest appellate court has a duty to state principles of general guidance, so as to help certainty in the law. It would not assist attorneys to advise clients if the SC (and other appellate courts) simply said, in effect, that on the particular facts the plaintiff would succeed. That would fall foul of Fuller's classic requirements for the rule of law.

As someone who spends a lot of time reading decisions of the United Kingdom's equivalent of the Supreme Court (the House of Lords judicial committee), however, I have to say that my job is rendered so much the harder on the occasions where there is no clear majority opinion. I accept of course that there is a benefit in terms of academic discourse for all views to be canvassed. But as everyone agrees, the first job of an appellate court, aside from resolving the particular dispute before it, is to issue general guidance (make law, if you prefer). If four of a seven-judge court allow the appeal, then the particular dispute is resolved, so the parties at least know who has won and lost. But if each judge provides even subtly different reasons for allowing the appeal, the law is thrown into confusion.

It seems to me far better if one judge writes the majority opinion, then the remainder of the majority state specifically "I agree with Judge X for the reasons he gives. I wish to add only my own observations ..." If so, then attorneys and other professional advisers are left in no doubt as to the current state of the law (Judge X's opinion), while academics and others who might be interested can chew the fat as it were over all the other viewpoints expressed in both majority and dissenting opinions.

Simply Appalled

What I'm missing is where we get any guidance as to what "the law" is from even broad SCOTUS decisions, given the appalling frequency with which their supposedly solemn pronouncements are willfully ignored by lower courts, and the detritus is buried in so-called "unpublished" opinions. Perhaps it would be better if they simply focused on error correction, and heard every appeal (if even through written briefs) brought before them. Let the law take care of itself that way....

Frederick Hamilton

I am reading with interest the posts regarding Prof Stone's original post regarding CJ Roberts and the Role of the Supreme Court. It comes as no suprise that law professors feel as mentioned by Prof Stone in his last sentence "The greatest danger is not that the Court will act boldly, but that it will act boldly in defense of the wrong values." Thereupon is the telling note for discourse. Professors of law have at many times, different ideas of "values" than the Constitution articulates. The Constitution is pretty clear to most people on any number of subjects. What is not enumerated in the Constitution for instance should be left to the states and the people as one example.

I for one agree with the proposition that the Supreme Court should not be trying to impose "values" on the citizenry. It is not for the Supreme Court to decide when life begins for instance. Scalia is right when he says it is not for nine men and women to determine the moral values of the country. The justices are not equiped to make those decisions.

It is the Supreme Courts job to interpret the law as articulated in the Constitution and as passed by Congress. Going beyond that is trespassing into territory they shouldn't be invading. It is better left to the people and their representatives. Supreme Court justices are appointed for life, their is no plebiscite on their opinions. If they decide on their own they have the power to instill "values" of mine or Stones' or whomever, they are going to far.

If the Supreme Court wants to be "bold" in their interpretations of the Constitution or Congressional or State legislative matters so be it. But it should be limited to telling the people, the executive, the law enforcement officers, and the inferior federal and state courts exactly how the Constitution applies to the issue at hand. Not what the "values" are. Then if the people want to amend the Constitution to incorportate "their values", they are free to do so within the context of the rules for amending said Constitution, (fortunately very formidable rules in that regard).

The issue shouldn't be boldly determining the Supreme Court's values. I for one don't want the Supremes giving me their values. Just the values enumerated in the Constitution on any given issue.


Mr. Hamilton, Mr. Stone explicitly declares the values which he recommends to the SCOTUS: "to protect individual liberties and the rights of minorities against the intolerance, indifference, and self-interest of political majorities". You oppose these values?

Frederick Hamilton

I applaud those values. But that is a liberal screed and makes for a good sound bite. Where the Constitution provides for individual freedom, liberty and rights then that should apply to minorities and majorities.

Lets say for the sake of argument that in 2020 there are more hispanics than caucasians. Should white's then have special minortiy rights?

I for one would like not to pay income taxes, I wish to be free from them. I favor a consumption tax. That is a liberty I don't have. So be it. The law (taxing of indiviual incomes) has been ruled constitutional. Ergo, my freedom in that arena is lost. Should I have redress? Sure. I do. I can try to elect those representatives that think as I do.

Minorities and majorities should enjoy equal rights. There is no right that should go to a minority that is not available to a member of the majority and the reverse.

A classic example is the recent amendment to the Michigan constitution voted in last November and akin to the same law in California. Are those state changes abolishing special treatment based on race, ethnicity, and gender and approved by a majority of voters (white, black, hispanic, male, female, et al) constitutional in your eyes? In the eyes of Prof. Stone?

Now just how is the Supreme Court supposed to ajudicate so as to eliminate indifference? Many Americans are indifferent to the war in Iraq. Many are not. What is a federal court to do?

Also, as to the self-interest of political majorities. That is the essence of politics is it not? Majority votes in all legislative bodies are largely based on the self-interest of those majorities voting on such legislation. If it is the role of federal courts to eliminate majority voting based on self-interest of the majority, good luck. That I think is what a democracy is all about. Of course, those in the majority voting should not be allowed to infringe on those rights enumerated in the Constitution of minorities or majorities. That is the function of the Supreme Court. As Roberts himself said in his confirmation, if the Constitution favors the little guy (minority if you will for the sake of this post) then he sides with the little guy. If the Constitution favors the side of the big guy (the majority vote in Congress - government - for instance), then the big guy (government) should prevail.

My position is that all Americans have inalieanble rights endowed by our Creator that no legislature or court can take away and it is the function of our federal courts to make sure that is how we are governed.


Mr. Hamilton, you are furiously attacking propositions that nobody has forwarded here. Mr. Stone writes that the mission of the SCOTUS should be "to protect individual liberties and the rights of minorities". You write that "all Americans have inalieanble rights endowed by our Creator that no legislature or court can take away and it is the function of our federal courts to make sure that is how we are governed." There is no difference in substance between the two statements. You are in violent agreement with Mr. Stone.

Frederick Hamilton

Perfect. I am glad to agree. I also think that the attempt to gain concensus on the court is better for the country. All justices are trying to do the right thing regarding the Constitution. Differences of opinion are healthy. Can you even imagine a Constitution where everybody agreed on all issues? Our rule of law is the envy of the world. Churchill had it right. Democracy is the most difficult, but certainly the best option available to mankind.

Political umpire

Mr Hamilton states:

"My position is that all Americans have inalieanble rights endowed by our Creator that no legislature or court can take away and it is the function of our federal courts to make sure that is how we are governed"

1. Where are these rights expressed? The Constitution was written by a group of mortals, so I understand, not a 'Creator'.

2. Only Americans? Not fair of the Creator, if so.

3. How is the federal court supposed to know what rights the Creator had in mind?

The problem with the Constitution is the necessarily broad wording. It does not and cannot mean what it says on its face. Take the well known example of the First Amendment, to the effect that Congress shall make _no_ law abridging freedom of speech. Taken literally that would mean no laws regarding libel, military secrets, copyright/intellectual property and no prohibition on anyone going into a crowded theatre and shouting "Fire".

The SC therefore has a very wide discretion indeed, and is necessarily going to wield it in accordance with one set of values or another.

Frederick Hamilton

Political Umpire,
The right to be a free man/woman. Indentured to no person or government. Granted as the Declaration of Independence declares. Those mortals understood mortality and the fact that the rights of man came not from a King or Legislature but from God. Yes the same God mentioned 14 times in Lincoln's second inaugural address. Those mortals gave us our Constitution. It is interpreted by mortals. But the underlying precept is our inalienable rights. Where the Supreme Court tries to instill their own personal values they err.

The values they must use to adjudicate are those in our Constitution and our Declaration of Independence and those values enumerated in the laws from our Congress and state legislatures not in violation of the Constitution itself. Their personal values should be checked at the front door of the courthouse.

Frederick Hamilton

Oh yes, I forgot. Americans only covered by our Constitution. I don't think non-citizens have standing by and large in our federal court system. But then I am not a lawyer, so I suspect there are certain situations where a non-citizen might be able to petition a federal court. Such as the newly enacted Military Tribunals law for instance.


Mr. Hamilton, I have two comments:

First, the point made by Political umpire: if those inalienable rights come from God, why are they limited to Americans? Is God American? Did he decide that Americans, not Jews, are the Chosen People who deserve special rights not deserved by other people? It seems contradictory to claim the universality of divine support and then deny universality of application.

Second, I disagree with your notions of Absolute Morality permeating the universe like lumeniferous ether -- but this is not the place to discuss that disagreement. I suggest that you visit:


where there is just now beginning a very gentlemanly and informed discussion of exactly this point.

Political umpire

Mr Hamilton, as I understand it the principles on which the American system of government were founded derived from a strand of political thought that originated in Europe: the separation of powers theory, devised by Montesqueue and Locke, and classical liberalism developed by Sir Edward Coke and others from the early C17 onwards. Not from any biblical source. Recorded human history goes back several thousands of years, and America is a very young country in that context, with a small minority of the world's population (currently about 300m out of 6 billion). Why would any Creator choose to confer special rights only on that small minority?

In any event, statements such as these: "The right to be a free man/woman. Indentured to no person or government." are too broad to get very far in resolving any particular constitutional question. The US government is a hugely complex regulatory system; a libertarian certainly wouldn't consider himself free without abandoning about 98% of it. A liberal egalitarian might disagree. And so on.

Back to the Constitution and the Supreme Court. As I pointed out in my original post, provisions such as that regarding freedom of speech are too general in their wording for there to be agreement as to how they are applied in any particular case. Thus 'strict construction' is impossible (I showed what it would do with free expression). That is not to say that the SC has an entirely free hand; it has to develop the law in accordance with precedent etc, but it won't do simply to claim that your preferred result was ordained by the Creator.

Frederick Hamilton

Eras and Political Umpire,
Of course inalienable rights apply to all of humanity. Sadly, the vast majority of humankind aren't American citizens and are not afforded those rights. American's rights have nothing to do with religous sects. Christians, Jews, Muslims, Hindus, et al if American citizens enjoy those rights within our great nation. Outside the jurisdiction of American law the remainder of humanity is dependent on their particular government to protect their inalienable rights.

Clearly our form of government drew substantially from our European ancestry. But please, just because our founders relied also on God to be the bedrock of the inalienable rights of man, it was required that there be a compact with the citizenry that would provide the rules and framework for those inalienable rights. That framework for our government is of course our Constitution. The issue of freedom is not too broad to be of Constitutional import. It may require the Supreme Court to be specific with the regard to the case at hand, but liberty and freedom are the essence of our Constitution and our way of life. The Supremes make decisions every year based on freedoms and rights. And yes, rights that are inalienable.

It appears you two are uncomfortable with God being a part of the fabric of this country, but our founders were not.

I am not sure that a "strict construction" approach is the impossibility you say it is. If you say free speech means it is OK to yell fire in the theater and that represents "strict construction" you are making an argument the strict constructionists would disagree with. All aspects of the Constitution will require federal courts to interpret the application of the Constitution within a framework. There will be disagreements and that is healthy. The Supremes will make mistakes from time to time. But what has withstood the test of time is the Constitution itself. It is not a document in my mind that allows for personal values of judges no matter how enlightened a particular judge feels he/she is. Their decision making must comport with the Constitution.

A strict constructionist is one who uses the construct of the Constitution to ajudicate whatever the issue is before him/her, not what decision that judge personally seems fair or right. That's all.

I would also like to know, since you both seem to articulate that the American Constitution applies worldwide to all of humanity, do you think that argument passes Constitutional muster? To my interpretation you must be a American citizen to vote. To hold office. To be guarenteed by our government those inalienable rights. Or does our Constitution apply to all of humanity?

Political umpire

One of the fundamental principles of the Constitution is a separation of Church and State. Therefore, attempting to suggest that the Constitution enshrines rights conferred by a 'Creator' is inconsistent with the Constitution itself.

I do not think that the US Constitution applies worldwide, the point I was making was to ask how it was that a Creator was so uneven in giving rights only to a very small number of human beings. But your answer would be that it is too bad for all the other countries who didn't get so Biblically-informed Constitutional draftsmen.

I happen to think that a separation of Church and State is admirable, and have long advocated the same in the United Kingdom. One only has to look at the Middle East (in particular Iraq, Israel and Palestine) to see what a potentially inflammable combination reglion and politics are.

Going back to strict construction. The sentence "Congress shall make no law abridging freedom of speech" has only one literal meaning - namely, that _no_ laws shall circumscribe speech. If I read out something on international tv, by any reasonable use of the English language, I am engaged in speech. Yet Congress has, should, and always will make laws preventing me from reading out US military secrets in such circumstances. And the Supreme Court will uphold those laws as constitutional. Therefore, a literal meaning (what else does 'strict' mean?) is not possible, nor is strict construction.

Just think of a few other things that have been found by the SC to be constitutional over the years - slavery, Jim Crow laws, detention of ethnic Japanese, Guantanamo Bay. It shows how broad the wording of the Constitution is and accordingly how much power is vested in the SC judges.

Frederick Hamilton

Political Umpire,
No doubt about it the wording of the Constitution is broad and encompassing and needs interpretation and applicability by the courts.

There is no seperation of church and state in the Constitution. That is a turn of phrase not part of the document. There is the establishment clause which forbids the government from establishing a national religion or church.

The church and state are intwined in any number of ways. For instance, the government (federal and state) give special tax status to churches. I could list any number of entanglements with church and government (the opening of each Supreme Court session with referrence to God for instance, the opening of House and Senate sessions with prayer, and on and on).

I think your confusing strict construction with a literal reading of the document.

Agreed. As I said above. The Supremes make mistakes. But their word is law unless the people act otherwise (ammendment, Congressional laws setting jurisdiction for the court, et al). I think we would agree that all SC decision making should rest on the Constitution and not "their values" or their "desired outcome".


Mr. Hamilton, you write, "It appears you two are uncomfortable with God being a part of the fabric of this country, but our founders were not." I believe you misunderstand my meaning. What I am uncomfortable with are vague, pointless statements about 'God being a part of the fabric of this country'. What does that mean? It's a mushmouth statement that can't be used as the foundation for any rational statement on the Constitution or the law.

You contradict yourself when you write, "Of course inalienable rights apply to all of humanity... Christians, Jews, Muslims, Hindus, et al if American citizens enjoy those rights within our great nation." In the first sentence you declare that the inalienable rights apply to all humanity -- in the second you restrict them to American citizens. Would you please tell us which you mean?

Frederick Hamilton

Yes. What I mean is that all humanity should have the inalienable rights of freedom and liberty and all that entails (religous, travel, economic freedom, association, et al). Sadly, those rights that all people should enjoy are not available to all people. Too many nations don't allow their citizens the benefit of those freedoms.

Although I believe those rights do apply to all of humanity there are regimes and dictators that don't share my beliefs.

That is my distinction between United States citizens and other peoples of the world.

Our founders believed that those human rights came not from a King or a parliament or a government but were indeed bestowed by our Creator to all humankind. That those inalienable rights are not available to all of the worlds peoples suggests the world has a ways to go.

The march toward freedom and liberty for all people will eventually come to pass. That tide of history in today's information age cannot be stopped. Delayed by some but inexorably those inalienable rights available to us will be available to all peoples in time.


Mr. Hamilton, I take it then that you believe that the freedoms and liberties provided by our Constitution should be provided to all persons within the jurisdiction of the USA, regardless of their citizenship. I do not refer to civic privileges such as voting -- just the basic protections of liberty. Do I infer correctly?

Frederick Hamilton

Within the context of existing laws regarding such persons as passed by yours and my representatives, signed into law by our president, sure. Ergo if you are trying to give terrorists extra-legal status not given to them within the context of the Military Commissions Act or illegal aliens under already appropriate laws then no. They have what rights our country has given them, which is actually quite a bit. But they can enjoy no more rights than they are legally are entitled to as non-citizens. Sorry, that is the law. I support the law. And no, I don't favor giving terrorists full citizenship rights as Americans enjoy. They do have by the way as per the MCA the opportunity to petition the federal courts. A lot more rights than they gave Danny Pearl. That is not just my view, that is the view of Congress, the Supreme Court and the executive.


So, Mr. Hamilton, you hold that all humans enjoy God-given rights to liberty, but Congress has the right to take away those God-given rights. God must not rank very high in your system of values.

Joan A. Conway

In response to: "That is, the Court should decide each case on the basis of a principle or rule of law that decides no more than is necessary to resolve the particular dispute before it. In general, this is a fine aspiration for lower courts, whose primarily job is to resolve a specific controversy between the parties."

In Craig vs. Harney, "to withstand constitutional challenge, [classifications] by gender must serve important governmental objectives and must be sustantially related to achievement of those objectives." Standard of scrutiny.

However, the State must demonstrate an "exceedingly persuasive justification" to support a gender-based classification.

There are no models of precision - important governmental objectives and substantially related - they have more content and specificity than does the phrase exceedingly persuasive justification.

There is the difficulty on meeting the applicable test.

Many disagree with the Court's method of analyzing the issues, such as the late Chief Justice Rehenquist.

The law condemns stereotype(s).

However, the S. Ct. uses and considers only evidence that postdates Mississippi University for Women vs. Hogan (1982), and would draw no negative inferences from the State's actions before that time.

The intermediate level of scrutiny for sex classifications that was first established in Craig, and J.E.B. v. Alabama (1994) gender, "Under our equal protection jurisprudence, gender-based classifications require" an exceedingly persuasive justification in order to survivie constitutional scrutiny.

"Had Virginia made a genuine effort to devote comparable public resources to a faculity for women, and followed through on such a plan, it might well have avoided an equal protection violation."

Rehenquist: The violation - it is not the exclusion of women that violates the Equal Protection Clause, but the maintenance of an all-men school without providing any much less a comparable - institution for women in his dissent.

Ginsbery's opinion: The categorical exclusion of women from an extraordinary (adversative menthod) educational opportunity afforded to men.

The interest in men is matched by its interest in women, otherwise it is antifeminism.

Same quality of education, same overall calibre.

Avoid assuming demand based on stereotypes.

It must not assume a priori, without evidence that there would be no interest in a women's school of civil engineering or in a men's school of nursing.

The Virginia remedy failed because it was distinctly inferior to the existing mens only institution and would continue to be for the foreseeable future no adequate remedy.

Beware of the Supreme Court's custom-built tests or the creation of one!

There is simply no support in our cases for the notion that a sex-based classification is invalid unless it relates to characteristics that hold true in every instance.

The Court was misleading. Ansers do not resemble form after the Court accepts the strict scrutiny as the correct constitutional standard for the evaluating classifications that deny opportunities to individuals based on their sex.

Strict Scrutiny in the alternative to rational basis must be pleaded to demand the best outcome, or else there exists an irresponsible tendency to calculate to destablize current law. U. S.s v. Virginia (1996).

The clearly erroneous opinion was in favor of the Court's own view of the world.

If restricted on one sex as unique it must be opened to members of the opposite sex, who have the will and capacity to participate in it.

Single sex public education is dead.

Court applies strict scrutiny in fact, but not in theory.

Boys muscling in on Girl's Sports, see recent blog on Title IX considerations.

There I comment on a measure of truth in same gender stereotypes.

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