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Bench Memos

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Re: Wine Gone to Their Heads?



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Brother Franck makes an excellent point, and one that — as he can explain with more depth than I can — is important in understanding the current divide about what kind of judiciary we ought to have.

The same thing that bothers Matt about the coverage of the vino case struck me in particular in the coverage of the Gitmo detainee cases (especially Hamdi) and all of the sentencing cases that culminated with Booker and Fanfan. In Gitmo, two originalists, Scalia and Thomas, were — so far as I could tell — faithful to their originalist philosophy and yet came out in diametrically opposite places (Scalia emphasizing fidelity to the habeas corpus suspension clause; Thomas the executive’s national security powers). In the sentencing cases, we’ve found liberals parting ways (Ginsberg, for example, siding with Scalia and Thomas’s emphasis on the grand jury and trial rights of defendants; Breyer going with Rehnquist, O’Connor and Kennedy in defense of sentencing schemes that shift power from juries to courts).

The point here is (at least) two-fold. First, the partisan labels of judges are often not very useful — when it gets down to the brass tacks of cases. Many cases are complex, they don’t present as straight-up cultural or free-market issues, but frequently as a complex mix of substantive and procedural questions. Pigeon-holing these folks as “conservative” or “liberal” is often not a useful barometer for how they will come out in a given case.

Second, and more importantly, it is no slight to judges to say they should content themselves with their actual job, which is interpreting the law as it exists rather than taking a walk on the wild side of policy imposition and judicial legislating. Their actual job is more than difficult enough to do.



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