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The Rise of Principled Jurists on State Supreme Courts

There is happy news from state supreme courts—more justices committed to correct methods of legal interpretation are being appointed.  To name just two of the most recent additions: Rebecca Bradley of Wisconsin and Joan Larsen of Michigan as well as a still relatively recent addition, David Stras of the Minnesota Supreme Court  All three have fine credentials. Stras and Larsen were professors before ascending the bench, and professors turned judges have often turned out to be the most influential of jurists.

The Federalist Society’s decision to establish chapters throughout the nation is in no small measure responsible for the flowering of state conservative jurisprudence.  The Society was founded on law school campuses and then migrated to Washington, as some of its leaders took jobs in the Reagan administration. But creating a presence in the hinterlands then made it possible for lawyers of like mind to focus on the judiciary in their states. All too often, Republican governors had not paid much attention to judicial nominees’ stances on legal interpretation, believing that identification with the Republican party was enough to assure good decisions. But even Republican lawyers emerge from a legal culture that leans decidedly left, and the recognition and awards from that culture move judges to in that direction unless they come anchored in the right.  The Federalist Society provides the merry fellowship that helps these jurists resist the temptation to drift.

The increase in the number of justices committed to fidelity to law on state benches has several good consequences.The first is to enlarge the farm team for future Supreme Court justices. Many commentators complain that almost all our recent justices have been judges. I believe that as a general rule that previous judicial experience has been a plus, because administrations can evaluate past interpretive pitches on the field of jurisprudence. But, sadly, the overwhelming majority of justices appointed in the last half century have been from the federal court. State court experience would provide a usefully diverse perspective, likely creating more respect for state courts and for federalism generally in the Supreme Court’s deliberations.

The second advantage is to make it more likely that state courts will provide sound interpretations of their own rights provisions, even if the right at issue is similar on its face to a provision in the federal Bill of Rights. Justice William Brennan trumpeted the need for such independence in famous article, State Constitutions and the Protection of Individual Rights. He was absolutely right that states have no obligation to follow the federal lead in this context and have the duty to give full force to their own state constitutional rights. The difficulty is that Brennan wanted these provisions to be just additional sources for living constitutionalism to reach the results he thought just, at the time that philosophy was losing adherents on the Supreme Court. The kind of conservative and classical liberal supreme court judges now being appointed will offer independent judgments rooted in the law. Perhaps these opinions will even come back to influence the Supreme Court to interpret the federal constitution in a more lawful manner.

Reader Discussion

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on October 14, 2015 at 13:38:19 pm

Yea for people organizing, and supporting those who share their views, even if those people are allegedly above such influences.

That said, how should “principled jurists” rule on questions regarding the right of privacy as manifest in cases such as Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas? As far as I can tell, originalism and libertarianism point in rather different directions.

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nobody.really
on October 14, 2015 at 16:07:17 pm

"But even Republican lawyers emerge from a legal culture that leans decidedly left, and the recognition and awards from that culture move judges to in that direction unless they come anchored in the right. The Federalist Society provides the merry fellowship that helps these jurists resist the temptation to drift."

Your word choices "anchored" and "drift" smack of regimentation, which seem counter to "open debate" and "broader debate" spoken of at www.fed-soc.org/aboutus/ .

To separate as in "the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community" seems counter to the principles stated in the preamble to the constitution for the USA. What happened to the preamble's civic goals? Did conservatives label them "secular," thereby discounting them? Did "We the People of the United States" authorize the USA are not?

"State court experience would provide a usefully diverse perspective, likely creating more respect for state courts and for federalism generally in the Supreme Court’s deliberations." Do state courts have an agenda that differ from the Supreme Court? Are they in competition? What scholarly law is anchored in what?

"The kind of conservative and classical liberal supreme court judges now being appointed will offer independent judgments rooted in the law. Perhaps these opinions will even come back to influence the Supreme Court to interpret the federal constitution in a more lawful manner." Fixation on scholarly law as the law is the source of this conundrum.

Humankind is on a quest to understand physics, from which everything emerges. Physics is energy, mass, and space-time, which got going 13.7 billion years ago. Our species may have emerged some 7 million years ago and began to make use of awareness 2 million years ago and started talking 0.1 million years ago.

Now, we are the most aware species known, and we're on a quest to understand how to benefit from the emergences from physics, including our species: humankind. It seems clear that the combination no-harm personal liberty and domestic goodwill is achievable. PL&DG and what we need in order to afford each person the chance for well-being in every decade of his or her life. It also seems clear that scholarly law is failing humankind's quest.

For example, the Congress based DOMA on conservative tradition. Any high school civics student could have perceived that basis was unconstitutional. However, overconfidence in tradition overcame common sense. Yes, Congress did that, but they did it with conservative legal advice. The liberal side ate the conservative side's lunch, and the people suffer.

I urge you to take a closer look at the limb you are on. Look down and realize that limb is connected to its roots: A Civic People of the United States.

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Phil Beaver
on October 14, 2015 at 16:10:27 pm

Sorry. that's " Did “We the People of the United States” authorize the USA or not?"

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Phil Beaver
on October 14, 2015 at 16:15:26 pm

Also, it PL&DG is.

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Phil Beaver
on October 14, 2015 at 17:15:05 pm

I am not certain which "physics" we mean here. Einstein's or could it be "fizzic" or is that" fysike" as defined in a 1610 English dictionary: " As a noun, "medicine that acts as a laxative,"

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gabe
on October 14, 2015 at 17:23:58 pm

"...even if those people are allegedly above such influences. "

Are we then to assume that *interpretation" and *influences* are synonyms"

Granted, in some instances they may effectively be so; but I think the point of McGinnis piece is that we are talking primarily about an interpretive method not a philosophical exposition.

You are quite correct regarding Griswald, Roe and Lawrence w/ respect to libertarians and originalists - but again, isn't the point (at least in large measure) that there would be an expectation that a State Jurist may be more likely to seek to protect / respect the States constitutional vision. If so, perhaps, it would go a long way toward repairing the damage inflicted upon the Federal(ist) structure consequent upon the passage of the 17th Amendment.

Even with the possible interpretive difficulties / conflicts, this is something I would welcome.

No, I think McGinnis highlights an important phenomenon - and did a good job at it.

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gabe
on October 14, 2015 at 17:35:38 pm

[…] our time, the increase in the number of justices committed to fidelity to law on state benches has several good […]

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Good Faith and the Fourth Amendment: The Reasonable Exception to the Exclusionary Rule |
on October 14, 2015 at 19:18:24 pm

http://www.americanthinker.com/articles/2015/10/explaining_the_latest_nobel_prize_in_physics.html

The above link references the meaning of the "discoveries" made by the most recent Nobel Prize winners in physics.

For those unable to read, I will supply a very condensed version and its possible meaning to all those advocating "be-all, end-all" theories about, well, just about anything.

The awrs goes to researchers who determined that the neutrino particle has mass. They did this by showing that one *flavor* (physicists do have a sense of humor) of neutrino, the electron neutrino, may transform itself (no one knows why or how) into another flavor: either a muon or a tau neutrino.

Doesn't seem to matter does it?
YET!!! The implications are quite considerable. In short, neutrinos having mass causes the entire Standard Theory of particle physics to be scrapped. (I'll not try to go into details as I am not qualified to do so).

Here, however, we find the flaw, the big secret, if you will, hidden in plain sight of modern physics. The science is NOT, as many would have us believe, SETTLED!!! Indeed, it is NEVER SETTLED!!!!!

While it is salutary, indeed, perhaps even an epistemological imperative, that humans seek to find order, and in such a pursuit develop and establish a "scientific method so constructed as to approximate that order, it is, however insufficient to guarantee either identification of all variables or correct answers - *truth.*

Consider also that the discipline of physics has a far greater capacity to identify the "intervening variables" impingement upon a physical process than does the study of law, philosophy of government, etc.
Yet, all too often, the results of experiments, even those carefully constructed and controlled via the scientific method, yield nothing more than, you guesses, a heretofore previously unidentified variable condition or state.

To willfully ignore the structural, measurement and, yes, philosophical shortcomings of the physical sciences and instead propose that ALL HUMAN BEHAVIOR, all civic association be modeled upon such a tenuous foundation strikes me as the new form of millennial thinking "Herein, we have all the scientific answers; do as the sciences predict; we have made the world over for you and YOU WILL THEREFORE BE HAPPY"!!!!!

Can one envision a constitutional republic predicated upon such a foundation; once a new variable is identified, must we scrap the old. This would be "living constitutionalism" writ large!!!

Oops, what a dolt I am. We already have that - it is called Progressivism and the scientific management of the peoples behavioral choices and liberty - although nowadays and so as to not offend any sensibilities, we call it "nudging."

Well, I ain't budging

Seems like more of the same old, same old!!!!!! How many more versions of this must we endure. How many more times must science be employed to advance the personal and idiosyncratic philosophical preferences of some visionary. Was not Karl Marx enough; Woodie Wilson, etc. etc.

I'll take my visions from some fine crystal wineglass with, of course, some rather excellent Walla Walla Valley Cabernet!!!!!!

Cheers!!!

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gabe
on October 14, 2015 at 19:19:35 pm

Oops: second word, third para: should be "award" not "awrs"

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gabe
on October 14, 2015 at 21:29:48 pm

Gabe, I think your form of mendacity is referred to as straw-man arguments. Your straw man is s_i_n_c_, a word you will not find in my post. You play with physics, which I defined in my post. I hope you are not a lawyer or law professor, because you mock the practice.

Maybe you are Mr. McGinnis in disguise, trying to distract from the mendacity of not addressing an argument coming from a person who considers the participants in this forum persons of equal opportunity to express themselves. Stonewalling instead of collaborating is perhaps humankind's most prolific means of self deception.

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Phil Beaver
on October 15, 2015 at 12:18:01 pm

"Maybe you are Mr. McGinnis in disguise"

Really??????

I assure you that I am ME. Here is proof:

While Professor McGinnis spends his days, perhaps, discussing certain legal concepts that may seem alien to his students, I on the other hand spend my days watching episodes of ANCIENT ALIENS as it seems to provide the proper mental preparation for jousting with some of the characters on this blog

My apologies to the good and esteemed Professor.

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.