The Definitive John G. Roberts Thread

[D. Scarlatti]

That's not what I was asking. I was asking: Who says "[a] concurrence is generally assumed to be a full agreement with the reasoning insofar as it's stated, frequently with some additions or qualifications"?

You seem to be correcting my definition. Where did I err?

Special concurrences are something else again. They are written by judges that join the majority opinion, but wish to comment on, for example, public policy determinations that are generally outside the court's purview.

[Strict Separationist]

Originally Posted by D. Scarlatti

That's not what I was asking. I was asking: Who says "[a] concurrence is generally assumed to be a full agreement with the reasoning insofar as it's stated, frequently with some additions or qualifications"?

You seem to be correcting my definition. Where did I err?

You said "[w]hen [Justices] concur, they agree with the disposition, but not the reasoning." That's not correct--unless explicitly stated, a regular concurrence indicates that the Justice does agree with the reasoning, s/he just has something s/he'd like to add.

Special concurrences are something else again. They are written by judges that join the majority opinion, but wish to comment on, for example, public policy determinations that are generally outside the court's purview.

I'm not working off of that definition of a special concurrence, though it is, admittedly, a term with no precise meaning. I'm talking about any concurrence that isn't regular in the sense that it does not say "Justice X [with whom Justice Y and Z join], concurring," at the top. Mainly what I'm talking about are concurrences in the result.

[D. Scarlatti]

Originally Posted by Strict Separationist

You said "[w]hen [Justices] concur, they agree with the disposition, but not the reasoning." That's not correct--unless explicitly stated, a regular concurrence indicates that the Justice does agree with the reasoning, s/he just has something s/he'd like to add.

And again I ask, says who?

I'm not working off of that definition of a special concurrence ...

I know!

Incidentally, your understanding of what makes a plurality opinion is also erroneous. There are no "special concurrences" involved in plurality opinions. A plurality opinion is simply one in which no majority exists for a disposition, just more judges agreeing than disagreeing. See Bakke, for example.

[D. Scarlatti]

Originally Posted by D. Scarlatti

I can't wait for September 6!

Ah well, here it is September 6 and instead of a live body in front of the Senate Judiciary Committee we've got a dead one in the Supreme Court building.

Roberts won't face questions until next Tuesday, the 13th.

I wonder if Bush will name Sandra Day O'Connor's latest successor in the meantime. The Court's term begins October 3.

[Strict Separationist]

Originally Posted by D. Scarlatti

And again I ask, says who?

Why are you trying to give me the runaround here? You gave a definition of a concurrence that was not quite correct, so I supplied several examples of cases in which Justices concurred but agreed with the reasoning of the majority, thus creating a majority opinion rather than a plurality. Then you ask for clarification as to what part of your definition I'm questioning, so I specify, and you go back to your first line of defense. A concurrence does not mean that the Justice writing disagrees with the majority's reasoning; see any of the concurrences in any of the cases cited above for evidence.

Incidentally, your understanding of what makes a plurality opinion is also erroneous. There are no "special concurrences" involved in plurality opinions. A plurality opinion is simply one in which no majority exists for a disposition, just more judges agreeing than disagreeing.

No, unless less than a full Supreme Court is sitting (some people consider a 4-3 opinion of the Court to be a majority, and others a plurality), then one or more Justices had to concur in the result, which I explained was the definition of special concurrence I was working with. If you disagree, would you care to cite a case or even imagine circumstances in which a plurality could happen differently?

See Bakke, for example.

Bakke is perhaps one-of-a-kind, but it does follow the rule--there are in fact two opinions that concur in portions of the result, and no "regular" concurrences, whose authors join the majority opinion in full but have reasons of their own.

[D. Scarlatti]

This is a bit pointless. While much of what you say is true, nothing I said was untrue. In fact, the definition I gave originally is essentially what appears in the standard reference texts. So maybe you should take up your complaint with Brian Garner and Kermit Hall.

If I was guilty of any sin it was a sin of omission. But I was commenting on Edward Lazarus's article, which had to do with the Supreme Court making law on the authority of fewer than five of its members, and I didn't think at the time that a thoroughly exhaustive discussion of all the various permutations was either warranted or necessary.

[Strict Separationist]

Originally Posted by D. Scarlatti

This is a bit pointless. While much of what you say is true, nothing I said was untrue. In fact, the definition I gave originally is essentially what appears in the standard reference texts. So maybe you should take up your complaint with Brian Garner and Kermit Hall.

If I was guilty of any sin it was a sin of omission. But I was commenting on Edward Lazarus's article, which had to do with the Supreme Court making law on the authority of fewer than five of its members, and I didn't think at the time that a thoroughly exhaustive discussion of all the various permutations was either warranted or necessary.

Yeah, you're right of course. Please do forgive me for side-tracking things, I get way too into this kind of stuff. My apologies.

[D. Scarlatti]

No problem, you made some excellent points.

Now make yourself useful and brief a couple of cases from the fall docket.

[Stephen Maturin]

Originally Posted by Strict Separationist

You gave a definition of a concurrence that was not quite correct, so I supplied several examples of cases in which Justices concurred but agreed with the reasoning of the majority, thus creating a majority opinion rather than a plurality.

It's just a guess, but perhaps Scarlatti was a bit flummoxed* by your implication that a judge who writes a concurring opinion presumptively agrees with the majority's reasoning. I've never heard of such a presumption and can't imagine why it would be necessary or even desirable. After all, one can generally discern whether the concurring judge agrees with the majority rationale simply by checking to see whether he joined the majority opinion. Moreover, the concurring judge invariably lets us know what he's doing early in his opinion.

*I certainly was.

[Stephen Maturin]

Originally Posted by D. Scarlatti

I hereby predict Justice Roberts will side with the federal government on this one.

I'll go a step further and predict that all nine of 'em will side with the government. Because judgments are paid from public money, statutes by which a government partially abrogates its own common law sovereign immunity from civil liability (which is what the FTCA does) are construed narrowly as hell.

[D. Scarlatti]

John Roberts should thank Jesus for Hurricane Katrina.

The reason there are several hundred bloated corpses floating around New Orleans is because Jesus needed some way to keep Senate Democrats from asking Roberts pointed questions, according to Pat Robertson.

[D. Scarlatti]

Senator Patrick J. Leahy of Vermont, the Judiciary Committee's senior Democrat, has said that he intends to ask Judge Roberts about the circumstances under which a president can "be considered to be above the law." For reference, the senator gave the nominee a copy of the Bybee memorandum, written in 2002 by an assistant attorney general, Jay S. Bybee, who is now a federal judge. The once-secret memorandum, which the Bush administration has since disavowed, provided a narrow definition of torture and argued that in deciding how to treat detainees, the president in his role as commander in chief is bound neither by domestic law nor by international treaties on torture.

Linda Greenhouse's Guide to Questioning John Roberts

And a lengthy profile from the New York Review of Books:

The most intriguing question about John Roberts is what led him as a young person whose success in life was virtually assured by family wealth and academic achievement to enlist in a political campaign designed to deny opportunities for success to those who lacked his advantages.

Heh. The prototypical college Republican.

John Roberts: The Nominee

P.S. Sorry about that, Bryan A. Garner.

[D. Scarlatti]

Fire up your CSPAN-3 on your realplayer Full Screen Theater: Ted Kennedy has arrived.

The actual questioning of the nominee won't begin until tomorrow, however.

[D. Scarlatti]

Did anyone see any of the Senators' opening statements? I swear Brownback of Kansas would flunk first-year con law. Some of these Republicans and their view of the Constitution is just laughable.

This page supposedly contains each Judiciary Committee member's ten minute homily, broken up into individual media files, but they don't work for me, which isn't surprising.

Roberts himself reminded me of a cute little puppy dog. Should be interesting today.

[D. Scarlatti]

Arlen Specter (to Joseph Biden): Let him answer the question, Senator.
Biden (to Roberts): Go ahead and continue not to answer.

Biden's got the best of him so far, I think. Although Specter's giant Roe v. Wade placard and his suggestion that Roe is "super duper stare decisis" was pretty comical as well.

[ApostateAbe]

Roberts has me sold. I was impressed with his strong stance against basing decisions on foreign laws under the guise of the principle of precedence.

[D. Scarlatti]

Originally Posted by ApostateAbe

I was impressed with his strong stance against basing decisions on foreign laws under the guise of the principle of precedence.

Not than any current judge bases her decisions on foreign law; that they do is a farcial GOP talking point. But that was a nice softball strawman lobbed by Senator Kyl who, naturally, cited an opinion by Justice Breyer rather than one by Justice Rehnquist, who was every bit as fond of citing foreign law.

However, the reasons Roberts gave were pretty uncompelling. His first reason was based on "democratic theory," in that judges are unaccountable, and would be even less accountable were they to rely on German rather than domestic law. That's not much of a reason, when the reasoner admits that judges are unaccountable to begin with. How can you be "less accountable" when you're already "unaccountable"?

His second reason was that the body of foreign law does not limit the discretion of judges to the same extent that the body of domestic law does. He proffered an analogy of "knowing who your friends are," when looking out over a sea of people. In other words, a judge looking to foreign law can find whatever basis for a decision they need by picking from a massive body of contradictory decisions, and choosing the one(s) that best suit the judge's preferred outcome.

Unfortunately for this line of reasoning, the body of U.S. law over the last 218 years has produced a similar plethora of contradictory decisions. In fact, under questioning from Herb Kohl, Roberts made exactly that point when referring to the contrasting cases cited by opposing counsel in Brown v. Board of Education. Each lawyer arguing the case could cite exactly contradictory decisions from domestic precedent, which is precisely what Roberts said could be done in his argument against citing foreign cases!

These were awful responses on Roberts's part, if you ask me.

His baseball analogy is also taking a serious beating.

[D. Scarlatti]

Listening to Roberts's responses to Mike DeWine, I just thought of an awesome title for a law review article:

Weekend at Boerne's.

[D. Scarlatti]

Originally Posted by Opening post

... Jeff Sessions, as usual, can be expected to provide Roberts with a comfortable fellating.

I must say, I sure called that one.

[Ari]

I haven't been paying much attention to it. Probably should.
The one thing that has bothered me is the shying away from Roe vs Wade and people asking not to ask him much about it. Um... Why? They guy is going to become a member of the supreme court and will hear cases related to RvW, why shouldn't they be allowed to grill him hard on the subject?
It's almost as if they were appointing a head of homeland security and asking people not to ask questions about how they will deal with terrorism.

[D. Scarlatti]

Originally Posted by Ari

The one thing that has bothered me is the shying away from Roe vs Wade and people asking not to ask him much about it. Um... Why? They guy is going to become a member of the supreme court and will hear cases related to RvW, why shouldn't they be allowed to grill him hard on the subject?

Several senators have brought it up; in fact Arlen Specter spent his entire 30 minutes questioning Roberts about abortion law. Roberts's rationale for not more directly addressing the issues is because they will come before him on the Court, and the idea is that litigators should be able to present their cases to open minded, impartial judges that haven't tipped their judicial hands in either direction previously.

[Roberts is getting a little testy with my homie Russ Feingold at the moment.]

[Speaking of tipping hands, the C-SPAN commentator just referred to "Chief Justice Roberts."]

[Ari]

Thanks for the update.
All I've heard about it is the news this morning was that RvW questioning would be shied away from.

[D. Scarlatti]

The news media sucks at reporting these sorts of things.

Check out SCOTUSblog's running commentary:

5:46 - Lindsay Graham is up. He is reading an excerpt from the favorable evaluation of the National Association of Women Lawyers. He then wants to talk about "life" - i.e., who Roberts is a person. I'm going to the bathroom.

4:31 - Sessions feels that Roberts hasn't sufficiently explained what a trial transcript is. I still think he will vote "yes."

[ApostateAbe]

Scarlatti, when you say, "Not tha[t] any current judge bases her decisions on foreign law; that they do is a farcial GOP talking point," why is that? Do you mean that the relevant decisions weren't based wholly on foreign law, but instead partially on foreign law? Or not at all?

[D. Scarlatti]

Originally Posted by ApostateAbe

Scarlatti, when you say, "Not tha[t] any current judge bases her decisions on foreign law; that they do is a farcial GOP talking point," why is that?

See my comments below the link.

If I was a Judiciary Committee aide, I would have had my Senator point this out, after Kyl's bogus suggestions. Failing that I would have been firing spitballs at the back of Jefferson Sessions' neck.

Do you mean that the relevant decisions weren't based wholly on foreign law, but instead partially on foreign law? Or not at all?

Which relevant decisions? Kyl mentioned one opinion authored by Justice Breyer, but I didn't make a note of it. I'll have to check the transcript, and then see how much of the case was "based on foreign law." My guess at this point is none of it, knowing how these lying Republicans operate. The Constitution is based on foreign law, fer chrissakes.