I think this is consistent with Tom's point. It strikes me that, first, it is of course impossible to prove any Supreme Court nominee has lied in a confirmation hearing. After all, the justice can take advantage of the perfectly credible claim that she has changed her mind. Moreover, testimony before the Judiciary Committee is usually vague and abstract. To the extent justices have deviated from this latter pattern it has been with their endorsement of the Harlan dissent in Poe. This endorsement is no accident, for it merely allows the nominee to embrace a popular decision and not to take a stand on whether a choice to have an abortion or to engage in homosexual sodomy is constitutionally protected.
At 03:04 PM 6/26/2003 -0700, Tom Grey wrote:
At the Battle of Waterloo, the French surrendered. In the Franco-Prussian war, the French surrendered. In World War II, well, the French surrendered. Don't be a big chicken. Eat one.
- Hardee's Commercial
Much less do [constitutional entitlements] spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. ... The Court's discussion of these foreign views... is therefore meaningless dicta. Dangerous dicta, however, since "this Court ? should not impose foreign moods, fads, or fashions on Americans."
-Scalia, J., dissenting, in Lawrence v. Texas
OK, Eugene would probably have a legitimate gripe if I just left it at that. As Scalia notes, the amount of protection liberties get is supposed to turn on two factors -- how rooted they are in our history and tradition, and how implicit they are in the concept of ordered liberty. One way to conduct the latter inquiry would be to restrict oneself to armchair political philosophy, but mightn't it be better to also look around and see what other free countries do, as a check on pure speculation?
I do realize that Scalia treats both "rooted in tradition" and "implicit in ordered liberty" as elements rather than factors, that is, binary rather than continuous variables, and thinks both should be present before an unenumerated "liberty" triggers heightened scrutiny. And Glucksberg supports that way of talking about it. But there is the other tradition in the caselaw, Harlan's view (Poe) that liberty is a "rational continuum." Casey fell in that tradition with its "undue burden" test, and so it seems does Kennedy's majority opinion here; his blurring of the level of scrutiny and refusal to give it one of the standard labels was surely deliberate.
Tom Grey Stanford Law School [EMAIL PROTECTED]
