Top 5... Make that Top 4
Orin Kerr at Volokh points out Judge Alito's top 4 Supreme Court Justices. Senator Durbin asked and got the following answer: Harlan II, White, Rehnquist, and Brennan. Very interesting.
Harlan Deuce is the oldest, but even he is of the modern era. Harlan was against total incorporation of the Bill of Rights under the Fourteenth Amendment. He was a big believer in precedent. He also penned one of my all time favorite pieces of legal writing:
White and Rehnquist are interesting choices. They were the two dissenters in Roe. They both dissented in Casey. White wrote the majority opinion in Bowers v Hardwick, the case that upheld a Georgia anti-sodomy statute. Bowers was overturned fairly recently (as far as history goes) in Lawrence v Texas. But White also voted consistently to uphold school desegregation and voted in favor of affirmative action. White has been very hard to pin down, as far as judicial philosophy goes. Half the time I agree with him, half the time I think he took one too many hits to the head in his football career.
As far as the former Chief, I can't say that Alito naming him is a surprise. He might have just named Rehnquist as a tribute to the man for his service. But Rehnquist will go down in history as the judge who brought back federalism and limits on the Commerce Clause. Some commentators said that last summer's Raich decision is a sign of the end of this resurgence. I don't buy it. I think Raich was an anomaly. The standards set in Lopez and Morrison will continue to be applied by the Court. Many judges, including Alito, have been influenced by Rehnquist's opinions in these cases. By picking Rehnquist, I think Alito is signaling a support for agreement with the former Chief's Constitutional claim to fame.
As far as Brennan goes, my knee jerk reaction is "well, he had to throw a liberal in there for appearances." I'm cynical. As much as I disagree with Brennan's decisions, they were always incredibly well written. The reasoning was at times convoluted and eyeroll-inducing, but the text was sound. I'm sure there is something on which Alito would agree with Brennan... I just can't come up with it from what I know.
I've been considering how I would answer this question. I'm going to have to think about it for a while, but I have a few names in mind.
I'd also like to point out that Kerr and I both keep odd hours. He's got another post at 1:07 AM. Insomnia sucks.
Harlan Deuce is the oldest, but even he is of the modern era. Harlan was against total incorporation of the Bill of Rights under the Fourteenth Amendment. He was a big believer in precedent. He also penned one of my all time favorite pieces of legal writing:
These decisions give support to a current mistaken view of the Constitution and the constitutional function of this court. This view, in a nutshell, is that every major social ill in this country can find its cure in some constitutional principle and that this court should take the lead in promoting reform when other branches of government fail to act. The Constitution is not a panacea for every blot upon the public welfare nor should this court, ordained as a judicial body, be thought of as a general haven of reform movements.Preach it, John.
This court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to justified impatience with the slow workings of the judicial process. For when, in the name of constitutional interpretation, the court adds something to the Constitution that was deliberately excluded from it, the court in reality substitutes its own view of what should be the amending process.
White and Rehnquist are interesting choices. They were the two dissenters in Roe. They both dissented in Casey. White wrote the majority opinion in Bowers v Hardwick, the case that upheld a Georgia anti-sodomy statute. Bowers was overturned fairly recently (as far as history goes) in Lawrence v Texas. But White also voted consistently to uphold school desegregation and voted in favor of affirmative action. White has been very hard to pin down, as far as judicial philosophy goes. Half the time I agree with him, half the time I think he took one too many hits to the head in his football career.
As far as the former Chief, I can't say that Alito naming him is a surprise. He might have just named Rehnquist as a tribute to the man for his service. But Rehnquist will go down in history as the judge who brought back federalism and limits on the Commerce Clause. Some commentators said that last summer's Raich decision is a sign of the end of this resurgence. I don't buy it. I think Raich was an anomaly. The standards set in Lopez and Morrison will continue to be applied by the Court. Many judges, including Alito, have been influenced by Rehnquist's opinions in these cases. By picking Rehnquist, I think Alito is signaling a support for agreement with the former Chief's Constitutional claim to fame.
As far as Brennan goes, my knee jerk reaction is "well, he had to throw a liberal in there for appearances." I'm cynical. As much as I disagree with Brennan's decisions, they were always incredibly well written. The reasoning was at times convoluted and eyeroll-inducing, but the text was sound. I'm sure there is something on which Alito would agree with Brennan... I just can't come up with it from what I know.
I've been considering how I would answer this question. I'm going to have to think about it for a while, but I have a few names in mind.
I'd also like to point out that Kerr and I both keep odd hours. He's got another post at 1:07 AM. Insomnia sucks.
