The Fifth Seat

"Of course, that ain't exactly plan A...!"

And in any event, it's a high bar to clear - I can think of a few, but a very few examples whose work I'm familiar enough (and happy enough) with to be comfortable about.

However, unless a President appoints an ideologue (left or right), it is impossible to predict how a Justice's judicial philosophy will evolve. That being said, history shows that they tend to move to a more liberal/pragmatic (for lack of a better description) position.

Well, recent history shows that Justices tend to move left, but I think that's something that's come about since the lionization of the Warren Court by the national elite - the infamous "Greehouse Effect" explained by Judge Silberman.

The difficulty is that unless you nominate someone who has a view of what law is, who has a process that they can apply which starts from principles and applies those principles to facts, even when it carries them to a result that they don't like, if you don't pick someone like that, they're going to drift, one way or another. The problem with an evolving constitution, as I suggested the other day, is that you can't guarantee it will evolve, only that it'll change. And sometimes that'll be for the better, sometimes for the worse.

[S]peaking directly about Roe, which has been (as modified by Casey) good law for 30+ years, I would be surprised to see a traditionally conservative justice vote to outright overturn the decision (which is why I do not think Roberts will vote to overturn or substantially weaken Roe). But, while I generally support not overturning Roe, the benefits of overturning it would be that people would stop focusing on that one case and actually discuss the implication so judicial philosphies as they relate to other areas of the law.

This starts to touch on a subject I intend to write a post about sometime in the next couple of months, which is stare decisis and my proposed rule about it. I had been persuaded by Lee Strang's argument that stare decisis was implicit in Article III, and thus, that originalists must account for it; unhappy with his proposed rule, however (in my view, an originalist theory of precedent must be a formalist theory of precedent, that is, it must be rule-like) I had started drafting and researching a paper setting out my view, only to have the unpleasant experience that I suppose most writers have had at some point: the discovery of a killer argument that obliterated my premise. I have bitten the bullet and conceded that my erstwhile certitude about Strang's theory of the demand for an originalist account was misplaced, or at least overstated. This has coincided -- without meaning to sound too pretentious about it -- with a growing sophistication in how I look at law over the last couple of years. In any event, the upshot is that even without the demand identified by Strang, I continue to view stare decisis as both an integral part of the American common law tradition and, for a conservative, a normative good, and since I remain a formalist, that suggests the need for an articulated formalist rule of precedent, which means that some of my idea will eventually surface, albeit in the less formal setting of a blog post. :)

All of which is a very long-winded and self-indulgent way of getting to the point, which is that one of my criteria for when a precedent should be overruled is how narrowly the rule announced by the precedent is confined, and thus, how much damage can it do: if the court reaffirms this precedent, can it be kept self-contained in similar cases (for example, Colorado River would be rock-solid under this criterion, even if I thought it were egregiously wrong as an original matter)? Can the principle announced by this case be contained in just this area of doctrine? What if it can't even be contained in just this area of law? Roe utterly fails to satisfy this criterion, and I would explicitly overrule Roe even if the abortion debate were settled once and for all by a Constitutional amendment, because my problem with that case is legal not moral: its flaw, its corrupting cancerous flaw, is the way of viewing the Constitution that it represents. Its principle is limitless, and limitlessly corrosive; it will leak (and in fact has flooded) into every area of jurisprudence. To be sure, Roe didn't invent this principle, but there is no case that more stands in the way of cauterizing the wound for reasons less-rooted in law.

Well, JCG thinks it's unlikely. I would tend to agree, unless one of the Justices gets some bad medical news. The two most likely possibilies are Stevens and Ginsburg, neither of whom are likely to want to give Bush a chance to nominate their sucessor.