Kerr Takes on Savage (UPDATE: So Does Franck)
Orin Kerr gently takes apart David Savage’s op-ed criticizing John Roberts, so I don’t have to.
Memo to Savage: if an umpire calls a strike in a big game, and changes the course of baseball history, it’s still a “modest” decision as long as it was really a strike.
I look forward to Savage op-eds telling us how “modest” decisions like Roe v. Wade were. Or decisions like the one that outlawed the juvenile death penalty. I could go on and on.
Unlike those decisions, at least Roberts’s decisions have the virtue of being correct and having a firm foundation in the law, rather than merely in the judge’s personal policy preference.
UPDATE: Matthew J. Franck whups Savage good.
I couldn’t belive how Justice Roberts was found “immodest” for upholding our understanding of commerce clause jurisprudence in the right to die cases. It was as if it didn’t matter at all that he was correct. I was also stunned that, once again on commerce clause grounds, he was bad for better articulating how environmental laws really abuse the commerce clause.
Of course, any serious scholar of the law would note that any pulling back on commerce clause jurisprudence post Wickard v Fillburn would represent a step back to santity after a radical departure from the real commerce clause standards promulgated by a SCOTUS that was under threat of being packed by a power hungry president.
Oh well. Who really expects a lawyer to analyze the law in the cases he discusses in the dog trainer?
Joli Rouge (8ec8ca) — 9/25/2006 @ 10:54 amIt was merely statutory interpretation, Jolie Rouge. Nothing to do with Wickard v. Filburn (oops, sorry, the Commerce Clause). Just whether Congress granted the Attorney General the authority to restrict the use of lethal drugs to healing instead of killing.
P.S. No snark towards you intended by “… Wickard v. Filburn (oops, sorry, the Commerce Clause).” Just another expression of my view that we have a stare decisis Constitution.
nk (d5dd10) — 9/25/2006 @ 6:13 pm