Tuesday, July 7, 2015

Is it possible to reconcile Judge Posner’s take on Holmes and 'Lochner', and Roberts and 'Obergefell'?

David Bernstein at The Volokh Conspiracy
"Posner has written that Holmes’s dissent [in Lochner v. New York] is the greatest Supreme Court opinion in the last 100 years. Lest we think that this praise is just for Holmes’s rhetoric, and that he substantively disagrees with Holmes’s critique of the majority, Posner has added that 'Holmes’s one-page dissent says everything that needs to be said to unmask any pretense that the majority was engaged in something that might be called legal analysis.'

"Roberts, meanwhile, cites Holmes’s dissent in support of his opinion in Obergefell, and surely a Holmesian should agree with Roberts.
[...]
"Is Justice Roberts’s opinion nevertheless condemnation-worthy, as Posner suggests in Slate, because it’s 'heartless'?"

In Slate, Judge Posner concludes,
"He [Chief Justice Roberts] deplores the fact that 'a bare majority of Justices can invent a new right and impose that right on the rest of the country.' Would he be content had the vote been 6–3 rather than 5–4? I doubt it. And isn’t the history of constitutional law the history of Supreme Court justices, often by a narrow vote, inventing new rights and imposing them on the rest of the country?"
That last sentence might be a good question for judicial confirmation hearings.