AHC: Lewis Powell, Potter Stewart, Byron White, etc — the center holds in the Supreme Court from the 1970s to 90s ? ! ?

Unfortunately the "left" wing of the Court notoriously did this with Kelo.

So you can't even depend on them to do the right thing.
If the court had to decide between corporate power and Jersey which would it choose.


“ . . . [Connecticut Supreme Court] also ruled that the government’s delegation of its eminent domain power to a private entity was constitutional under the Connecticut Constitution. . . ”

This may have been one of the key hinge points of the decision.
 
A more progressive court would’ve most likely set an actual concrete deadline
That’s still too much like trying to play the perfect game of chess, rather than loosey-goosey poker which is very attune to the here and now.

In particular, roll forward with Eisenhower sending federal soldiers to Little Rock in Sept. 1957. Of the many cases that reach the Supreme Court’s docket [of which I think they only take about 10%], look for the ones that deal with school desegregation and school equality.

Turn them around in two weeks with a one page statement that says, Per Brown, proceed forward.

* in one view of myself, I’m a businessman who knows how to get things done [in reality, just a couple of stints as retail manager!]
 
Last edited:

“ . . . and can be seen to have directly influenced the Civil Rights Act of 1957.

“Some have argued that, despite the intervention of the government, the events at Little Rock changed almost nothing for the majority.”

Yes, certainly could have done more. But if Congress could pass a [watered-down] Civil Rights Act in ‘57, perhaps SCOTUS could have rolled forward as well.
 
That’s still too much like trying to play the perfect game of chess, rather than loosey-goosey poker which is very attune to the here and now.

In particular, roll forward with Eisenhower sending federal soldiers to Little Rock in Sept. 1957. Of the many cases that reach the Supreme Court’s docket [of which I think they only take about 10%], look for the ones that deal with school desegregation and school equality.

Turn them around in two weeks with a one page statement that says, Per Brown, proceed forward.

* in one view of myself, I’m a businessman who knows how to get things done [in reality, just a couple of stints as retail manager!]
Oh, that’s exactly the problem, Supreme Court is pretty much chess moves, and any wiggle room is very much used by both sides to get away with what they can.

Which is why the best approach IMO is get a bunch of progressives in there and hope for the best. Honestly, if I could clone William O. Douglas, I would make the original Brown v. Board look like Plessy v. Ferguson.
 
Which is why the best approach IMO is get a bunch of progressives in there and hope for the best. Honestly, if I could clone William O. Douglas, I would make the original Brown v. Board
I’m just going to say it. The fact that you’re focusing on getting the beginning right [instead of seeing what a golden opportunity both Little Rock and the ‘57 Civil Rights Act were], tells me you like the idealistic and perfectionist methd. Of course just one data point of info! :)

With Bill Douglas, Okay, he was a Westerner, with a big heart, supported the rights of Native American Indians and was proud of it, as a young man supported at least in word the people and ideas of the “Wobbles,” meaning the IWW, a big circa 1910 union, and since it was one for all, all for one, this made it among the most radical of the American unions, at least those in the big time.

And yet . . .

As a boss to his law clerks, Bill was a First-Rate Asshole! just no other way to say it
 
Last edited:
Dancing Fool, if you wanted to summarize the point of this thread in a short elevator pitch, how would you do it?

So far as I can determine, the elevator pitch is "place to talk about the late 20th century Supreme Court." What the theme here?
 
images


The Soviets launched Sputnik on Oct. 4, 1957, and this was viewed as a really big deal. Yes indeed, I think we could have got the money to level-up teacher salaries.
 
Last edited:
How would you describe this theme in more detail?
Okay, if I were on Houston City Council, I’d support some projects to expand and diversify the economy. But I’m skeptical of huge projects which tend to spiral. For example, I’d probably be against bringing the Olympics to Houston.

So, I might be part of a centrist coalition which gets done a variety of smaller and mid-sized projects, and when necessary, out-votes both the “gung ho” people and the “stick in the mud” people. Including voting against than the mayor when necessary. We’d expect him or her to be a good administrator, nothing more, nothing less.

I think Houston is the largest U.S. city which still has major industry, which in our case is oil refining and the chemical industry (“petrochemical” is the usual shorthand).

And how about you? What might be an example of leadership from the Center for you?
 
Last edited:
Okay, if I were on Houston City Council, I’d support some projects to expand and diversify the economy. But I’m skeptical of huge projects which tend to spiral. For example, I’d probably be against bringing the Olympics to Houston.

So, I might be part of a centrist coalition which gets done a variety of smaller and mid-sized projects, and when necessary, out-votes both the “gung ho” people and the “stick in the mud” people. Including voting against than the mayor when necessary. We’d expect him or her to be a good administrator, nothing more, nothing less.
This is heavily predicated on the idea that there are lots of simple, pragmatic, small-scale things that people on all sides of the "center" can agree upon.

Unfortunately, many of the political issues of the modern era do not work this way. It's not clear to me that they really ever did. Things like "build roads and schools" seem noncontroversial right up until the question is "whose neighborhoods are getting paved over to build that freeway" and "who wants their kids out of the public school system so they can quietly brainwash them in private?" These are not questions that can be easily answered in a politically neutral manner. They can be answered by expecting certain voices to shut up and then proclaiming "REASONABLE MODERATION HAS TRIUMPHED" in a very loud voice, but they're not neutral.

The truth is not always found by finding the two loudest people who disagree on a subject and then deciding that they're both wrong.

...

I certainly don't have a clear picture of what "leadership from the center" looks like in the context of the Supreme Court. We talk about the ideal of the Court as a neutral arbiter, "calling balls and strikes honestly" or what have you, but it's really never been about that.

And how about you? What might be an example of leadership from the Center for you?
I think "leadership from the Center" is a phrase that means something to you and very little to me, so I don't have any clear examples in my mind.
 
Things like "build roads and schools" seem noncontroversial right up until the question is "whose neighborhoods are getting paved over to build that freeway" and "who wants their kids out of the public school system so they can quietly brainwash them in private?" These are not questions that can be easily answered in a politically neutral manner. They can be answered by expecting certain voices to shut up
I don’t expect anyone to shut up. For example, it used to be the case that any citizen of Houston who wanted to speak before Houston City Council could have up to 3 minutes, including mentally ill persons. I noticed that it often seemed more effective if you took less than your full 3 minutes.

It might still be this way for all I know.

And believe me, the pro-Olympic people would be plenty loud enough including all kinds of “pie in the sky” benefits. I’d want to look at the cost overruns in the last two Olympics and ask, why we’d be any different?

And then we have a vote.

People can keep talking after the vote, but the rest of us are going to move on. Participating with the Green Party a little in another state, I was not impressed with “consensus” process, and that’s something which can drift to conformity and expecting people to shut up.
 
I don’t expect anyone to shut up...

And then we have a vote.

People can keep talking after the vote, but the rest of us are going to move on.
See, the interesting questions here get a little more meta. Because there are voices that, chronically, get expected to shut up by this process. Not in the sense that someone can't show up and talk for three minutes about them, but in the sense that there's no connection between what they say and what actually happens. They are, metaphorically, talking into a dead microphone, and nobody with authority is listening.

"Build roads" is widely regarded as a politically neutral 'centrist' policy.

But when you look at, for example, urban freeway construction in the 1960s, it is shockingly consistent that neighborhoods full of brown people, poor people, or brown poor people get torn down to build roads to service the large populations of mostly white middle- and upper-class suburban residents who, having moved out of the city center, now needed to commute back into the urban core to profit from its business and infrastructure without having to live there or pay property taxes to support it.

This is not a politically neutral process; there are definite winners and losers. But as you hopefully read me saying all this, you probably aren't thinking of what I'm saying as a "centrist" observation. If I were to complain about who won and who lost in that 'neutral' infrastructure-building program, and how it shaped our society to make it easier for certain winners to go on winning and more likely for certain losers to go on losing, I would sound like I was, oh, trying to tip the "centrist" consensus to the left.

...

As an exercise, I can do the same thing for right-wing politics.

When you look at, for example, school curriculum and organization in the late twentieth and early twenty-first century, it is shockingly consistent that the default trend is for the beliefs of the most conservative parts of the older generation to keep losing. For instance:

1) Children are taught that slavery was one of the worst evils in American history and that its legacy continues to haunt us today, as opposed to being a perhaps regrettable but very much forgettable episode with no significant consequences in the present.

2) Children were taught in succession not to mock the children of divorced women and unmarried parents, not to mock teen mothers, not to mock women who did masculine things such as wearing pants and demanding ever-increasing independence, not to mock people who felt love and desire for the same sex, and not to mock people who didn't conform to traditional expectations about gender in general.

3) Children are taught about, for example, the so-called 'Gilded Age' in terms that might make some of them question the general righteousness of the capitalist system and potentially lead them to believe that capitalism needs to be constrained.

4) Children are taught about, for example, the so-called 'Age of Colonialism' in terms that might make some of them question the general righteousness of their (white) ancestors. They might grow up believing that those ancestors did cruel or unjustified things in the process of taking control of much of the world, with various predictable consequences.

All this forms a reasonably consistent trend in American public education and how students are expected to act in it, even if the trend represents more of "movement in a direction" than "everyone reaches the extreme endpoint of this movement all at once."

This is not a politically neutral process; there are definite winners and losers. Some belief systems do not thrive and may not be able to survive in a society where children are consistently taught this way in an effective manner. A few generations of such education might lead to a future where almost no white children grow up to believe that most of the problems of nonwhites in society are caused by personal failings that are their sole responsibility. It might lead to almost no children of any color believing that people should be kept out of polite society if they do not obey traditional rules of how their gender is expected to act. It might lead to many children seeking to limit and restrain capitalism in various ways, supporting regulation, taxation of the wealthy, and so on.

...

[ack ick ptui, I feel dirty from writing some parts of that, personally, but I did it to make a point]
[GAH]

...

Anyway. The point is that this process, too, does have winners and losers. And the people who stand to lose, well, they very often try to assemble their political clout and try to use it. Sometimes, to alter the schools in order to promote their worldview (e.g. Florida). Sometimes, to starve the public schools of funding and resources and weaken their ability to affect things, while building up a parallel network of private schools and alternative schooling that will let them teach their children as they please.

Because while in some abstract 'perfect centrist' sense, "education is good," there is a real debate in this country over what education is supposed to look like, what you are and aren't allowed to teach, and so on. And this debate constantly spills out into the broader question of shaping the infrastructure of education. Should you have public education? Who gets more schools built faster? Should the money be diverted to private schools? Et cetera, et cetera, et cetera.

...

This kind of thing is why I no longer really believe in "centrist governance." Government is not like an umpire calling balls and strikes, where there is a simple objective fact at stake (did the ball pass through the strike zone or not). Government is policy-making, and policy-making by nature tends to have winners and losers, if only losers in the form of "people who didn't like that policy and didn't want the winners to win."

And which policies get represented as "neutral" or the product of a "centrist consensus" often has a lot to do with certain unspoken assumptions about who gets to be considered part of the consensus and who doesn't.
 
See, the interesting questions here get a little more meta. Because there are voices that, chronically, get expected to shut up by this process. Not in the sense that someone can't show up and talk for three minutes about them, but in the sense that there's no connection between what they say and what actually happens. They are, metaphorically, talking into a dead microphone, and nobody with authority is listening.

"Build roads" is widely regarded as a politically neutral 'centrist' policy.

But when you look at, for example, urban freeway construction in the 1960s, it is shockingly consistent that neighborhoods full of brown people, poor people, or brown poor people get torn down to build roads to service the large populations of mostly white middle- and upper-class suburban residents who, having moved out of the city center, now needed to commute back into the urban core to profit from its business and infrastructure without having to live there or pay property taxes to support it.

This is not a politically neutral process; there are definite winners and losers. But as you hopefully read me saying all this, you probably aren't thinking of what I'm saying as a "centrist" observation. If I were to complain about who won and who lost in that 'neutral' infrastructure-building program, and how it shaped our society to make it easier for certain winners to go on winning and more likely for certain losers to go on losing, I would sound like I was, oh, trying to tip the "centrist" consensus to the left.

...

As an exercise, I can do the same thing for right-wing politics.

When you look at, for example, school curriculum and organization in the late twentieth and early twenty-first century, it is shockingly consistent that the default trend is for the beliefs of the most conservative parts of the older generation to keep losing. For instance:

1) Children are taught that slavery was one of the worst evils in American history and that its legacy continues to haunt us today, as opposed to being a perhaps regrettable but very much forgettable episode with no significant consequences in the present.

2) Children were taught in succession not to mock the children of divorced women and unmarried parents, not to mock teen mothers, not to mock women who did masculine things such as wearing pants and demanding ever-increasing independence, not to mock people who felt love and desire for the same sex, and not to mock people who didn't conform to traditional expectations about gender in general.

3) Children are taught about, for example, the so-called 'Gilded Age' in terms that might make some of them question the general righteousness of the capitalist system and potentially lead them to believe that capitalism needs to be constrained.

4) Children are taught about, for example, the so-called 'Age of Colonialism' in terms that might make some of them question the general righteousness of their (white) ancestors. They might grow up believing that those ancestors did cruel or unjustified things in the process of taking control of much of the world, with various predictable consequences.

All this forms a reasonably consistent trend in American public education and how students are expected to act in it, even if the trend represents more of "movement in a direction" than "everyone reaches the extreme endpoint of this movement all at once."

This is not a politically neutral process; there are definite winners and losers. Some belief systems do not thrive and may not be able to survive in a society where children are consistently taught this way in an effective manner. A few generations of such education might lead to a future where almost no white children grow up to believe that most of the problems of nonwhites in society are caused by personal failings that are their sole responsibility. It might lead to almost no children of any color believing that people should be kept out of polite society if they do not obey traditional rules of how their gender is expected to act. It might lead to many children seeking to limit and restrain capitalism in various ways, supporting regulation, taxation of the wealthy, and so on.

...

[ack ick ptui, I feel dirty from writing some parts of that, personally, but I did it to make a point]
[GAH]

...

Anyway. The point is that this process, too, does have winners and losers. And the people who stand to lose, well, they very often try to assemble their political clout and try to use it. Sometimes, to alter the schools in order to promote their worldview (e.g. Florida). Sometimes, to starve the public schools of funding and resources and weaken their ability to affect things, while building up a parallel network of private schools and alternative schooling that will let them teach their children as they please.

Because while in some abstract 'perfect centrist' sense, "education is good," there is a real debate in this country over what education is supposed to look like, what you are and aren't allowed to teach, and so on. And this debate constantly spills out into the broader question of shaping the infrastructure of education. Should you have public education? Who gets more schools built faster? Should the money be diverted to private schools? Et cetera, et cetera, et cetera.

...

This kind of thing is why I no longer really believe in "centrist governance." Government is not like an umpire calling balls and strikes, where there is a simple objective fact at stake (did the ball pass through the strike zone or not). Government is policy-making, and policy-making by nature tends to have winners and losers, if only losers in the form of "people who didn't like that policy and didn't want the winners to win."

And which policies get represented as "neutral" or the product of a "centrist consensus" often has a lot to do with certain unspoken assumptions about who gets to be considered part of the consensus and who doesn't.
I think the Evidence code is 95% neutral. Fruit of the poisonous tree is pretty well established consensus and good faith understandings. Spano is the least neutral off the top of my head ie what counts as a proper Miranda and how far the police need to go to verify the understanding of Miranda. There's also the problem of what is a valid hearsay objection with Austin questioning the doctrine of Excited utterances being more reliable due to less ability for deceit in passion and Kagan agrees that Juror 8 was doing something just but illegal, namely testifying outside of mere consideration of evidence presented at trial.
 
Government is policy-making, and policy-making by nature tends to have winners and losers,
I like your examples of cities building roads from ‘burbs to inner core, and again and again cutting through poor neighborhoods. Non-neutral policy.

And pro-modern people getting their way about what children are taught in school, and traditional-minded people not. Non-neutral. [although I think most people really aren’t all that traditional or religious themselves, but vaguely think they should be and/or that it’s good for other people].

I guess I’m going to say, the only alternate is to be passive, such regarding as the decline of the American middle class

And even a modest decline and increase of wage polarization, and thereby chopping out some middle rungs of the ladder, has resulted in a lot of political turmoil. Maybe if in addition to transparency, we had added the goal of having policy with “quick enough” feedback ? ?

LATER EDIT — I’d almost rather have mistakes than just being passive. Yeah, busing may have been a wrong turn in school desegregation. But equalizing teacher salaries was probably the right turn. Maybe 3% difference between rural and city. Just don’t make it too complicated, for that’s one of the biggest problems of all. And by going so slowly on school desegregation, it’s allowed the opposition and missed the opportunity to produce the sense, Hey, this is just the way things are going to be, get used to it.
 
Last edited:
Fruit of the poisonous tree is pretty well established consensus and good faith understandings.
If this means the “exclusionary rule,” I don’t think that has majority support among the American public. That’s the rule that evidence obtained illegally may not be used at trial. So, someone glaringly guilty might walk scot free. Almost as if the legal system is trying to show off in some regard.

I’m center-left, and I don’t support the exclusionary rule either. I think there has to be a better way.

I think I agree with your conclusion that it has clear majority support approaching consensus in the legal profession. I just think the profession is out of step with the public on this one.

=========

I have a favor to ask you about another topic.

You seem very knowledgeable about the legal profession, and maybe you could help a little about alternate Supreme Court justices? For example, I’ve heard the name Henry Friendly but know next to nothing about him other than he’s an appellate judge (I think!).

What I’d really like is someone generally in the center on the left-right spectrum PLUS someone who has a couple of quirks so that the Alternate History is interesting.

As an analogy . . .

In the movie Patton, a young German officer is briefing Rommel about Patton and saying that he graduated from West Point such and such a year, etc, etc. Rommel blurts out, But you’re not telling me anything about the man. The young officer says, He believes in reincarnation, and he curses like a stable boy.

Now, that’s interesting!

So, yes, ideally I would like something similar about one or two alternate Supreme Court justices.
 
If this means the “exclusionary rule,” I don’t think that has majority support among the American public. That’s the rule that evidence obtained illegally may not be used at trial. So, someone glaringly guilty might walk scot free. Almost as if the legal system is trying to show off in some regard.

I’m center-left, and I don’t support the exclusionary rule either. I think there has to be a better way.

I think I agree with your conclusion that it has clear majority support approaching consensus in the legal profession. I just think the profession is out of step with the public on this one.

=========

I have a favor to ask you about another topic.

You seem very knowledgeable about the legal profession, and maybe you could help a little about alternate Supreme Court justices? For example, I’ve heard the name Henry Friendly but know next to nothing about him other than he’s an appellate judge (I think!).

What I’d really like is someone generally in the center on the left-right spectrum PLUS someone who has a couple of quirks so that the Alternate History is interesting.

As an analogy . . .

In the movie Patton, a young German officer is briefing Rommel about Patton and saying that he graduated from West Point such and such a year, etc, etc. Rommel blurts out, But you’re not telling me anything about the man. The young officer says, He believes in reincarnation, and he curses like a stable boy.

Now, that’s interesting!

So, yes, ideally I would like something similar about one or two alternate Supreme Court justices.
my main knowledge is High school Mock trial and yes, the exclusionary doctrine is probably controversial but everyone accepts it. Probably 95% of the evidence code is uncontroversial in the legal profession but outside it are more controversial outside it. Although Van Buren if read as Thomas's dissent took it could blow up the exclusionary rule. Or Juror 8 in twelve angry men.
 
my main knowledge is High school Mock trial and yes, the exclusionary doctrine is probably controversial but everyone accepts it. Probably 95% of the evidence code is uncontroversial in the legal profession but outside it are more controversial outside it. Although Van Buren if read as Thomas's dissent took it could blow up the exclusionary rule. Or Juror 8 in twelve angry men.
I understand that the legal profession has made a decision but seeing as its a foolish decision we've elected to ignore it.
 
Top