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Professor Balkin makes a fantastic point. If Scalia were truly an originalist, he would not be able to adhere to Bolling v. Sharpe and Loving v. Virginia.

I’m sure if someone ever cornered Nino, he would say something about stare decisis, and following these precedents. I once asked him a similar question about how he affirms all of the Criminal Procedure cases from the Warren Court which are patently unoriginal, and he muttered something like “Nah, its water under the bridge.”

But when is it water under the bridge? And shouldn’t stare decisis be weak for Constitutional Law. Scalia has called himself a “faint hearted” Originalist. What exactly does that mean?

The normative appeal (to me at least) of originalism is an an attempt at objectivism. That is, making the judicial resolution as much as possible about objective facts (history) and as little as possible about a judge’s personal predilections. Deciding when to be an originalist seems to give a judge a lot of discretion. This is similar to finding when a statute is ambiguous, or if a previous opinion is holding or dicta, a topic I have written about here.

This is a topic I’ve been thinking about for some time.  I call it Selective Originalism. It is similar to Selective Amnesia. Originalists pick and choose when to forget about the history behind the Constitution with respect to certain issue and cling to stare decisis (e.g., Brown, Bolling, and Loving) but are dogmatically clingy to it with respect to other areas and ignore stare decisis (e.g., Scalia on Roe/Casey)

Further, why do originalists seek to be originalists in some areas (guns, federalism, confrontation clause), but not in others (criminal procedure). Is this Hypocrisy? Water under the bridge?

Further, if Bolling v. Sharpe was wrong, Aderand would be wrong.

Perhaps one way to reconcile this comports with a Presumption of Liberty. When an unoriginalist opinion promotes liberty (the exclusionary rule, the right to keep and bear arms, confrontation clause rights), it is OK to ignore the history, and just say stare decisis. But what happens when an unoriginalist opinion infringes on liberty? More to come.

I launched this blog to little fanfare on September 28, 2009. 1 month later, I’m bloggled (my dad made up that word. Bloggled is defined as a blog boggling your mind).

I’ve been linked to by Instapundit twice (here and here), by the Volokh Conspiracy twice (here and here), and Above The Law thrice (here and here and here).

I feel blessed that people have enjoyed my blog enough to read it, link to it, and comment on it.

I promise that I will keep up the blogging, and hopefully my next month anniversary will be even more successful.

And while Galt’s Gulch remains elusive, I consider this blog my personal virtual Galt’s Gulch. Who is John Galt?

At USA Today, Jane Biskupic describes the questioning style of each of the Nine Justices.

See if you can match the Justice with the Style.

• Head-on
• In late for the kill
• Rat-a-tat-fact
• In-your-face
• Setting the record straight
• Hydra-headed hypos
• Bottom line
• Mr. No-Nonsense
• Silent in his seat (too easy)

Answers after the Jump:

(more…)

H/t atl

The 2003 New Haven fire lieutenant examination had two parts: a multiple-choice written test and an oral exam. Ranking on the eligibility list depended on how the City chose to weight the scores on the two components. The oral exam was a better way to assess candidates’ skills and abilities than the written test and had less disparate impact on African-Americans. Yet the City chose to weight the written test 60 percent and the oral exam 40 percent. This weighting reduced the validity of the overall selection process; it was arbitrarily chosen, without any pretense that it was job related; it was contrary to standard practice among similar public safety agencies, where the norm is to weight the oral component 70 percent; it had a disparate impact on African-American candidates; and it will prevent the plaintiff from being promoted to the rank of lieutenant, even though he is one of the most highly qualified candidates.

Justice Scalia’s concurring opinion, warning about the inevitable clash of the equal protection clause and disparate impact.

I am on a brief layover now, so more time to blog later. More here http://abovethelaw.com/2009/10/black_firefighter_sues_city_of_new_haven.php

SCOTUSBlog Reports:

Supreme Court Justice Ruth Bader Ginsburg spent a night in the hospital Wednesday after experiencing an “adverse reaction” to medication, the Supreme Court reported Thursday morning.  She had boarded a plane that was to take her to London where she and other members of the Court were to attend opening ceremonies this week for Britain’s new Supreme Court.

According to the Court’s statement: “Prior to the plane taking off, the Justice experienced extreme drowsiness causing her to fall from her seat.  Paramedics were called and the Justice was taken to the Washington Hospital Center as a precaution.”  After an examination, “she was found to be in stable health,” it added. Held overnight for observation, she was released Thursday morning, the statement said.

This marked the second time in recent days that the 76-year-old Justice was hospitalized after reacting to medication.  Late in September, she stayed overnight after feeling ill an hour after receiving an injection for an iron deficiency.  She returned to work the following day.

In Wednesday’s episode, the Court said Thursday, Justice Ginsburg experienced “an apparent adverse reaction to a sleeping aid combined with cold medication she took immediately after boarding” the overnight flight.  At the hospital later, “doctors attributed her symptoms to a reaction caused by the combination of a prescription sleeping aid and an over-the-counter cold medication,” the statement said.

Justice Stephen G. Breyer was also on the sane fight, but he rescheduled after Justice Ginsburg had fallen ill.  He took a later flight.  Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia are also attending the ceremonies in Britain.  Because of the time demands for flights and the schedule for the ceremonies, Justice Ginsburg’s hospital stay apparently will prevent her from attending.

Jim Lingdren at Volokh Reports:

MSNBC is reporting that Justice Ruth Bader Ginsburg was hospitalized after she fell out of her seat in an airplane before takeoff. “Extreme drowsiness” from a combination of prescription sleeping pills and OTC cold medicine was blamed.

Our prayers are with Justice Ginsburg.