People don't really understand the difference between American Constitional Society ("ACS") membership judges with Federalist Society judges ("Fed Soc.").

Another way of putting it are the judges who favor a "living breathing" (i.e., "Weathervane" Constitution) with those who favor a Constitution allowing for some predictability and consistency.

So here's a little story:

---A state passes a law that basically says, "The only candy people may bring to any public library is a single lollipop."

---Someone brings a Snickers bar into a library and is fined. He contests the law as unconstitutional (whatever, it's an example, no nitpicking!). :-)

--The Fed Soc Judge looks at the case and says, "The law says Lollipops only. You brought a Snickers bar. You're screwed."

--The ACS Judge says, "Well, I --personally-- like candy, and I don't like this law, and maybe the statute was written before Snickers bars existed!"

--The Fed Soc Judge says, "Um, if the law was written long ago, then it's for the legislature to write an amendment allowing for other kinds of candy."

--The ACS Judge says, "No! I --LIKE-- candy! Lollipops are candy, and so are Snickers bars! Good enough for me! He didn't violate the law!"

5 years later . . .

--The ACS Judge says, "Well, another guy was convicted, but this time with a milkshake. Well, we DID have that precedent allowing for Snickers bars, when the statute said "lollipops only." AND . . . milkshakes have sugar in them, . . . so . . .

10 years later . . .

--"This public library / Dairy Queen substation is open 24 hours. Have fun taking BMs, all you homeless people!"

That's the difference.

Fed. Soc. Judges do what the law SAYS. ACS Judges interpret the law the way they PERSONALLY think it should be, to hell with the statute. And to hell with letting a legislature fix things.

A real life example: Judge Pregerson of the 9th Circuit, often honored by the ACS, has specifically stated that he will NOT follow immigration law and statutes because he doesn't agree with it.

Note: He's --a FEDERAL JUDGE-- who says he won't follow FEDERAL LAW.

That's the the kind of judge the ACS honors.

The fact is, Scalia at least has a point. And I have encountered numerous young lawyers who sputter at Court decisions where an ACS-type judge has just contorted themselves around a statute to get to their personal preferences.

The marketplace of ideas is actually converting followers to Scalia's way of thinking, because when your legal center is a weathervane, it can get a little exhausing.

Your example demonstrates your bias.

more accurate would be

ACS Judge - There is no Constitutional basis for limiting the right to have candy in the Library. Law is Unconstitutional

Federalist Judge - You broke THE LAW - mandatory minimums mean that you will be in jail for 10 years.

Conservative demagougic Pols chant Law And Order, Law And Order, and accuse the ACS judge of "legislating from the Bench"

5 years later, 1/3 of the prison population is made up of middle class kids in jail for lollipop felonies,

Now the public demands that their kids be let go, so the moderate legislature passes a law making lollipops in libraries an adminstrative law violation

10 years later,

Conservative pols keep chanting Law And Order and run against the Moderate candidates as having freed lots of convicted prisoners into the population and for installing ACS judges that are "soft on crime".

'Fed. Soc. Judges do what the law SAYS.'

Judges are supposed to judge the law and the situation in front of them. We don't need someone in a robe to say 'this is the law, you broke it'. The judges on your side don't want that either. It's just the method they use to get you to support them. Your bias is why it works.

degsme:

Your example demonstrates your bias.

more accurate would be

ACS Judge - There is no Constitutional basis for limiting the right to have candy in the Library. Law is Unconstitutional

While I enjoyed this post overall, the ACS judge would be ruling based on an incorrect principle. While there is indeed no constiutional basis for limiting the right to have candy in the library, there is no constitutional basis for the Court to strike down a law passed by the legislature, no matter how dumb it is, so long as such law is not otherwise specifically prohibited by the constitution. There need not be a constitutional basis for any and every law.

The real-life examples I have of ACS-type federal judges who literally look at a statute, see that it applies/doesn't apply from its text, and then contort themselves ass over tea-kettle to get AROUND its text, to what they WANT the law to say are just far too easy.

Unfortunately, they're also pretty dry. I thought the lollipop example would explain the "Law by Weathervane" thinking, but people want to add little lagniappes to the example in an effort to (whatever, fill it in). Ah well. Poor lollipop, we hardly knew ye. ;-)

Yes, that is exactly what their job is. What is the law, in Supreme Court's case Constitution, and was it broken? Not what you want. Not what you think is right. etc. The appropriate response is to change the Consitution if the need arises.

I think you have your understanding of the Constitution backwards. Note the wording of the 9th and 10th Amendments:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

IOW unless The Constitution cedes the right to regulate to The Government, then The Government is proscribed from such regulation. So unless you can show how the lollipop legislation derives from an empowering clause in the US Constitution (commerce clause etc.) then it automatically can be struck down.

and then contort themselves ass over tea-kettle to get AROUND its text

You mean like Scalia, Thomas et. all did in Bush V Gore on state's rights?

or how Scalia did in Raich?

Or how Scalia and Thomas did in Kelo?

ACS/ Originalists - both do the same thing. You just don't like the political philosophy of the ACS guys and you DO like it for Scalia and Thomas.

But its a political call either way. And pretending otherwise is dishonest

degsme:

I think you have your understanding of the Constitution backwards. Note the wording of the 9th and 10th Amendments:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

IOW unless The Constitution cedes the right to regulate to The Government, then The Government is proscribed from such regulation. So unless you can show how the lollipop legislation derives from an empowering clause in the US Constitution (commerce clause etc.) then it automatically can be struck down.

No, I do not. A state can make a dumb lollipop law- it is not a power delegated to the U.S. by the constitution, or prohibited by it. That's the empowering clause- left to the states.

What is the empowering clause that allows for NYC laws regarding curbing your dog?

OK at the state level, first off the Incorporation Clause does impose the US Constitutional strictures at least in part onto states. How much is in fact a non-trivial aspect of SCOTUS work.

One of the tests used, is whether that sort of regulation was "common law" at the time of the signing of the Constitution. This is in essence what Roe revolves around. The fact that there was no consistent common law plus the intrusion into constitutionally protected spheres (Am4) precluded the state from regulating.

Now if the state could show that its Lollipop law in libraries was neutral (applied to all foods) and served a compelling public purpose (protecting the public asset of books by keeping food off them), then both the ACS and the anti-ACS judge would probably rule that it was a perfectly acceptable law.

So lets take it into something that is more accurate.

TX passes a law that protects minors from pornography - which they define as sexually explicit content. A teenage woman goes in and asks for Our Bodies Ourselves and is refused. She and the authors sue on the ground of Free Speech and Freedom of The Press rights.

An ACS judge would overturn such a law because it clearly violates Am1 AND the contemporary understanding of what is "age appropriate material" for a teenage woman means that there is no "compelling interest" for the state to regulate in this area.

An "Federalist" would either

• revert to Children Are Chattel and have no rights, upholding the law
• pretend that "states' rights" trumps free speech rights - also upholding the law.

In reality in the latter case the "anti-acs" judge would be making it up simply because s/he is uncomfortable with the concept of teenage sexuality. BUT because they can find a reasoned legal basis for their POLTICAL viewpoint, they will write it and pretend it is "originalism".

According to my namesake the "lolly pop "type of law here would be irrelevent.Since the only way to enforce such a law is through the power of goverment and beacuse the goverment (federal,state etc.) does not have the right to impose such laws (it's not enumerated)or have the power to impose such laws .the law is irrelevent and nothing more that mental masturbation.The idea that states can do such nonsense is also wrong.ALL GOVERMENT ENTITIES ARE OBLIGATED TO FOLLOW BASIC CONSTITUTIONAL PRINCIBLES AND ARE THE SAME IN THIS CONTEXT.If there is no right in the constituion enumerated for the "state, "then the "state" cannot do it or except the power (though legislation) in order to weild the power.IF you read madison on this very idea then maybe you'll al see the light. A good place to start (but not on the specific point.it will help to understand the concept here)is 'a remonstrance and rememberance writen when ol' james was govoner of virgina.The ideas of extreemly restricted goverment power in "civil scociety" was spelled out there.

It is you that say I, and other Federalists, would not use the same yardstick for ACS/Originalists. This is in fact untrue. I agree not with the judge, and their, either side, political judgements, but rather with the words written on paper in the Consitution.

Well you all cite Scalia and Thomas as paragons of this "originalist" approach. And yet as we have seen yet again in the Internet Kiddie Porn ruling handed down by Scalia yesterday, he is more than willing to keep extending the Commerce clause as he did in Raich. Except this time, if I pretend to have kiddie porn in any form of word, I am now guilty of a sex crime.

So first we had Scalia use the ISC to regulate what we can consume, now its what we can say. How much longer before THINKING about pretending to commit a crime will itself become a crime?

Sorry, the fact that you (and I mean the plural you here) have been so supportive of Scalia, Thomas, Alito, Rhenquist, and Roberts as paragons of "strict constructionist" approaches, discredits any claims that you might make to actually holding it to the words in the Constitution.

Heck your opposition to Kelo is itself proof enough that you do NOT judge based on

"the words written on paper in the Consitution"

but rather what you believe them to mean.

If that is the case, why do you object to Kelo?