Rick Hills doesn't think it makes sense to call Judge Sonia Sotomayor a "legal realist."
Meanwhile, Politico reports "legal realism" may become the new "judicial activism."
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Legal realism has nothing to do with following precedent. Legal realism was the intellectual movement of Holmes and Llewellyn.
In any event, and more generally, I think conservatives (including you) are way, way too obsessed with this notion of abstract "correctness" of judicial decisions. Judges are going to inevitably get things wrong. That's not necessarily the worst thing in the world, as long as the system as a whole works and is consistent and coherent.
Do you really believe that if the Supreme Court tomorrow ruled that the "central government would have to cease about 95% of what it is doing as unconstitutional" that what would actually happen is that the "central government" would cease 95% of its activities?
I ask because it often seems to me that some right-wing libertarian types actually believe that gosh, if only the Supreme Court would overturn Wickard and other New Deal precendent, then we wouldn't have these laws that right wing libertarians dislike (the FLSA, NLRA, Civil Rights Act of 1964) -- despite the fact that these laws enjoy overwhelming popularity. That doesn't seem, um, "realistic."
any constitutional theory that says that the Supreme Court must overturn precedents, the result of which would be the declaration of 95 percent of the federal government is unconstitutional is one that is insufficiently respectful of precedent.
Really, you confuse being a nation of laws with being so worshipful of the abstract purity of laws that we are willing to absolutely uproot and trounce people's reasonable, settled expectations with respect to the society they live in. You worship legal abstractions as if they were a deity.
I guarantee you that your average Supreme Court justice over history is a lot smarter than you are (or I am).
What do you hope to accomplish? Do you really think that the abstract value of a "correct" rather than "incorrect" constitutional interpretation is sufficient to justify this?
We adhere to precedent because the stability and consistency that you say you want is only really achieved if there is some respect for precedents, even precedents that may be wrongly decided.
Humility, you know, is [...]
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