The originalist’s pretense that [one can derive authoritative interpretations applicable to present disputes in this manner] makes originalism an example of bad faith in Sartre’s sense—bad faith as a denial of freedom to choose, and so the shirking of personal responsibility...[Justice Breyer also gets some criticism here].
Sartrean bad faith need not be conscious….He considers his decisions legitimate, concludes they must therefore be legalist, and constructs a legalist rationale that convinces him that his decision was not the product of his personal ideology.
Balkinization: Judge Posner Skewers Textualism-Originalism (Thomas, Scalia), And Reveals the Increasing Politicization of Judging by Conservatives
If the point is that "original intent" simple bullshite, and republican justices since 1980 are more ideologically committed to political, or returning to some pre-Warren or even pre-New Deal constitutional interpretation, than democrat nominated justices ... I agree. I think Sontomayor may be a bit of a different duck, though. Early days for her.
I agree Sotomayor is different, but in what way do you see her as being different?
Dante, I think the illustration may be her dissent in electronic survellience. I don't recall the case name, though I can find it if necessary, but she suggested in a separate opinion that short term gps suvellience (such as govt tracking of a cell phone pinging towers) may require a modification of the old expectation of privacy test. For some govt prosecution attorneys that's heresey, but it's almost a populist call. To many, if not most, citizens it seems offensive that the govt may just track you, to track you, with no good reason, just to see what you're up to. Alito touched on this, but Sontomayor was the only one to really address "common sense" concerns.
(Despite some of Alito's views, I have a soft spot for him since he refused to go with the majority on the puppy crushing videos being first amendment stuff. And, he brings his springer spaniel to work, or did so at one time)
The Obamacare and contraception cases ... I'm not so sure about. We have a majority of the Court made up by "old Catholic males." It's a strange time. The Court is simply not a place where there is a wide divergent group of individuals and backgrounds. Even Breyer was essentially a federal govt lawyer. Not a lot of bottom up views there now.
In my initial post, I assumed we all agreed that politicians have duty to vote their constituents' interests, and in cases where pols find a need to vote contrary to a majority of their constituents' wishes, they have a duty to state why, and persuade people to change their minds.
