MG, she would not be required to recuse herself. No Sup Ct justice can be required to recuse himself. ACB should be able to participate in any matter in which the entire Court is called to participate.
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Originally Posted by 44AMP
I think that the "presumptively legal" and the "ducking of other issues" is a long established SCOTUS procedure.
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Indeed. Decide only the case before the Court. Avoid making a constitutional call if the matter can be resolved on lesser grounds.
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Originally Posted by AB
The problem with writing for the majority in a 5-4 majority is that if you hew too closely to a strict, textualist approach you may find yourself writing for the minority. I have no way of knowing, but I have always believed that's why the Heller decision included some of the truly horrible things such as the "existing, presumptively lawful" reference to other gun laws on the books, and the general ducking of all issues pertaining to evil black, "military looking" rifles. With no proof whatsoever, I believe that Scalia included those provisions in order to get Kennedy's vote on the issue.
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That's a reasonable guess. The solicitor general also indicated that he was opposed to a sweeping invalidation of laws the case itself didn't present.
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Originally Posted by AB
It's fine to be "true to your colors" but, if holding to your principles results in losing the case for posterity, what good do your principles serve? Perhaps "pragmatic originalism" is a viable strategy.
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You can read Renquist as the very thin end of a constitutionalist wedge, Scalia as the fatter part of the wedge, and Thomas as a vision of the log with the wedge pounded through it. By itself, Thomas' posture would see ineffective in the absence of a majority with which he can concur.
Some of Thomas' ideas may be seeds of plants the the fruit of which won't be ready for years.