Page 15 - Substantive Due Process News Today

Focused on making sure that i found the right precedents and applied them faithfully. as i mentioned with respect to my methodology, part of the process is receiving information from the parties in a case, and the parties write briefs and in most cases they identify the precedents that they at least believe are applicable and then the court does its own legal research as well to determine whether all of the relevant cases have been identified. and then you look to see whether there is anything t...

Will be vilified as unwilling to ascend to this new orthodoxy? >> so senator, i understand that concern and because there are cases that are addressing these sorts of issues, i am not in a position to comment about either my personal views or whether -- >> im not -- and im not asking you to. justice alito in the obergefell case wrote, i assume those who cling to the old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they w...

Amendment substantive due process. >> who gives them the right to do that? if its not mentioned in the constitution, where does the right of the court to substitute its views for that of the elected representatives of the people, where does that come from? >> the court has interpreted the 14th amendment to include this component, the unenumerated right does substantive due process and the court has said that the kinds of things to qualify are implicit in the concept of ordered liberty, excuse me...

Are -- but they also say that they are in favor of the very kind of legal thought processes that led to the instance of the discrimination in the first place. so what braun is talking about a case called loving v. virginia that allows for interracial marriages to happen in this country and that was decided on substantive due process grounds that people have substantive rights to marry, as marsha blackburn said, the right to marry is not in the constitution. we have inferred that the constitution...

So it is good for her to be able to answer these accusations and these characterizations of her record directly to explain it but i think while she has done a very good job and everybody thought she would be great at this part of the process there are openings there that her critics are going to leverage as she gets around to the folks in the questioning today. >> interesting as we continue to point out her resume impressive as boekt sides of the aisle have frequently acknowledged. a harvard law...

Will be vilified as unwilling to assent into this new orthodoxy? >> senator, i understand that concern. because there are cases that are addressing these sorts of issues im not in a position to comment about either my personal views or -- >> im not asking you to. justice alito in the ober filed case wrote that ice and those who cling to the old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as ...

Want to see it repeated. he was asking her about her faith and about her family and about other nominees to the process that he thought have not been treated fairly. it is clear the republicans want the make a point they will handle it differently and felt the recent nominees were treated poorly and having to relive stuff she wasnt a part of. he said we arent going to do that regardless of your personal faith or family situation. well treat you with respect. they are smarting from those hearings...

Correct? >> if memory serves, yes. substantive due process and i think there might have been equal protection concerns mentioned as well. >> and the supreme court has applied that, somehow fairly mysteriously by saying its created by the confluence of the fifth amendment and the 14th amendment to the united states constitution. but historically, its been applied in ways that seem to sanction explicit policy making by the courts. for example, the locker in versus new york case which i know you ta...

Not? >> the supreme court has considered that to be an application of the substantative due process clause of 14th amendment. >> and it doesnt mention anything about substance when it talks about due process. the 14th and sfif fifth amendment talks about due process of law, correct? >> correct. >> one of the things that concerns me is here is an example of the courts finding a new fundamental right mentioned nowhere in the document of the constitution thats the product of simply court-made law t...

Scott that adopts the substantive due process argument to determine the constitutionality of various laws. perhaps the most recent decision by the supreme court that was a dramatic departure from previous laws in the states and in the nation was the oberfeld case that dealt with same-sex marriage. in the opinions that were written , there it was noted that here we are at the time 234 years after the constitution had been ratified, 135 years since the 14th amendment had been ratified, that the su...