The choice of Judge Garland reflects the ersatz virtue of Obama: he is not simply a ‘Centrist’, of the most unimaginative kind, but more importantly an abject political/legal conformist. The safe choice of a ‘Centrist’ a center defined by the rise the Neo-Confederate/Originalists and the pernicious effect it has had on American Jurisprudence, since the appointment of Rehnquist by Nixon: see The Rehnquist Choice by John Dean and The Partisan by John A. Jenkins for the political particulars on that appointment.
Meant to mute, if not destroy, the ‘sociology’, argued by conservatives, rather than law as the foundation of Brown I&II, that became the Party Line of The Federalist Society and their fellow travelers. The influence of the Federalists has been nothing if not completely pernicious.
On the question of Hugo Black let his majority opinion in Korimatsu stand as witness to his status of political pariah, not to speak of betrayer of the letter and spirit Bill of Rights. Let Justice Jackson’s dissent remind all of us about the power of dissent in the face of actual crisis.
Should we compare Black’s opinion to Scalia’s oft quoted:
‘Mere factual innocence is no reason not to carry out a death sentence properly reached.’
But adding this ‘explanation/interpolation’:
‘However, Justice Scalia’s words regarding that decision are often quoted
out of context, leaving readers with the mistaken impression that he
believed it was perfectly acceptable for our legal system to execute
people whom we knew to be innocent. In the fuller context, what he was
actually expressing was that once a person had been fairly convicted and
sentenced in court, and had exhausted all his possible avenues of
appeal, a last-minute claim of innocence was not by itself sufficient grounds for further delaying the carrying out of the sentence.’
One could ask how this ‘explanation/interpolation’ fits into the Neo-Confederate/Originalist ideological reading of law?