Thursday, December 09, 2004

Thoughtful Piece on Bush, Scalia, & Thomas

I know it's a little late, but I just discovered an impassioned endorsement of George Bush for president that appeared in the September/ October 2004 issue of Legal Affairs. The article, "The Scalias Court" is written by Northwestern University law professor and historian, Stephen B. Presser. Professor Presser argues that a vote for Bush is a vote for judicial restraint. That is, President Bush will appoint judges and justices who share the Scalian philosophy of applying the law as written (rather than divining legislative intent).

Professor Presser makes no bones about his negative view of an activist judiciary, stating the Democrats believe "that it is the job of the judiciary to alter the Constitution to meet the changing needs of the times, and to extend rather than to overturn recent rulings regarding race, religion, and abortion made by the Supreme Court and other federal courts . . .[.]" Presser goes on to say that the "mystery of life" passage from the plurality opinion in Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 851 (1992), represents the sham progressivism of the current court: "[a] naive lunacy . . . [that is] a prescription for anarchy and chaos, not the rule of law." OK, sounds like someone is guilty of slippery-slopeism here. I don't think the opinions of the Rehnquist Court will foster a new age of lawlessness and anarchy.

Just a side note on Casey. Scalia's vitriolic dissent in Casey (505 U.S. at 979-1002) is often cited by pro-choice advocates as proof of Scalia's political agenda to overturn Roe v. Wade, 410 U.S. 113 (1973). Indeed, Scalia's Casey dissent is a good roadmap to his judicial philosophy. (E.g., there is no liberty interest in a woman's right to choose because "(1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed . . .[,]" that's Scalia plain & simple!)

But, anyway, the Presser piece presents a well-versed argument (with references to The Federalist Papers, of course) supporting Scalia's judicial philosophy of plain text interpretation of the law, and the maintenance of distinct boundaries between legislation and adjudication. Give it a look!

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