Thursday, December 23, 2004

Center for American Progress: Ten Things President Bush Doesn't Want You to Know About Scalia & Thomas"

Salon.com's War Room alerted this blogger to a list, "Ten Things President Bush Doesn't Want You to Know About Scalia & Thomas," posted on the website of liberal think-tank Center for American Progress. As you'd expect from most liberals (and some conservatives), Scalia's jurisprudence is completely mischaracterized. I doubt many of Nino's most ardent critics have ever read any of his opinions. That conclusion is bolstered by a 2003 Findlaw survey, discussed in the above-mentioned Salon.com War Room posting, that 65% of Americans can't recall the name of one Supreme Court Justice. Oh well, I guess many folks find the Court rather boring. Remember the two or three Supreme Court T.V. dramas ? The networks pulled the plug on all of them after just a few episodes. Only law geeks like me dig the Court. Still, don't knock Nino if you haven't read him.

Anyway, back to the Center for American Progess (CAP) "Ten Things" list. First, it makes the dubious assertion that Justice Scalia "supports sex discrimination." CAP bases that statement on Scalia's dissent in U.S. v. Virginia, 518 U.S. 515 (1996)(holding VMI's male-only admissions policy violates Equal Protection ). But Scalia never wrote that he supports sex discrimination in his dissent. Rather, he discusses the history and tradition of all-male military schools in the United States, based in large part by the fact that (until recently) only men fought in combat. He mentions that the four service academies began admitting women, " not by court decree, but because the people, through their elected representatives, decreed a change."(Citing Pub. L. 94-106, Section(s) 803(a), 89 Stat. 537-538 (1975)). Scalia continues that "[t]he people may decide to change the one tradition [fed.-funded single-sex military schools], like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law." True to Justice Scalia's textualist/originalist philosophy, his U.S. v. Virginia, dissent is another argument that neither the text or intent of the Constitution supports "tak[ing] the power of changing rights away from the legislature and giv[ing] it to the courts." (See Scalia, A Matter of Interpretation, at 41.) CAP distorts Justice Scalia's jurisprudence by asserting that his U.S. v. Virginia dissent shows that Nino "supports sex discrimination."

CAP's list continues with the anti-Scalia hyperbole, stating that Scalia supports "criminalizing consensual sex." CAP cites to Scalia' dissent in Lawrence v. Texas, __ U.S. __ (2003)( holding that a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct violates Due Process) . Here's a passage from his Lawrence dissent that reflects Scalia's true belief on the matter:

"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change." (Emphasis added.)
This well-reasoned passage again shows that Scalia is consistent in his view that state legislation of certain (non-Constitutionally based rights) should not be undercut by federal judicial fiat. It does not support the summary conclusion that he supports the criminalization of consensual sexual acts.
The CAP list also distorts Scalia's opinions on the rights of the disabled. Citing Scalia's dissent in Tennessee v. Lane, __ U.S. __ (2004), the list states he would "allow states to discriminate against the disabled." If one reads that dissent closely, however, there is no support for that conclusion. Scalia cogently argues that the Court's majority gives an overly expansive reading of Section 5 of the 14th Amendment (Congress "shall have power to enforce, by appropriate legislation, the provisions" of that Amendment) by holding that the Americans with Disabilities Act (ADA) can be enforced by requiring states to provide court access to the physically disabled. Giving a textualist/orginalist reading to Section 5, Scalia writes:
"Requiring access for disabled persons to all public buildings cannot remotely be considered a means of 'enforcing' the Fourteenth Amendment. The considerations of long accepted practice and of policy that sanctioned such distortion of language where state racial discrimination is at issue do not apply in this field of social policy far removed from the principal object of the Civil War Amendments."
This blogger wants to chronicle all dialogue about Justice Scalia, both pro & con. But, it would be nice if commentators provided actual support for their conclusions on Nino's judicial record.

Tuesday, December 21, 2004

NARAL Features Flash Media Short, "Creatures from the Far Right: Supreme Court Under Attack," Scalia as Judgezilla

In response to a "Supreme Court retirement looming," leftish activist group NARAL: Pro-choice America posted on its website a Flash media film short: "Creatures From the Far Right: Supreme Court Under Attack." The artful, but sophomoric film short was created in the style of a 1950's horror movie trailer, complete with fake film scratches and cheesy sound effects (filmed in "Lack-O-Vision"). Justice Scalia appears as "Judgezilla"- Godzilla's body with a picture of Nino as the head. I'm sure Scalia is proud to be so honored in the year of Godzilla's 50th anniversary. The film short ends with President Bush as "King Wrong" who"wields his brutish strength to pack the Court with extreme judges and overturns Roe v. Wade." Can the toy tanks and jet fighters of the Left save Roe from the monster Right!

Monday, December 20, 2004

Washington Post: Some Clarification on Senator Reid's Support for Scalia

In the never-ending media hyperbole over Senate Majority Leader Reid's 12/05/04 statements on "Meet the Press" favoring a Scalia CJ nomination, Charles Babbington wrote a piece in yesterday's liberal Washington Post titled "Reid Vows to Stand Up to GOP" (free registration required). Babbington writes that news of the "Meet the Press" remarks "alarmed many liberal and abortion-rights activists who consider the staunchly conservative Scalia unacceptable."
The article quotes Senate Democratic Whip, Charles Durbin (Il.), who claims to have talked to Reid about his Scalia remarks. Durbin recalls that Reid asked people "to listen to what he [Reid] said." Babbington concludes after reviewing the 12/5 "Meet the Press" transcript "that Reid never clearly endorsed Scalia for chief justice, and he mixed praise for the justice's intellect with questions about his ethical behavior." The article concludes with quotes from Senator Reid, who hopes President Bush would "quietly show top Democrats a list of possible [CJ] nominees and say, 'I know you don't like any of them, but tell me who you like better than the rest.'"

People for the American Way Foundation: "Scalia Would Be Disastrous Supreme Court Pick"

In a 12/08/04 news release, Norman Lear's liberal People for the American Way Foundation ("PFAW") responded to recent media speculation on a potential nomination of Justice Scalia for Chief Justice of the United States. Commenting on what a "disaster" a Scalia court would be, PFAW President Ralph Neas said" Scalia’s entire 18-year Supreme Court record – including his temperament, his ethically questionable conduct, and his consistent tendency to allow his ideology to remake the law – would make a compelling case for his rejection by the Senate.” If Mr. Neas thinks the Senate will reject Scalia, then why is PFAW so worried?

If you visit PFAW's website, be sure to check out the foundation's May 2004 report titled "Courting Disaster." The report is chock-full of the usual liberal histrionics over the horrors of a Scalia-led Court.

Sunday, December 19, 2004

Raich Medical Marijuana Case: New Deal Wheat Farmer Meets New Millennium Weed Farmer - Scalia Laughed at Wickard v. Fillburn, but now?

Last week the oral argument transcript (pdf) for Ashcroft v. Raich (03-1454, the California medical marijuana case) was posted on the Supreme Court's website. The issue in Raich is whether the federal Controlled Substances Act, 21 U.S.C. Section 801 ,et seq., exceeds Congress’ power under the Constitution's Commerce Clause (Art. 1, Sec. 8, "Congress shall have Power . . . to regulate Commerce . . . among the several States") as applied to the intrastate possession and growing of marijuana for personal medical use.

Raich oral arguments were held on November 29, 2004. Justice Scalia asked Solicitor General Paul Clement (Transcript, at 6-7) if he thought is was "strange" that the feds are making arguments based, in part, on cases like Wickard v. Fillburn, 317 U.S. 111 (1942). Wickard upheld a federal regulatory program to encourage interstate wheat commerce, but surely the government in Raich isn't trying to encourage interstate pot trade?

Some background on Supreme Court Commerce Clause cases is in order here. As mentioned above, the Constitution's Commerce Clause gives Congress power to regulate interstate commerce. But powers not expressly granted to Congress, are reserved for the States under the 10th Amendment of the Constitution. A major tenet of the U.S. federalist system is that States have some sovereign power to regulate local matters, whereas the federal government has specific powers to deal with matters of national concern. The question then arises: does Congress have power to regulate intrastate commercial activities, or is this a matter left to individual States? Well, the Court has held that some purely intrastate local economic activity can, in the aggregate, affect interstate commerce.

Back to Wickard v. Fillburn. Wickard extended Congress' Commerce Clause power by holding that wheat grown by farmers in a state for consumption on a grower's farm, had an aggregate economic effect on interstate wheat commerce. All the farmers using home grown wheat would, presumably, buy less wheat through interstate commercial channels. So, Congress could regulate even home grown wheat that never actually entered the interstate market for wheat. The poor farmer in Wickard violated a federal wheat marketing quota by growing his own.

Wickard seems like a tortured analysis of Congress' Commerce Clause power, but remember the times - the Great Depression, FDR, the WPA. If Nino had been on the Court in 1942, he might have argued that the original meaning of the Commerce Clause wouldn't support such federal micro-management of intrastate affairs. While Justice Scalia may argue against the "Living Constitution," the reality is different. The Court's holdings are influenced by political and social movements, like it or not. The Commerce Clause was broadly interpreted in cases such as Katzenbach v. McClung, 379 U.S. 294 (1964)(holding restaurant serving only locals could be regulated under federal act because it bought food through interstate supply channels), allowing Congress to implement the policy goals of the Civil Rights Act of 1964.

Recently, however, the Rehnquist Court has been willing to "just say no" to expansive Congressional Commerce Clause power. For example, in U.S. v. Lopez, 514 U.S. 549 (1995) the Court held that Congress had exceeded its Commerce Clause authority with the Gun-Free School Zones Act. Writing for the majority, CJ Rehnquist reasoned that "the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Anyway, enough digression about the Commerce Clause. Back to Scalia in Raich

Nino had the several questions for Petitioners' counsel, Boston U Law Professor Randy Barnett, author of the well-researched, libertarian and originalist, Restoring the Lost Constitution: the Presumption of Liberty . (And blogger at The Volokh Conspiracy.) Scalia's first questions seemed to support the scope of Congress' power under the Controlled Substances Act. (See Transcript at 27-29.) In response to Professor Barnett's arguments distinguishing Lopez, Scalia said that Wickard v. Fillburn applies. ( Id. at 39-41.) On page 40 of the Transcript, Nino said, "I always used to laugh at Wickard, but . . ." it stands for the proposition that intrastate activity can aggregate to affect interstate commercial activity (and thus be within Congress' Commerce Clause authority).

Professor Barnett tries to distinguish Wickard by arguing that the weed grown in California is not an economic activity because it's grown by the medical users for their own consumption. (Transcript at 42-3.) But Justice Scalia countered by saying that the home grown medical pot was like the wheat in Wickard: "since its grown on the farm, it doesn't have to be bought elsewhere, and that makes it an economic activity."(Id. at 43)

If we can draw any conclusions from Scalia's line of questioning during the Raich oral arguments, it looks like he's going to support Congress on this one. That might seem inconsistent with the Scalian originalist/textualist philosophy. I mean, all law students "laugh" (or shake their heads) at Wickard when they first read the case. But Scalia seems willing to argue that Wickard applies to California medical home grown sticky bud. Hey, Nino don't Bogart that Commerce Clause!

Anyway, at lease one commentator suggests that federalist Justices (like Scalia, Thomas, and Rehnquist) will strike down broad Congressional Commerce Clause power when it regulates something they like (e.g., guns in Lopez), but support Congress when it deals with something the Justices are against (e.g, dope cultivation in Raich). (See 12/14/04 NY Times editorial by Adam Cohen discussing Lopez, Raich and the swinging pendulum of Supreme Court Commerce Clause interpretation.) But another commentator, University of Wisconsin Law Professor Ann Althouse, doesn't think the federalist Justices are being inconsistent in their Commerce Clause jurisprudence. In any event, stay tuned for the Court's opinion in Raich.


Friday, December 17, 2004

Scalia to Speak in Baton Rouge on January 22nd

According to an announcement that appeared in yesterday's Baton Rouge Advocate, Justice Scalia will be the guest speaker at the Knights of Columbus Council 969's Centennial Celebration Banquet on Jan. 22, 2005. The event will take place from 11:30 a.m. to 2 p.m. at the Holiday Inn Select. Tickets are a bargain at $40, and can be purchased in advanced by calling (225) 275-8985. There was no information given on whether any recording devices would be allowed at Nino's speech.

Head of Anti-Defamation League Comments on Scalia's November Synagogue Appearance

National Director of the Anti-Defamation League, Abraham H. Foxman, wrote an editorial piece that ran in yesterday's New York Sun, commenting on Justice Scalia's November visit to New York City's Shearith Israel Synagogue (see post from 12/07/04). The editorial is written in a gentle, erudite style, refreshingly void of the usual rhetorical flak. (See, e.g., editorials from the New York Times and Washington Times discussed in a posting yesterday). The editorial intelligently questions Justice Scalia's faith in religiously-neutral legislation. Citing to Founding Father James Madison, Mr. Foxman writes that the First Amendment contains a " constitutional wall between church and state . . . [, created] to ensure that minority faiths and nonbelievers could hold their ground in the political arena."

The editorial's content and tone reflect Mr. Foxman's intelligence and wisdom, undoubtedly gained from being on the front lines of religious discrimination. Foxman has a JD from NYU School of Law, and interestingly, survived the Holocaust because he was raised Catholic by his Polish nanny. Sounds like a Mensch to me!

Here's the text of Foxman's New York Sun editorial, titled "Concurring in Part, and Dissenting in Part:"


Supreme Court Justice Antonin Scalia recently addressed an interfaith conference on religious freedom at New York City's Congregation Shearith Israel, also known as the Spanish and Portuguese Synagogue. Shearith Israel is the oldest Jewish congregation in North America, founded in 1654 by 23 Sephardic Jews who fled to Dutch New Amsterdam from the Portuguese colony of Brazil. These refugees sought a safe haven in which to practice their faith because the Portuguese had brought the dreaded Inquisition to the New World.
The thrust of Justice Scalia's message was that America - from its very beginnings - has been largely inhabited by peoples of faith and, as a result, the nation has prospered. He went even further, however, and questioned the established American legal doctrine of maintaining a strict separation between matters of church and state, arguing that the "founding fathers never used the phrase 'separation of church and state' " in the Constitution. According to Justice Scalia, the neutrality mandated by the Constitution insofar as the state's participation in religion is concerned "is not neutrality between religiousness and non-religiousness; it is between denominations of religion." Thus making a claim for more governmental support for religion in general, the justice maintained that the scope of such religious neutrality should be left to the democratic process.
Respectfully, Justice Scalia's homily was only partially correct. He is absolutely right that America is and has been throughout its history the most religious democracy in the modern world. He is also right that much of this nation's great strength and prosperity derive from the fertile ground of free conscience and the constitutionally protected ability to cultivate one's faith for the good of the commonwealth. But he is simply wrong to place these miraculous traits in opposition to the American ideal of church/state separation. To the contrary, this important safeguard - which protects the integrity of both religious practice and secular governance - has likely done more than anything else to sustain the predominant and diverse culture of faith in American society.
Justice Scalia - a "textualist" jurist who strictly interprets the Constitution as written - should have known better than to argue otherwise. The text of the Constitution makes no reference to the government's religious neutrality as simply guaranteeing impartial treatment among religious denominations. The First Amendment clearly states that "Congress shall make no law respecting the Establishment of religion...or the free exercise thereof." These plain words convey a simple but powerful message: Government may not support religion of any kind nor interfere with anyone's religious observance.
In fact, precisely because the founders lacked Justice Scalia's full confidence in majoritarian democracy, they constructed the constitutional wall between church and state in order to ensure that minority faiths and nonbelievers could hold their ground in the political arena. James Madison, the primary author of the First Amendment, warned that legislation in support of religion - even Justice Scalia's so-called "neutral" legislation - "degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority."
In trying to bolster his argument, Justice Scalia reached beyond the text of the Constitution and into the pages of Jewish history. "Did it turn out that, by reason of the separation of church and state, the Jews were safer in Europe than they were in the United States of America?" he asked. "I don't think so," he answered. "You will not hear the word 'God' cross the lips of the French premier or an Italian head of state," Justice Scalia said. "But that has never been the American way."
Maybe so, but this comparison is both inapt and somewhat insensitive. The European experience with church-state separation is incomplete. Although many European countries have embraced the American aversion to national religious institutions, they have been less forthcoming in protecting the right of each individual to exercise his or her own faith freely. One need only look to the recent legislation in France prohibiting traditional religious garb in public schools and other state-run facilities for an example of what most Americans - atheists and believers alike - would view as blatant religious discrimination.
Indeed, it is the historic lack of a vigorous European commitment to promoting religious pluralism, rather than the secularity of European governments today, which explains the inadequacy of Justice Scalia's proffered evidence. Ironically, few can appreciate this point more than the Congregation of Shearith Israel, whose own founders' deep and abiding faith was enabled only by a nation's full commitment to the separation of church and state.

Thursday, December 16, 2004

More on Scalia's Media Shyness from a Trip to Clinton Country

Nino visited the University of Arkansas at Little Rock School of Law in October 2004. An article in the Arkansas Times, titled "Justice Scalia Comes to Town," (note Nino picture, kinda looks like a shorter James Garner, & I dig the natty cuff links!) discusses Justice Scalia's policy of not permitting anyone to use a video camera or tape recorder to record one of his speeches for later broadcast. The Arkansas Times reporter quipped that "possibly, he [Scalia] has only one speech, and is striving to keep it fresh" (noting that Nino gave an identical speech at Harvard's JFK Jr. Forum on 9/29/04).

Interestingly, the Arkansas Times article mentions that the federal judiciary is exempt from the Federal Freedom of Information Act ("FOIA"), so no one could get a federal court order to compel Nino to permit the recording of his speeches (which would take major cojones to do, in any event). I researched this, and, sure enough, under 5 U.S.C. Section 551 (1)(B) , "the courts of the United States" are exempted from the definition for "agency." The text of FOIA is at 5 U.S.C. Section 552, and is part of the Federal Administrative Procedure Act ("APA"), which governs federal agency practice, in general.

Another point to note, the article mentions that Scalia is the only U.S. Supreme Court Justice "who prohibits taping for broadcast." This is tougher to verify, but a trip to the Supreme Court's spiffy website under the links "public information," then "speeches," revealed no speech transcripts posted for Nino (but there weren't any transcripts posted from Js Thomas, Souter or Stevens, either). I'll have to do more research to find support for that assertion.

Times' Editorial Slugfest on Reid's Support for Scalia

Still smarting from Senate Minority Leader Reid's comments in support of a potential Chief Justice Scalia (see 12/07/04 post), the liberal New York Times railed against Scalia in a 12/10/04 editorial . The New York Times chastised Nino again for not recusing himself from Cheney v. U.S. Dist. Ct. D.C., __ U.S. __ (2004), because he went duck hunting with V.P. Cheney. The editorial goes on to say that "[t]here is far more than personal ethics to plumb in Justice Scalia's ultraextreme record . . . [and that Scalia has a] . . . retrogressive record on constitutional law."

On 12/12/04, the conservative Washington Times responded to the New York Times piece in an editorial titled "Liberal Bigotry, NYT Style." The Washington Times attacked the New York Times for using knee-jerk liberal terms to describe Nino's jurisprudence:
"how glibly they [the New York Times] describe their targets as an 'embarassment,' or 'retrogressive' or 'ultraextreme' without providing any evidence to substantiate their attacks. Their attitude is one of supreme arrogance: Mr. Reid and the NYT are liberals, they are smarter than the rest of us, they are morally superior to the rest of us, and they don't have to lower themselves to explain why conservatives are inferior and backward. "



Wednesday, December 15, 2004

Scalia's November University of Michigan Speech

Once again, sorry I'm late on this one. But, I have a lot of catching up to do with this blog. Last month, Nino paid a visit to wolverine country and gave the University of Michigan Law School's DeRoy Lecture, titled "Constitutional Interpretation." Apparently, Nino doesn't like his speeches to be recorded (because the Founding Father's didn't have cassette recorders?) But, a resourceful Mich law student, Heidi Bond, created a "live blog "of the event. Ms. Bond did a fine job capturing Nino's lecture. Her live blog is a little hard to follow - like reading another person's notes when you miss a class. But, it's still worth a look.

After reading Ms. Bond's blog, I think it's interesting that Nino believes oral arguments are so important. Anyone who took legal writing in law school learns that a well-written brief is more important than the oral argument. It's almost a cliche that appellate judges make up their minds about a case before oral arguments. Because the U.S. Supreme Court only grants certiorari for about 100 cases a year, maybe they can spend more time pondering oral arguments?

Anyway, I thought there'd be more discussion of the 2003 Equal Protection clause cases involving the U of M, Grutter v. Bollinger & Gratz v. Bollinger. Remember, the Court upheld the law school's race-conscious admissions policy in Grutter (based on a "critical mass" of minority students), but struck down the undergraduate policy in Gratz. Scalia's opinion (concurring in part, dissenting in part) in Grutter asserted that the "Grutter-Gratz split double header seems perversely designed" to prolong litigation on college admission policies that consider race as a criteria. Time will tell if the plaintiff's bar picks up on college admission policy chasing.

Tuesday, December 14, 2004

Scalia Bibliography (unannotated)

This blog's mission is to collect all available information on Justice Scalia. With that in mind, I discovered this excellent bibliography of (non-judicial) Nino-related writings, courtesy of Penn State's Dickinson School of Law's Library. I am writing an annotated Scalia bibliography, which I will post when completed.

Monday, December 13, 2004

Scalia Presides Over Court Today

Scotusblog notes today that the Court's empty "middle" of the bench (due to the absence of CJ Rehnquist, & J's Stevens & O'Connor) put Justice Scalia in the " probably unprecedented" position of presiding over the Court's oral argument session. For a courtroom seating chart , see this handy pdf "Visitor's Guide to Oral Arguments" provided by the Court.

Former Governor/Presidential Candidate Howard Dean Says Scalia "Sarcastic and Mean-Spirited."

Yesterday, (12/12), former Vermont Governor Howard Dean appeared on NBC's "Meet the Press." He had the following exchange with Tim Russert about Justice Scalia's judicial temperament:

"MR. RUSSERT: Harry Reid, the new leader of the Democrats, was on the MEET THE PRESS last week, and he said he would be open to Antonin Scalia being appointed chief justice of the Supreme Court. There may be some ethical problems, he said. If he could get by those, he was very much impressed by the brilliance of his mind.
DR. DEAN: Well, first of all, I like Harry Reid a lot. He's a straight shooter, and I think he's going to be a good leader. I disagree with him on this one. I think Antonin Scalia ought not to be on the Supreme Court let alone chief justice because I think he lacks judicial temperament.
MR. RUSSERT: Why?
DR. DEAN: Because when you--and I have appointed a great many judges as my career as governor--the second thing after a work ethic that you look for when you're appointing a judge or a justice is judicial temperament. That means--in our judicial system, it's very important for the loser and/or the winner in any case to be--to feel like they've been treated fairly and respectfully by the court system. That's what is the glue that binds us together as a society. When you are sarcastic and mean-spirited, as the justice often is from the bench, it leaves the losing--the loser in that case feeling as if they were not respected by the judicial system, and that's why you don't put people with bad temperament on the--on any court, and I certainly don't think they should be on the Supreme Court of the United States.
MR. RUSSERT: When specifically was he mean-spirited or sarcastic?
DR. DEAN: You've seen many, many times. I don't have a specific time, but you could go read almost any oral argument in the last year and find sarcastic, mean-spirited remarks from the justice in those arguments."

Hmmh. I wonder how many past nominations to the Supreme Court wouldn't have cleared the Senate if Dr. Dean's "sarcasm & mean-spirit" standard had been applied? Would there have been a Justice Hugo Black, or a Justice William Douglas? I guess if Dr. Dean hadn't had his histrionic primary meltdown, and somehow magically defeated an incumbent President, we could be looking forward to nice, warm and fuzzy U.S. Supreme Court nominees from snowy Vermont. OK, sorry, now I'm being sarcastic. But, it would have been nice if Dr. Dean could have cited recent and specific examples of caustic Ninoisms (that we know and love).

University of Wisconsin Law Professor, Ann Althouse, posted some interesting thoughts about Dr. Dean's comments on her blog, Althouse.

The Quotable Scalia

In promoting Scalia Dissents (reviewed in the prior posting), the Conservative Book Club provides the following gems edited from Justice Scalia's opinions:

-On religious freedom: "I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to require scrutiny more commonly associated with interior decorators than with the judiciary."
-On legislating from the bench: "Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis."
-On affirmative action: "Those who believe that racial preferences can help to 'even the score' display, and reinforce, a manner of thinking about race that was the source of the injustice and that will, if it endures within our society, be the source of more injustice still."
-On "gender equality": "The tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law."
-On the "right" to sodomy: "[The Texas anti-sodomy statute] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to 'liberty' under the Due Process Clause, though today's opinion repeatedly makes that claim. . . . The Fourteenth Amendment expressly allows States to deprive their citizens of 'liberty,' so long as 'due process of law' is provided. . . ."
-On abortion: "The notion that the Constitution of the United States, designed, among other things, 'to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,' prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd."
-On the death penalty: "Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members."
-On decency laws: "Perhaps the dissenters believe that 'offense to others' ought to be the only reason for restricting nudity in public places generally. . . . The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd."
-On tax-funded "art": "Avant-garde artistes such as respondents remain entirely free to epater les bourgeois [shock the middle classes]; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures 'aimed at the suppression of dangerous ideas.'"
-On the Pledge of Allegiance: "In Barnette, we held that a public school student could not be compelled to recite the Pledge; we did not even hint that she could not be compelled to observe respectful silence. . . . Logically, that ought to be the next target for the Court's bulldozer."
-On women as a victim group: "It is hard to consider women a 'discrete and insular minority' unable to employ the 'political processes ordinarily to be relied upon' when they constitute a majority of the electorate. And the suggestion that they are incapable of exerting that political power smacks of the same paternalism that the Court so roundly condemns."
-On judicial arrogance: "It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members' personal view of what would make a 'more perfect Union' (a criterion only slightly more restrictive than a 'more perfect world') can impose its own favored social and economic dispositions nationwide."
-On the independent counsel law: "How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile."
-On stare decisis (adhering to judicial precedent): "The Court's reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the 'central holding.' It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version."
-On parental rights: "In my view, a right of parents to direct the upbringing of their children is among the 'unalienable Rights' with which the Declaration of Independence proclaims 'all Men . . . are endowed by their Creator.'"
-On the "living Constitution": "I am left to defend the 'dead' Constitution. [This blogger's personal favorite.]"

"Scalia Dissents:" New Scalia Book.



A new book is out from conservative Regnery Publishing, Inc., titled Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice, edited and with commentary by Kevin A. Ring, Esq. I just got a copy, and I commend attorney Ring for a job well done. Scalia Dissents is a highly readable introduction to Justice Scalia’s judicial philosophy. Ring selects and edits excerpts from Nino’s most representative opinions (not just dissents, though), and provides a non-legalistic discussion of Scalian jurisprudence. Ring omits many citations from his commentary, and Scalia’s edited opinions, to avoid clutter and to make the text more readable for non-lawyers. I highly recommend Scalia Dissents for lawyers and laypeople alike.

Scalia Dissents contains twelve chapters. Chapter one presents Scalia’s judicial philosophy in a nutshell. Axiomatic to Scalia is the rejection of a “Living Constitution” (ala Justice Brennan.) To Scalia, the “Living Constitution” movement permits judges to reject the plain text meaning of the Constitution, and opens the door for judicial interpretation that follows fashionable ideological whim. Noteworthy is Ring’s readable explanation of the distinction between Scalia’s “textualism/originalism,” and the “strict constructionism” embraced by conservatives, including President Bush. Citing to Scalia’s essay, A Matter of Interpretation, Ring writes:

where a strict constructionist might see the First Amendment as protecting “speech” and “press” and only activities that fit into one of these categories, Scalia says the First Amendment covers communication more generally. Thus, while a handwritten letter might not fall under “speech” or “press” for strict constructionists, he [Scalia] thinks such a letter is undoubtedly protected by the First Amendment. (Scalia Dissents at 9.)

A Scalian textualist/originalist may look to historical sources for guidance on word meaning, but would not use these materials to garner the Framers’ intent. Rather, Scalia looks for “the original meaning of the text, not what the draftsmen intended.” (See Matter of Interpretation at 38.)

Ring concludes the first chapter defending Scalia from popular criticism. Ring doesn’t hide his intense admiration for Justice Scalia, or his philosophical kinship with Nino. For example, in the introduction, Ring writes of something he calls a “Scalia moment.” When reading a Nino-penned opinion, that “moment” arises with “ a witty line or turn of phrase that makes you laugh aloud, an insight or observation that makes you nod your head in agreement, or a caustic barb that makes you wince for the target.” Ring wrote a recent (11/25/04) op-ed piece in the conservative Washington Times, arguing in favor of a possible Chief Justice Scalia. Ring has also appeared on several radio talk programs, describing himself as a Scalia Uberfan and admirer. If you’re looking for fuel to stoke the fire of burning hatred for conservatives, you won’t find it in Scalia Dissents. But hey, what do you expect?! Scalia Dissents is published by Regnery, the publisher of books like Shut Up & Sing, by Laura Ingraham, and Legacy: Paying the Price for the Clinton Years.

My only real gripe with Scalia Dissents is that I wanted Ring to provide more evidence to counter Scalia’s numerous critics. Ring does an admirable job arguing that Scalia consistently applies his textualist/originalist methodology, but I wanted more examples. He fends off the criticism that Scalia is really a stealth conservative judicial activist, hiding behind a veil of non-activism, by citing to Nino’s dissent in BMW, Inc. v. Gore, 517 U.S. 559 (1996)(arguing to uphold a state court’s $2 billion punitive damages award). Ring could discuss more instances where Scalia remains true to his textualism, even if it runs counter to conservative political opinion. For example, in Kyllo v. U.S., 533 U.S. 27 (2001), Scalia shocked the law enforcement community by holding that thermal imaging scans of a home constitute a search within the meaning of the Fourth Amendment. Scalia rendered Kyllo before the events of 9/11, but I believe he would still rule the same in our security-obsessed times. Ring only cites Kyllo once in a bibliography of Scalia’s opinions at the end of the book.

But in all fairness, Ring mentioned in a FrontPageMag.com interview that he wants Scalia Dissents to be a “Scalia’s greatest hits.” And Ring does an admirable job of giving us Nino’s chart toppers. Chapters two through twelve are arranged topically, with brief comments and introductions to the well-selected Scalia opinions. Here’s the breakdown of topics and excerpted opinions:
Chapter Two: “Intepreting Laws,”P.G.A. Tour, Inc., v. Martin, 532 U.S. 661(2001) (dissenting);
Chapter Three: “Separation of Powers,” Morrison v. Olson, 487 U.S. 654 (1988) (dissenting);
Chapter Four: “Race,” Richmond v. J.A. Crosson Co., 488 U.S. 469 (1989)(concurring); Adarand Constructors, Inc. v. Pena,515 U.S. 200 (1995) (concurring); Grutter v. Bollinger, _U.S.__ (2003)(concurring & dissenting);
Chapter Five: “Abortion,” Webster v. Reproductive Health Services, 492 U.S. 490 (1989) (concurring); Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992)(concurring & dissenting); Stenberg v. Carhart, 530 U.S. 914(2000)(dissenting);
Chapter Six: “Death Penalty,” Callins v. Collins, 510 U.S. 1141 (1994)(concurring); Atkins v. Virginia, 535 U.S. 304 (2002)(dissenting);
Chapter Seven: “Religious Freedom,” Lee v. Weisman, 505 U.S. 577 (1992)(dissenting); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993)(concurring);
Chapter Eight: “Gender Equality,” U.S. v. Virginia, 518 U.S. 515 (1996)(dissenting)
Chapter Nine: “Free Speech,” McConnell v. Fed. Election Comm’n., __U.S. __(2003)(concurring & dissenting);
Chapter Ten: “Non-Speech and Un-Free Speech,” Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)(concurring); Nat’l. Endowment for the Arts v. Finley, 524 U.S. 569 (1998) (concurring);
Chapter Eleven: “Homosexuality,” Lawrence v. Texas, __U.S.__(2003)(dissenting)
Chapter Twelve: “Other Rights,” Cruzan v. Missouri Dept. of Health, 497 U.S. 261 (1990)(concurring); Troxel v. Granville, 530 U.S. 57 (2000)(dissenting).

Ring concludes Scalia Dissents with a short, utopian epilogue, titled “Scalia’s America.” In “Scalia’s America,” Ring writes, “freedom, democracy, and diversity would be ably protected by, among other institutions, courts that respect the rule of law.” I don’t disagree with the Scalian thesis that the judiciary occasionally usurps legislative power. Since Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803), however, courts have the authority to review the constitutionality of legislative action. As such, there will always be some judicial overstepping into the province of legislators. But, for the most part, judges do apply the plain-meaning text of statutes and constitutions to resolve real life legal disputes. One need not travel to a fictive “Scalia’s America” to find workaday judges respecting the text of laws as written.

In sum, Ring has thoughtfully selected and edited “the best of Scalia.” And Ring’s commentary is well-written in a pithy, unadorned style, reminiscent of Nino himself. Scalia Dissents belongs on the shelves of all those who admire Justice Scalia’s verbal craftsmanship and intellectual integrity.

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!

Tuesday, December 07, 2004

Comments on Scalia's November 2004 N.Y. Synagogue Visit

According to a November 22nd AP story, J. Scalia attended a gathering at Manhattan's Shearith Israel Synagogue, an Orthodox temple where Justice Benjamin Cardozo once worshipped. Never one to shy away from controversy, Nino reportedly commented on the Holocaust by ambiguosly stating, "[d]id it turn out that, by reason of the separation of church and state, the Jews were safer in Europe than they were in the United States of America? I don't think so."
Well, at least two progressive commentators, Thom Hartmann and Maureen Farrell wasted no time responding to Nino's views on European history.

Leading Democrat Supports a CJ Scalia?

Today's Washington Post reports that Senate Minority Leader Harry Reid said "he could support [J. Scalia] to be chief justice of the United States because he is 'one smart guy.'" No one doubts Nino's brilliance. But, could you imagine Tom Daschle making such an endorsement? Senator Reid's support for Scalia is not that extraordinary, though. The Almanac of American Politics (2004, p. 987) says that Reid "has a conservative record on some issues . . . [h]e is against abortion . . . and has opposed environmental groups consistently on mining issues."Of course, liberals are freaking out. For comments on Senator Reid's statements (first aired on 12/05/04's "Meet the Press,"[get transcript here]), see Election Law blog and USD Law & Politics

Why Ninowatch?

An article appeared on the front page of The New York Times from Sunday May 2, 2004, titled "In Re Scalia the Outspoken v. Scalia the Reserved." (It's archived, so $$.) The article chronicles Justice Scalia's ever-truculent rhetoric, both in his opinions, as well as in his public speeches. After reading the article, I searched the blogosphere for a weblog discussing Justice Scalia. I was surprised to find none! So, all summer long I kicked myself - why don't you start a Scalia blog!? I mean hey, I'm a law librarian with access to scads of research info. And I'm way into Con. Law. But, I just didn't want to invest the time - like most guys, I just didn't want to commit.

This past November, I attended the Internet Librarian 2004 conference in Monterey, California. (A terrific conference, btw.) At IL 2004, I learned about the free, insta-blog service from our non-evil friends at the Googleplex. So, I could make no more excuses - go forth and blog!

And now a brief mission statement. Since his appointment to the United States Supreme Court by President Ronald Reagan, and his 65-33 vote confirmation by the Senate on September 17, 1986, Associate Justice Antonin Scalia (aka "Nino") has been scorned by the Left, and championed by the Right. He calls himself a "textualist" and "originalist," but his critics view him as "more Bork than Bork." Whatever ideological view you have of Nino, though, you have to admit that he's the best writer on the Court, and loads of fun, too. Do any other Justices use words like Kulturkampf in their opinions? (See Romer v. Evans, 517 U.S. 620, 636 (1995) (Scalia, J., dissenting).)

So, I humbly intend for Ninowatch to be a repository of information, musings, and polemics (both Right & Left) about Justice Scalia. Ninowatch will not endorse any ideological position on J. Scalia (although I'm a Mondale Democrat). Rather, my hope is that Ninowatch will serve as a non-partisan and useful conduit for Il spirito Nino.

Photo of ancient Scalia statue


Ad Nino nota bene. Posted by Hello