Your Lying Eyes

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19 February 2007

The Scalia Challenge

I was watching the PBS Supreme Court program last night, and noted that in discussing Justice Scalia's spirited dissent in Casey, one commentator noted that Scalia abhors the "imperial court" but is just as imperial himself in his opinions. I've heard this claim before - that Scalia (or any other conservative judge) is just as much an activist himself on conservative issues.

So my challenge is this: find evidence in Scalia's opinions where he makes law(1), or otherwise interposes his personal values(2) onto the law or constitution. Exception duly noted: Bush v. Gore. Though I might not agree, I will cede that Scalia was 'activist' in this one case for purposes of moving the discussion along and not rehashing that case. Here are summaries of his opinions through 1998. Here are all his opinions. While my blog readership (a small enough sample to begin with) probably has a very limited Scalia-bashing contingent, I'm hoping someone will rise to the challenge and at least attempt to validate this canard.

(1) Introduces rules, tests or procedures not found in the original law or constitutional text that effectively defines the law
(2) Employs language to justify his decision on the basis of what "ought to be" or what is "fair or unfair."

3 Comments:

Anonymous daveg said...

I will even defense scalia in Bush v Gore.

Scalia did not make an activist ruling in that case, although he sided with the activist.

He did so with a concurring opinion that arrived at the same outcome using much more sound logic and constitutional reasoning.

February 21, 2007 12:52 PM  
Anonymous Russell said...

I ignore such claims about Scalia unless they cite specific examples. It's their responsibility to adduce the evidence, not mine to disprove a general, unsupported accusation.

When they have cited specific examples, they're wrong in every instance I've encountered.

February 21, 2007 4:01 PM  
Anonymous Anonymous said...

What would conservative judicial activism look like? Hmmm....

how about this
You have the right to keep and bear arms, if you can't afford an AR-15, one will be purchased for you by the court at public expense. (Following basically the same argument as the right to a lawyer being meaningless if you couldn't afford one).
You have the right to a Nativity scene, if you can't afford one, one will be provided for you by the court.
I'm sure there are others if one applied the same logic of activist decisions with conservative or reactionary goals :->
Seen any decisions like that? Didn't think so

February 21, 2007 6:20 PM  

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