Re: Teacher, He Pricked My Conscience


All justices presumably have methods they use to determine the constitutionality of a given case. Scalia seems to arouse Lithwick's ire primarily (well maybe not primarily -- she also clearly thinks he's a jerk) because he's explicit about what that method is.

This baffles me. I might have thought it would be *nice to know* why members of the supreme court vote as they do. Unpredicatibility doesn't imply bias. We all know how Ginsberg will vote on abortion cases. This doesn't make her an unfair judge, it makes her committed to a certain approach to consitutional law. Who benefits from a kabuki play wherein we pretend that she reconsiders the fundamental rationale of Roe v. Wade every year?

Scalia's just upfront about what he thinks. Here again, the protests ring hollow to me. Can anyone actually be surprised that an originalist doesn't believe in a consitutional right to die? It's freaking axiomatic for Scalia, and everyone knows it.

Letting the cat out of the bag may be *imprudent* of him, or barred by guild rules, but it's hardly immoral. Indeed, I consider Scalia's candor as a virtue. Wouldn't it be nice if every member of SCOTUS provided a document like "A Matter of Interpretation" so we could figure out just why they're overturning laws we voted for?


And another thing! Lithwick is wrong on the facts on a key point. Scalia has never claimed that Catholics "who agree with the pope" on capital punishment should resign from the bench. Rather, he's said that if your religious conviction makes it impossible for you to *uphold the law of the land* as a judge, you should resign. You can find the whole thing here, but a two paragraph exercpt should suffice:

"But while my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of "the machinery of death." My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral."


"I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty—and if that fails, lead a revolution. But rewrite the laws he cannot do. "

So, to rap this rant up:

supreAmong the treasures of Lithwick's peice we have:

1. The confusion of impartiality with unpredictability.

2. The incorrect-on-the-facts assertion that he urged Catholics who agree with the pope to resign from the bench.

Posted by: baa | Link to this comment | 11- 3-03 4:52 PM
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ah fudge. ignore the last four lines.

Posted by: baa | Link to this comment | 11- 3-03 4:53 PM
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It's hot when you rant about the Supremes, baa. Here's a question: the court is bound to some extent by stare decisis, as at least one opinion in the Casey decision went on about-- but do individual justices have a commitment to precedent that overrides their principles of constitutional interpretation? That is, since Griswold, Roe, Lawrence, Casey, etc. seem to affirm a broad interpretation of liberty interests, does Scalia have some pro tanto reason to uphold it, even though he thinks it's based on a bad interpretive position?

Posted by: fontana labs | Link to this comment | 11- 4-03 8:26 AM
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That's a great question! To which I confidently answer: I have no idea. How the complex weighing of stare decisis and original intent sorts out for Scalia, and for other originalists, seems like a fascinating problem.

Larry Solum has written extensively on the topic at his blog (, no 'www' prefix) under the desription 'neo-formalism.' And the book where Scalia, Tribe, Dworkin, and Glendon duke it out is a fun read.

Posted by: baa | Link to this comment | 11- 4-03 9:35 AM
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