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Friday, April 16, 2004

Scalia gets more props

The Johns Hopkins Newsletter writes today about how the "Supreme Court needs Scalia's bravado." I read the article, and am glad that my boy is getting the due he deserves, but there are a few things which need to be noted:
"The first case involved private meetings of Vice President Cheney's energy task force and was brought by the Sierra Club (in re: Richard Cheney). Three weeks after the Court agreed to hear the case, Scalia and Cheney went duck hunting with a mutual friend. After the Sierra Club filed a motion asking Scalia to recuse himself from the case due to the appearance of "impropriety," Scalia wrote a 21-page response, announcing why he would not recuse."


The second case was the subject of my last column, Elk Grove Independent School District v. Newdow, Scalia was asked to recuse himself after remarks he made at a Religious Freedom rally in which he commented directly on the case. Reportedly, Scalia said, "Removing references to God from public forums would be "contrary to our whole tradition.'"

This is one of those issues which is incredibly interesting to watch in action. The shift away from originalism and other forms of textualism to the "whatever the individual says" mode of judicial interpretation has forced such a politicization of the court that, instead of filing their amicus briefs and shutting the face, these groups feel the need to try and remove justices who they know will disagree with them. Now, I'm not a big one for conspiracy theories, but it doesn't seem as if it will be too distant in the future that the private lives of the justices will be scrutinized so groups can attempt to force recusals and shape verdicts. The justices were specifically given life terms in the constitution in order to avoid just this sort of silly politiking in the courts - yet that's where the trail away from originalism seems to have led. Not just to where appointments are hugely political, but where the actual operation of the court hinges upon the democratic will of the masses. Just watch to see some sort of legislation regarding coerced recusals in the future.

That aside, however, I'm at a loss to see exactly what the issue is with Justices giving their opinions on pending cases. Even if Scalia came right out and said, "the pledge can be mandated in schools, and ain't nothing going to change my mind on that" - where's the harm? We all certainly know that he does believe that, so is the problem with him saying it? He's written very elloquent dissents on the matter, many of which are quite a few pages long. They're in the public record. The confirmation hearings for the various justices are televised on C-Span, where their personal beliefs regarding all manner of politically salient potential cases come up. Yet somehow, people flip out when he goes to a school and says what we all know he thinks, what he's said a thousand times before.

cranked out at 7:46 PM | |

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