[EL] Justice Scalia

[Richard Winger]

There is some commentary about Justice Scalia yesterday saying members of Congress in their hearts may desire to vote against extending the voting rights act, but they are intimidated.

He said something very similar in Clingman v Beaver, at the oral argument on Jan. 19, 2005.  The issue was whether the Libertarian Party of Oklahoma could demand an open primary for itself.  Oklahoma law didn't let qualified parties choose to have an open primary.  Parties could have a closed primary or a semi-closed primary.  The 10th circuit had ruled that if the Libertarian Party wanted to invite all registered voters into its primary, that was its right.  The US Supreme Court reversed.

At the oral argument, the state said the reason for preventing the Libertarian Party from inviting all voters to participate in its primary was that this would injure the Democratic and Republican Parties.  Justice Ginsburg asked the attorney for Oklahoma, if this is true, why hasn't either major party intervened in this case, or why hadn't they at least filed an amicus brief.  Justice Scalia then obtained the floor and said, "If I were the state chair of the Democratic or Republican Parties, I might want the law upheld, but I still wouldn't intervene in the case because it would look bad to the voters."

So, in those two cases, he relies on what he thinks certain groups think, instead of relying on what they actually say or choose not to say.

Richard Winger

415-922-9779

PO Box 470296, San Francisco Ca 94147
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